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Judgment
The learned counsel for the Petitioner has sincerely taken this Court to the statement of one Thiru.Prasanna Venkatesan and Mayazhagu
enclosed in typed-set of papers from page No.6 to 14 and 15 to 20.
The learned counsel for the writ petitioner has attempted to establish that the charge-memo was issued based on the evidence given by the
above said two persons before the criminal Court and therefore the same cannot constitute a charge. In other words, the learned counsel for the
Petitioner is of the opinion that based on the statement of the witnesses, no charge memo can be issued by the departmental authorities.
The learned Additional Government Pleader appearing on behalf of the respondent rebutted the said contention by stating that it is a case of
corruption and the criminal case is pending. The Writ Petitioner is also facing departmental disciplinary proceedings. Thus, it is for the petitioner to
submit his explanation/objection on the charge-memo and to prove his innocence before the enquiry proceedings conducted by the respondent in
this regard. This Court has now to consider the nature of allegations set out against the petitioner in the charge-memo, dated 16.12.2008 and the
contents of the charge-memo is extracted hereunder:
VERNACULAR MATTER OMITTED
Annexure-II of the charge-memo dealt with allegation statement of imputations on the charges. Annexure-III provides the list of documents and
Annexure-IV denotes the list of witnesses to be examined in the departmental disciplinary proceedings. From the statement of imputations, list of
documents and the list of witnesses, this Court is of the view that there is no infirmity in the charge-memo issued against the Petitioner.
No writ can be entertained challenging a charge memo in a routine manner. Judicial review in this regard is certainly limited and the constitutional
Courts are to be cautious, while entertaining a writ petition against a charge memo.
A charge memo per se cannot constitute any cause of action to entertain a writ petition. A writ petition can be entertained against a charge
memo, if the same is issued by the authority having no jurisdiction or competency or if any mala fide allegations are raised or if the same is in
violation of the Statutory Rules in force. Even in case, raising allegations on mala fides, the authority against whom allegation is raised to be
impleaded as party respondent in his personal capacity. In the absence of any one of these legal grounds, no writ petition can be entertained
against a charge memo and it is left open to the writ petitioner to prove his innocence before the enquiry officer by providing evidence, documents,
etc.,. Intermittent intervention in the departmental disciplinary proceedings are certainly not desirable.
On initiation of the disciplinary proceedings the authorities competent shall ensure that the enquiry proceedings are concluded at the earliest
possible without causing any unnecessary delay. The disciplinary proceedings initiated against a public servant should be allowed to be concluded
within a reasonable period of time and the same should reach its logical conclusion. The authorities competent on initiation of the disciplinary
proceedings cannot keep the same pending for long years. Long pendency of the disciplinary proceedings would cause prejudice to the delinquent
employees.
For instance, pending disciplinary proceedings is a bar for promotion, so also for retiring employee. He will be deprived of his pensionary
benefits during the pendency of the disciplinary proceedings. Thus the disciplinary authority once initiated the proceedings under the Discipline and
Appeal Rules should conclude the same without any delay.
A direction issued by the Government for speedy disposal of the disciplinary proceedings, though is directory in nature, the authorities
competent have to keep in mind that this is temporary and prescribed only to avoid further complication and to see that the said disciplinary
proceedings are concluded within a reasonable time.
Even writ proceedings are filed under the Article 226 of the Constitution of India by the delinquent officials, challenging a charge memo in
order to prolong and protract the disciplinary proceedings. In some cases, the Courts are witnessing that repeated writ petitions are filed at each
and every stage of the disciplinary proceedings with an idea to escape from the clutches of the disciplinary proceedings. Such an attitude of the
delinquent officials are to be deprecated. Entertaining such a writ petition itself to be curtailed in view of the fact that long pendency of the writ
petition in High Court would not cause any undue advantage to the delinquent officials, so as to escape from the clutches of disciplinary
proceedings on account of the long delay.
Yet another argument advanced by the learned Counsel for the petitioner is when a criminal case also is pending against the writ petitioner and
the trial has already commenced, in the event of acquittal, the petitioner would be getting the benefit of quashing the charges. Such an argument is
absurd and deserves no consideration.
Simultaneous proceedings are certainly permissible and the Hon''ble Apex Court of India, reiterated and emphasised that a mere pendency of
the criminal case is not a bar to proceed with the disciplinary proceedings. It is held that for convicting a person in a criminal case high standards of
proof is required. However, no such strict proof is required for punishing an employee under the Discipline and Appeal Rules. Probabilities of
preponderance of are sufficient to punish a public servant under the Conduct Rules. Further an order of acquittal would not exonerate an employee
from the departmental disciplinary proceedings. Even in case of an acquittal, the disciplinary authority can proceed with the departmental
disciplinary proceedings and punish the employee under the Conduct Rules. The Conduct Rules enumerate various misconducts. Even, if the
behaviour of a Government employee is an unbecoming of an officer itself, is sufficient to punish him under the Discipline and Conduct Rules.
Moral turpitude is also a ground to punish a public servant. Thus a mere acquittal in a criminal case is not a ground for seeking exoneration from
the departmental disciplinary proceedings.
Government servants play a significant role in running the administration of the country. They are important constituents of the administrative set
up of the nation. They are pillars of the Government departments on whose shoulders the responsibility to implement the Government policies lies.
They provide public services to the citizens at the grass root level and in the same way, they forward grievances of the public, their representations
and demands to higher ups for their effective resolution. The Government employees have different work culture and responsibilities as compared
to their counterparts in private sector. They are smartly paid and have some kind of perquisites given to them but at the same time, they have heavy
responsibilities towards the Government in particular and public in general. However, when the Government servants deviate from the established
rules of conduct, the departmental disciplinary proceedings will be initiated. It is the need of the hour to analyse whether conducting departmental
proceedings and criminal proceedings would amount to double jeopardy or such simultaneous proceedings are to be continued simultaneously.
The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations.
In the case of Sri Bhagwan Ram v. The State of Jharkand, State of Bihar and others(2017), it is well-settled that a domestic enquiry and a
criminal trial can proceed simultaneously and the decision in the criminal case would not materially affect the outcome of the domestic enquiry. The
nature of both the proceedings and the test applied to reach a final conclusion in the matter, are entirely different.
In the case of Dr.Bharathi Pandey-Deputy General Manager V. Union of India[Special Civil Application No.15602 of 2013], the Apex Court
held that it is clear that the departmental inquiry proceedings in every case need not be stayed till the criminal proceedings against the petitioner are
concluded. It may be done in case of grave nature involving complicated questions of facts and law. The advisability and desirability has to be
determined considering facts of each case.
In the case of Ajith Kumar Das v. Union of India and Others[W.P.(C) NO.4036 of 2017], the Court held that the departmental enquiry is to
maintain discipline in service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and
completed as expeditiously as possible. It is not, therefore, desirable to lay down any guideline as inflexible rules in which the departmental
proceeding may or may not be stayed pending trial in criminal case against the delinquent officer. There would be no bar to proceed simultaneously
with the departmental proceeding and trial of a criminal case unless the charge in a criminal trial is of grave nature involving complicated questions
of fact and law. Offence generally implies infringement of public as distinguished from mere private right punishable under criminal law, when trial
for criminal offence is conducted it should be in accordance with the proof of offence as per the evidence defined under the provisions of the
evidence act. Converse in the case of departmental enquiry in a departmental proceeding relates to conduct of breach of duty of the delinquent
officer who punish him for his misconduct defined under the relevant statute/rule or law that strict standard of rule or applicability of Evidence Act
stands excluded in a settled legal position.
In the case of Avinash Sadashiv Bhosale v. Union of India[(2012) 13 SCC 142], the Court held that there is no legal bar for both proceedings
to go on simultaneously. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of
the employee in the criminal case may not be prejudiced but even such grounds would be available only in cases involving complex question of fact
and law. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well
as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
The Supreme Court in the case of Karnataka State Road Transport Corporation v. M.G.Vittal Rao[(2012) 1 SCC 442] gave a timely
reminder of the principles that are applicable in such situations succinctly summed up in the following words:
(i) There is no legal bar for both proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the
criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as
the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts
and the evidence in both the proceedings is common"".
In the case of NOIDA Entrepreneur Association v. NOIDA and the others[JT 2001 (2) SC 620], the Court held that the standard of proof
and nature of evidence in the departmental inquiry is not the same as in criminal case. The purpose of departmental enquiry and of prosecution is
two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offended owes to the society, or
for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or
of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be
expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore desirable to lay down any
guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent
officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously
with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact
and law.
In the case of State Bank of India & Ors. Versus R.B.Sharma, [AIR 2004 SC 4144 ], the Hon''ble Supreme Court reiterated observing that
both proceedings can be held simultaneously. It held, ""the purpose of departmental inquiry and of prosecution is to put a distinct aspect. Criminal
prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the
offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental
inquiry is to maintain discipline in the service and efficiency of public service.
In the case of Ajith Kumar Nag v. General Manager(PJ), Indian Oil Corporation Ltd., Haldia[2005-7-SCC-764], the Honourable Apex
Court considered the issue of validity of conducting departmental proceeding when the criminal case was pending against the official and held as
follows:
Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two
proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of
criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and
to impose penalty in accordance with service Rules. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to
prove the guilt of the accused ''beyond reasonable doubt'', he cannot be convicted by a court of law. In departmental enquiry, on the other hand,
penalty can be imposed on the delinquent officer on a finding recorded on the basis of ''preponderance of probability''.
In the case of West Bokaro Colliery(Tisco Ltd.) v. Ram Parvesh Singh(2008) 3 SCC 729, the Hon''ble Supreme Court has held in the case of
that since standard of proof required in criminal case are beyond reasonable doubt and what is required in departmental inquiry is only of finding
the guilt on the basis of preponderance of probability, there is no bar in continuing both simultaneously.
In the case of S.A.Venkatraman v. Union of India, AIR 1954, SC 375 it has been held by the Supreme Court that taking recourse to both,
does not amount to double jeopardy.
In Stanzen Toyotetsu India Private Limited v. Girish V. And Other (2014) 3 SCC 636. It was held that suffice it to say that while there is no
legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be advisable
course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to plagiarize their
defence before the criminal court.
The Supreme Court in State of Rajasthan v. B.K.Meena and Others (1996) 6 SCC 417 held that In certain situations, it may not be
''desirable'', ''advisable'', or ''appropriate'' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. Therefore,
stay of disciplinary proceedings cannot be, and should not be, a matter of recourse.
It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from
disciplinary proceedings, as observed by the Supreme Court in the case of C.M.D.U.C.O. vs. P.C.Kakkar, AIR 2003 SC 1571. In the same
way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S.Corp.Ltd. vs. K.S.Tandon, AIR 2008 SC
1235)
Considering the above judgments, this Court is of the firm opinion that the procedure for taking disciplinary action against a Government
servant is lengthy and detailed one, giving maximum opportunity to the government servant to prove his innocence. A Government employee is
expected to perform his duties with utmost diligence, efficiency, economy and effectiveness. The Government procedures are lengthy in order to
ensure that the Government employees perform their responsibilities without any pressure or exterior considerations. However, at the same time, it
ensures discipline amongst the employees and shows the door to the employees who have become dead wood and do not perform as per
expectations of public in general and his department in particular. Disciplinary proceeding are conducted to ensure that the morale of the
employees as a whole is boosted. It ought to be noted that criminal proceedings will last for years and this can lead to loss of evidences and
thereby staying departmental disciplinary proceedings from being conducted simultaneously would lead to gross miscarriage of justice. Also, it is
pertinent to note the fact that the object of such departmental proceedings is not to penalise but to assist in restoring the morale of Government
servants. Thus, it is of utmost importance that the Court has to strike a balance between the need for a fair trial to the accused on one hand and the
competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other which will not have any adverse impact if is
conducted simultaneously.
Such being the view of this Court, no further adjudication on merits is to be undertaken in this writ petition. Accordingly, the writ petition
stands dismissed. However, there shall be no order as to costs. Consequently, connected MP(MD)No. 1 of 2009 is also dismissed.