G.Nagarajan v. The Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 26.4.2006CORAM THE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE R.SUDHAKARWrit Petition No.11763 of 2006in WP.MP.No.13381 of 2006G.Nagarajan.. PetitionerVs.1. The Union of India rep. by the Commissioner of Central Excise 6/7, ATD Street, Race Course Road Coimbatore 641 018.2. The Deputy Commissioner of Central Excise Coimbatore IV Division, Coimbatore 642 018.3. The Registrar Central Administrative Tribunal Madras Bench, Chennai 600 104... RespondentsPetition under Article 226 of the Constitution of India prayingfor the relief as stated therein.For Petitioner : Ms.Rathina AshokanO R D E R(Order of the Court was made byP.D.DINAKARAN,J.)The writ petition is directed against the order dated 14.3.2006made in O.A.No.791 of 2005 on the file of the third respondentdismissing the said O.A. and refusing to stay the departmentalproceedings initiated against the petitioner vide memorandum dated1.9.2005, till the conclusion of the criminal case pending againstthe petitioner in C.C.No.3 of 2005 on the file of Principal SpecialJudge for CBI cases, for the offence punishable under Section 120-B,IPC read with Section 7, 13(2) and 13(1)(d) of the Prevention ofCorruption Act (hereinafter referred to as the "PC Act"). https://hcservices.ecourts.gov.in/hcservices/

2.1. In brief, the petitioner was working as Superintendent,Customs, Tirupur, on deputation by the Central Excise Department. Atrap was decided to be laid on the petitioner on 5.7.2004 based on acomplaint lodged by one Selvaraj. The conversation between the saidSelvaraj and the petitioner reveals that the petitioner demandedillegal gratification of Rs.25,000/- from Selvaraj for clearingexport consignment made under shipping bill bearing serial No.14624dated 26.6.2004. Accordingly, the trap was executed and thepetitioner was trapped. A criminal case was initiated in C.C.No.3 of2005 for the offences referred to above. 2.2. Pending the above criminal case, the first respondent alsoinitiated departmental proceedings against the petitioner for havingcommitted a gross misconduct and for the failure to discharge theduties of a public servant on 5.7.2004 in connection with theclearance of export consignment, in contravention of Rule 3(1)(i)(ii)and (iii) of CCS (Conduct) Rules, 1964.3. The core contention of the learned counsel for the petitionerbefore the Tribunal as well as before this Court is that if thedepartmental proceedings is permitted to be proceeded, he would becompelled to disclose his evidence in the departmental enquiry andthe same would affect the defence in the trial and also causeprejudice. 4.1. The Tribunal, in its well considered judgment dated14.3.2006, has observed that even though both the criminal case andthe departmental proceedings initiated against the petitionerreferred to above arise out of the same set of facts, the charge inthe criminal case pending before the criminal court is for theoffences punishable under Section 120-B, IPC read with Section 7, 13(2) and 13(1)(d) of the PC Act, whereas the allegation alleged inthe departmental proceedings is with regard to the contravention ofRule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. Thus, whilethe criminal case is with reference to the demand of illegalgratification and acceptance of the same, the departmentalproceedings was initiated for the alleged misconduct on the part ofthe petitioner, viz. failure to discharge his duties to the utmostintegrity and for having committed an act of unbecoming of aGovernment servant. 4.2. Even though the learned counsel for the petitioner made anattempt to elaborate his contention in this regard, in our consideredopinion, it may not be proper for us to go into those allegationswhich would otherwise affect the departmental proceedings and alsocause prejudice to the petitioner himself. https://hcservices.ecourts.gov.in/hcservices/

4.3. In the circumstances, suffice it to observe that we aresatisfied with the reasons that weighed the Tribunal in its orderdated 14.3.2006, refusing to grant stay of the recovery proceedingswhich are based on the ratio laid down by the Apex Court in thefollowing decisions:(a) In STATE OF RAJASTAN v. B.K.MEENA & ORS. (1996 SCC (l&s)1455), it is held as follows: "There is yet another reason. The approach and theobjective in the criminal proceedings and the disciplinaryproceedings is altogether distinct and different. In thedisciplinary proceedings, the question is whether therespondent is guilty of such conduct as would merit hisremoval from service or a lesser punishment, as the casemay be, whereas in the criminal proceedings the question iswhether the offences registered against him under thePrevention of Corruption Act (and the Indian Penal Cod, ifany) are 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 cases areentirely distinct and different. Staying of disciplinaryproceedings pending criminal proceedings, to repeat, shouldnot be a matter of course but a considered decision. Evenif stayed at one stage, the decision may requirereconsideration if the criminal case gets unduly delayed."(b) In CAPT.M. PAUL ANTHONY v. BHARAT GOLD MINES LTD. & ANOTHER(1999 (11) CTC 579), it is held as under:"The conclusions which are deducible from various decisionsof this Court referred to above are:(i) Departmental proceedings and proceedings in a criminalcase can proceed simultaneously as there is no bar intheir being conducted simultaneously, thoughseparately.(ii)If the departmental proceedings and the criminal caseare based on identical and similar set of facts andthe charge in the criminal case against the delinquentemployee is of a grave nature which involvescomplicated questions of law and fact, it would bedesirable to stay the departmental proceedings tillthe conclusion of the criminal case.(iii)whether the nature of a charge in a criminal case isgrave and whether complicated questions of fact andlaw are involved in that case, will depend upon the https://hcservices.ecourts.gov.in/hcservices/ nature of offence, the nature of the case launchedagainst the employee on the basis of evidence andmaterial collected against him during investigation oras reflected in the charge sheet.(iv)The factors mentioned at (ii) and (iii) above cannot beconsidered in isolation to stay the departmentalproceedings but due regard has to be given to the factthat the departmental proceedings cannot be undulydelayed.(v) If the criminal case does not proceed or its disposalis being unduly delayed, the departmental proceedings,even if they were stayed on account of the pendency ofthe criminal case, can be resumed and proceeded withso as to conclude them at an early date, so that ifthe employee is found not guilty his honour may bevindicated and in case he is found guilty,administration may get rid of him at the earliest."(c) In STATE BANK OF INDIA & ORS. v. R.B. SHARMA (2005 (3) L.W.71) it is held that there was no bar to proceed simultaneously withdepartmental enquiry and trial of criminal case, unless the charge inthe criminal trial is of a grave nature involving complicatedquestions of fact and law.(d) In DEPOT MANAGER, A.P. STATE ROAD TRANSPORT CORPORATION v.MOHD. YOUSUF MIYA & ORS. (1997 SCC (l&s) 548), it is held that whatis required to be seen is whether the departmental enquiry shouldseriously prejudice the delinquent in his defence in the trial in thecriminal case and it is always the question of fact to be consideredin each case depending on its own facts and circumstances.(e) In M.SUNDERAMURTHY v. STATE OF TAMIL NADU (AIR 1990 SC1269), it is held that unless the explanation is supported by proof,the presumption created by the provision cannot be said to berebutted.(f) In C.L.EMDEN v. STATE OF U.P. (AIR 1960 SC 548), whiledealing with Section 4(1) of the P.C. Act, it is held that what theprosecution has to prove before asking the court to raise apresumption against an accused person is that the accused person hasreceived a gratification other than legal remuneration. If it isshown that the accused received the said amount and the said amountwas not legal remuneration, then the condition prescribed by thesection is satisfied.(g) In B.HANUMANTHA RAO v. STATE OF A.P. (AIR 1992 SC 1201), itis held that once the amount is found in possession of the accused, https://hcservices.ecourts.gov.in/hcservices/ the burden lies on him to explain the circumstances and prove hisinnocence as contemplated under Rules of Corruption Act.(h) In T.SHANKAR PRASAD v. STATE OF U.P. (2004 (3) SCC 753), itis held that Section 20(1) of the P.C.Act in essence and substance isthe same as Section 4(1) of the previous Act of 1947. The onlycondition for drawing legal conclusion under Section 20 during trialis that, it should be proved that the accused has accepted or agreedto accept any gratification and that unless the presumption isdisproved of or dispelled or rebutted, the Court can treat thepresumption as tantamounting to proof.(i) In STATE OF A.P. v. C.UMA MAHESWARA RAO (2004 (4) SCC 399),it is held that presumption could be final if it remains undisturbedlater. The presumption in law of evidence is a rule indicating thestage of shifting the burden of proof.4.4. In fine, what weighed the Tribunal is that in thedepartmental proceedings, the department is not only bound to takedisciplinary action against the delinquent, but also to keepadministrative machinery unsullied by getting rid of bad elements, orotherwise it would be difficult to maintain a clean administration.Thus the Tribunal has rightly rejected the contention of the learnedcounsel for the petitioner that the petitioner would be compelled todisclose his evidence, if the departmental proceedings is permittedto go on and that it would also prejudice his defence in the trial,on the ground that as per Section 20 of the PC Act, the burden ofproof is shifted on the petitioner when it is shown that thepetitioner has accepted or obtained or agreed to accept or obtaingratification other than legal remuneration as a motive or reward. 5.1. In this regard, it is apt to refer Section 20(1) of the PCAct, which reads as follows:"Section 20:Presumption where public servant accepts gratificationother than legal remuneration.-(1) Where, in any trial of an offence punishable underSection 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13, it is proved that an accusedperson has accepted or obtained or has agreed to accept orattempted to obtain for himself, or for any other person,any gratification (other than legal remuneration) or anyvaluable thing from any person, it shall be presumed,unless the contrary is proved, that he accepted or obtainedor agreed to accept or attempted to obtain thatgratification or that valuable thing, as the case may be, https://hcservices.ecourts.gov.in/hcservices/ as a motive or reward such as is mentioned in Section 7 or,as the case may be, without consideration or for aconsideration which he knows to be inadequate."5.2. When Section 20(1) deals with legal presumption it is to beunderstood as in terrorem i.e. in tone of a command that it has to bepresumed that the accused accepted the gratification as a motive orreward for doing or forbearing to do any official act etc., if thecondition envisaged in the former part of the section is satisfied.The only condition for drawing such a legal presumption under Section20 is that during trial it should be proved that the accused hadaccepted or agreed to accept any gratification. The section does notsay that the said condition should be satisfied through directevidence, vide M.Narsinga Rao v. State of A.P. ((2001) 1 SCC 691).5.3. The only condition for drawing legal presumption underSection 20 is that during trial it should be proved that the accusedhas accepted or agreed to accept any gratification. But the sectiondoes not say that the said condition should be satisfied only bydirect evidence. When money was recovered from the pocket of one ofthe accused persons, a presumption under Section 20 of the Act isobligatory, vide T.Shankar Prasad v. State of A.P. ((2004) 3 SCC753).5.4. When the expression "shall be presumed" is employed inSection 20(1) of the Act, it must have the same import of compulsion.Therefore, the same has to be understood as in terrorem i.e. in toneof a command that it has to be presumed that the accused accepted thegratification as a motive or reward for doing or forbearing to do anyofficial act, etc. if the condition envisaged in the former part ofthe section is satisfied. The section does not say that the saidcondition should be satisfied through direct evidence. Its onlyrequirement is that it must be proved that the accused has acceptedor agreed to accept gratification, vide State of A.P. v. C.UmaMaheswara Rao ((2004) 4 SCC 399).5.5. In view of the above settled proposition, the question ofprejudice caused to the petitioner due to the disclosure of thedefence, as rightly held by the Tribunal, would not arise.Therefore, in complete agreement with the reasons that weighed theTribunal and finding no merits in the writ petition, the same isdismissed. WPMP No.13381 of 2006 is also dismissed. kplSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Commissioner of Central Excise Union of India 6/7, ATD Street, Race Course Road Coimbatore 641 018.2. The Deputy Commissioner of Central Excise Coimbatore IV Division, Coimbatore 642 018.3. The Registrar Central Administrative Tribunal Madras Bench, Chennai 600 104.+ one cc to Ms.Rathina Asohan, Advocate Sr.No.22080.PLI (CO)RSM/23.6.2006W.P.No.11763 of 2006.