K. Ganesan v. Chairman and Managing Director,Nuclear Power Corporation of Indian Limited,Mumbai-400 094

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 26..02..2008C O R A MThe Honourable Mrs. Justice PRABHA SRIDEVANWrit Petition No.222 of 2008K. Ganesan .. Petitioner versus1.Chairman and Managing Director,Nuclear Power Corporation of Indian Limited,Mumbai-400 094.2.SO/H & Inquiring Authority,NPCIL Hqs.12/S/2, VSB,Nuclear Power Corporation of India Ltd.,V.S. Bhavan, Anushakthinagar,Mumbai-400 094... RespondentsPRAYER : Writ Petition filed under Article 226 of theConstitution of India praying to issue a writ of mandamus,directing the respondents to keep all proceedings pursuant toOrder No.NPCIL/Disc.Cell/C-49/2007/M/205 dated 18.6.2007,issued by the first respondent in abeyance till the completionof the criminal proceedings in C.C. No.28 of 2006 on the fileof the Principal Special Judge for CBI Cases, Chennai. For Petitioner : M/s. P.V.S. Giridhar Associates For Respondents : Mr. V. Vijay ShankerO R D E RThe often arising question regarding parallel progress of criminalproceedings and disciplinary proceedings arises in this writ petition.2. The petitioner is working as a Scientific Officer in MadrasAutomic Power Station (MAPS), Kalpakkam, which is a very sensitive post.The standard of integrity and discipline required of such an officerneeds hardly to be stressed. https://hcservices.ecourts.gov.in/hcservices/

3. On 30.9.2004, an F.I.R. was registered by the C.B.I. against thepetitioner alleging that he had committed the offences under Sections120-B, 419, 420, 467, 468 read with 471 of the Indian Penal Code andSection 13(2) read with Section 13(1)(d) of Prevention of CorruptionAct, 1988. The C.B.I. filed a charge sheet in the Court of PrincipalSpecial Judge for C.B.I. Cases, Chennai. On 18.6.2007, the firstrespondent served upon the petitioner a charge memo alleging that thepetitioner had committed acts of gross misconduct, viz. failure tomaintain absolute integrity and devotion to duty, commission ofactivities detrimental to the interest of the Corporation, causingdisrepute to the Corporation and also for acts of omission andcommission in contravention of the Nuclear Power Corporation of IndiaLimited Conduct Rules, 1994. The petitioner was placed under suspensionon 22.2.2007. By order dated 10.11.2007, he was granted subsistenceallowance. On 12.7.2007, he submitted a letter seeking two months' timeto reply to the charge memo and pointing out that the criminalproceedings in C.C. No.28 of 2006 were in progress. On 21.8.2007, theAdditional General Manager declined to grant two months' time, butgranted 15 days' time to the petitioner. The petitioner's request forengagement of a legal practitioner was also not acceded to. Thepetitioner then gave a letter on 5.9.2007 requesting the firstrespondent to furnish copies of documents and statements of witnesses.On 25.10.2007, the Enquiry Officer was appointed and by order of thesame date, the Presenting Officer was also appointed. The petitionerreceived notice on 23.11.2007 for attending the preliminary hearing on6.12.2007. On that day, the petitioner was permitted to inspect thedocuments on which reliance was placed. The petitioner, by letter dated5.12.2007, pointed out that since the criminal proceedings had alreadycommenced and as the evidence in the criminal proceedings and thedepartmental proceedings were identical, the compulsion to participatein the departmental enquiry would gravely prejudice him. The EnquiryOfficer refused to keep the enquiry in abeyance and called upon thepetitioner to furnish the name of his defence assistant, the names andaddresses of the defence witnesses and additional defence documents, ifany. According to the petitioner, there has been no response to hisrequest to keep the enquiry in abeyance and therefore, he has filed thiswrit petition.4. Notice of motion was ordered and a limited stay was granted. On21.1.2008, learned counsel for the respondents took notice and submittedthat the counter will be filed and the matter should be taken up sincethe disciplinary proceedings are being held up endlessly. The counterwas filed. By consent, the main writ petition itself was argued. 5. Learned counsel for the petitioner submitted that if one readsthe charge sheet filed by the C.B.I. and the charge memo issued by thefirst respondent, it would be clear that the charges are identical, they https://hcservices.ecourts.gov.in/hcservices/ relate to the same occurrences and the witnesses are also the same andtherefore, unless the disciplinary proceedings are stayed, thepetitioner would be compelled to disclose his defence in thedepartmental proceedings, which would in turn, prejudice him in thecriminal proceedings, where he has the right to silence. Learnedcounsel relied on 2006 (1) C.T.C. 689 [Indian Overseas Bank vs. P.Ganesan], (2004) 7 S.C.C. 27 [State Bank of India vs. R.B. Sharma],(2006) 5 S.C.C. 446 [G.M. Tank vs. State of Gujarat] and also the oftcited judgment in (1999) 3 S.C.C. 679 [Capt. M. Paul Anthony vs. BharatGold Mines Ltd.]. Learned counsel submitted that while without doubtthere cannot be any straitjacket formula which would apply to all cases,in this particular case, the allegations in the F.I.R. are the basis forthe charges of misconduct and therefore, in this case, the petitioner'sprayer must be granted.6. Learned counsel for the respondents submitted that it would beclear on a reading of the charge sheet and the charge memo that both areindependent and can be dealt with separately. As regards the criminalprosecution, the offences involved are conspiracy, impersonation, etc.,whereas in the departmental proceedings, the charges inter alia relateto failure to maintain integrity and extending assistance to privateagencies and engaging himself in private trade with dishonest intentionof procuring business from MAPS etc. Learned counsel submitted that nocomplex questions of law and facts are involved and in the criminalprosecution, as many as 58 witnesses have been named and 212 documentshave been produced, whereas before the Enquiry Officer, the witnesses tobe examined will only be those who are required to establish themisconduct. Learned counsel further submitted that the departmentalproceedings need to be completed within the shortest possible time andthe petitioner has already tried several ruses to have them postponedand that cannot be done. Learned counsel referred to 2007 (5) C.T.C.632 [Indian Overseas Bank vs. P. Ganesan] which arose out of 2006 (1)C.T.C. 689 (supra) relied on by the petitioner, in which the judgment ofthis court was reversed by the Supreme Court. Learned counsel alsorelied on 2007 (6) M.LJ. 1329 [R. Venkatachalapathy vs. Senior Manager,Indian Overseas Bank], where a Division Bench of this Court held thatcriminal proceedings and departmental proceedings can go onsimultaneously. 7. Should the disciplinary proceedings be stayed? Etymologically,the word "corruption" comes from a word which means "to tear".Corruption tears the social and economic fabric of our country.Corruption is a violation of human rights. The violaters have to beswiftly identified and checked. Protraction of the proceedings is notin the interest of the public nor the individual. For, if the officerwho is charged is innocent, as he claims to be, he need not have theDamocle's Sword hanging over his head perilously for too long. It is tohis advantage to co-operate in the conduct of the proceedings. https://hcservices.ecourts.gov.in/hcservices/

8. The narration of facts in this case show that the criminalproceedings are in progress in the Special Court. As far as thedisciplinary proceedings are concerned, the allegations made against thepetitioner are of a very grave nature. The organisation where thepetitioner works is one of the operating stations of the Nuclear PowerCorporation of India Limited coming under the administrative control ofthe Department of Energy, Government of India. While there can be nodoubt that every Government employee or every employee who comes underthe administrative control of the Government of India or the StateGovernment is required to have the utmost integrity, discipline andadherence to duty, there are certain organisations where stricteradherence to these standards are required of the employees. Therespondent/organisation is one such organisation. Enforcement ofdiscipline and ensuring that the ones who have strayed are eliminated isnecessary so that others in the organisation will know what is requiredof each one of them. The disciplinary proceedings are in progress;subsistence allowance is being paid. The copies of all the relevantdocuments have already been made available to the petitioner. Thepetitioner has also been permitted to appoint a defence assistant tohelp him in the disciplinary proceedings. The charges made against thepetitioner in the disciplinary proceedings show inter alia that he isalleged to have engaged in private trade through two fictitious firmsfloated by his close relatives; and that he has flouted the guidelinesand issued a Certificate of Registration in favour of one of thesefictitious firms, in the letter head of MAPS; and that he has used hisofficial position to issue purchase orders in favour of the aforesaidfirms. The charges against the petitioner in the criminal case are withregard to withdrawal of amounts from bank accounts where paymentsreceived from MAPS were deposited by the petitioner by impersonationwhich caused wrongful loss to the respondent-Corporation; production offorged sales tax and commercial tax certificates and other suchoffences. The documents filed in the typed set of papers would showthat the petitioner has been taking time from 12.7.2007 before theEnquiry Officer on the ground that he cannot be compelled to participatein the departmental proceedings at this stage of the disciplinaryproceedings.9. Now, let us look into the judgments relied on by the petitioner.2006 (1) C.T.C. 689 (supra) has been reversed by the Supreme Court andtherefore, this will not be relied on. In (2004) 7 S.C.C. 27 (supra),the matter was remanded to the High Court not because the Supreme Courtaccepted that the departmental proceedings had to be stayed, but becausethe Supreme Court found that the High Court had "after noticing therival submissions....., come to an abrupt conclusion that the petitionerin the case before it (employee) has been able to show substantiallythat the entire matter in the departmental proceedings and before thecriminal court is the same. No details have been indicated to justify https://hcservices.ecourts.gov.in/hcservices/ this conclusion". The Supreme Court observed that even though elaboratereasoning is not necessary, a skeletal description of how there issubstantial similarity must be indicated and even that had not been donethere. So, it is on this score that the matter was remanded, notbecause of the fact that the contention that disciplinary proceedingsshould be normally stayed during the pendency of criminal proceedingswas accepted. (2006) 5 S.C.C. 446 (supra) is also not applicable tothis case because that was a case where the employee was honourablyacquitted during the pendency of the disciplinary proceedings and inthat circumstance, the Supreme Court held that a finding to the contrarycould not have been recorded in the disciplinary proceedings.Therefore, this decision also does not come to the aid of thepetitioner. 10. Now let us look at the decisions relied on by the respondents.2007 (5) C.T.C. 632 arose, as stated earlier, against 2006 (1) C.T.C.689. In (1999) 3 S.C.C. 679, what is known as Paul Anthony's case,which is relied on by every officer who faces parallel proceedings, theSupreme Court has held thus :"The conclusions which are deducible from variousdecisions of this Court referred to above are : (i) Departmental proceedings and proceedings in acriminal case can proceed simultaneously as there is no bar intheir being conducted simultaneously, though separately.(ii) If the departmental proceedings and the criminalcase are based on identical and similar set of facts and thecharge in the criminal case against the delinquent employee isof a grave nature which involves complicated questions of lawand fact, it would be desirable to stay the departmentalproceedings till the conclusion of the criminal case.(iii) Whether the nature of a charge in a criminal caseis grave and whether complicated questions of fact and law areinvolved in that case, will depend upon the nature of offence,the nature of the case launched against the employee on thebasis of evidence and material collected against him duringinvestigation or as reflected in the charge-sheet.(iv) The factors mentioned at (ii) and (iii) above cannotbe considered in isolation to stay the departmentalproceedings but due regard has to be given to the fact thatthe departmental proceedings cannot be unduly delayed.(v) If the criminal case does not proceed or its disposalis being unduly delayed, the departmental proceedings, even ifthey were stayed on account of the pendency of the criminalcase, can be resumed and proceeded with so as to conclude themat an early date, so that if the employee is found not guiltyhis honour may be vindicated and in case he is found guilty,the administration may get rid of him at the earliest." https://hcservices.ecourts.gov.in/hcservices/ It is on the basis of the above guidelines that an order of stay isrequested.11. Every officer facing charges cannot jump onto the Paul Anthonybandwagon. That was a case where no subsistence allowance was paid.The appellant before the Supreme Court could not defend himselfproperly; he fell ill; he could not attend the enquiry and the matterwas heard ex parte; then, the criminal court acquitted him; but mostimportantly the "raid and recovery" was the sole basis for the criminalprosecution and the departmental action. So, the Supreme Court said :"Since the facts and the evidence in both the proceedings,namely, the departmental proceedings and the criminal case werethe same without there being any iota of difference, thedistinction, which is usually drawn as between the departmentalproceedings and the criminal case on the basis of approach andburden of proof, would not be applicable to the instant case." We cannot, therefore, automatically apply the decision in that case toevery case. I am bound to examine whether the facts in the case onhand require its application.12. In 2007 (5) C.T.C. 632, the Supreme Court held thus :"Legal position operating in the field is no longer resintegra. A departmental proceedings pending a criminalproceedings does not warrant an automatic stay. The superiorCourts before exercising its discretionary jurisdiction inthis regard must take into consideration the fact as towhether the charges as also the evidence in both theproceedings are common and as to whether any complicatedquestion of law is involved in the matter."....."The standard of proof in a disciplinary proceedings andthat in a criminal trial is different. If there areadditional charges against the delinquent officers includingthe charges of damaging the property belonging to the Bankwhich was not the subject matter of allegations in a criminalcase, the departmental proceedings should not have beenstayed......"In 2007 (6) M.L.J. 1329 (supra), the following paragraphs are relevant :"We find absolutely no merit in the submission of thelearned counsel. It is well settled that departmentalproceedings and criminal proceedings are entirely different innature. They operate in different fields and they havedifferent objectives. In departmental proceedings, theEnquiry Officer is not bound by any technical rules ofevidence and procedure. The degree of proof which isnecessary to record an order of conviction is different from https://hcservices.ecourts.gov.in/hcservices/ the degree of proof necessary to record the commission of adelinquency. The rule relating to appreciation of evidence inthe two proceedings is also entirely different."....."The question as to whether simultaneous and parallelproceedings of criminal trial and departmental enquiry arepermissible in law was considered at length in State ofRajasthan vs. B.K. Meena, A.I.R. 1997 S.C. 13, where theSupreme Court observed :"The charges against the respondent are veryserious. They pertain to misappropriation of publicfunds to the tune of more than Rupees one crore. Theobservation of the Tribunal that in the course ofexamination of evidence, new material may emerge againstthe respondent and he may be compelled to disclose hisdefence is, at best, a surmise – a speculatory reason.We cannot accept it as valid. .....It is in his interest and in the interest of goodadministration that the truth or falsity of the chargesagainst him is determined promptly. To wit, if he is notguilty of the charges, his honour should be vindicatedearly and if he is guilty, he should be dealt withappropriately without any avoidable delay. The criminalcourt may decide – whenever it does – whether therespondent is guilty of the offences charged and if so,what sentence should be imposed upon him. The interestof administration, however, cannot brook any delay indisciplinary proceedings......There is yet another reason. The approach and theobjective in the criminal proceedings and thedisciplinary proceedings is altogether distinct anddifferent. In the disciplinary proceedings, the questionis whether the respondent is guilty of such conduct aswould merit his removal from service or a lesserpunishment, as the case may be, whereas in the criminalproceedings the question is whether the offencesregistered against him under the Prevention of CorruptionAct (and the Indian Penal Code, if any) are establishedand, if established, what sentence should be imposed uponhim. The standard of proof, the mode of enquiry and theRules governing the enquiry and trial in both the casesare entirely distinct and different. Staying ofdisciplinary proceedings pending criminal proceedings, torepeat, should not be a matter of course but a considereddecision......" https://hcservices.ecourts.gov.in/hcservices/ "In a recent decision in Ajit Kumar vs. Indian OilCorporation, (2005) 7 S.C.C. 764, the employee was dismissedfrom service in exercise of the power under the StandingOrders of the Corporation. He was, however, acquitted by acriminal court in a case instituted against him. He,therefore, contended that after acquittal, he was entitledto reinstatement with full back wages. Rejecting theargument and explaining the scope of criminal prosecution anddepartmental enquiry, the Court observed as follows:"As far as acquittal of the appellant by a criminalcourt is concerned, in our opinion, the said order doesnot preclude the Corporation from taking an action if itis otherwise permissible. In our judgment, the law isfaily well settled. Acquittal by a criminal court wouldnot debar an employer from exercising power in accordancewith Rules and Regulations in force. The two proceedings– criminal and departmental – are entirely different.They operate in different fields and have differentobjectives. Whereas the object of criminal trial is toinflict appropriate punishment on the offender, thepurpose of enquiry proceedings is to deal with thedelinquent departmentally and to impose penalty inaccordance with the service Rules. In a criminal trial,an incriminating statement made by the accused in certaincircumstances or before certain officers is totallyinadmissible in evidence. Such strict rules of evidenceand procedure would not apply to departmentalproceedings."13. To come back to the present case, here, the criminal chargesrelate to criminal conspiracy, withdrawal of amount from bank byimpersonation, forging of documents, etc., whereas the misconductrelates to favouring certain entities in which his relatives wereinvolved, flouting of guidelines, misusing the letter head of MAPS andmisusing his official position, etc. In the decisions cited above, thelaw has been stated as to how the scope of the two proceedings isdifferent and even that incriminating statements may not always beadmissible in evidence. In this case, necessarily there are some areaswhere the charges in the F.I.R. and the charge memo synchronise, but insome areas, they do not. That is clear from the concise description ofboth given above. According to the petitioner, he has not committed anywrong and therefore, his stand in the disciplinary proceedings willnecessarily be one of total denial. In those circumstances, I see noreason why the departmental proceedings should be stayed. In fact, thepetitioner has not made out any ground as to how he will be prejudiced https://hcservices.ecourts.gov.in/hcservices/ except to state that he will be prejudiced. Merely chanting the words"I will be prejudiced" will not help him to convince the Court. Wherean officer has been alleged of committing certain offences, it is butnatural that departmental proceedings also ensue. They must go on andbe allowed to conclude. In every case, naturally the delinquent officerwill plead that both charges arise out of the same set of facts and thatdepartmental proceedings should be stayed, and if the Court alsoautomatically stays the departmental proceedings, then the discipline oforganisations like the respondents will suffer and that will beinjurious to public interest. This is also something that Courts shouldlook at while considering the question of stay of departmentalproceedings, especially where national security itself is involved, asin the instant case. 14. For all these reasons, the writ petition stands dismissed withcosts of Rs.5,000/- (Rupees five thousand only). Consequently, M.P.No.1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarabTo1.Chairman and Managing Director,Nuclear Power Corporation of Indian Limited,Mumbai-400 094.2.SO/H & Inquiring Authority,NPCIL Hqs.12/S/2, VSB,Nuclear Power Corporation of India Ltd.,V.S. Bhavan, Anushakthinagar,Mumbai-400 094.1 cc To Mr.V.Vijay Shankar, Advocate, SR.10650.1 cc To M/s.P.V.S.Gridhar Associates, Advocate, SR.10308.W.P. No.222 of 2008 RS(CO)RVL 03.03.2008