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* Key question of should the departmental inquiry proceed when a criminal case is proceeding on the same facts... Identical facts / not identical facts etc discussed
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 14.08.2008
CORAM
THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA
AND
THE HONOURABLE MR. JUSTICE V.DHANAPALAN
W.A. NO. 343 OF 2008
AND
M.P. NO. 1 OF 2008
1. The Deputy Inspector General of Police
Coimbatore Range
Coimbatore 18.
2. The Superintendent of Police
Erode District, Erode. .. Appellants
- Vs -
P.Shanmugasundaram .. Respondent
Appeal filed under Clause 15 of the Letters Patent, against the order dated 10th July, 2007 passed by learned Single Judge in W.P. No.22765 of 2007.
For Appellants : Mr. M.Dhandapani, Spl. G.P.
For Respondent : Mr. S.Kamadevan
JUDGMENT
(JUDGMENT OF THE COURT WAS DELIVERED BY S.J.MUKHOPADHAYA, J.)
The respondent, Sub-Inspector of Police, preferred writ petition for stay of departmental proceeding pursuant to charge memo dated 25th May, 2007, issued by the Deputy Inspector General of Police, Coimbatore. Grievance was made that for the same very set of facts criminal proceedings were initiated against the respondent and pending before the criminal court of of competent jurisdiction. Learned single Judge, giving reference to a decision of this Court in Indian Overseas Bank Vs P.Ganesan (2006 (1) CTC 689), allowed the writ petition by impugned order dated 10th July, 2007, giving rise to the present appeal preferred by the disciplinary authority.
2. Learned counsel appearing for the State submitted that the judgment in P.Ganesan (supra) on which learned single Judge relied has already been reversed by the Supreme Court in Indian Overseas Bank - Vs P.Ganesan (2008 (1) SCC 650). The stand taken by the learned counsel for the respondent is that even if the said judgment has been reversed, in view of catena of decisions of Supreme Court for the same set of facts and law and evidence, both the criminal case and departmental proceeding having lodged/initiated, the departmental proceeding should await the decision in the criminal case.
3. We have heard the learned counsel for the parties and noticed their rival contentions.
4. The question as to whether a departmental proceeding should await the decision of a criminal court for taking disciplinary action against an employee, fell for consideration before Supreme Court from time to time. In Delhi Cloth & General Mills Ltd. - Vs Kushal Bhan (AIR 1960 SC 806), the Supreme Court, while held that employer should not wait for the decision of the criminal court before taking any disciplinary action observed as hereunder :-
"3. .... 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 await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
Similar was the observation of Supreme Court in the case of State of Rajasthan Vs - B.K.Meena (1996 (6) SCC 417).
The relevant observation made by Supreme Court is quoted hereunder :-
"14. ..... 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 employee in the criminal case may not be prejudiced". This ground has, however, been hedged in by providing further that this may 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."
Detailed discussion was made and Supreme Court summarised its finding at para-22 in the case of Capt. M.Paul Anthony Vs Bharat Gold Mines Ltd. (1999 (3) SCC 679), as under :-
"22. (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."
In one of the case of Hindustan Petroleum Corporation Ltd. - Vs Sarvesh Berry (2005 (10) SCC 471) before Supreme Court, a stand was taken by the employer that the employee cannot be permitted, on the one hand, to prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground of pendency of criminal case. In the said case, the Supreme Court allowed the departmental proceedings to continue despite the fact that the delinquent officer therein had been charged for commission of offence u/s 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act, 1988.
5. All the aforesaid judgments have been noticed by Supreme Court in Indian Overseas Bank Vs P.Ganesan (2008 (1) SCC 650), wherein the Supreme Court held that there in no rule of automatic stay of departmental proceeding during the pendency of criminal proceeding. The Court, before exercising its jurisdiction, should take into consideration whether the charges and evidence in both the proceedings were common and whether any complicated question of law involved. In the said case, the departmental proceedings was not stayed by the Supreme Court.
In another case of NOIDA Entrepreneurs Association Vs NOIDA (2007 (3) CTC 211), the Supreme Court, having noticed the conceptual difference between departmental proceeding and criminal proceeding, made the following observation :-
"16. 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 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 of 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. 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 (in short the 'Evidence At'). Converse is the case of Departmental enquiry. The enquiry in a Departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the Department 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."
In the said case also, Supreme Court noticed the case of B.K.Meena, Capt. M.Paul Anthony and Hindustan Petroleum Corporation Ltd. (supra).
6. In the present case, the criminal prosecution has been launched against the respondent for the offence u/s 498-A, 506 (2) IPC and Section 4 of Dowry Prohibition Act in C.C. No.194/07.
Therein, the following charges has been framed :-
"The first accused belongs to Bhavanisagar. He is having intimacy with the 2nd accused. The 3rd and 4th accused are the parents of the first accused. The 5th accused is the sister of the first accused. The first accused with the consent of accused 3 to 5 got marriage with 1st witness on 9.9.2002. At the time of marriage they got 100 sovereigns of gold and Rs.2 lakhs towards marriage expenses and another 3 lakhs by cash were given as dowry. Apart from this, the accused 3 to 5 insisted to give a car. Thereafter, during the Deepavali they demanded Rs.50,000/= and the same was paid by the complainant. Further, they threatened the complainant, unless she brings another Rs.5 lakhs and a car she will not be allowed to live further second marriage will be performed with the second accused. Thereafter, from Feb-2003 onwards complainant lived with the first accused at Bhavanisagar as husband and wife, at the time they demanded the Rs.5 lakhs and the car otherwise the first accused joining with 2nd accused will kill her. In continuation of the same on 27.1.2007 at about 6.00 p.m., the firt accused went to the lands of the complainant and insisted to get Rs.5 lakhs and the car for living together otherwise he has threatened to sign in the divorce case filed by him and if she fail to do so he will kill her. Hence, the accused 1 to 5 are punishable u/s 498-A IPC and Section 4 of the Dowry Prohibition Act. Further, the accused 1 and 2 threatened to kill her. Hence they are punishable u/s 506 (2) IPC."
7. So far as the statement of allegations, namely, imputation of misconduct or misbehaviour in support of charge framed against the respondent in the departmental proceeding is concerned, from the said charge sheet issued, it appears that charge No.1 and charge No.4 are similar to the criminal proceedings pending against the respondent.
The following charges has been levelled :-
"1) While the charged Officer was working as SI of Police at Kundadam P.S., his marriage proposal was materialized. Tr.Balasubramaniam of Senkalipalayam was marriage broker and Tr.R.Subramaniam of Vavipalayam was the mediator for the marriage proposal. The charged officer P.Shanmuga Sundaram, his father Perumal Gounder, mother Dhanalakshmi and younger sister Sujatha demanded 100 sov. of gold jewels, case Rs.2,00,000/= for marriage expenditure and Rs.3,00,000/= in cash as dowry. Accordingly, Tr.V.Lakshmanaswamy Gounder, father of Sasikala gave the demanded dowry and the marriage took place at RPS Alamelu Thirumana Mandapam, Palladam Road, Tiruppur on 09.09.2002. After the marriage, the charged Officer, Tr.P.Shanmugasundaram stayed at Kundadam with his wife for about 3 months, obtained a willingness transfer to CIU Salem and left for Salem leaving his wife Sasikala with his parents at Bhavanisagar. Later he avoided to visit Bhavanisagar and also to contact his wife over phone. When his wife Sasikala questioned about the act of the charged officer with the family members, they informed that only after receiving a car and cash of Rs.5,00,000/= she would live with him as wife & husband. Otherwise they would marry WSI Rasathi as second wife to the charged officer. Further they have received Rs.50,000/= as dowry for DEEPAVALI. Even then they continued to harass her demanding dowry. While Rasathi was working as WSI at AWPS Avinashi she came to Bhavanisagar, stayed with the charged officer on many occasions in the presence of Sasikala and also harassed her demanding dowry already mentioned. On one occasion WSI Rasathi assaulted Sasikala pushed her out of the house and accompanied the charged officer to Avinashi. Sujatha, the younger sister of the charged Officer have also threatened Sasikala demanding dowry. Finally, Sasikala was threatened and sent to her parents house by the charged officer, his family members and WSI Rasathi. Wit. D.Sundaramoorthy, President of Vavipalayam, held a panchayat to effect a compromise, but the charged officer utterly told him that he had no idea of staying with his wife and filed a divorce suit in the court. By thus he denied to live with his wife Tmt.Sasikala because of non receipt of more dowry and in the intention of divorcing his wife which is against the rights and expectations of a wife from her husband. On 23.01.2007, Sasikala, wife of the charged officer has sent a petition to the CM Cell for taking necessary action against the charged officer and his family members. On 27.01.2007 at 18.00 hrs., the charged officer, visited Vavipalayam, threatened his wife Sasikala with dire consequences and asked her to put her signature for divorce and witnesses Nataraj of Vavipalayam and K.Duraikannan of Palanigoundenpalayam have witnessed the occurrence. Thus charged officer has violated rule 4 (5) of Tamil Nadu Subordinate Police Officer Conduct Rules, 1964, by getting dowry.
* * * * * * * *
4) On 20.02.2007 at 11.00 hrs., Tm.Sasikala, wife of the charged officer appeared at AWPS, Sathyamangalam, lodged a written complaint about the dowry harassment, illegal contact between the charged officer and WSI Rasathi. The report was registered in AWPS Cr. No.03/2007 u/s 498 (A), 506 (ii) IPC r/w 4 of D.P. Act against 1) the charged officer, 2) WSI Rasathi, 3) Perumal Gounder (father of the delinquent), 4) Dhanalakshmi (mother of the charged officer, 5) Sujatha (younger sister of the charged officer). The Dy. Inspr. Genl. of Police, Coimbatore Range, Coimbatore has placed the charged officer under suspension as per R.O. No.91/2007 in C.No.D1/1353/2007 dt. 22.02.2007. The above order was served by pasting the same on Door of the charged officer's house (D. No.47, O.M. Quarters, Bhavanisagar) in presence of Tr.Mahadevan, VAO, Bhavanisagar and Tr.J.Balasubramaniam, Village Assistant, Bhavanisagar on 24.02.2007 as the charged officer was absconding. Thus, the charged officer has brought a bad name to the police department and set a bad example being an young Sub-Inspector before other police personnel of Police Disciplinary Force. The above facts will prove the reprehensible conduct of the charged officer."
On the other hand, charge Nos. 2 and 3, which relates to violation of Rule 19 (2) of the Tamil Nadu Government Servants Conduct Rules, 1973 and Rule 9 of the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, has no direct bearing on the criminal case, as evident from the charges and quoted hereunder:-
"2) The charged officer SI, Tr.P.Shanmugasundaram had illegal contact with WSI Rasathi. While she was working at AWPS Avinashi, the charged officer has visited Avinashi on many occasions and stayed with her. They have behaved as husband and wife. Witness Tmt.Jayanthi, WSI Pothanus AWPS has served as WHC under WSI Rasathi at AWPS Avinashi. She states that WSI Rasathi and the charged officer SI Tr.Shanmugasundaram were living together as husband and wife. WSI Rasathi went to Bhavanisagar and stayed with the charged officer SI Tr.P.Shanmugasundaram on several occasions. Wit.Sasikala, wife of Gunasekaran, 46 O.M. Quarters, Bhavanisagar, a neighbour to the house of the charged officer is a witness and she says that WSI Rasathi has visited the house of the charged officer on many occasions and stayed with him. By thus he violated Rule 19 (2) of the Tamil Nadu Government Servants Conduct Rules, 1973.
3) The charged Officer SI Tr.Shanmugasundaram has violated Rule 9 of Tamil Nadu Subordinate Police Officers Conduct Rules, 1964, in not submitting the returns of his assets, liabilities including the properties received as dowry."
8. In the present case, from charge Nos. 1 and 4, it will be evident that the departmental proceedings and criminal case are based on identical and similar set of facts. The charges in the criminal case against the delinquent employee is of a grave nature, which also involves complicated question of fact. In such a situation, we are of the view that it would be desirable to stay the departmental proceeding in regard to charge Nos. 1 and 4 till the conclusion of the criminal case.
Charge Nos. 2 and 3 of the departmental proceeding being not based on identical or similar set of facts and for that as the delinquent employee (respondent) is not required to place any evidence of material, which he may use in the criminal case, the departmental proceeding in regard to those two charges, viz., charge Nos. 2 and 3, can proceed simultaneously as there is no bar in their being conducted simultaneously.
9. In view of our findings, as recorded above, while we set aside the impugned order dated 10th July, 2007 passed by learned single Judge, direct the appellant not to proceed with the departmental proceeding in regard to charge Nos. 1 and 4 till the conclusion of the criminal case. The respondent is directed to co-operate in the departmental proceeding so far as it relates to charge Nos. 2 and 3 and he should take part in the day-to-day proceeding. If the respondent do not co-operate in the departmental proceeding, it will be open to the enquiry officer and disciplinary authority to proceed ex-parte in accordance with law. The writ appeal stands disposed of with the aforesaid observations and directions. Consequently, connected miscellaneous petition is closed. But there shall be no order as to costs.
(S.J.M.J.) (V.D.P.J.)
14.08.2008
Index : Yes
Internet : Yes
GLN
S.J.MUKHOPADHAYA, J.
AND
V.DHANAPALAN, J.
GLN
To
1. The Deputy Inspector General of Police
Coimbatore Range
Coimbatore 18.
2. The Superintendent of Police
Erode District, Erode.
W.A. NO. 343 OF 2008
14.08.2008
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