R. Bhoopalan and 9 others vs S. Kandaswamy

Rengasamy, J.—This petition is filed u/s 482 Code of Criminal Procedure to quash the criminal proceedings in C.C. No. 5746 of 1992 on the file of VI Metropolitan Magistrate, Eg-more, for the alleged offences under Sections 186, 342 read with Section 34 Indian Penal Code.

The Respondent is the Audit Officer in the Office of the Director of Audit, Posts and Telecommunications at Madras and the Petitioners herein are working in the same office in different capacities such as Assistant Audit Officer, Senior Auditor etc. The Respondent has filed private complaint before the VI Metropolitan Magistrate, Madras, for the above mentioned offences alleging that as he called for a meeting of his subordinate officers to be held on 19.4.91 to streamline the administration and also to consider their problems, the Petitioners herein, in order to prevent the meeting being conducted on 19.4.91 at about 2:00 p.m. entered into his room and gheraoed by sitting around him till 5:30 p.m. thereby preventing him from proceeding anywhere and that he was wrongfully restrained and wrongfully confined within that room and he was unable to discharge his public functions. The Petitioners have filed this petition to quash that criminal proceedings against them on the ground that filing of the complaint against them before the Magistrate is against the Conduct Rules of the Central Services.

The contention of the learned Counsel for the Petitioners Mr. N.D. Behety is that the Conduct Rules of the Government Servants have been framed by virtue of Article 309 of the Constitution of India and therefore these Conduct Rules and the Notifications therein have the statutory effect, that under Rule 7 of the Conduct Rules, no doubt the Government Servants are not allowed to participate in a demonstration, but under Sub-rule (3) of Rule 3, for the gherao staged by the Government servants, certain procedures have been provided to deal with them and under this Rule as per the Memorandum of the Central Government, disciplinary action should be taken against them, that for the absence from work on account of participation in the gherao, for the break in service, they should be dealt with and a written report should be sent to the Officer incharge of the police station having jurisdiction, requesting him to register the offence and to take action under law and in case the police had not taken action on such a report, criminal complaint should be filed before the Magistrate and as the abovesaid procedure under the Conduct Rules is mandatory, without complying with these procedures, the Respondent complainant cannot file the complaint straightway in the Magistrate court and therefore the proceedings before the Magistrate has to be quashed. According to the learned Counsel Mr. Behety, when there is a specific direction under the Conduct Rules that, in addition to the disciplinary action and also for dealing with them for the break in service, the rules contemplate the complaint to the police but the Respondent, without filing a complaint to the police, cannot file the complaint before the Magistrate without following these mandatory rules which are statutory in force and the Court should not encourage this practice and the complaint before the Magistrate has to be quashed.

The direction to deal with the Government Servants who staged the gherao is by a Memorandum of the Central Government in M.H.A., O.M. No. 25/(s)/ll/67-Ests. (A), dated 13th April 1967, which reads as follows:

(i) Disciplinary action should be taken against the prominent participants in the ''Gherao'' for the contravention of Rules 3 and 7 of the C.C.S. (Conduct) Rules, 1964. In the chargesheet to be served in pursuance of such disciplinary action, it should be specified to the extent that the facts justify, that demonstration prejudicial to public order and involving criminal offences, namely, wrongful restraint, wrongful confinement, criminal trespass and incitement to such offences, have been held; that such conduct was subversive of discipline and harmful to the public interest; and that the conduct was wholly unbecoming of a Government servant.

(ii) Absence from work on account of participation in "Gherao" should in all cases be treated as unauthorised absence involving break in service. The absence should not be regularised as leave of any kind.

(iii) Whenever there is a case of "Gherao", wrongful restraint, wrongful confinement or criminal trespass or of any other cognizable offence, a written report should be made to the Officer-in-Charge of the Police Station having jurisdiction, requesting him to register the offence and to take action under the law. The names of the offenders to the extent known, and of responsible witnesses to the offences should be included in the written report. Copies of the report should be endorsed to the Police Commissioner/Superintendent of Police and the Home Secretary to the State Government concerned for necessary action according to law.

(iv) If, notwithstanding the mandatory provisions of the Criminal Procedure Code, Police take no action on such a report, action should be taken promptly to file a complaint before the appropriate Magistrate in respect of the substantive offences under the Indian Penal Code or other laws. In certain circumstances, a petition could be filed before the High Court for issue of the appropriate writ, but this should be done after taking legal advice.

The above procedure is not found in the Rules but it is only a Memorandum issued by the Central Government to deal with the Government servants who staged gherao, severely. The learned Counsel Mr. Behety advanced a lengthy argument as to the effect of the Conduct Rules and according to him, even the notifications and memorandums issued by the Government have the statutory force as they are issued in relation to the Rules framed in pursuance of the Article 309 of the Constitution and therefore the above mentioned procedure is the Rule of law which every Government servant is bound to follow and as the Superior Officers of the Petitioners did not take any disciplinary action against the Petitioners for the participation in the gherao and for the alleged unauthorised absence in their duty, while participating in the gherao also has not been complied with, the third method of dealing with the Government servants for criminal prosecution, cannot be entertained and further even for criminal prosecution, the Sub-rule (3) of Rule 3 directs to approach the police with a complaint and only when the police had failed to take action, the complaint to be filed before the Magistrate and without complying with any of these mandatory rules, the Respondent complainant has straightaway filed the complaint before the Magistrate and therefore the complaint is not sustainable and the proceedings before the Magistrate has to be quashed.

The learned Counsel has cited series of decisions to support his argument that the violation of the Conduct Rules would lead to anarchiam, which should not be allowed. Unfortunately, the decisions cited by him before me, have no relevance for the point which he has raised. However, I shall refer to these decisions, quoted by him, for his satisfaction. The first decision is Nirpendra Nath Banerjee Vs. Senior Deputy Accountant General, Posts and Telegraphs and Others, which deals with a Central Government employee, who was refused permission by the Government to contest the election for Corporation of Calcutta but he contested and won the election. Even after election, he was asked by the Government to resign, but he refused. So, he was dealt with as per the Conduct Rules and was removed from service. As the Government employee therein, contrary to the Government direction, contested the election, he was only removed from service. However his election to the Corporation of Calcutta could not be challenged. Therefore, this decision is not in any way helpful to the Petitioners.

The second decision cited by him is Sant Ram Sharma Vs. State of Rajasthan and Another, ). In that case, relating to the promotion for Selection grade Post, the question was whether the Government could issue administrative instructions for promotion to Selection Grade Posts till the statutory rules were framed. It was found to be valid as some guidelines were required for the promotion to Selection Grade. This decision also is not in any way connected with the issue before me.

The third decision is Tara Singh and Ors. v. State of Rajasthan and Ors. (1975 All Ind Ser L J 619) . It is in connection with the Rajasthan Service Rules when it was amended in 1972. The old Rule read the compulsory retirement would be made in public interest whereas the amended rules did not contain that part of the old Rule leading to the inference that the compulsory retirement could be made even in cases where public interest was not involved and hence the validity of the Rules was challenged. As the theme of the old Rule compulsorily retiring the Government servant in the public interest was not found in the new Rule, the new Rule was challenged and this decision also does not in any way touch upon the point in controversy in this petition.

Another decision cited by him in Binapanidevi v. State of Orissa (AIR 1971 Ori 170). That was a case in which the discretionary power of the Government to compulsorily retire the Orissa Government servants on completion of 55 years without assigning any reasons, was challenged as discriminatory. It was stated that as the retirement age was raised to 58, but the Government which had the power to compulsorily retire any person who had completed 55 years, was discriminatory, the validity of this clause in the Government rule was challenged. This decision also does not lay down any principle relating to the point involved in this petition before me.

Another decision relied upon by learned Counsel for the Petitioners is Bharat Ram Vs. The Union of India (UOI) and Others, which has dealt with a Government Servant, who purchased the property without permission of the Government. In that decision, the validity of the service rules framed under Article 309 of the Constitution and the guarantee to the employee that he shall not be dismissed or removed from service until he has been given a reasonable opportunity of showing cause against the proposed action, has been discussed and this decision also does not in any way help the contention of the Petitioners relating to the criminal prosecution against them.

The last decision relied upon by the learned Counsel is Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, . The dispute in that case arose as to the inter seniority of the officers coming from two services namely Provincial Civil Medical Service and Public Health Service. In exercise of the executive powers, the State Government issued a Memorandum and under Clause 2(ii) of the Memorandum on the basis of the length of continuous service, seniority was fixed. This was challenged by the Government servant. Even though the powers of the Government to issue such Memorandum for fixing the seniority was the point in issue, with which we are not concerned, one observation of the Supreme Court therein completely dilutes the arguments of the learned Counsel for the Petitioners herein, making it in-effective. The observation is as follows:

It was true that Clause (2) (ii) was not a statutory provision having the force of law and was merely an administrative instruction issued by the State Government in exercise of its executive power. But that does not present any difficulty, for it is now well settled that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can, in exercise of its executive power, issue administrative instructions providing for recruitment and laying down conditions of service.

Again in paragraph 9, the Supreme Court observes,

Now, it is true that Clause (2)(ii) of the memorandum was in the nature of administrative instruction, not having the force of law, but the State Government could not, at its own sweet will, depart from it without rational justification and fix an artificial date for commencing the length of continuous service....

Though it is the argument of the learned Counsel for the Petitioners that the Memorandum mentioned above issued by the Central Government has the force of law and has become the enactment, the Supreme Court makes it clear that such Memorandums cannot have the statutory force as they are only administrative instructions though it will be binding upon the Government. As it is made clear now that these administrative instructions issued by the Government cannot have the statutory force, the whole argument of the learned Counsel for the Petitioners that non-compliance of these instructions provided under the Service Rules will nullify the effect of the criminal proceedings, is nothing but a distorted argument.

Even assuming that a Government Servant had failed to comply with the conditions of the Conduct Rules, at the most, he would be made to face the disciplinary action by domestic enquiry as mentioned in the first decision cited by the learned Counsel, when the Government servant, who contested the election for the Corporation of Calcutta without the permission of the government, was dealt with only under the Conduct Rules to remove him from service, but his election to the Corporation of Calcutta could not be challenged on the ground that he did not obtain the permission from the Government to contest the election. Similarly, in this case, if the Respondent did not file the complaint to the police but straightway filed the complaint in the Court, the superior officers of the Respondent could only initiate domestic enquiry for the violation of the conduct rules but at no stretch of imagination, the criminal proceedings initiated by him would become illegal.

Even under the Government Conduct Rules, the persons participated in the gherao have to be dealt with severely to discourage the practice and the Rules contemplate both for the domestic enquiry for participation and also for the absence of duty in addition to the criminal proceedings for the commission of the offence of wrongful restraint, wrongful confinement etc. For the reason that the domestic enquiry was not initiated against such participants of the ghearo, it cannot be stated that they cannot be prosecuted in the criminal court. It is the discretion of the superior officer to choose the appropriate action against the Government servants to deal with them. He may take both actions, namely disciplinary action by domestic enquiry and also for the criminal prosecution. The Conduct Rules do not read the single action is not allowed and both actions should be taken simultaneously.

The strange argument of Mr. Behety that without filing a complaint before the police, complaint before the Magistrate is not maintainable, has no substance because the very purpose of going to the police is only to set the law in motion and to book the offenders and to bring them before the Court to deal with, according to law. In this case as Section 196 Indian Penal Code, is one of the offences alleged against the Petitioner and u/s 195 (i) and (iii) Code of Criminal Procedure, unless the public servant himself lodged the complaint before the Magistrate Court, the Court shall not take cognizance of the offence, naturally, the Respondent had to file the complaint only in the Court, as the police cannot file the charge- sheet for such offences. Therefore, it is meaningless to contend that the Respondent complainant ought to have filed the complaint only before the police as per the direction in the Conduct Rules and that he should not have filed the complaint before the Court.

The learned Counsel for the Respondent Mr. P.N. Prakash would contend that the non-compliance of the Service Rules would entail only for the domestic enquiry for the disciplinary action and this domestic enquiry is an independent action nothing to do with the criminal proceedings and if actions were taken both in the Court for the violation of law and also for the domestic enquiry for the violation of the Conduct Rules, both are parallel enquiries independent of the findings of the other and even if the criminal proceedings if the Government servant was acquitted, still, action could be initiated under the Conduct Rules. He draws support from the Bench decision of this Court in Collector of Central Excise Vs. K. Ranganathan, wherein it is held that the proceedings for initiation of criminal trial under the criminal law and the departmental proceedings u/s 112-B of the Customs Act are parallel proceedings and the mere acquittal by the criminal court does not deter the authorities under the statute from proceeding u/s 112-B of the Customs Act and passing appropriate orders. In Bojan v. State (1989 (1) Cri 4) this Court has held that when an employee has committed an act, which would amount to an offence under the law and also misconduct under the relevant Standing Orders, the management, have at their disposal two kinds of actions, one is to launch the prosecution and another is to start a disciplinary proceedings. Hence, for the reason that Rule 7 of the Central Civil Services Conduct Rules prescribe a mode at which the Government servants who participated in the gherao, shall be dealt with, it is absurd to contend that the victim of the offence shall not file the complaint setting the law in motion before a court to have his grievances redressed according to law and that he is bound to abide by the Conduct Rules.

Even assuming for argument''s sake that the Memorandum issued by the Government under the Central Civil Services Conduct Rules have the statutory effect, that Rule has no overriding effect on the criminal law and Section 4 of the Code of Criminal Procedure reads that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise be dealt with according to the provisions therein contained. As the Respondent alleged that he was wrongfully restrained and wrongfully confined in his office and he was obstructed from discharging his official duties, certainly, he is entitled to approach the criminal court to deal with the offenders, The learned Counsel Mr. Prakash rightly contended that Article 309 of the Constitution of India contemplates the Rules for the recruitment and conditions of service of persons serving the Union or State and the Article does not read that the rules relating to the service conditions should meddle with the administration of justice by Court. According to Mr. Prakash, the learned Counsel, under Article 246 of the Constitution, the Parliament and the State Legislatures have exclusive power to make laws and the service Rules framed under Article 309 of the Constitution of India cannot interfere with the obligation of law and that every person is protected under Article 21 of the Constitution for his life and personal liberty, that when his liberty was affected or curtailed, he is entitled to move the Court according to the penal laws of the land to punish the offender and the service Rules cannot affect this right conferred on him.

As found above, the Memorandum issued by the Government, even if it has the effect of law, will not override the rights conferred on persons to move the court to do with the offender according to law, and even if there is any violation on his part in not complying with the procedures of the Service Rules, disciplinary action against him is the only course of the employer and the violation of the Service Rules cannot, in no way affect his rights to approach the Court. Therefore, the entire argument of the learned Counsel for the Petitioners Mr. Behety has no substance and devoid of any merit, resulting in the dismissal of the petition.

In the result, the petition is dismissed.