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Judgment
K. Chandru, J.—The petitioner was working as a Personal Assistant to the Superintendent of Police, Salem District from 10.6.2005. He
was also the Personal Assistant (Administration) from 7.6.2006. One of his duty was to attest the copies of certificate of candidates, who seek for
an employment in the police department and the Government offices. The petitioner was also empowered to verify the original certificates of
candidates, who seek employment. While the petitioner was working in the office of the Superintendent of Police, a criminal case was registered in
FIR No. 6 of 2008, dated 16.4.2008 by the District Crime Branch, Salem under Sections 120B, 464, 465, 468, 471, 477A, 448, 420 IPC read
with 120B IPC.
The petitioner claims that his name did not find place in the FIR. One of the accused A-1, Senthamaraikannan, who was a Junior Assistant in the
District Police, Salem gave confession statement. In his confession, he had stated that he had paid Rs. 95000/- to the petitioner for the purpose of
attesting the certificates of various persons. During investigation, the petitioner was also arraigned as A-15 in that case. While it is so, the petitioner
was placed under suspension by G.O.(2D) No. 315, Home (Police) Department, dated 29.5.2008. Subsequently, as he was reaching the age of
superannuation on 31.5.2008, he was not permitted to retire from service. By an order in G.O.(2D) No. 316, Home (Police) Department, dated
30.5.2008, he was retained in service by exercise of power under FR 56(1)(c). In the meanwhile, the petitioner moved a bail application before
this Court in Crl.O.P. No. 20442 of 2008. During the course of proceedings, it was informed that the first accused had promised job for 25
persons and collected Rs. 37,05,630/-. Since no job was secured and money was not returned, a case was registered. The petitioner was
arraigned as A-15. Colluding with the first accused, the petitioner had also material gains. He was arrested on 7.8.2008. The Court had taken note
of all these circumstances. By an order, dated 19.8.2008, the Court had granted bail to the petitioner.
Thereafter, the petitioner had moved this Court with W.P. No. 30059 of 2008, challenging the order of suspension, dated 29.5.2008 as well as
the order retaining him in service, dated 30.5.2008 passed by the State Government and after setting aside the same, sought for a direction to
respondents to permit him to retire from service with all retirement benefits. However, this Court did not grant any relief. On the other hand, it had
disposed of the said writ petition with the following observations:
Though the writ petition had been filed challenging the order of suspension dated 29.5.2008 of the first respondent and the consequential order
dated 30.5.2008 retaining the petitioner in service, the learned Counsel appearing for the petitioner would submit that the respondents could be
directed to commence and complete the disciplinary proceedings, if it all if they intend to take against the petitioner within a reasonable time fixed
by this Court.
Considering the submissions made by the learned Counsel appearing for the petitioner, I direct the respondents commence and complete the
entire proceedings against the petitioner, if they intend to take against him and complete the same within a period of four months from the date of
receipt of copy of this order.
At this point of time, the learned Counsel appearing for the petitioner drawn my attention to the proceedings of the second respondent, wherein
he has recommended the case of the petitioner for safe retirement. The authorities are directed to consider the said proceedings of the second
respondent also while passing orders.
Now, the petitioner has come forward to challenge the charge memo, dated 31.12.2009 issued against the petitioner in the present writ petition.
Mr. K. Venkatramani, learned Senior Counsel leading Mr. M. Muthappan, learned Counsel submitted that despite directions from this Court, the
respondents have not completed the enquiry. The criminal investigation has been completed and a final report has been filed before the Special
Court. The court has also taken cognizance of the offence. Insofar as the petitioner is concerned, he was accused of committing an offence u/s
120B IPC. Such an offence is only a technical offence. He is willing to face the criminal trial. In the meanwhile, if the respondents proceed with the
enquiry, the petitioner will be put to grave hardship. Therefore, any further proceedings in the charge memo should be stalled. He also relied upon
a judgment of the Supreme Court in Noida Entrepreneurs Association v. Noida and Ors. reported in 2007 (10) SCC 385. The learned Senior
Counsel also stated that though this Court earlier directed completion of enquiry, since the same not having been done, in view of the subsequent
development, the enquiry should be stalled.
This Court is not inclined to agree with the said submissions. The question of keeping the disciplinary action in abeyance pending criminal trial
will arise only when it is based upon the same set of facts and not in every case, pending criminal trial, the disciplinary proceedings should be
stalled. On the contrary, the Supreme Court in Indian Overseas Bank v. P. Ganesan reported in (2008) 1 SCC 650 in paragraphs 23 and 24 held
as follows:
...What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also
required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also
the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of
the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent
officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the
departmental proceedings should not have been stayed.
Apart from that, it must be stated that the petitioner cannot blow hot and cold in the matter of disciplinary action. As already extracted, while
arguing in W.P. No. 30059 of 2008, the counsel for the petitioner demanded commencement and completion of disciplinary proceedings within a
reasonable time. A perusal of the records would show that it is the petitioner''s counsel who invited such a direction from this Court. Therefore,
having got such a direction from this Court to proceed with the enquiry knowing fully well that the criminal investigation is in progress even at the
time of passing the order, the petitioner cannot turn back and seek for a contrary prayer.
The learned Senior Counsel appearing in the present case would contend that he was not aware whether the fact of criminal investigation was
brought to the notice of the court when the earlier order dated 18.4.2009 was passed. In order to verify the same, this Court directed the records
relating to that writ petition to be circulated. It is found that in that case, this Court was very much aware of criminal proceedings and a copy of the
FIR was filed as the first document and a copy of the bail order was filed as the 11th document in the typed set. Yet, the learned Counsel who had
appeared in the earlier WP made a request to direct the authorities to proceed with the disciplinary action.
Therefore, it is not open to the learned Senior Counsel to now seek for a restraint order from proceeding with the disciplinary action. Though it
may be a privilege of the petitioner to blow hot and cold, this Court cannot pass a contradictory order in respect of the very same subject matter.
Having invited a positive direction from this Court to conduct the enquiry against the petitioner, the present writ petition is misconceived and an
abuse of process of court.
In the light of the above, the writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.