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Judgment
R. Balasubramanian, J.—The first respondent went before the Tamil Nadu Administrative Tribunal in O.A. No. 7409 of 1996 challenging
the charge memo dated 13.10.1996 served on him. The Tribunal quashed that charge memo. The Government is therefore before this court in this
writ petition. Heard the learned counsel on either side.
The order in challenge shows that on the same set of facts, the first respondent and another were proceeded with in S.C. NO. 92 of 1992 on
the file of Special Judge-cum-Chief Judicial Magistrate, Sivaganga for offences under Sections 7 and 13 of the Prevention of Corruption Act. The
impugned order also shows that the said case ended in acquittal by judgment dated 16.9.1994. There is no dispute that the said judgment had
become final. The Tribunal perusing the copy of the judgment and the contents of the charge memo found that the facts relied upon in the charge
memo are the same facts, on which the first respondent was tried before the Special Court and therefore the acquittal by the criminal court cannot
be easily lost sight of in deciding as to whether the departmental proceedings should be allowed to commence. On that premises, the Tribunal held
that to allow the departmental proceedings to go on, on the same set of facts on which criminal prosecution was launched, would be an exercise in
futility. Learned counsel appearing for the State relied upon a judgment of the Supreme Court reported in Corporation of the City of Nagpur, Civil
Lines, Nagpur and another Vs. Ramchandra and others, to contend that the acquittal by the Criminal Court by itself would not take away the
power of the authority to continue the departmental enquiry; its discretion in that regard remains unfettered and therefore submitted that the
impugned order is liable to be set aside. Learned counsel appearing for the first respondent relied upon a judgment of the Supreme Court reported
in SULEKH CHAND v. COMMISISONER OF POLICE (1994) 28 A.T.C. 711 and contended that once there is an order of acquittal on
merits, there is no scope at all to proceed with the departmental enquiry. In that judgment, the Supreme Court of India had stated the principle as
hereunder:
It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental
enquiry on the selfsame allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits.
Learned counsel for the first respondent also relied upon another judgment of the Supreme Court reported in M. PAUL ANTHONY v. BHARAT
GOLD MINES LIMITED 1999 S.C. 1416 to reiterate the same principle. In answer to this, the learned Special Government Pleader would
argue that the Special Court in this case did not give a honourable acquittal but it is only due to the benefit of doubt arising on the facts available in
this case. Therefore such a judgment based on the benefit of doubt alone would amount to acquittal on technical grounds, which will not bar the
department to proceed with the enquiry.
Having regard to the above submissions, we went though the entire materials on record. In our opinion, the judgment of acquittal giving the
benefit of doubt to the accused, cannot be equated to judgment of acquittal on technical grounds. Only when a Court without evaluating the
evidence on record, passes a judgment of acquittal on technical grounds - say for want of sanction or sanction accorded not fulfilling the
requirement of Law or the prosecution barred by Law of Limitation, it can be said that the said judgment is on technical grounds. There is no
dispute before us that on the same set of facts, on which the charge memo is issued, the criminal court was already inclined to give a finding in
favour of the employee. The same witnesses, who have been examined before the criminal court and whose evidence the criminal court was not
inclined to believe, are going to be examined in the departmental enquiry if it commences. Therefore the judgments of the Supreme Court relied
upon by the learned counsel for the first respondent as referred to above would squarely apply to the case on hand. In Sulekh Chand''s case, the
facts are as hereunder:
''S'' was promoted from the post of ASI to SI. But he was confirmed with effect from 4.1.1989. It was stated that his case for promotion had to
be considered with effect from 1.10.1982. That claim put forward before the Central Administrative Tribunal was resisted by the respondents in
that case stating that ''S'' was charged for an offence u/s 5(2) of the Prevention of Corruption Act; he was kept under suspension; adverse remarks
for the period from 7.6.1980 to 31.3.1981 was communicated and that he became eligible to be considered for promotion as SI only with effect
from 16.12.1985. Therefore his case was considered and he was promoted in the year 1989.
The finding in that case is that the departmental proceeding and the prosecution relate to the same transaction and since the judgment of the
criminal court acquitting the appellant was on merits and as it had become final, the necessary consequence would be that the delinquent is entitled
to reinstatement, as if there is no blot on his service and the need for departmental enquiry is obviated. Only in that context, the Honourable
Supreme Court of India held that if an acquittal by the criminal court is on technical grounds, the authorities are entitled to conduct departmental
enquiry on the self same allegations and take appropriate disciplinary action. It was emphasised in that judgment, that in that case the acquittal was
on merits. In Paul Anthony''s case, all the case laws on the issue namely, whether two parallel proceedings can go on were considered at length.
The Honourable Supreme Court of India in the above referred to judgment had culled out the principles of law laid down in the earlier judgments
and extracted the above as hereunder:
The conclusions which are deducible from various decisions of this Court referred to above are:
(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, administration may get rid of him at the earliest.
It is no doubt true that in the judgment relied upon by the learned Special Government Pleader namely, Corporation of the City of Nagpur, Civil
Lines, Nagpur and another Vs. Ramchandra and others, , it was held that the power to proceed with the departmental enquiry remains unfettered
though the criminal court would have acquitted the accused. As already stated, since in the later judgments of the Supreme Court the principle had
been clearly laid down namely, whether to hold back the departmental enquiry or not while criminal prosecution is pending or the criminal court
had acquitted the accused, would all depend on the facts of each case; the complex nature of the criminal case and whether the acquittal by the
criminal court is on merits or on a technical ground, I am inclined to follow the later judgments. In this case, the criminal court had evaluated the
evidence and then acquitted the accused giving the benefit of doubt to him based on the suspicious circumstances brought out in the evidence.
Therefore it cannot be said that the acquittal of the accused by the criminal court is on technical grounds only.
Even otherwise, we find that the charge memo should not be allowed to survive any further to culminate in a departmental proceeding, since it
would cause considerable prejudice to the first respondent. The sum and substance of the charge is that in the year 1991, the first respondent
demanded bribe from a property owner for assessment of her property. The Tamil Nadu State Administrative Tribunal, while admitting the O.A.,
passed an order on 24.12.1996 permitting the authorities to proceed with the departmental enquiry with a restraint not to pass final orders. The
authorities have not chosen to take advantage of this order passed in the year 1996 to even conduct an enquiry. But what they have done is that,
on the verge of the first respondent''s retirement, they passed an order dated 28.2.2002 suspending him stating that enquiry into grave charges of
corruption is contemplated. Therefore the fact remains that in respect of the incident that is shown to have taken place in the year 1991, for
fourteen long years, the authorities have not chosen to take action at all except serving the charge memo and the suspension order . The Tribunal
found that the charge memo itself had been issued subsequent to the acquittal by the criminal court (ie) almost after two years. Therefore at this
distance point of time if the first respondent has to face the departmental enquiry, considerable prejudice would be caused to him.
For all the reasons stated above, we are inclined to sustain the order under challenge and accordingly, it is sustained. The writ petition is
therefore dismissed. No costs.