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2014 DIGILAW 3766 (MAD)

Jayalakshmi v. State of Tamil Nadu

2014-10-10

R.S.RAMANATHAN

body2014
Judgment : 1. The petitioner is working as an Assistant Inspector of Labour Circle- II, Thanjavur. She was served with a charge memo issued by the second respondent on 11.06.2014 framing the following charges against her. “Annexure-I Statement of Charges framed against Tmt.J.Jayalakshmi, Assistant Inspector of Labour, Circle-II, Thanjavur (under suspension) Charge As per Sec 15 (4) of Legal Metrology Act 2009, every search and seizure made under this section shall be carried out in accordance with the provisions of the code of Criminal Procedure, 1973. In this case, the Tmt.J.Jayalakshmi, Assistant Inspector of Labour, Thanjavur seized one Antonysamy's shop licence and seal plate of electronic scale during her Inspection on 29.6.2013 without issuing any seizure notice and she failed to note that in her Daily Diary and in Inspection Notes. Hence, she has violated Rule 20 of the Tamil Nadu Government Servants Conduct Rules, 1973. 20(1): Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service. 2. A criminal case has also been registered against the petitioner in Crime No.10/2013 on the file of the Inspector of Police, Vigilance and Anti-Corruption, Thanjavur for offence under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and after investigation, charge sheet was laid against the petitioner and the gravaman of the charge is as follows:- :The complainant Antonysamy is living with his family at Sepanavary, IInd Street, Thanjavur Taluk and District. He is running an utencil shop in the name of Dntonysamy Paathirakadai at NRS Complex, Thanjavur South Alangam, Thanjavur and he has been using Electronic Scale in his shop since 2006 with labour licence. The licence and seal plate of Electronic Scale should be renewed every year. Accordingly, the complainant had renewed lastly on 18.6.2012. Hence, the next due date for renewal was 17.06.2013 and the renewal could be done upto 30.06.2013. In that circumstances, on 29.06.2013 at 11.30 hrs. Tmt. Jayalakshmi, Asst.Inspector of Labour, Thanjavur visited his shop with one Assistant (Stamp Smith) and enquired about Labours, Sunday leave and asked to handover the Shop licence (Certificate of verification) and Seal plate of Electronic Scale. As per the instruction of Tmt.Jayalakshmi, Asst.Inspector of Labour, Thanjavur, the complainant handed over above said licence (Certification of Verification) and Seal plate. Tmt. Jayalakshmi, Asst.Inspector of Labour, Thanjavur visited his shop with one Assistant (Stamp Smith) and enquired about Labours, Sunday leave and asked to handover the Shop licence (Certificate of verification) and Seal plate of Electronic Scale. As per the instruction of Tmt.Jayalakshmi, Asst.Inspector of Labour, Thanjavur, the complainant handed over above said licence (Certification of Verification) and Seal plate. The accused had not issued any seizure notice for taking the complainant's shop licence and seal plate of electronic scale machine and instructed the complainant to come to her office on 02.07.2013. On 02.07.2013 when the complainant met the accused at her office, the accused told him to meet her on the next day. On 05.07.2013 at 14.30 hrs., when the complainant met the accused at her office, the accused Tmt.Jayalakshmi demanded bribe of Rs.2500/-for herself, as grafication other than legal remuneration, as a motive for renewal of licence and to put the renewal seal in the plate of electronic scale and instructed the complainant to bring the bribe money on 08.07.2013 after 3.00 p.m.,. Unwilling to pay the bribe money, the said Antonysamy reported the matter to the office of the Vigilance and Anti-Corruption, Thanjavur on 08.07.2013 at 09.00 hrs.,. The case was registered in Thanjavur V&AC Cr.No.10/2013 u/s 7 of the Prevention of Corruption Act, 1988 on 08.07.2013 at 11.00 and investigation was taken up. Trap was organised on 08.07.2013. In pursuant of the earlier demand made on 05.07.2013 at 14.30 during the course of trap proceedings on 08.07.2013 between 15.10 hrs and 15.20 hrs when the complainant met the accused at O/o the Asst.Inspector of Labour, Circle II, Mangalapuram, Thanjavur, the accused Tmt.Jayalakshmi reiterated the earlier demand of Rs.2,500/-with the complainant Antonysamy in the presence of an independent official witness and accepted the bribe money consciously (Phenolphthalein smeared currency notes five hundred rupee currency notes 5) from the complainant Antonysamy by her right hand, counted it with her both hands and kept it in her brown colour ladies hand bag and thereby the accused Tmt.Jayalakshmi appears to have committed the offence of Public Servant taking gratification other than legal remuneration in respect of doing an official act, punishable under section 7 of the Prevention of Corruption Act, 1988. In the course of same transaction on 08.07.2013 between 15.10 hrs. In the course of same transaction on 08.07.2013 between 15.10 hrs. and 15.20 hrs in the O/o. Asst.Inspector of Labour Circle II, Mangalapuram, Thanjavur, the accused Tmt.Jayalakshmi being a public servant, by corrupt and illegal means and by abusing her position as a public servant obtained for herself Rs.2500/-as pecuniary advantage from the said Tr.Antonysamy in the circumstances stated supra and thereby the accused Tmt.Jayalakshmi also appears to have committed the offence of criminal misconduct by a public servant punishable u/s.13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988. 3. Therefore, the present Writ Petition is filed by the petitioner seeking to quash the charge memo dated 11.6.2014 issued against the petitioner by the second respondent on the ground that the allegations made in the charge memo issued by the second respondent and the allegations made in the charge sheet in the criminal case are identical and if the petitioner is directed to give his explanation to the charge memo that may expose him in the criminal case and his explanation may be used against him in the criminal case and therefore, the charge memo is liable to be quashed. 4. The learned counsel appearing for the petitioner reiterated the very same points in her submissions and relied upon judgment reported AIR 1965 SC 155 in the matter of Tata Oil Mills Co.Ltd., vs. The Workmen, and (1988) 4 Supreme Court Cases 319 in the matter of Kusheshwar Dubbey Vs. M/s. Bharat Coking Coal Ltd., and others, in support of her contention. The learned counsel for the petitioner further submitted that the allegations made in the charge memo issued by the second respondent and the allegations made in the charge sheet are identical and therefore, the charge memo issued by the second respondent is liable to be quashed and if for any reason, the Court comes to the conclusion that the charge memo cannot be quashed, a suitable direction may be given to the second respondent not to proceed with the enquiry by insisting upon the petitioner to submit her explanation till the disposal of the criminal proceedings. 5. I am unable to accept the contention of the learned counsel for the petitioner. I had an occasion to consider the very same issue in the judgment reported in 2013 (4) MLJ 354 in the matter of V.Pandia Rajan v. Chief Security Commissioner, and after referring to Capt. 5. I am unable to accept the contention of the learned counsel for the petitioner. I had an occasion to consider the very same issue in the judgment reported in 2013 (4) MLJ 354 in the matter of V.Pandia Rajan v. Chief Security Commissioner, and after referring to Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd., and another reported in AIR 1999 SC 1416 and the Deputy Inspector General of Police and Another vs. S.Samuthiram (2013) 1 LW 319 and Divisional Controller, Karnataka State Road Transport Corportion v. M.G.Vittal Rao (2012) 1 SCC 442 , I held that when the scope of enquiry in both the proceedings are different, both the proceedings can be proceeded simultaneously and there is no question of deferring the departmental proceedings, when there is no complicated question of law involved in the departmental proceedings. 6. In the Judgment reported in (2012) 1 SCC 442 supra, the entire case has been discussed in Paragraphs 17 to 21, which are as follows:- “17. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., and Another (supra), this Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 , Tata Oil Mills Co. Ltd. v. Workmen, AIR 1965 SC 155 , Jang Bahadur Singh v. Baij Nath Tiwari AIR 1969 SC 30 : 1969 Cri LJ 267, Kusheshwar Dubey v. Bharat Coking Coal Ltd. AIR 1988 SC 2118 : (1988) 4 SCC 319 : (1988) SCC (L&S)950, Nelson Motis v. Union of India (1992) 4 SCC 711 and inState of Rajasthan v. B.K. Meena (1996) 6 SCC 417 , and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, the administration may get rid of him at the earliest. 18. However, while deciding the case, taking into consideration the facts involved therein, the Court held: Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., and Another (supra) case page 695 para 35) 35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” 19. In SBI v. R.B. Sharma (2006) 2 SCC 584 , same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under: “8. 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 (a) public duty. 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 (a) public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service.” 20. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of this Court in A.P. SRTC v. Mohd. Yousuf Miya (1997) 2 SCC 699 , wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case. 21. A similar view has been reiterated by this Court in Supdt. of Post Offices v. A. Gopalan (1997) 11 SCC 239 , Kendriya Vidyalaya Sangathan v. T. Srinivas, (2004) 7 SCC 442 , Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh (2004) 8 SCC 200 , Commr. of Police v. Narender Singh, (2006) 4 SCC 265 , South Bengal State Transport Corpn. v. Sapan Kumar Mitra (2006) 2 SCC 584 and Punjab Water Supply Sewerage Board v. Ram Sajivan (2007) 9 SCC 86 . 7. In the judgment reported in (2012) 13 SCC 142 in the matter of Avinash Sadashiv Bhosale (Dead) through LRs versus Union of India and others, the Hon'ble Supreme Court confirmed the law laid down in the judgment reported in (2012) 1 SCC 442 supra. In the judgment reported in (2005) 10 SCC 471 in the matter of Hindustan Petroleum Corporation Ltd., and others Vs. Sarvesh Berry, after relying upon the judgments in the case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd., and another reported in (1999) 3 SCC 679 and State of Rajasthan vs. B.K.Meena reported in (1996) 6 SCC 417 , and Deputy Manager, APSRTC vs. Mohd.Yousuf Miya reported in (1997) 2 SCC 699 , the Supreme Court held as follows:- There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. On basic principles, proceedings in criminal case and 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 proceeding is common. It is in these cases that the court has to decide, taking into account the special features of the case, whether simultaneous continuance of both would be proper. The purposes 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 had provided that the offender shall make satisfaction to the public. 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. 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 a grave nature involving complicated questions of fact and law. 8. In Capt. M. Paul Anthony's case (supra), the following principles of law are laid down by the Hon'ble Supreme Court:- 22(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. 8. In Capt. M. Paul Anthony's case (supra), the following principles of law are laid down by the Hon'ble Supreme Court:- 22(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. 9. Bearing these principles of law in mind, we will have to see whether the departmental proceedings and the charge sheet in criminal case are identical in the present matter? 10. 9. Bearing these principles of law in mind, we will have to see whether the departmental proceedings and the charge sheet in criminal case are identical in the present matter? 10. As stated above, the charges levelled against the petitioner in the departmental enquiry initiated by the second respondent is regarding violation of Section 15(4) of Legal Metrology Act 2009 and it is alleged that the petitioner seized one Antonysamy's shop licence and seal plate of electronic scale during her Inspection on 29.6.2013 without issuing any seizure notice and she failed to note that in her Daily Diary and in Inspection Notes, which is in violation of Section 15 (4) of Legal Metrology Act 2009, whereas the charges levelled against the petitioner in the criminal case, as seen from the charge sheet, is that the petitioner visited the shop of Antonysamy and asked him to hand over the shop licence and seal plate of electronic scale without issuing any seizure notice for taking licence and seal plate and thereafter, demanded the bribe of Rs.2500/- as gratification for renewal of licence and accepted the bribe money from the said Antonysamy. Though the circumstances which led to the demand of illegal gratification, namely, without issuing any seizure notice obtaining shop licence and seal plate of electronic scale from Anthonysamy is common in the charge memo and charge sheet filed against the petitioner, the charge sheet was filed not for violation of Section 15(4) of Legal Metrology Act 2009 and the charge sheet was filed for the demand of illegal gratification and receipt of the same, whereas, the departmental proceedings was initiated for violation of Section 15(4) of Legal Metrology Act 2009 and therefore, it cannot be contended that both the charges are identical and both the cases cannot be proceeded simultaneously. 11. Therefore, as per the guidelines laid down by the Hon'ble Supreme Court in Capt.M.Paul Antony's case, as the departmental proceedings was initiated in respect of violation of Section 15 (4) of Legal Metrology Act 2009, whereas the criminal case was initiated for demand and acceptance of illegal gratification, there is no necessity to stay the charge memo issued by the second respondent. 12. 12. Further, in the judgment reported in AIR 1988 SC 2118 : (1988) 4 SCC 319 supra, relied upon by the learned counsel for the petitioner also, it has been held that there can be no legal bar for simultaneous proceedings yet there may be cases where it can be appropriate to defer the disciplinary proceedings awaiting disposal of the criminal case. As stated supra, having regard to the fact that both the proceedings are on different basis, there is no need to stay the proceedings of the second respondent. 13. Further, no acceptable argument was made by the learned counsel for the petitioner for quashing the charge memo issued against the petitioner and it is not the case of the petitioner that the second respondent has no authority to issue charge memo or charges are vague. 14. Hence, for the reasons stated above, I do not find any merit in the Writ Petition and the Writ Petition is dismissed. No costs. The connected Miscellaneous Petition is closed.