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Judgment
R.S. Ramanathan, J.—The petitioner has worked as Administrative Officer in the Government Industrial Training Institute, Paramakudi, and he was arrested for offences u/s 7 and 8(1) r/w 13(2) of the Prevention of Corruption Act and therefore, he was placed under suspension with effect from 31.12.2002 A.N and a case was registered against him for the aforesaid offence and charge sheet was filed in C.C. No. 4 of 2005 on the file of the Chief Judicial Magistrate, Ramanathapuram, for the offences u/s 7 and 13(1)(2) of the Prevention of the Corruption Act.
The petitioner attained superannuation on 30.06.2003 and as the criminal case was under investigation at that time, by invoking FR 56(1) (c) of the fundamental Rules, the petitioner was not permitted to retire on his reaching the age of superannuation and retained in service until the criminal case under investigation was concluded. The petitioner submitted that the second respondent initiated departmental proceedings by his proceedings No. R.C. No. 411/O.P.2/2003 dated 24.07.2006 and charges were framed against him and at that time, the petitioner has filed the writ petition for deferring the departmental proceedings initiated against him by the second respondent till the criminal case pending against him, which is on the file of the Chief Judicial Magistrate, Ramanathapuram, is disposed of stating that the charges framed against him in the criminal case and in the departmental proceedings are one and the same and as a matter of fact, the departmental proceedings are solely based on the criminal complaint and the witnesses are same in both the proceedings and if the departmental proceedings is allowed to continue he will be seriously prejudiced and it would also affect the criminal case and therefore, the departmental proceedings should be deferred till the disposal of the criminal case. The learned Counsel further relied on the G.O.Ms. No. 124 Personnel & Administrative Reforms (Personnel-N)dated 22.02.1983 in support of his argument.
Mr. Gandhiraj, learned Counsel appearing for the respondents reiterated the stand taken by them in the counter affidavit and argued that as per the recent judgment of the Honourable Supreme Court reported in 2008(1) SCC 650 in the case of Indian Overseas Bank, Annasalai and Anr. v. P. Ganesan and Ors., the prayer of the petitioner cannot be entertained. He further submitted that the G.O.Ms. No. 124 Personnel and Administrative Reforms (Personnel-N) dated 22.02.1983 cannot be taken advantage of by the petitioner and the departmental action proposed to be taken against the petitioner is confined only to the irregularities or lapses committed by the petitioner with reference to the administrative aspects and therefore, there is no prohibition for proceeding with the departmental proceedings and the writ petition is liable to be dismissed.
It is admitted that the petitioner was arrested for the offences u/s 7, 13(1) r/w 13(2) of the Prevention of Corruption Act and the charge-sheet in C.C. No. 44 of 2005 was laid on the file the Chief Judicial Magistrate, Ramanathapuram for having demanded the illegal gratification of Rs. 500/- from one Jayapal for permitting him to cut the ''karuvelan'' tress and in pursuance of the illegal demand made by the petitioner, the said Jayapal paid the amount to the petitioner on 31.12.2002 and at that time the petitioner was arrested red-handed and the second respondent initiated departmental proceedings against the petitioner and charges were framed against the petitioner, which reads as follows:
While you are working as the Administrative Officer, Government Industrial Training Institute, Paramakudi, Ramanathapuram District by abusing your official position as Public Servant, demanded and accepted Rs. 500/- as bribe from Tvl. S. Jeyapaul, Contractor on 31.12.2002 at 15.15 hrs as a nature of reward for allowing him to cut kattukaruvel Tree grown up inside the premises of Government I.T.I, Paramakudi, beyond the prescribed period prescribed in the cutting order already issued. Thus you have failed to maintain absolute integrity and conducted yourself unbecoming of a member of the service and thereby contravened the provisions of Rule 20 of TNGSC Rules 1973.
In annexure 3 of the charge sheet, the list of documents and in annexure 4, the list of witnesses to be examined in the departmental proceedings to substantiate the charges framed against the petitioner were given. A careful reading of the charge sheet filed in C.C. No. 4 of 2005 and the charge memo given to the petitioner and the departmental proceedings are one and the same viz., illegal demand of Rs. 500/- from one Jayapal for permitting him to cut the ''karuvelan'' trees.
Further in the list of witnesses, the very same witnesses in the charge sheet filed in the criminal Court were mentioned. Therefore, the charges are identical and the witnesses are one and the same and in these circumstances, the petitioner has filed the writ petition for deferring the departmental proceedings till the disposal of the criminal cases.
The position of law in such matter is no longer res untegra. In the judgment reported in 2008(1) SCC 650 in the matter of Indian Overseas Bank, Annasalai and Anr. v. P. Ganesan and Ors., the Hon''ble Supreme Court has analysed the entire law on this subject and having regard to the peculiar facts of that case negatived the prayer of the Delinquent Officer for deferring the departmental proceedings till the disposal of the criminal case. The law has been laid down in the judgment reported in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , wherein, the Honourable Supreme Court has summarised the situation where departmental proceedings can be stayed or can not be stayed. The Honourable Supreme Court has held in the above reported judgment, which is as follows:
22.(i) Department 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 the reported judgment State of Rajasthan V.B.K. Meena, it is held:
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 rule 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...
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.
It is further held in Hindustan Petroleum Corporation Ltd. and Others Vs. Sarvesh Berry, that whether there exists any complication of law must be judged from the employees point of view and there can be no straight jack formula. which is as follows:
There can be no straitjacket formula s to in which the case departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolonged the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
Keeping the above principles as enunciated by the Hon''ble Supreme Court in the various judgments rendered to above, we will have to find out whether having regard to the facts of this particular case can the prayer sought for by the petitioner be granted.
As stated supra, the charges are identical and the departmental proceedings is only based on the allegations that the petitioner has received Rs. 500/- as illegal gratification by abusing his official position as Public Servant and by that act, he has failed to maintain the absolute integrity and conducted himself unbecoming of the Government service. There is no additional charges stated in the charge memo that in addition to the demand and receipt of illegal gratification, the delinquent Officer has committed the misconduct which is punishable under the rules. Therefore, the gist of both the criminal case and the departmental proceedings is a factum of receipt of Rs. 500/- as illegal gratification.
The witness cited in the above prosecution in C.C. No. 4 of 2005 and the witnesses cited in the charge memo are one and the same. No doubt the receipt of the illegal gratification is an offence of grave in nature and it involves complicated questions of law and facts and it depends entirely of the evidence on the witnesses, which are common in both the proceedings.
In this case, it is admitted that though the occurrence is said to have been committed in the year 2002, charge sheet was laid in the year 2005 and it is submitted by the learned Counsel appearing for the petitioner that the trial has commenced and more than 10 witnesses were examined so far. Even though the petitioner was suspended on 31.12.2002, the department has issued the charge memo by its proceedings in R.C. No. 411/OP2/2003 on 24.07.2006 viz., 3-1/2 years after the misconduct was alleged to have been committed by the petitioner. As held in the case of Capt. M Paul Antony v. Bharat Gold Mines Ltd., that 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.
Further it has been made clear in Clause 5 of the said judgment - 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.
Therefore, as per law, in case where the charges are identical and it involves complicated questions of law and fact, it is advisable to stay the departmental proceedings till the completion of the criminal case and further, it is always open to the Department to proceed with the departmental proceedings if criminal proceedings are prolonged unnecessarily.
As stated supra,in this case the criminal proceedings have started and witnesses were examined and therefore, within few months there is every possibility of the criminal proceedings come to an end.
In this case, the scope of the criminal proceedings and departmental proceedings are one and the same. Therefore, if on the basis of the appreciation of the evidence both oral and documentary, the criminal Court can come to a conclusion that would have a definite bearing on the departmental proceedings as the departmental action is based on the very same charge, for which the petitioner has been charge sheeted in the criminal Court.
Further the learned Counsel appearing for the petitioner also brought to my notice that the G.O.Ms.124 (Personnel & Administrative) Reforms (Personnel-N) dated 22.02.1983, wherein the Government has prescribed the procedure to be adopted when criminal case and departmental proceedings are pending on the same set of facts and it is as follows:
(i). when a criminal case is filed solely on criminal offence committed by the Government Servant which is no way connected with the discharge of his official duties; there is no need to pursue departmental action except placing the Government servant under suspension as contemplated under Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The ultimate departmental action can be initiated against the delinquent officer after the result of the criminal case pending against him is disposed of only by the court of law.
(ii). When both departmental as well as criminal action is initiated for the offence of the kind referred to in para 1 above in regard to departmental action, charges may be framed against him for the lapse committed by him and final orders may be passed after obtaining the required registers/records/documents from the court irrespective of the fact whether he is acquitted or not. thus the departmental action will be confined to the irregularities or lapses committed by the accused officer with reference to the administrative aspects.
From that it seen that when both the departmental and criminal case were initiated against an officer as mentioned in para 2, the final orders may be passed after obtaining required registers and documents from the Court irrespective of the fact whether acquitted or not and the departmental action will be confined only to the irregularities or lapses committed by the delinquent Officer with reference to the administrative aspects.
Therefore, even according to the above G.O. only after the disposal of the criminal case, the Department can proceed with the action after getting records from the criminal Court and that too in respect of irregularities or lapses committed by the delinquent Officer with reference to the administrative aspects.
In this case, the charge memo issued to the petitioner by the second respondent was not in respect of irregularities or lapses committed by the petitioner with reference to the administrative aspects, but on the basis of allegations that he received illegal gratification of Rs. 500/- from one Jayapal, which is the subject matter of the criminal prosecution. Therefore, considering the various judgments of the Honourable Supreme Court referred to above and the G.O.Ms. No. 124 dated 22.02.1983, the petitioner is justified in requesting for the postponement of the departmental proceedings till the disposal of the criminal proceedings.
In the case reported in 2008(1) SCC 650, the Honourable Supreme Court refused to stage the departmental proceedings having regard to the peculiar facts of that case. In that reported case, the delinquent Officer moved the High Court for quashing the criminal case and the criminal proceedings were stayed. Therefore, by reason of the conduct of the delinquent Officer by obtaining the stay of the criminal proceedings, he has gained some advantage and on that ground he cannot pray for the stay of the departmental proceedings on the ground that the criminal proceedings are pending.
In this case, the criminal proceedings trial has started and witnesses were examined and therefore, the petitioner has co-operated with the criminal proceedings. Further as held by the Honourable Supreme Court in that judgment the Court must also take into consideration the question as to whether the charges levelled against the delinquent officer, both in the criminal case as well as in the disciplinary proceedings are one and the same and it is not sufficient that are identical facts in criminal case and in the departmental as well as the criminal proceedings.
As stated supra, in this case, the charges levelled against him in both the criminal and departmental proceedings as well as the criminal case are one and the same the witnesses are common, in both the cases and therefore, if the departmental proceedings is allowed to be proceeded with along with the criminal trial, the petitioner will be definitely prejudiced even though the standard of proof in the departmental proceedings and criminal trial is different.
Further, the question whether the petitioner accepted the bribe or not is a complicated question of fact & law and it is advisable to have the same decided by the criminal Court and the departmental proceedings can wait for the judgment of the criminal case in that aspect.
Further as held by the Honourable Supreme Court the discretionary writ jurisdiction under Article 226 of the Constitution of India should be exercised keeping in view the conduct of the parties. In the Supreme Court reported in 2008(1) SCC 650, the factual position is entirely different as stated in that judgment, which is as follows:
The respondents made a representation that in the event the order of suspension is revoked, they would cooperate with the enquiry officer. They kept on filing application for extension of time which were allowed. They took benefit thereof. Without, however, filing show-cause, they moved the High Court. Furthermore, before the enquiry officer also, as noticed hereinbefore, although they had appointed the defence counsel, did not cross-examine the witnesses examined on behalf of the management. A large number of witnesses had already been examined on behalf of the appellants. the disciplinary proceedings, as we have noticed hereinbefore, have proceeded to a great extent.
In this case, there was no complaint from the respondent that the petitioner refused to cooperate with the enquiry and till date the departmental proceeding has not commenced and it is in the initial stage of issuing the charge memo, whereas the criminal trial has started, witnesses were examined and the accused participated in the criminal proceedings. Therefore, having regard to the peculiar facts of this case and after considering the various principles of law laid down by the Honourable Supreme Court in that judgment mentioned above and having regard to the G.O.Ms. No. 124 dated 22.02.2004, I am of the view that by allowing the department to proceed with the charge memo, the delinquent will be seriously prejudiced and therefore, in the interest of justice the departmental proceedings should be deferred till the disposal of the criminal proceedings. It is also made clear that the department need not wait for the final adjudication of the criminal case, in the appeal or revision and after judgment given in C.C. No. 4 of 2005, the Department can proceed with the departmental enquiry, if it intends to do so having regard to the judgment rendered in C.C. No. 4 of 2005 on the file of the Chief Judicial Magistrate, Ramanathapuram.
With the above observation the writ petition is allowed. No costs.