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S. Manikumar, J.—The Petitioner, Sub-Inspector of Police, Armed Reserve, has been arrested on 04.06.2008 and remanded to judicial custody on 05.06.2008. Lateron, he was taken to police custody for five days on 12.06.2008 by the ''Q'' Branch CID of Tirunelveli. A show-cause notice was given by the Assistant Commissioner of Police, Tirunelveli. Not satisfied with the explanation, he was issued with a charge memo, dated 17.01.2009, under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in P.R. No. 1 of 2009, by the Superintendent of Police, Tirunelveli District. As the Petitioner was implicated in a criminal case in Cr. No. 01 of 2008 for the alleged offence under Sections 25(1)(A) r/w. 7 of the Arms Act, 1959, r/w. Sections 409, 381, 120(b) Indian Penal Code, r/w. Sections 10 and 13(1)(2) of the Prevention of Unlawful Activities (P) Act, 1967, on the confession of one Mr. Ravi, alleging that the Petitioner has sold 13 live rounds for 9 mm pistol to him, by proceedings, dated 06.02.2009, the second Respondent has called for the Petitioner to attend the oral enquiry scheduled on 16.02.2009. Both the orders are under challenge in this writ petition.
Learned Counsel for the Petitioner submitted that both the departmental proceedings and the prosecution, are on the same set of allegations and therefore, if the departmental proceedings are allowed to be continued, it would prejudice the Petitioner and that his defence in the criminal Court would be exposed. He further submitted that if the departmental proceedings are allowed to continue, then the prosecution witnesses would be in a position to know the line of defence taken in the disciplinary proceedings and when they are confronted with similar questions in the cross-examination, during trial in the criminal case, registered against the Petitioner, then the defence of the Petitioner would be affected. According to him, the very initiation of disciplinary proceedings on the same set of facts is wholly unwarranted and therefore, prayed to set aside the charge memo. In support of the abovesaid pleadings, he placed reliance on the decision of this Court in Ammaiappan v. G.M., Disciplinary Action Section Circle Office reported in 2009 (1) MLJ 404 and an unreported decision in W.P.(MD) No. 2567 of 2004, dated 21.06.2006.
Per contra, reiterating the averments made in the counter affidavit, Mr. T.S. Mohammed Mohideen, learned Additional Government Pleader submitted that when the Petitioner was working as Sub-Inspector of Police, Armourer Shop in the Armed Reserve, Tirunelveli, on 04.06.2008, he was arrested in connection with a criminal case in Cr. No. 1 of 2008 by the ''Q'' Branch CID and that he was implicated as one of the accused in the said criminal case, for the offences under Sections 25(1)(A) r/w. 7 of the Arms Act, 1959. Mr. Ravi had confessed that the Petitioner had sold 13 live rounds for 9mm Pistol, alleged to have been stolen from the Armed Reserve, Tirunelveli City, for Rs. 4,000/- to him. On his confession, the Petitioner was arrested on 04.06.2008 and produced before the learned Judicial Magistrate No. V, Tirunelveli, on 05.06.2008 and remanded to judicial custody on the same day.
Learned Additional Government Pleader further submitted that the Petitioner was immediately placed under suspension on 06.06.2008 and a charge memo in P.R. No. 1 of 2008 was issued to the Petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, for his unbecoming conduct of a Police personnel for having sold 13 live rounds for 9mm pistol, from the Armed Reserve, Tirunelveli and thereby, involved in the ''Q'' Branch CID Cr. No. 01/2008 u/s 25(1)A r/w. Section 7 of the Arms Act, 1959.
He further submitted that departmental proceedings and prosecution are entirely different from each other, as in the criminal case, the Petitioner has been dealt with, for commission of offences for sale of 13 live rounds of 9mm pistol under the Arms Act, 1959 and other provisions of the penal laws, whereas, in the departmental proceedings, he has been dealt with for his unbecoming conduct for having involved in a criminal case in Cr. No. 1 of 2008 of ''Q'' Branch CID and thus causing disrepute to the disciplined force and failure to discharge the duty with devotion. For the above said reasons stated supra, he submitted that it cannot be said that there is similarity in the charges, levelled against the Petitioner both in the departmental proceedings and the criminal case.
Inviting the attention of this Court to the number of witnesses, proposed to be cited in the departmental proceedings initiated against the Petitioner in P.R. No. 1 of 2009 and the number of prosecution witnesses in the trial, learned Additional Government Pleader further submitted that in criminal Court, strict proof of evidence is required, whereas, in the departmental proceedings, preponderance of probability is the test, on the basis of which, conclusion is arrived at. He further submitted that the departmental proceedings have been initiated based on the substantive record of evidence and inasmuch as the charge levelled against the Petitioner, is entirely different from one, for which, he is tried in a Court of law and therefore, the decisions relied on by the learned Counsel for the Petitioner would not lend any support to the case of the Petitioner. In the above said circumstances, he submitted that there is No. need to defer the departmental proceedings, till the conclusion of the trial.
Heard learned Counsel for the parties and perused the materials available on record.
The charge levelled against the Petitioner in P.R. No. 1 of 2009, dated 17.01.2009, by the Superintendent of Police, Tirunelveli, is as follows:
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Admittedly, when departmental action was taken against the Petitioner, he was a Sub-Inspector of Police, Armourer Shop, Armed Reserve, Tirunelveli City. One Mr. Ravi, S/o. Shankar, VGP Murphy Nagar, NGO A Colony, Palayamkottai, had given a confession statement that the Petitioner had sold 13 live rounds for 9mm Pistol taken by the Armed Reserve, Tirunelveli City for Rs. 4,000/-to him. On that basis, the Petitioner was arrested on 04.06.2008 and produced before the learned Judicial Magistrate No. V, Tirunelveli, on 05.06.2008. As per the averments made in the supporting affidavit, the Petitioner was taken to police custody for five days from 12.06.2008 for interrogation purposes. He was placed under suspension on 06.06.2008. A case in Cr. No. 1 of 2008 has been registered under Sections 25(1)(A) r/w. 7 of the Arms Act, 1959, r/w. Sections 409, 381, 120(b) Indian Penal Code, r/w. Sections 10 and 13(1)(2) of the Prevention of Unlawful Activities (P) Act, 1967. Whereas, disciplinary proceedings initiated against the Petitioner in P.R. No. 1 of 2009, is for his unbecoming conduct of a Police personal for having sold 13 live rounds for 9mm pistol from the Armed Reserve, Tirunelveli and thereby, involved in the ''Q'' Branch CID Cr. No. 01/2008 u/s 25(1)A r/w. Section 7 of the Arms Act, 1959 and thus, causing disrepute to the police force, and failure to discharge the duty with devotion, which is a misconduct under the Disciplined Appeal Rules.
Perusal of the charge memo shows that about 11 documents were sought to be marked and about 8 persons were cited as departmental witnesses. Whereas, before the criminal Court, only three witnesses were sought to be examined as Prosecution Witnesses to prove the offences. Though the facts on the basis of which departmental action and prosecution taken against the writ Petitioner are on the basis of arrest of one Mr. Ravi, S/o. Shankar, VGP Murphy Nagar, NGO A Colony, Palayamkottai, who has given a statement, implicating the Petitioner, which lead to his arrest and police custody, yet considering the difference in the charges levelled against the writ Petitioner, in the departmental proceedings, there is No. prohibition in law to take simultaneous proceedings.
The issue as to whether simultaneous proceedings can be taken, when there is a prosecution, is No. longer res-integra, in view of the following decisions,
In Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, , the Hon''ble Supreme Court, after considering the catena of decisions relating to the departmental proceedings vis-a-vis criminal case, deduced the following conclusions in para 22, which reads as under:
(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 State Bank of India and Others Vs. R.B. Sharma, , at paragraph 8,the Supreme Court held as follows:
The purpose of departmental enquiry and of prosecution are two different and distinct aspects. 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 in 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 Act"). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding 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 departmental 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 Kendriya Vidyalaya Sangathan and Others Vs. T. Srinivas, , the Hon''ble Supreme Court considered a case of a Upper Division Clerk arrested by CBI after a trap and was charged for the offences punishable u/s 7 read with Section 13(1)(d) of the Prevention of Corruption Act. A case in this regard was pending trial before the competent court. During the pendency of the trial, the Appellants decided to initiate departmental proceedings against the Respondent and a charge memo framing three charges was issued to the Respondent. The first article in the memo of charges referred to allegations of the Respondent receiving Rs. 200/-as bribe in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article II of the said charge memo referred to the conduct of the Appellant in not maintaining absolute integrity and devotion to duty and acting in a way unbecoming of an employee in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964. Article III of the said charge memo referred to the Respondent suppressing the fact that he was in police custody on 16-9-2002 which according to the Appellants was again a misconduct in violation of Rules 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964.
A challenge was made before the Central Administrative Tribunal, Hyderabad Bench, which came to the conclusion that the first two articles of charges are identical to the charge levelled against the Petitioner before the Special Court under the provisions of the Prevention of Corruption Act and the third article of charge though not a subject matter of the trial is an interconnected charge with charges 1 and 2 and therefore, allowed the Original Application of the Respondent and consequently directed the Appellants to keep the disciplinary proceedings in abeyance till the conclusion of the trial on the ground that proceeding with the departmental proceedings would expose the defence of the Respondent in the pending criminal trial. On appeal, the High Court agreed with the decision of the Tribunal. The correctness of the order was challenged before the Hon''ble Supreme Court.
The Respondents, to sustain the order of the High Court, contended that the charge before the criminal court and departmental enquiry being identical, the Appellants should not initiate parallel proceedings which would prohibit his defence. It was further submitted that the facts and material that would be relied upon in the departmental enquiry would be the same upon which the prosecuting agency before a criminal court would also rely upon, hence, the Respondent would be compelled to disclose his defence in advance which would seriously prejudice his case before the criminal court. The decision rendered earlier by the Apex Court in State of Rajasthan Vs. B.K. Meena and others, , was applied wherein, it has been held that,
The only ground suggested in the decisions of the Supreme Court 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. 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, of staying the departmental enquiry has to be determined n each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course". All these relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court decisions.
Explaining the distinction between criminal proceedings and departmental proceedings, the Hon''ble Supreme Court in B.K. Meena''s case (cited supra), observed that, the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the Respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas, in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The Court in the above case further reiterated that the standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different.
Therefore, applying the principles to be followed by the Courts in the matter of disciplinary proceedings with reference to acceptance of illegal gratification, the Hon''ble Supreme Court in Kendriya Vidyalaya Sangathan (cited supra), categorically held that neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to the acceptance of illegal gratification and desirability of continuing the Respondent in service in spite of such serious charges levelled against him. The Apex Court
categorically held that both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial should not be proceeded simultaneously and in Their opinion, it is contrary to the principles laid down in the above cited cases.
In yet decision reported in Hindustan Petroleum Corporation Ltd. and Others Vs. Sarvesh Berry, , the question that was posed before the Hon''ble Supreme Court was that whether disciplinary proceedings can be continued despite the pendency of criminal proceedings against the Respondent/employee, who was involved in the case of corruption. Short facts of the above said case are as follows:
The CBI raided the house of the Respondent employee and found that he was in possession of assets disproportionate to the known sources of income and a case was registered on 5.5.1998. After completion of investigation, charge sheet was filed. In the mean time, departmental proceedings were initiated against the Respondent and charge sheet was issued. The employee filed a Writ Petition before the Andhra Pradesh High Court, inter alia contended that once sanction was granted to launch criminal prosecution nothing further warrants initiation and continuance of departmental proceedings as the issues involved in both the departmental enquiry and the criminal case are identical. The Appellants filed counter affidavit, contending inter alia that initiation of disciplinary proceedings and its continuation are in public interest. The three charges levelled against the employee, were viz., possession of assets disproportionate to the known sources of income and two other related to misconduct in not filing the returns at all for some years as required under Rule 13(1)(c) of the Hindustan Petroleum Management Employees (Conduct, Discipline and Appeal) Rules, 1976 and the third charge relating to failure of the Respondent employee to file property returns for the years 1991-92, 1994-95, 1995-96, 1996-97 and 1997-98. On behalf of the Appellant, it was contended that charges 2 and 3 stated supra are different from charge No. 1 which relate to possession of assets disproportionate to the known sources of income and the charge No. 1 relates to corruption and therefore, it would not be proper to continue the Appellant in employment as it would not be in public interest and in any event, the Respondent would be able to place facts relevant to all the charges in the departmental proceedings.
In the above said case, placing reliance on M. Paul Anthony''s case, the employee submitted that if disciplinary proceedings were allowed to continue, he would be compelled to disclose his defence and in any event as charge No. 1 relates to corruption, the departmental authority have No. jurisdiction to deal with the matter. After considering the decisions of the Hon''ble Supreme Court, viz., reported in Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., ; State of Rajasthan Vs. B.K. Meena and others, and in Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., , the Hon''ble Supreme Court in categorical terms, in para 13 held as follows:
It is to be noted that in cases involving Section 13(1)(e) of the PC Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression "known sources of income" is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the PC Act provides that for the purposes of the section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is No. question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by Charges 2 and 3 cannot be the subject-matter of adjudication in the criminal case.
Earlier, a Division Bench of this Court, in Indian Overseas Bank and S. Venkatraman, Enquiry Officer, Indian Overseas Bank Inquiry Cell, Industrial Relations Department Vs. P. Ganesan and Others, , while considering the nature, purpose and scope of the departmental enquiry vis-a-vis the criminal proceedings and the issue as to whether departmental proceedings should be deferred till the conclusions of the criminal trial, in paras 13 and 14, held as follows:
It is thus fairly settled law that on basic principles proceedings in a criminal case and a departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings are same. It is in these cases, the Court has to decide taking into account special features of the case whether simultaneous continuance of both would be proper. There can be No. straight-jacket formula as to in which case the departmental proceedings have to be stayed, and the Court will have to decide in the given circumstances of a particular case as to whether disciplinary proceedings should be interdicted, pending criminal trial.
In the instant case, there is No. dispute that the criminal action and the disciplinary proceedings are founded upon the same set of facts. In fact, the disciplinary proceedings are solely based upon the criminal complaint lodged by the president of a rival union, who is also facing prosecution with regard to the same incident. It has been conceded before us that the bank had not conducted any independent enquiry before initiating the impugned departmental proceedings.
The above said decision was challenged before the Hon''ble Supreme Court. While setting aside the judgment of the Division Bench, in Indian Overseas Bank, Anna Salai and Anr. v. P. Ganesan and Ors. reported in (2008) 1 MLJ 37 (SC), the Hon''ble Supreme Court in para 22 held as under:
The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analysing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. 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.
A Division Bench of this Court, considered a case in G. Nagarajan v. The Union of India represented by the Commissioner of Central Excise, reported in 2006(4) MLJ 739, where a Superintendent of Customs, Thirupur was trapped by the CBI on the charge of demand of illegal gratification for clearing export consignment and a criminal case in C.C. No. 3 of 2005 was registered on the file of the Principal Special Judge for CBI cases for the offences punishable u/s 120(B) Indian Penal Code r/w Sections 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act. Pending criminal case, the Union of India, represented by the Commissioner of Central Excise, decided to initiate departmental proceedings for having committed a gross misconduct and for the failure to discharge the duties of a public servant in connection with the clearance of export consignment in contravention of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules 1964. The core contention of the Petitioner before the Tribunal was that if the departmental proceedings are permitted to be proceeded with, he would be compelled to disclose his evidence in the departmental enquiry and that the same would affect his defence in the trial and cause prejudice. The Division Bench, after considering a catena of judgments, held that the question of prejudice of disclosure of defence before the criminal Court would not arise.
As held by the Division Bench judgment of this Court in S.E., C S.E., Chennai Electrical Distribution Circle v. N. Rangaraj reported in 2009 (3) MLJ 833, the purpose of departmental enquiry is to adjudge the government servant/employee''s conduct under the relevant conduct or discipline and appeal rules and to maintain discipline and efficiency in Public service, whereas, a criminal prosecution is launched for an offence for violation of public duty which he owes, or for breach of law, which entails punishment provided under the penal laws.
Reverting back to the facts of this case, when Mr. G. Thalaimutharasu, learned Counsel for the Petitioner was confronted with a question as to whether statements, sought to be marked in the departmental enquiry are statements recorded u/s 161 Code of Criminal Procedure, by ''Q'' Branch CID Police or statements recorded by the preliminary enquiry officer, he categorically admitted that the statements annexed
to the charge memo are not 161 Cr.P.c., statements.
A person, who is tried before the competent Criminal Court, can always elicit evidence to controvert the version recorded by the Police u/s 161 Code of Criminal Procedure, and only those statements can be used to either corroborate or contradict the version of the prosecution witnesses. The statements recorded by the preliminary enquiry officer are not going to be marked as exhibits by the Police in the trial and in the case on hand, 161 Code of Criminal Procedure, statements are marked as departments exhibits. The preliminary enquiry is also not marked as prosecution document in the trial. In any event, the scope and purpose for conducting the departmental proceedings are entirely different.
As rightly contended by the learned Additional Government Pleader that standard of proof required in the disciplinary proceedings, than that of criminal trial is entirely different and departmental proceedings, pending trial does not warrant automatic stay. The evidence let in are not common. Whether the Petitioner is involved in a serious crime and cause disrepute to the disciplined force and failed to discharge the duty with devotion, are not a complicated questions of law and fact, warranting stay of disciplinary proceedings.
The decision relied on by the learned Counsel for Petitioner in W.P.(MD) No. 2567 of 2004, dated 21.06.2006, has been rendered by a learned Single Judge of this Court, relying on a decision of this Court in Indian Overseas Bank and S. Venkatraman, Enquiry Officer, Indian Overseas Bank Inquiry Cell, Industrial Relations Department Vs. P. Ganesan and Others, . However, when the said decision itself has been reversed subsequently by the Apex Court in Indian Overseas Bank, Anna Salai and Anr. v. P. Ganesan and Ors. reported in (2008) 1 MLJ 37 (SC), it is not desirable to quote the unreported judgment.
In Ammaiappan v. G.M., Disciplinary Action Section Circle Office reported in 2009 (1) MLJ 404, a learned Single Judge of this Court, while reiterating the legal principle that departmental proceedings and criminal case are different in nature and that there is No. bar for the disciplinary proceedings to continue, when the criminal case is pending, has only held that if both the proceedings are based on idential and similar set of facts and that when the delinquency in criminal case is grave in nature, which involves complicated question of law, it is desirable that the disciplinary proceedings should be postponed till the conclusion of the criminal case. On the facts of this reported case, the learned Judge has held that the issue involved was complicated question of law and fact. Whereas, in the case on hand, there is No. such occasion warranting interference.
In yet another decision in W.P.(MD) No. 10193 of 2007, dated 11.12.2007, argued by the very same counsel, Hon''ble Mr. Justice N. Paul Vasanthakumar, while addressing the very same issue, at Paragraph 3, held as follows:
It is well settled in law that the departmental proceedings and the criminal proceedings are different and even if in the criminal proceedings, the person is acquitted, the department can proceed with the charges framed under the service as the proof required in a criminal case and departmental proceedings are different. Strict proof is required in a criminal case and preponderance of evidence is sufficient in a departmental proceedings. Hence, the writ petition, challenging the charge memo, cannot be entertained.
Before, staging the departmental proceedings, the Court should consider,
i. Distance of identical facts and evidence.
ii. The charges levelled against the delinquent in the departmental proceedings and the criminal case should be one and the same.
iii. Whether the non-stay of disciplinary proceedings will cause prejudice to the department.
iv. Whether the matter involves complicated question of fact and law.
v. Whether retention of the charges official in service in public interest is required or whether any other penalty can be imposed, when there are materials to satisfy the test of preponderance of probability to impose any penalty.
vi. Whether the criminal case does not proceed or its disposal is validly delayed then the Department can take a decision and the departmental proceedings, can be continued.
As stated supra, in the case on hand, none of the statements sought to be marked in the departmental proceedings are either Section 161 Code of Criminal Procedure, statements before the trial. Involvement of the Petitioner in a criminal case and causing disrepute to the disciplined police for and failure to discharge the duty with devotion are certainly matters falling under misconduct, for which disciplinary action can be taken, notwithstanding prosecution for offences under penal laws.
In the result, the writ petition is dismissed. No. costs. Consequently, connected Miscellaneous Petitions are also dismissed.