1. Petitioner joined service as Police Constable on 28.08.1995 and is presently working in the said capacity. In this writ petition, petitioner is challenging the continuation of disciplinary proceedings on the ground that the disciplinary proceedings are based on the complaint lodged in Uppal Police Station, which was registered as Crime No.449 of 2017, Police investigated into the crime, filed final report, III Metropolitan Magistrate took cognizance of the crime and C.C.No.6222/2019 is pending.
2. Heard Mr. G.Koteswara Rao, learned counsel for petitioner and the learned Government Pleader for Home for respondents.
3. According to learned counsel for petitioner, as charges framed in the departmental proceedings are directly arising out of the crime No.449 of 2017 registered in Uppal Police Station under Sections 420, 468, 471, 500 and 506 IPC, charge-sheet is filed, Court took cognizance and C.C.No.6222 of 2019 is pending in the Court of III Metropolitan Magistrate at L.B.Nagar, at this stage, if departmental proceedings are conducted, grave prejudice would be caused to him in defending in criminal case as he will be forced to disclose his defense in the departmental proceedings. According to the learned counsel, nature of charge in the departmental proceedings is similar to that of the charges leveled in criminal proceedings and, therefore, disciplinary authority ought to have deferred conducting of departmental proceedings till conclusion of trial in the criminal case. Not accepting the request of petitioner and proceeding to hold departmental proceedings amounts to arbitrary exercise of power.
4. In support of his contentions, learned counsel placed reliance on the decision of Hon’ble Supreme Court in Capt. M.Paul Anthony v. Bharat Gold Mines Ltd., and another (1999) 3 SCC 679)and G.M. Tank v. State of Gujarat and others (2006) 5 SCC 4546).
5. Per contra, according to learned Special Government Pleader, there is no bar in conducting departmental proceedings merely because the petitioner is also involved in criminal proceedings. According to learned Government Pleader, criminal proceedings and departmental proceedings stand on different footing and are independent and, therefore, they can be proceeded simultaneously. Furthermore, the principle laid down by the Supreme Court is not attracted to the case of petitioner as the allegations in the departmental proceedings are not the same as leveled in the criminal case and, therefore, departmental proceedings can be continued. There is no right for the petitioner to ask for deferment of departmental proceedings merely because criminal case is pending.
6. I have carefully considered respective submissions and the precedent decisions on the subject.
7. The only issue for consideration is whether it is permissible to the Government/disciplinary authority to initiate and continue disciplinary proceedings on the charges levelled against the petitioner, impugned herein, even though the gravemen of charges relate to an alleged incident of cheating, defamation and threatening with dire consequences.
8. In departmental proceedings, the following charges are framed against the petitioner:
Count 1: Sri J.tilak Raj, PC 7277, Saidabad PS (f) Musheerabad P.S., Hyderabad has filed a false petition with forged signature of Smt. D.Laxmi w/o. Pentaiah, occu: Sweeper, r/o. Ramanthapur, Uppal with an intention to cheat and defame her family for his personal gain and thereby exhibited gross misconduct.
Court 2 : Sri J.tilak Raj, PC 7277, Saidabad PS (f) Musheerabad P.S., Hyderabad involved in a criminal case in Cr.No.449/2017 U/Ss 420, 468, 471, 500, 506 IPC was registered at Uppal P.S.”
9. From the reading of the charges, what is alleged against the petitioner is that he filed false petition with forged signature of Smt. D.Laxmi, w/o. Pentaiah with an intention to cheat and defame her family for his personal gain and thereby exhibited gross misconduct. In the second count, it is alleged that by involving in a criminal case, he brought disrepute and tarnished the image of Police in the eyes of general public and acted in a manner unbecoming of member of Government service. In other words, the allegation of forgery of the signature of Smt. D.Laxmi is not the primary issue, but primary issue is whether he was responsible for filing false petition in the name of Smt. D.Laxmi and whether such conduct would amount to gross misconduct. The second limb is on involvement in criminal case being in Police force.
10. As against this, in the charge-sheet filed by the Police, Police alleged that petitioner indulged in cheating, defamation and threatened the complainant with dire consequences. The gravemen of the charges in the criminal case are that petitioner married Miss. Sabita in the year 2005. They were blessed with two children. While so, petitioner got acquainted with Sravanthi, who was also working as Police Constable, had physical relationship with her and blessed with two male children in the year 2007 and 2008. It appears, some disputes arose between the petitioner and Sravanthi and she filed complaint, which was registered under Sections 498-A IPC and Sections 3 & 4 of Dowry Prohibition Act in Uppal Police Station and trial is pending in C.C.No.675 of 2018 in the Court of III Metropolitan Magistrate at L.B.Nagar and, thereafter both were separated. In view of these developments, petitioner developed grudge against Sravanthi and alleged that she had illegal relationship with one Raju, who is son of L.w.1 therein and started harassing L.W.1. It is alleged that in the process, he prepared a letter in the name of L.W.1, signed as Laxmi in Telugu and sent the same to the higher officers to blame L.W.1-D.Laxmi and L.W.4-Sravanthi. Police prima facie alleged that L.W.1 was an illiterate and therefore she cold not sign neither in English nor in Telugu and, therefore alleged that petitioner committed offences under Sections 420, 468, 471, 500 and 506 of IPC.
11. On the contrary, disciplinary authority notices that on enquiry, it came to light that Smt. D.Laxmi did not file any petition against Smt. Sravanthi and suspected that petitioner filed the petition in her name. Smt. D.Laxmi lodged complaint on 18.05.2017 stating that petitioner came to her residence/working place and threatened her that unless she ensures that he is acquitted in the criminal case on the complaint filed by his wife, he can file a false case in her name complaining that she is having illegal affair with her son Raju and her colleagues and in that context, disciplinary authority alleges that petitioner filed false petition in the name of Smt. D.Laxmi.
12. Thus, the conduct of the petitioner in the entire episode requires consideration by the disciplinary authority to assess whether by such conduct, the petitioner has violated the conduct rules and has tarnished the image of Police. Thus, the nature of charges leveled against the petitioner in the departmental proceedings, and nature of charges in criminal proceedings, are entirely different and would lead to different conclusions. Even if petitioner is acquitted in criminal case, the basis of allegations leveled against him does not wipeout and disciplinary authority can still proceed to hold whether in the entire episode the conduct of petitioner would attract the violation of conduct rules and, thereby, inviting the wrath of disciplinary authority to impose appropriate punishment as warranted.
13. Disciplinary proceedings and criminal proceedings operate in two different fields. Disciplinary action is set in motion if employer lost trust and confidence on the employee on alleged misconduct affecting the image and reputation of the employer. Criminal proceedings relate to committing of crime against society and if Government servant is involved in crime, he will also be shown as accused and trial would be conducted. In the domestic enquiry, the employer wants to assess the conduct of the petitioner on the allegations noted above. The relationship of employee–employer is based on trust and confidence of the employer on the employee. If the employer has an element of doubt on the conduct and character of the employee, employer may not be willing to continue the employee in the service.
14. Before acting against an employee, the employer is required to follow due process and on establishment of charges leveled against him, appropriate punishment can be imposed. In domestic enquiry to establish charge, what is required is proof based on principle of preponderance of probabilities. Circumstantial evidence can be taken into consideration to hold the charge as proved and to impose appropriate punishment. On the contrary, criminal law requires that the charges leveled against a person must be proved beyond reasonable doubt and burden lies on the prosecution to establish the charges. Any deficiency and element of doubt in evidence will go against the prosecution.
15. There is long line of precedents on the issue of desirability to continue domestic enquiry pending criminal investigation/trial. W.P.No.21012 of 2019 and two other writ petitions are filed by three Police Officers challenging continuation of disciplinary proceedings when criminal case is pending trial. On review of precedent decisions, this Court held,
“24. …...... From several precedent decisions including Stanzen Toyotetsu, broad principle evolved is, ordinarily disciplinary action should not be stayed even when criminal case is pending on the same set of facts and law and even if it is stayed, if there is delay in concluding trial, the employer should be permitted to hold domestic enquiry. Burden is on the employee to satisfy the Court that the charges levelled in both proceedings are same; the material facts and evidence relied on by the employer is same; that there are complicated questions of law and facts involved; and he has not disclosed his defense so far. Even if employee satisfies above parameters, Court may refuse to stay the domestic enquiry if there is a likelihood of delay in commencement and conclusion of criminal proceedings. Each case is required to be considered on its merits, by the Constitutional Courts whenever an issue of this nature comes up before the Court.”
16. From the Memorandum dated 07.08.1995 policy of the Department is clear. There is no need to wait for conclusion of criminal proceedings and departmental proceedings may go on even when on identical issue criminal proceedings are pending.
17. Petitioner has rendered more than 14 years of service as Police Constable in the Police Department. He is well acquainted with all aspects of law and order. His primary duty is to prevent crime. People repose great faith and confidence in the Police Force. The Police Constable must have impeccable character and integrity.
18. Even according to petitioner, to sustain the charges, the disciplinary authority places reliance on the material collected during the course of investigation into the crime No.449 of 2017 of Uppal Police Station. He has also cited several persons as witnesses. Few of whom may have been citied as witness in the criminal case. Based on the annexures enclosed to the charge sheet in domestic enquiry, vis--vis, the witnesses cited in the criminal case, it is vehemently contended by the learned counsel for petitioner that the charges in the domestic enquiry are sought to be sustained based on the material gathered by the police in the process of investigation into Crime No.449 of 2017 and if the same evidence is produced in departmental proceedings, it would necessarily result in disclosure of defense of the petitioner and would therefore seriously prejudice his defense in the criminal case.
19. Fundamentally, it is settled principle of law that disciplinary action should not be stopped merely because criminal case is pending and should be concluded as expeditiously as possible. Differing of disciplinary proceedings on the ground that criminal case is pending is an exception to normal rule and to be exercised in a case where the criminal proceedings involve complicated questions of facts and law. As noted above the sum and substance of the allegation in the criminal case against petitioner is of cheating, defamation and threatened the victim with dire consequences. These provisions of law are applicable to any person and need not be a Police Officer. Whereas, the nature and scope of charge in departmental proceedings is only to assess the conduct of petitioner as Police Constable in the entire episode.
20. The pleadings in the affidavit filed in support of writ petitions are vague. Except stating that some witnesses would be examined in the domestic enquiry and in the criminal case, petitioner has not stated as to how prejudice would be caused to him and what are the complicated questions of law and facts. It is not stated how his defense in criminal case would affect by relying on that material/witnesses. Thus, petitioner failed in discharging his initial burden to pray for stalling departmental proceedings.
21. In the explanation filed by petitioner in response to show-cause notice, petitioner though sought to differ disciplinary proceedings, he has also denied the allegations, and explained his version. Thus, prima facie, it cannot be said that petitioner has not disclosed his defense. As noted above, in criminal case, prosecution has to prove that by his actions petitioner has committed offence under Sections 420, 500, 506 IPC. Burden is on prosecution to prove the charges with clear evidence.
22. In criminal case, having
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regard to allegations leveled against petitioner, there is no complicated question of law involved. Similarly, facts are also not complicated as sought to be contended. 23. Further, as per the directions of the High Court on administrative side, Sessions Courts/Metropolitan Magistrate are required to assign high priority to cases which are pending for more than 5 years. The criminal case is of the year 2019 and thus, it may take considerable time for the trial Court to commence trial. As consistently held by Apex Court and this Court, it is not desirable to keep the disciplinary proceedings pending for long time and should be concluded expeditiously. More so, as allegations in Departmental proceedings concern primary role of Police Constable working in the law enforcing arm of the State, it is in the interest of State as well as petitioner to conclude the disciplinary proceedings expeditiously. 24. In the facts of this case and in view of settled principle of law, petitioner is not entitled to stall the disciplinary proceedings merely on the ground that criminal case is pending against him. The Writ Petition is dismissed. Petitioner shall cooperate in early conclusion of disciplinary proceedings. It is made clear that there is no expression of opinion on merits and the defense of petitioner in departmental proceedings and in criminal case is preserved. It is open to petitioner to set up his defense as available in law in the domestic enquiry. Pending miscellaneous petitions shall stand closed.