C. Varadappan vs The Revenue Divisional Officer, Dharmapuri and Another

S. Tamilvanan, J.—The writ petition has been filed under Article 226 of Constitution of India seeking an order in the nature of Certiorarified Mandamus, calling for the records pertaining to the impugned order of suspension made in Roc. 10664/2004/A3 dated 29.09.2004 and the consequential charge memo in Roc. 10664/2004/A3 dated 18.10.2004 and the order in Na. Ka. No. 10664/04/A3 dated 02.03.2006 issued by the 1st respondent herein and quash the same and forbear the respondents from proceeding and initiating any disciplinary proceeding against the petitioner till the conclusion of the criminal trial in respect of criminal case registered in Crime No. 7/Ac/2004, on the file of the Vigilance and Anti-corruption Department, Dharmapuri. The petitioner was working as Village Administrative Officer in Gujjarahalli Village, Palacode Taluk, Dharmapuri District; since 16.09.2004. There was a counselling held on 19.09.2004 at the office of the first respondent for allotment of Villages to the Village Administrative Officers and on the date of counselling, 3 Village Administrative Officers had not attended the counselling out of 12 Village Administrative Officers for 12 Villages which are under the Administrative control of Palacode Taluk. The petitioner had given a representation dated 20.09.2004 to the first respondent regarding the irregularities in making transfers, wherein he had mentioned the seniority list and as per the list, he was the sixth senior most Village Administrative Officer in the Taluk. However, the petitioner''s request was not considered for posting him as Village Administrative Officer of a particular village. The petitioner has stated that a false case was foisted against him in order to avoid competition. However, the order of suspension was issued on 29.09.2004 suspending him from service. The petitioner was arrested for the alleged offence of getting bribe from a villager for issuing no objection certificate towards changing the electricity service connection in the name of a particular villager.

The petitioner has further stated that the de facto complainant had lodged a complaint against the petitioner with the Vigilance Officer, Vigilance Department, based on which, mahazar was prepared. It is submitted by the learned counsel appearing for the petitioner that apart from the departmental proceeding; initiated against the petitioner, criminal case was also registered against him. According to the learned counsel for the petitioner both the criminal case and departmental proceeding initiated against the petitioner, are based on the same set of facts. The petitioner had been issued with a charge memo dated 18.10.2004, under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, framing the following charges:

(i) that the delinquent (petitioner) was caught red handed while receiving the bribe of Rs. 1500/- from the complainant while working as Village Administrative Officer, Gujjarahalli for the purpose of furnishing the copies of the Chitta, Adangal and FMP to obtain Electricity connection and in this connection he was arrested and remanded to the judicial custody and thereby he has violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules;

(ii) Due to the above conduct, the delinquent has unbecoming a Village Administrative Office; and the same is pending.

The petitioner had filed a writ petition in W.P. No. 16537 of 2005 and the same was disposed of on 11.05.2005 and that the operative portion of the said order reads as follows:

The prayer in this writ petition to quash the order of suspension cannot be granted, since the matter is relating to prevention of corruption case and material placed before me is inadequate. Hence, this Court is of the view that instead of interfering with the order of suspension, to meet the ends of justice, I permit the petitioner to submit a representation before the respondent within a period of two weeks from today. On receipt of such representation, the respondent is directed to pass orders on merits and in accordance with law, within a period of four weeks thereafter.

The petitioner has stated that it would be prejudicial to him, if the criminal case and departmental proceeding initiated against the petitioner are simultaneously considered and that would affect his rights. In view of the same, he has filed the present writ petition seeking relief of Certiorarified Mandamus.

Mr. S. Navaneethan, learned Additional Government Pleader argued that the writ petition is not maintainable seeking an order to quash the suspension order and the charge memo issued by the first respondent in view of the criminal case pending against the petitioner, since both are in different footings. It is an admitted fact that the petitioner herein was arrested in connection with the criminal case registered against him under the provisions of Prevention of Corruption Act and the case is still pending before the criminal Court.

On the aforesaid circumstances, the order of suspension issued by the first respondent/Revenue Divisional Officer, Dharmapuri, is not against law. When a person was arrested and sent to prison, there could be no other option for the first respondent except to suspend the petitioner. In the writ petition, the then Revenue Divisional Officer, Mr. Kandasamy was arrayed as second respondent though he had acted only in the official capacity. It would not be proper on the part of the petitioner to implead the then Revenue Divisional Officer by name as second respondent, since he had functioned in his official capacity.

Learned counsel appearing for the petitioner mainly contended that the criminal case and departmental proceeding were initiated on the same set of facts against the petitioner. Hence, he sought an order to quash the departmental proceeding and to stay the same till the criminal case reaches its finality. In support of his contention, relied on a decision in Indian Overseas Bank and S. Venkatraman, Enquiry Officer, Indian Overseas Bank Inquiry Cell, Industrial Relations Department Vs. P. Ganesan and Others, . Based on the facts and circumstances, the said Division Bench of this Court held that the departmental proceeding therein was to be deferred till the conclusion of Criminal Trial, as both are based on same set of facts. However, it was made clear that there is no legal bar or prohibition against initiating simultaneously departmental proceeding and the criminal case. In The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , the Hon''ble Supreme Court of India has held that the principles of natural justice do not require that the employer should wait for the decision of the Criminal Court before taking disciplinary action against an employee, in the decision, it has been observed by the Hon''ble Apex Court as follows:

We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to wait the decision of the Trial Court, so that the defence of the employee in the criminal case may not be prejudiced.

In State of Rajasthan Vs. B.K. Meena and others, , the Hon''ble Supreme Court of India has held thus:

it would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and they say 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. The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that ''the defence'' of the employee in the criminal case may not be prejudiced. This ground has however, been hedged in by providing further that this may not be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover; ''advisability'', ''desirability'' or ''propriety'' as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, and Tata Oil Mills Co. Ltd. Vs. Its Workmen, is also not an invariable advisability or desirability of staying the disciplinary proceedings.

In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , the Hon''ble Supreme Court has given various guidelines in respect of departmental proceeding to be kept in abeyance during the pendency of the criminal case. In paragraph-22 of the said decision and the conclusions referring various decisions of the Hon''ble Apex Court has summarized and held thus:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above couldn''t be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

It is seen that the question as to whether there is any prohibition or bar against initiating simultaneous criminal case and disciplinary proceeding was considered by the Hon''ble Supreme Court in State Bank of India and Others Vs. R.B. Sharma, wherein the Hon''ble Supreme Court has ruled as follows:

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. Office generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the "evidence defined under the provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules of stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case, it is always a question of fact to be considered in each case depending on its own facts and circumstances.

It has been made clear by the Hon''ble Apex Court that the trial of a criminal case and departmental proceeding can go on simultaneously, except in some cases where both the departmental proceeding and criminal case are based on the same set of facts and the evidence in both the proceedings are the same. On these circumstances, as per the decision rendered the Hon''ble Supreme Court in Indian Overseas Bank and S. Venkatraman, Enquiry Officer, Indian Overseas Bank Inquiry Cell, Industrial Relations Department Vs. P. Ganesan and Others, has held that there is no straightjacket formula, as to in which case the departmental proceeding has to be stayed and it has been made clear that the appropriate Court will have to decide in the given circumstances of a particular case as to whether disciplinary proceeding could be interdicted, pending criminal trial.

Even in the decision referred to by the learned counsel appearing for the petitioner reported in Indian Overseas Bank and S. Venkatraman, Enquiry Officer, Indian Overseas Bank Inquiry Cell, Industrial Relations Department Vs. P. Ganesan and Others, , the Division Bench of the Hon''ble Supreme Court has held that it is fairly settled law that on basic principles, proceeding in a criminal case and a departmental proceeding can go on simultaneously, except in some cases where the departmental proceeding and criminal case are based on the same set of facts and the evidence in both the proceedings are one and the same. In the said referred case, the alleged facts of the case, reveals that the criminal complaint was lodged by the president of a rival union, whereby the petitioners therein were facing prosecution with regard to the same incident. In the instant case, the petitioner is facing the criminal charges as per the provisions of Prevention of Corruption Act, it cannot be disputed that the criminal case was initiated by the Department of Vigilance and Anti-corruption, whereby the prosecution should establish the guilt or charges levelled against the petitioner beyond reasonable doubt, whereas the departmental proceedings is initiated by the first respondent/Revenue Divisional Officer, Dharmapuri under Rule 17 (b) of Tamil Nadu Civil Services (Discipline and Appeal Rules) to establish the alleged delinquency, by following principles of natural justice, based on the judicial dictum of preponderance of probabilities.

It cannot be disputed that criminal prosecution against a public servant under the provisions of Prevention of Corruption Act is serious in nature. In the instance case, it is seen that the occurrence is said to have taken place on 25.09.2004, hence, nearly for about 9 years the matter is pending and the petitioner is also entitled to get subsisting allowance from the employer in view of pendency of departmental proceedings, without doing any work, though the employer is no way responsible for the pendency of the criminal case, registered by the Department of Vigilance and Anti-corruption.

Having considered the facts and circumstances of the departmental proceeding, this Court is of the view that the departmental proceeding is nothing to do with the decision of the criminal case pending before the Criminal Court. Similarly, even in case of acquittal, based on the available evidence in the departmental enquiry, the employer can take action. If there are sufficient legal grounds available it will be open to the petitioner, being an accused for seeking appropriate remedy by way of invoking u/s 482 of the Code of Criminal Procedure. It has been clearly ruled by the Hon''ble Supreme Court, in various decisions that the criminal case and the departmental proceeding are independent in nature. Hence, the decision if any in the departmental proceeding would have no bearing to decide the criminal case, in which the petitioner has been arrayed as accused. Similarly, the petitioner has every right to seek his legal remedy if any as per the procedure known to law before the criminal Court, as the same has to be decided independently by applying the provisions of the Evidence Act, Criminal Procedure Code and Substantive Penal Laws. Hence, the departmental proceeding would no way be prejudicial to the petitioner as he is an accused in the criminal case which is pending for about 9 years. Considering the facts and circumstances, I am of the view that the criminal case pending against the petitioner and the departmental proceedings cannot be construed that both are on the same set of facts and on the same footing, since the prosecuting agency is different and standard of proof required in both criminal case and the departmental proceeding are different and hence keeping the departmental proceeding indefinitely without any progress till the disposal of the criminal case would not meet the ends of justice. A perusal of the material papers available on record would show that the departmental proceeding has nothing to do with the disposal of the criminal case and similarly the first respondent and other authorities need not wait for the disposal of the Criminal Case, without passing final orders in the Departmental proceeding.

Having considered the facts and circumstances, it is clear that the suspension order dated 29.09.2004 and the arrest and detention of the petitioner in the criminal case relating to Prevention of Corruption Act and the charge memo issued by the first respondent would not be against law to quash the same by invoking Article 226 of the Constitution of India. Similarly, there is no justification to forbear the first respondent from proceeding with the departmental proceeding in accordance with law till the criminal trial in respect of the case pending against the petitioner in Cr. No. 7/Ac/2004 on the file of the Vigilance and Anti-corruption Department, Dharmapuri. This Court is also of the view that filing this writ petition, stating the then Revenue Divisional officer, by name as second respondent as the same is unwarranted and also an abuse of process of law. In the light of the various decisions rendered by the Hon''ble Supreme Court referred to above, this Court is of the considered view that the relief sought for in the writ petition is not legally sustainable to meet the ends of justice and accordingly; this writ petition is dismissed. Consequently, connected miscellaneous petition is closed. No order as to costs.