w w w . L a w y e r S e r v i c e s . i n



R. Suresh Kumar v/s The Government of Tamil Nadu, Secretary to Home Department, Chennai & Others


Company & Directors' Information:- M SURESH COMPANY PRIVATE LIMITED [Active] CIN = U36910MH2004PTC149806

Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

Company & Directors' Information:- SURESH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51900MH1941PTC003295

    W.P.(MD)Nos. 3 & 14 of 2020 & W.M.P.(MD) Nos. 1, 4 and 6 of 2020

    Decided On, 14 August 2020

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. SURESH KUMAR

    For the Petitioner: V. Viswanathan, Advocate. For the Respondents: K. Chellapandian, AAG assisted by J. Padmavathidevi, Spl.G.P.



Judgment Text

(Prayer in W.P.(MD) No.3 of 2020: Writ Petition - filed under Article 226 of Constitution of India, to issue a writ of Certiorari, calling for the records of the 3rd respondent in his proceedings in Tha Pa No.H1/38/2019 dated 06.12.2019 and quash the same.(Prayer in W.P.(MD) No.14 of 2020: Writ Petition - filed under Article 226 of Constitution of India, to issue a writ of Certiorarified Mandamus, calling for the records of the 3rd respondent in respect of the order of suspension bearing C.No.H1/15883/2004 CPO, 633/2004 by the 3rd respondent dated 21.05.2004 and consequently direct the 3rd respondent reinstate the petitioner into service together with the continuity of service along with backwages and other service benefits including seniority and promotion.)Since the issue raised in both the writ petitions are inter-connected and the parties in both the writ petitions are one and the same, with the consent of both sides, both these writ petitions were heard together and are being disposed of by this common order.2. The petitioner joined in service as Sub Inspector of Police on 01.03.1996 and was posted at Trichy District. Thereafter, he has been transferred to Virudhunagar District and again has been brought to Trichy District and posted at Prohibition and Enforcement Wing, Trichy. While so, on 21.05.2014, the petitioner has been placed under suspension pursuant to a criminal case initiated against him under Section 7 of Prevention of Corruption Act. Accordingly, in crime No.2 of 2004, the Vigilance and Anti Corruption department, Trichy, filed a criminal case, where charge sheet has been filed in C.C.No.52 of 2011. It took nearly 13 years to complete the trial and to get the judgment. Ultimately, on 28.11.2017, after full-fledged trial, the concerned criminal Court has acquitted the petitioner from all the criminal charges.3. After the petitioner having been acquitted from criminal charges, he has made representation in the year 2018 and sought for reinstatement. However, the said request has not been immediately considered. Thereafter, the respondent department decided to proceed against the petitioner by way of departmental proceedings and they took more than two years to come out with the charge memo dated 06.12.2019, where the respondents issued a charge memo with three charges, which are either same or identical to that of the criminal charges framed against the petitioner, from which, the petitioner has already been acquitted by the criminal Court.4. In that circumstances, the petitioner has filed W.P.(MD) No.3 of 2020 challenging the charge memo dated 06.12.2019 and W.P.(MD) No. 14 of 2020 has been filed challenging the impugned suspension order dated 21.05.2004.5. On notice, the respondents have filed counter affidavits in both the cases.6. Mr.V.Viswanathan, learned counsel appearing for the petitioner in both the cases, has made two fold submissions. Firstly, he would submit that, once the petitioner is acquitted, after full-pledged trial, from the criminal charges, normally, the departmental proceedings would not be initiated, if not already initiated, or it would be dropped, if it is already initiated. He would further submit that, insofar as the present case is concerned, the alleged occurrence is of the year 2004, where, immediately, the petitioner was placed under suspension from 21.05.2004 and he had been under prolonged suspension for 13 years till the criminal Court delivered the judgment on 28.11.2017. Thereafter, the impugned suspension could have been revoked, for which, though representations had been given by the petitioner, the respondents have not considered the same and the suspension has not been revoked and it continues till now.7. Secondly, the learned counsel appearing for the petitioner would submit that, insofar as the charge memo is concerned, there is no reason for such a delay between 2017 and 2019 on the part of the respondents to issue the impugned charge memo. If at all, the respondents waited for the verdict to be made by the criminal Court, once the verdict was made on 28.11.2017, immediately or within a reasonable time, charge memo could have been issued, if they decided to do so, but, they have not issued the same. However, they kept the petitioner under prolonged suspension for further two or three years and now come forward to issue a charge memo only in the year 2019. Therefore, it is a delayed action on the part of the respondents in issuing charge memo.8. In this context, the learned counsel appearing for the petitioner has relied upon the Division Bench decision of this Court reported in 2015(3) LW 27 – V.Bhoopathy V. Union of India & another and would further submit that, in that case, the Division Bench dealt with, there was a delay of four years between the acquittal by the criminal Court and the date of issue of charge memo and since, there was no reason given for such a delay in issuing belated charge memo, that was taken into account and the Division Bench has shown its indulgence, despite the fact that the employee therein having been acquitted by the criminal Court, that was not accepted and accordingly, the said charge memo was quashed.9. Drawing the same analogy, the learned counsel appearing for the petitioner would urge before this Court that, in the present case also, delay of more than two years is obvious, for which absolutely no reason had been given by the respondents. Therefore, the logic and the principle enunciated in the said decision cited, very well would be applicable in the present case and accordingly, the impugned charge memo is liable to be quashed.10. The learned counsel appearing for the petitioner also submits that, in view of the Police Standing Order 67, the respondents are precluded from proceeding further against the petitioner by way of departmental proceedings, since in the criminal case, the petitioner after full-pledged trial has been acquitted. By urging all these grounds, the learned counsel appearing for the petitioner would submit that, both, the impugned charge memo as well as the suspension order, cannot be sustained, therefore, both the orders impugned in these writ petitions are liable to be interfered with and to be quashed in the interest of justice.11. However, Mr.K.Chellapandian, learned Additional Advocate General assisted by Mrs.J.Padmavathidevi, learned Special Government Pleader appearing for the respondents would contend that, no doubt, the charge memo was issued only in the year 2019 for the occurrence taken place in the year 2004. However, the reason for such a delayed issuance of charge memo is also obvious, because, out of these years, the criminal case itself was pending upto 2017, where, at the end of 2017 i.e. on 28.11.2017 alone, the criminal Court was able to deliver the judgment acquitting the petitioner. Therefore, the respondents, after considering the charges framed against the petitioner and the order of the criminal Court, has decided to proceed against the petitioner departmentally and accordingly, charge memo, which is impugned herein, has been prepared and served on the petitioner. In this context, the learned Additional Advocate General would further submit that, the time between 2017 and 2019 cannot be construed as a long delay for issuance of charge memo towards the departmental proceedings. The said two years period was necessitated to take a decision by the department as to whether the departmental proceedings can be continued against the petitioner in view of the acquittal made by the criminal Court and after having taken a decision to that effect only, they decided to frame charges and accordingly, the charge memo was issued in the year 2019. Therefore, the said two years period cannot be treated as an inordinate delay on the part of the respondents.12. The learned Additional Advocate General would further submit that, during this period, since criminal case was pending before the concerned Court, the petitioner necessarily was to be placed under continuous suspension. Since the charge framed against the petitioner before the criminal Court was very grave in nature, that too, under the provisions of Prevention of Corruption Act, it became necessitated to keep the petitioner under prolonged suspension for all these years. Now, since the charge memo has been issued and the respondents are ready to complete the disciplinary proceedings by conducting necessary enquiry to that effect within a time frame to be stipulated by this Court at the earliest possible, the present suspension against the petitioner necessarily to be continued till the final order is passed in the disciplinary proceedings. Therefore, the impugned suspension order also, at this juncture, may not be required to be interfered with by this Court.13. Insofar as the Police Standing Order 67 is concerned, the learned Additional Advocate General would submit that, PSO 67 though states that, ordinarily, the department would not proceed against the person, who has been acquitted by a criminal Court, it is not mandatory that, each and every case, where the employee gets an acquittal from the competent criminal Court would be permitted to get free without being subjected to the departmental proceedings. According to the learned Additional Advocate General, the law is well settled in this regard that, merely because, an employee is acquitted from criminal case, the employer/department is not precluded from proceeding against such erring employee departmentally by conducting disciplinary proceedings in the manner known to law. Therefore, the learned Additional Advocate General would submit that, absolutely, there can be no impediment for the respondents to proceed against the petitioner by way of disciplinary proceedings and in this regard, PSO 67, according to the learned Additional Advocate General, will not stand in the way.14. I have given anxious consideration to the said rival submissions made by the learned counsel appearing for the parties and also have perused the materials placed before this Court.15. Insofar as the impugned charge memo is concerned, the main ground urged by the petitioner side is that, it is a belated one. The learned counsel also urged another ground that, since the petitioner has been acquitted by the criminal Court on the same set of charges, now, disciplinary proceedings is since initiated by issuance of the impugned charge memo, that is impermissible in view of the clear provisions made in PSO 67.16. In order to meet these two grounds, as has been rightly pointed out by the learned Additional Advocate General, the respondents had to wait till a verdict has to come from the competent criminal Court and in this case, it took 13 years to complete the trial and deliver the judgment, where the petitioner has been acquitted from the criminal charges. Once, the criminal Court delivered the judgment in November 2017, then the respondents seems to have taken a decision to proceed against the petitioner and accordingly, charge memo has been prepared and issued on 16.12.2019. Though there is two years gap in between the date of judgment in criminal case and the date of the impugned charge memo, this Court feels that, in the given facts and circumstances of the case, such a delay is not so inordinate. Therefore, principle enunciated in the Division Bench judgment cited by the learned counsel appearing for the petitioner in 2015(3) LW 27 – V.Bhoopathy V. Union of India & another could not be made applicable to the facts and circumstances of the present case. The reason being, in that case there was an inordinate delay in filing the charge sheet, after the acquittal made by the criminal Court which went to an extent of four years. Therefore, the said case cannot be compared with the present facts of this case.17. The other ground urged by the learned counsel appearing for the petitioner is that, PSO 67 has given a complete prohibition or it preclude the department from proceed further departmentally against an erring employee, if he is already acquitted by a criminal Court with same set of charges, in respect of this ground, the provision made in PSO 67 can be gone into. No doubt, clause 1 of PSO 67 states that “When a Police Officer has been tried and acquitted by a Criminal court or has had his conviction quashed on appeal he should ordinarily be reinstated”. The said clause of PSO 67 has been heavily relied upon by the learned counsel appearing for the petitioner. In that regard, this Court feels that, no doubt clause 1 of PSO 67 makes it clear that, if for same set of charges, an employee is acquitted by a criminal Court or his conviction given by trial Court getting quashed in an appeal, the department ordinarily should not go for disciplinary proceedings and would reinstate the erring employee. Here the word 'ordinarily', employed in clause 1 of PSO 67 will give a different meaning, which states that, it is not necessary that in each and every case, the department shall accept the verdict of the criminal Court and accordingly, drop the disciplinary proceedings and to go for reinstatement of the employee. If any alternative interpretation is given to clause 1 of PSO 67, that will have a negative impact and repercussion in the administration, because, in some of the cases, the evidences could not have been collected properly by the investigating agency in criminal case and even though if evidences are collected and based on which charge sheet is filed, at the time of trial, the prosecution might not been in a position to present those evidences in support of the prosecution case to prove the case beyond reasonable doubt.18. However, in departmental proceedings, such a decree of proof is not required. It is a well settled principle that in criminal cases, the decree of proof is that, the prosecution shall prove the case based on clear evidences beyond reasonable doubt, whereas, in departmental proceedings, the decree of proof is only the preponderance of probability. Therefore, since decree of proof between the criminal case and departmental proceedings is different, in some cases, the department may succeed in proving the guilt against the erring official/employee by conducting a full-pledged enquiry. Therefore, it has to be decided only by the department concerned or employer concerned as to whether the erring employee has to be proceeded by way of departmental proceedings despite the fact that he having been acquitted by a criminal Court after a full-pledged trial. This has been exactly enunciated by PSO 67, where, it makes clear that, what are all the procedure to be followed after acquittal of an employee in a criminal case. However, at the same time, clause 3 of PSO 67 makes the following.“3. The Government do not wish it to be understood that the departmental authorities are not entitled, on grounds of legitimate suspicion, to order a departmental enquiry in all such cases. They do, however, wish to emphasize that in enquiries of this kind, the departmental authorities should not dissent from the conclusions arrived at by the Court of Law, unless fresh circumstances have brought to light lacunae or defects in the evidence before, or in the procedure of such court.”19. The Government therefore makes it clear, by way of emphasizing that, in enquiries of this kind i.e. departmental enquiries after the employee is acquitted by a criminal Court, the departmental authorities should not dissent from the conclusions arrived at by the Court of Law, unless fresh circumstances have brought to light lacunae or defects in the evidence before, or in the procedure of such court. It means that, once in a criminal case, the employee is acquitted after trial, for the same set of facts, if the department proceeds for a disciplinary proceeding, where an enquiry is conducted, even though, in such an enquiry, the decree of proof is only preponderance of probabilities., neither the enquiry officer nor the disciplinary authority shall dissent from the conclusion arrived at by the criminal Court on the same set of charges. Therefore, in the considered opinion of this Court, clause 3 of PSO 67 put a cap on the departmental proceedings to both the enquiry officer as well as the disciplinary authority that, they should not deviate from any conclusion arrived at by the criminal Court. Only with this cap, the disciplinary proceedings can go on, for which, absolutely there is no prohibition either under PSO 67 or under any other law for the time being in force.20. Insofar as the prolonged suspension is concerned, for the reason adduced by the respondents that, since the criminal case was pending for 14 years and thereafter, now, they took two years to issue charge memo, it is for the department to conduct enquiry and complete the disciplinary proceedings within a time frame to be stipulated by this Court. In this regard as has been submitted by the learned Additional Advocate General, at this juncture, this Court feels that, the impugned suspension order may not be interfered with. At the same time, once the disciplinary proceedings is not concluded and final orders are not passed within a time frame to be stipulated by this Court in this order, certainly, the petitioner is entitled to seek review of the suspension order and in that case, the suspension shall be either revoked or to be made rescinded. In such view of the matter, as has been discussed above, this Court feels that both the impugned orders cannot be interfered with at this juncture. But, at the same time, the petitioner is entitled to get some benefits both during the departmental enquiry to be conducted against him, pursuant to the impugned charge memo and thereafter. Accordingly, to meet the ends of justice, by taking into account the facts and circumstances of these cases, this Court is inclined to dispose of these two writ petitions with th

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e following directions:“The respondents can proceed against the petitioner, pursuant to the impugned charge memo dated 06.12.2019 and in this regard, the procedure contemplated under the relevant service regulations for conducting disciplinary proceedings have to be scrupulously followed and reasonable opportunity in all respect shall be given to the petitioner. After conducting an enquiry, if the enquiry officer's report goes against the petitioner, a further opportunity shall also be given to the petitioner to get his further defence or explanation and after giving reasonable time to give such explanation to the petitioner, final decision/order shall be passed by the respondents/disciplinary authority. The aforesaid exercise shall be undertaken by the respondents within a period of three months from the date of receipt of a copy of this order. If the disciplinary proceedings is not concluded within the period stipulated above, the petitioner shall be entitled to seek review of the impugned suspension order and under such circumstances, the respondents shall review the impugned suspension order and revoke the same as beyond the period stipulated by this Court to complete the disciplinary proceedeings, the petitioner shall not be kept under suspension. It is made clear that, while conducting the disciplinary proceedings, both the enquiry officer as well as the disciplinary authority shall borne in mind the cap put in by clause 3 of the PSO 67 to state that neither the enquiry officer nor the disciplinary authority shall deviate or desist from any decision taken or conclusion arrived at by the criminal Court, where the petitioner has already been acquitted. This is because, the charge memo impugned now is only or almost a replica of the criminal charge from which the petitioner has already been acquitted.21. With the above observations and directions, both the writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
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