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Judgment
R.S. Ramanathan, J.—Heard both sides.
In this writ petition, the petitioner challenged the order of the first respondent, dated 15.08.2003, by which the first respondent refused to interfere with the order of the Appointing Authority in dismissing the petitioner from service and rejected the revision filed by the petitioner.
The petitioner was working as Inspector of Police in the Armed Reserve at Pudukottai and he married to one Rajamani and out of the wedlock, he got two female daughters. The wife of the petitioner died on 09.11.2001 and in this regard, disciplinary proceedings were initiated against the petitioner on the basis of the statement given by his wife, while she was admitted in the hospital.
The gist of the charges levelled against the petitioner is as follows: i. Highly immoral and unbecoming conduct of a police officer in having compelled his wife Rajamani to share bed with his superior officers in order to get promotion while the delinquent was serving as RSI and residing in D. No. 46, Sundaraj Nagar, Subramaniampuram, Trichy, in the year 1996 and 1997 with family and when she refused to do so, shot her on the right thigh with an Air Gun, who was subsequently, admitted at Thiagarajan Hospital, Pudukottai, with the help of her daughters and others and thereby reasonable for having tortured and harassed his wife.
ii. Highly immoral and unbecoming conduct of a Police Officer in having forced her wife Rajamani to consume liquor and when she was in drunken-mood allowed the Police constable viz. Pal Rathinam [Gr. I PC 1135] 2.Palaniappan (Gr.I PC 141] 3. Denial (H.C. 1340] and 4. Ravi [Gr.I PC 1355] of Armed Reserve, Pukukottai to intercourse with his wife and enjoyed such nasty scene while the delinquent was serving as R.I.A.R. Pudukottai and residing in Police Quarters situated at Thiruvallurvar Nagar, Pudukottai, in the year 2000 and thereby responsible for tarnishing the image of Police force besides destroyed the chastity of his wife.
iii. Highly immoral and unbecoming conduct of a Police officer in having made attempt to rape his daughter, Selvi. Priya Darsini in the month of March 2001 at Armed Reserve quarters and to escape from this, the said Priya Dharsini assaulted the delinquent on his head by iron hammer and due to the shameful activities of the delinquent the said Priya Dharsini attempted to commit suicide by consuming Rat poison and subsequently, admitted in Rathinavel Hospital, Pudukkottai for treatment and thereby responsible for destroyed the future life of his own daughter.
vi. Highly immoral and unbecoming conduct of a Police Officer in having phoned up to his wife on 30.10.2001 at 6.00 hrs from Chennai when the delinquent was on duty and directed to keep their daughter Priya Dharnisi ready to share with him on bed as soon as he returned to Pudukottai which resulted that his wife Rajamani got vexed in the family life; unable to digest the continuous atrocities of the delinquent committed suicide by pouring kerosene over her body set fired by herself who subsequently admitted in the Government Hospital, Pudukkottai and in turn succumbed to the injuries while she was undergoing treatment at Jimper Hospital, Pondicherry on 06.11.2001 followed by registration of case in Ganesh Nagar P.S. Cr. No. 446/2001 u/s 174 Cr.P.C @ 498(A) & 306 IPC against the delinquent officer.
An enquiry was conducted and in that enquiry, opportunity was given to the petitioner and the Enquiry Officer found that the charges framed against the petitioner have been proved in the enquiry and the Competent Authority has passed the order of dismissal after getting explanation from the delinquent with regard to the enquiry report, by his proceedings, dated 15.08.2003. Thereafter, the petitioner filed a mercy petition before the 2nd respondent and that was also rejected by the 2nd respondent, by the order, dated 04.12.2006. Aggrieved by the same, this writ petition is filed.
Mr. S. Parthasarathy, the learned Senior Counsel appearing for the petitioner, fairly conceded that the allegations made in the charge memo against the petitioner if found to be true, are very heinous in nature and the petitioner does not deserve any sympathy. But he argued that having regard to the evidences that were produced during the enquiry and the fact that the petitioner''s daughters, who gave evidence against the the petitioner before the Enquiry Officer did not support the case of the prosecution in the two criminal cases filed against the petitioner and the petitioner was also acquitted in the two criminal cases, which were filed on the same set of facts, for which he was proceeded with departmentally, the dismissal order is not justified.
Further, according to the learned Senior Counsel appearing for the petitioner that it is an admitted fact that the petitioner was not given sufficient opportunity to participate in the enquiry and even before the commencement of the enquiry the petitioner requested the respondents to defer the enquiry as for similar set of charges two criminal cases were filed against him and without waiting for the verdict from the criminal court, the Department, examined the witnesses in the absence of the petitioner and without examining the proper persons, who were named in the charge memo, it was found that the charges framed against the petitioner were proved and punishment was imposed. Therefore, the order of the 1st respondent is liable to be set aside and the petitioner be allowed to prove his innocence in the enquiry, by remanding the matter to the first respondent.
Per contra, the learned Government Advocate, Mr.Gandhi Raj, submitted that the daughters of the petitioner have given evidence against the petitioner and despite several opportunities given to the petitioner, he did not participate in the enquiry, though he was aware of the enquiry proceedings and hence, witnesses were examined in his absence.
The learned Government Advocate, Mr. D. Gandhi Raj, also submitted that the enquiry was conducted in a fair manner and on the basis of the evidence given by the witnesses during the enquiry, the Enquiry Officer found that charges were framed against the petitioner and thereafter, the 1st respondent has passed the order of dismissal, which also commensurates with the gravity of charges and it cannot be said that the order of the dismissal is disproportionate to the charges proved in the enquiry.
Let me take the first argument of the learned Senior Counsel, Mr. S. Parthasarathy, appearing for the petitioner that the enquiry should not have been proceeded with the two criminal cases filed against the petitioner on the same set of facts or the enquiry ought to have been deferred, till the disposal of the criminal cases. In support of his arguments, the learned Senior counsel relied upon the quoted judgment reported in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , the Honourable Supreme Court has laid down the following principles:
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 cannot 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.
The same was also reiterated in G.M. Tank Vs. State of Gujarat and Another, , wherein it has been held that departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter.
In State of Rajasthan Vs. B.K. Meena and others, it is held as follows:
The staying of disciplinary proceedings, it is emphasised, 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 employer in the criminal case may not be prejudiced''. 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 ''property'' as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case.
But in the the recent judgment reported in 2008(1) SCC 650 in the case of Indian Overseas Bank, Anna Salai and Anr. v. P. Ganesan and Ors., the entire case law has been discussed and the Honourable Supreme Court refused to stay the departmental proceedings till the disposal of criminal case. Therefore, it cannot be stated that mere because criminal cases are pending, the departmental proceedings must be stayed and for staying the disciplinary proceedings has held in the case of Indian Overseas Bank, Anna Salai and Anr. v. P. Ganesan and Ors. case, not only identical facts but also the witnesses were the same in both the proceedings. The other question to be found out whether the charges levelled against the delinquent officer, both in the criminal cases as well as in the disciplinary proceedings, were one and the same and in this it is not so.
Therefore, the request of the petitioner that the departmental proceedings ought to have been deferred till the disposal of the criminal proceedings was rightly rejected by the authorities and enquiry was conducted.
The next contention raised by the learned Counsel appearing for the petitioner is that in the charge memo it was stated that while the wife of the petitioner was in a drunken-mood, police constables Pal Rathinam, Palaniappan, Denial and Ravi were permitted to intercourse with her and no action has been taken against those three persons and these persons were not examined during the enquiry to prove the charges. No-doubt, the three persons, who were alleged to have inter-course with the wife of the petitioner were not examined during Enqiury. But, P.W.1 and P.W.2, who are the daughters of the petitioner have given evidence during enquiry that those persons had inter-course with her mother.
Further, the daughters of the petitioner have given evidence before the Enquiry Officer in respect of the charges framed against the petitioner and the petitioner did not choose to examine the daughters and therefore, on the basis of the evidence of the witnesses given before the Enquiry Officer, the Enquiry Officer has come to the conclusion that the charges levelled against the petitioner were true during the enquiry.
A perusal of the report of the Enquiry Officer also reveals that sufficient opportunity was given to the petitioner to cross examine the witnesses and the petitioner deliberately did not cross-examine the witnesses and obtained all the statements made by the witnesses during the enquiry and also documents filed before the Enquiry Officer. Therefore, it is made clear from the enquiry report that enquiry was conducted in a proper manner, by giving sufficient opportunity to the petitioner and it is the petitioner, who failed to use the opportunity and deliberately abstained from actively participating in the enquiry on the pretext that the enquiry should not be proceeded with, till the disposal of the criminal proceedings. Therefore, the arguments of the Senior Counsel appearing for the petitioner that the finding of the Enquiry Officer is perverse as the three persons, who were alleged to have inter-course with the petitioner''s wife were not examined and no departmental proceedings were initiated against them cannot be accepted.
In this case, it is also pertinent to quote the judgment of the Honourable Supreme Court reported in Hindustan Petroleum Corporation Ltd. and Others Vs. Sarvesh Berry, , "the purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. Offence 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. 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 a grave nature involving complicated questions of fact and law."
Therefore, the argument of the learned Senior Counsel appearing for the petitioner cannot be accepted. The learned Senior Counsel appearing for the petitioner further submitted that in the criminal proceedings the daughters of the petitioner did not support the prosecution case and that the petitioner was acquitted in both the criminal cases and therefore, having regard to the subsequent event, the acquittal of the petitioner in the criminal cases, the petitioner should be given a chance to prove his innocence during the departmental enquiry and on that ground, the writ petition has to be allowed and the matter be remanded to the Competent Authority for fresh consideration. In my opinion, this arguments of the learned Senior Counsel appearing for the petitioner cannot be also accepted, as the enquiry was not initiated on the basis of the judgment of the criminal Court, but on the basis of the statement given by the deceased wife of the petitioner, while she was struggling for life. If the charges were proved on the basis of the evidence given in the criminal cases and the delinquent was dismissed from service, then in the event of acquittal by the Appellate Court, the delinquent is entitled to have the dismissal order set aside or the dismissal order was passed only on the basis of the conviction. But in this case that was not the reason for dismissal but on the basis of the charges proved during enquiry, the petitioner was dismissed. Therefore, the arguments of the learned Senior counsel appearing for the petitioner cannot be accepted.
In the result, I do not see any merit in the writ petition and the same is dismissed. No costs.