question of the desirability or advisability of staying the disciplinary proceedings against the charged officer pending the criminal proceeding/case against him. (B.K. Meena2). The disciplinary proceedings shall be continued in accordance with law uninfluenced by any observations made, on the merits of the case, either in the order of the Tribunal or this Court.
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.35583 OF 2014
27-03-2015
1.The State of Andhra Pradesh rep. by its Principal Secretary, Revenue
(Vigilance.I) Department, Secretariat, Hyderabad & Anr. .Petitioners
G.L.Ganeswara Rao S/o.Markandeyulu, Inspector of Survey, O/o.The A.P.Survey
Training Academy, Gachibowli, Hyderabad, R/o.Krishna Apartments, Troop Bazaar,
Kothi, Hyderabad. & Anr.Respondents
Counsel for the petitioners: Government Pleader for Services (AP)
Counsel for respondent No.1: Sri M.V.Rajaram
<GIST:
>HEAD NOTE:
?Citations:
(1997) 2 SCC 699
2 (1996) 6 SCC 417
3 (1999) 3 SCC 679
4 (2005) 10 SCC 471
5 (2012) 1 SCC 442
6 [1960 (3) S.C.R. 227
7 1969 (1) SCR 134 = AIR 1969 SC 30
8 AIR 1988 SC 2118 = (1988) 4 SCC 319
9 (2006) 5 SCC 446
10 (2013) 15 SCC 414 = (2014) 2 ALD 89 (SC)
11 (1901) AC 495
12 (2014) 3 SCC 636
13 AIR 2004 SC 4144
14 [1964 (7) S.C.R. 555
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.35583 OF 2014
ORDER: (per Honble Sri Justice Ramesh Ranganathan)
This Writ Petition is filed by the State of Andhra Pradesh and
the Director of Survey and Settlements aggrieved by the order
passed by the A.P. Administrative Tribunal (for short the Tribunal)
in O.A.No.1152 of 2011 dated 23.07.2014. The 1st respondent
herein, an Inspector of Survey, Settlement & Land Records,
invoked the jurisdiction of the Tribunal to declare the proceedings
dated 05.02.2011, issued by the Commissioner of Survey and
Settlements, as arbitrary, illegal, malafide, in violation of Articles
14 and 21 of the Constitution of India, and ultravires Rule 20 of
the Andhra Pradesh Civil Services (Classification, Control and
Appeal) Rules, 1991 (the Appeal Rules for short).
The 1st respondent was initially appointed as a Deputy
Surveyor in the year 1982. He was subsequently promoted as a
Surveyor, then as a Deputy Inspector and later as the Inspector of
Survey in the years 1992, 2002 and 2003 respectively. The Anti-
Corruption Bureau registered a criminal case against him, in Cr.
No.28 of 2009 dated 26.12.2009, for possession of assets
disproportionate to his known sources of income. The 1st
respondent was placed under suspension on 05.02.2010.
Aggrieved thereby, he filed O.A. No.2259 of 2010. The Tribunal, by
its order dated 28.04.2010, directed that he should be reinstated
into duty. Consequently he was reinstated, and is continuing in
service ever since. On the ground that his case was not considered
for promotion, to the next higher post, the petitioner filed O.A.
No.3092 of 2010, and the Tribunal directed the petitioners herein
to consider his case for promotion without reference to the criminal
case. Alleging that the order of the Tribunal was not implemented,
he filed C.A. No.822 of 2010. The Tribunal directed the
Commissioner of Survey and Settlements to appear before it on
10.03.2011. In the meanwhile proceedings dated 05.02.2011 were
issued proposing to hold an enquiry against the 1st respondent in
accordance with the procedure laid down in Rule 20 of the Appeal
Rules. Rule 20 of the Appeal Rules prescribes the procedure for
imposing major penalties and, under sub-rule (1) thereof, no order
imposing any of the penalties, specified in clauses (vi) to (x) of Rule
9, shall be made except after an inquiry is held, as far as may be,
in the manner provided therein and Rule 21 or in the manner
provided by the Andhra Pradesh Civil Services (Disciplinary
Proceedings Tribunal) Act, 1960 or the Andhra Pradesh Lokayukta
and Upa-Lokayukta Act, 1983, where such inquiry is held under
the said Acts.
The charges levelled against the first respondent herein, in
the proceedings dated 05.02.2011, are that:-
(1) He had failed to submit the Annual Property Statements for the year
2006, 2007, 2008 and 2010. Thus he had violated Sub-Rule 7 of Rule 9 of The
Andhra Pradesh Civil Services (Conduct) Rules, 1964.
(2) He had acquired movable and immovable properties, worth about
Rs.40,75,500/- (Rupees Forty Lakhs, seventy five thousand, five hundred only)
as shown below, without informing the Department. Thus he had violated Sub-
Rule 7 of Rule 9 of The Andhra Pradesh Civil Services (Conduct) Rules, 1964
(hereinafter called the Conduct Rules).
The charge memo gives details of the property, which the 1st
respondent had allegedly acquired, in a tabular form which is as
under:
Sl. No.
Particulars of property
Held in the name
of
Value
1.
Constructed House G+2
floors in Plot No.8 of Maruthi
Nagar, Phool Bagh,
Vizianagaram in the year
2004 (Plinth area 3,500
Sq.feet)
Smt. G. Saritha
W/o A.O.
18,00,000.00
2.
Purchased 0.27 cements of
Agricultural lands in Sy.
NO.222/IB of Bheemavaram
Mandal, W.G. Dist., vide Doc.
No.7803/07 of SRO,
Bheemavaram
Smt. G. Saritha
W/o A.O.
42,000.00
3.
Purchased Ac.2.66 cts of
Agriculture land in Sy.
No.675/1 of Rayakuduru (V)
Veerawasaram (M) W.G. Dist
vide Doc. No.13355/07
Smt. G. Saritha
W/o A.O.
4,65,500.00
4.
Purchased Ac.0.75 cts of
Agriculture land in Syu.
No.420/5 of Tanduru (V),
Bheemavaram (M) of W.G.
Dist vide Doc. No.3007/2008
of SRO, Narsapuram, W.G.
Smt. G. Saritha,
W/o A.O.
1,31,500.00
5.
Purchase Ac.1.00 cts of
Agriculture land in Sy.
No.418/1 of Tanduru (V),
Bheemavaram (M), W.G. Dist
vide doc NO.3008/08 of SRO,
Narsapuram, W.G.
Smt. G. Saritha,
W/o A.O.
1,75,000.00
6.
Purchased Ac.3.09 cts of
Agriculture land in Sy.
No.76/1B, 76/2 & 77/1B of
Aratlakatta (V), Palkol (M),
W.G. Dist vide Doc.
No.2683/07 of SRO,
Veeravasaram, W.G.
Smt. G. Saritha,
W/o A.O.
6,61,500.00
7.
Purchased Ac.1.71 cts of
Agriculture land in Sy.
No.674/1 of Rayakuduru (V)
Veeravasaram (M), W.G. Dist
vide Doc. No.1356/2007 of
SRO, Veeravasaram, W.G.
Sri G. Vijaya
SEkhar, S/o A.O.
3,00,000.00
8.
Purchased Maruthi Swift car
bearing No.AP 5679
Smt. G. Saritha,
W/o A.O.
4,00,000.00
9.
Purchased Yamatha Motor
Cycle
Sri G.L.
Ganeswara Rao
(A.O)
45,000.00
10.
Purchased TVS Apache
Motor Cycle
Sri G. Vijaya
SEkhar, S/o A.O.
55,000.00
11.
Plot No.6, Maruthi Nagar,
Phoolbagh colony Road,
Vijaya Nagar
G. Baa Ramadevi
(Relative of the
A.O
Total:
40,75,500.00
It is this charge memo which was subjected to challenge,
before the Tribunal, by the 1st respondent herein. By its order, in
O.A. No.1152 of 2011 dated 23.07.2014, the Tribunal held that
charge No.1 related to non-submission of annual property
statements for the years 2006, 2007, 2008 and 2010; charge No.2
related to his acquiring assets disproportionate to the known
source of income to a tune of Rs.40,75,500/-; the documents
sought to be relied upon, to prove the disproportionate assets, and
the witnesses were the same both in the enquiry and in the
criminal case pending before the ACB Court; since the competent
court was already seized of the matter on the same issue, the
impugned proceedings should not have been issued till the
disposal of the criminal case; if the enquiry was permitted to be
proceeded with, the 1st respondent would be forced to disclose his
defence in advance in the disciplinary enquiry; he would thereby
suffer irreparable injury; on the other hand, the Government would
not suffer any injury since they could take further action in the
matter depending upon the result in the criminal case; if they wait
till the disposal of the criminal case, they would have the
advantage of the findings of the competent criminal court on the
same issue; both the charges were, admittedly, interlinked; the so
called disproportionate assets were acquired during the said years;
the claim of the 1st respondent was that he was not the owner of
those assets; if his claim was accepted by the Special Court for
SPE & ACB cases, he may come out with clean hands; in that
event further enquiry may also be not necessary; and the
departmental enquiry initiated against the petitioner should not be
continued till the disposal of the criminal case filed by the ACB.
The O.A. was allowed in part and the respondents were
directed not to proceed with the departmental enquiry initiated
against the 1st respondent, vide proceedings of the Commissioner
dated 05.02.2011, till the disposal of the ACB cases pending on the
file of the Special Judge for SPE & ACB cases, Vijayawada basing
upon Cr. No.28 of 2009 dated 26.12.2009. The Tribunal observed
that its order did not preclude the authorities from taking further
action, after disposal of the criminal case, in accordance with law.
Aggrieved thereby the present Writ Petition.
Learned Government Pleader for Services would submit that,
while the charge sheet filed in Cr. No.28 of 2009 before the Special
Judge for SPE & ACB cases, Vijayawada related to acquisition of
assets beyond the known sources of income, and for offences
under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, the charges levelled against the 1st respondent in
the disciplinary enquiry was for his failure to submit the annual
property statements for the years 2006, 2007, 2008 and 2010, and
for acquiring movable and immovable properties without informing
the department; these charges, which are the subject matter of the
disciplinary enquiry, are distinct and different from the charge
levelled against the 1st respondent in the criminal case; and the
Tribunal had erred in directing the authorities not to conduct
disciplinary enquiry till completion of the criminal case.
On the other hand Sri M.V. Rajaram, Learned Counsel for
the 1st respondent, would submit that the case of the 1st
respondent, as is evident from his explanation dated 14.03.2011,
is that he had divorced his wife Smt.G. Sarita on 04.05.2007
(customary divorce), and thereafter by a Court divorce on
09.09.2008 in the Lok Adalat Vizianagaram; the properties
mentioned in the charge sheet were purchased by his ex-wife after
he had divorced her; he had intimated the Commissioner, of his
divorce, on 22.10.2008; on dissolution of their marriage, she was
no longer his wife; as these assets did not belong to the 1st
respondent, but to his ex-wife, he could not be faulted for not
intimating the authorities of the assets purchased by her after
their divorce; the entire foundation, of both the disciplinary
enquiry and the criminal case, would depend on whether the
assets purchased by the ex-wife of the 1st respondent was required
to be declared by him, and to be treated as his assets; after
divorce, his ex-wife cannot be treated as part of his family;
conducting the disciplinary enquiry, before completion of the
criminal case, would force the 1st respondent to disclose his
defence; he would suffer irreparable injury thereby; and the
Tribunal was, therefore, justified in directing the respondents to
defer disciplinary proceedings till completion of the criminal case.
Before examining the question whether, and in what
circumstances, disciplinary proceedings should be stayed pending
finalisation of the criminal case, it is necessary to take note of the
scope of both these proceedings. The purpose of a departmental
enquiry and of prosecution are two different and distinct aspects. A
crime is an act of commission in violation of the law or of an
omission of public duty. The departmental enquiry is to maintain
discipline in service, and the efficiency of public service. The word
offence, generally, implies infringement of public rights
punishable under criminal law. In the trial of a criminal offence
strict rules of evidence, in terms of the provisions of the Evidence
Act, is applicable. Converse is the case of a departmental enquiry.
The enquiry, in departmental proceedings, relates to the conduct
or the breach of duty by the delinquent officer, and he is liable to
be punished for his misconduct under the relevant statutory rules
or law. Strict standard of proof, or applicability of the Evidence
Act, stands excluded in a departmental enquiry. The degree of
proof required to establish a charge in a departmental enquiry is
not as high as in the case of a criminal charge. (Depot Manager,
APSRTC v. Mohd. Yousuf Miya ).
The approach and the object of criminal proceedings and
disciplinary proceedings are altogether different. In 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 criminal proceedings
the question is whether the offences which he is charged of, under
the Prevention of Corruption Act, are established and, if
established, what sentence should be imposed upon him. The
standard of proof, the mode of enquiry and the rules governing the
enquiry and trial in both cases differ. (State of Rajasthan v. B.K.
Meena ). Proceedings in a criminal case and the departmental
proceedings operate in distinct jurisdictional areas. In
departmental proceedings, where a charge relating to misconduct
is investigated, the factors operating in the mind of the disciplinary
authority may be many such as enforcement of discipline or
investigating the level of integrity of the charged officer etc. The
standard of proof required in those proceedings is also different
than that required in a criminal case. While, in the 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. (M. Paul Anthony v.
Bharat Gold Mines Ltd. ; Hindustan Petroleum Corpn. Ltd. v.
Sarvesh Berry ; Divisional Controller, Karnataka State Road
Transport Corporation v. M.G.Vittal Rao ).
On the question whether a departmental enquiry should be
deferred pending completion of criminal proceedings, it must be
borne in mind that, ordinarily, disciplinary proceedings need not
await completion of the criminal case. Principles of natural justice
do not require that the employer should wait for the decision of the
criminal court before taking disciplinary action against the
employee. (Delhi Cloth and General Mills Ltd. v. Kushal Bhan ;
B.K. Meena2). The issue in the disciplinary proceedings is
whether the employee is guilty of the charges on which it is
proposed to take action against him. The same issue may arise for
decision in a civil or criminal proceeding pending in a court. But
the pendency of court proceeding does not bar the taking of
disciplinary action. The power of taking such action is vested in
the disciplinary authority. The civil or criminal court has no such
power. The initiation and continuation of disciplinary proceedings
in good faith is not calculated to obstruct or interfere with the
course of justice in the pending court proceeding. (Jang Bahadur
Singh v. Baij Nath Tiwari ). The departmental enquiry must be
conducted expeditiously so as to ensure efficiency in public
administration. (Mohd. Yousuf Miya1).
While there is no legal bar for simultaneous proceedings
being taken, it may be appropriate in certain cases to defer
disciplinary proceedings. In such cases, it would open to the
delinquent employee to seek an order of stay or injunction from the
Court. Whether, in the facts and circumstances of a particular
case, there should or should not be such simultaneity of the
proceedings would then receive judicial consideration and the
court will decide, in the given circumstances of a particular case,
as to whether disciplinary proceedings should be interdicted
pending criminal trial. (Jang Bahadur Singh7; Kusheshwar
Dubey v. Bharat Coking Coal Ltd. ; B.K. Meena2).
As reliance is often placed, on G.M.Tank v. State of
Gujarat ), by Courts and Tribunals in directing stay of disciplinary
proceedings, pending disposal of the criminal case, it is necessary
to note the factual matrix in which the observations were made
therein by the Supreme Court, for every judgment must be read as
applicable to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be found there
are not intended to be expositions of the whole law, but governed
and qualified by the particular facts of the case in which such
expressions are to be found. A case is only an authority for what it
actually decides. It cannot be quoted for a proposition that may
seem to follow logically from it. Such a mode of reasoning assumes
that the law is necessarily a logical code, whereas it must be
acknowledged that the law is not always logical. (Arasmeta
Captive Power Company Limited v. Lafarge India Private
Limited ; Quinn v. Leathem ).
In G.M. Tank9, the appellant before the Supreme Court
joined the service of the respondent in the year 1953. He was to
superannuate in February, 1986. After he had put in 26 years of
service with the respondent i.e. from 1953 to 1979, he was placed
under suspension on 8.2.1979, and was paid subsistence
allowance at 50% of his salary. On the basis of the same charges
and evidence, the department passed an order of dismissal on
21.10.1982 whereas the Criminal Court acquitted him, nearly
twenty years thereafter, on 30.1.2002. While holding that, until
such acquittal, there was no reason or ground to hold the
dismissal to be erroneous and, as the appellant had retired by
then, the order of dismissal should be set aside without back
wages and the appellant should be paid pension, the Supreme
Court observed:-
.In our opinion, such facts and evidence in the department as well as
criminal proceedings being the same without there being any iota of difference;
the appellant should succeed. The distinction which is usually proved between
the departmental and criminal proceedings on the basis of the approach and
burden of proof would not be applicable in the instant case. Though finding
recorded in the domestic enquiry was found to be valid by the courts
below, when there was an honourable acquittal of the employee during the
pendency of the proceedings challenging the dismissal, the same requires
to be taken note of and the decision in Paul Anthony's case (supra) will
apply. We, therefore, hold that the appeal filed by the appellant deserves to be
allowed..
(emphasis supplied)
The law declared by the Supreme Court in G.M. Tank9 is
that, if the facts and evidence in the departmental and criminal
proceedings are the same without there being an iota of difference,
and the employee has been honourably acquitted in the criminal
case, the appeal presented by him, against the order of
punishment imposed on him by the disciplinary authority
pursuant to the departmental enquiry, must be allowed, and the
order of punishment set aside. The question whether disciplinary
proceedings should be stayed pending disposal of the criminal case
was not even in issue in G.M. Tank9.
While there is no legal bar to the holding of the disciplinary
proceedings and the criminal trial simultaneously, stay of
disciplinary proceedings may be an advisable course in cases
where the criminal charge against the employee is grave, and
continuance of the disciplinary proceedings is likely to prejudice
their defense before the Criminal Court. (B.K. Meena2; Delhi
Cloth and General Mills Ltd.6; Stanzen Toyotestu India (P) Ltd.
v. Girish V ; Mohd. Yousuf Miya1). Both proceedings can be
held simultaneously, except where the departmental proceedings
and the criminal case are based on the same set of facts, and the
evidence in both the proceedings is common, (State Bank of India
v. R.B. Sharma ; M.G.Vittal Rao5; Jang Bahadur Singh7;
Kusheshwar Dubey8, without there being a variance. (M.Paul
Anthony3; Sarvesh Berry4).
If the case is of a grave nature and involves questions of fact
or law, which are not simple, it would be advisable for the
employer to await the decision of the trial court, so that the
defence of the employee in the criminal case may not be
prejudiced. (Delhi Cloth & General Mills Ltd.6; Tata Oil Mills
Company Limited v. Workmen ). The seriousness of the charge
alone is not the test. What is also required to be demonstrated is
that the case involves complicated questions of law and fact.
(Stanzen Toyotestu India (P) Ltd.12). The question, whether the
departmental enquiry would seriously prejudice the delinquent in
his defence at the trial in a criminal case, is always a question of
fact to be considered in the facts and circumstances of each case.
(Mohd. Yousuf Miya1). The Court examining the question must
keep in mind that criminal trials get prolonged indefinitely. The
Court, therefore, has to draw a balance between the need for a fair
trial to the accused on the one hand and the competing demand
for an expeditious conclusion of the on-going disciplinary
proceedings on the other. An early conclusion of the disciplinary
proceedings is, itself, in the interest of the employees. (Stanzen
Toyotestu India (P) Ltd.12). Staying of disciplinary proceedings,
pending completion of criminal proceedings, should not be resorted
to as a matter of course but should be a considered decision. Even
if stayed at one stage, the decision may require reconsideration if
the criminal case gets unduly delayed. (B.K. Meena2). To say that
domestic enquiries may be stayed pending criminal trial is very
different from saying that if an employer proceeds with the
domestic enquiry, inspite of the fact that the criminal trial is
pending, the enquiry for that reason alone is vitiated and the
conclusion reached in such an enquiry is either bad in law or
malafide. (Tata Oil Mills Company Ltd.14; Delhi Cloth and
General Mills Ltd.6).
The principles, applicable in this regard, 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 the 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 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. (Mohd. Yousuf Miya2; M.Paul Anthony3;
Sarvesh Berry4).
It is neither possible nor advisable to evolve a hard and fast
strait-jacket formula valid for all cases and of general application
without regard to the particularities of the individual situation.
(Kusheshwar Dubey8; Jang Bahadur Singh7; B.K. Meena2). The
'advisability', 'desirability' or 'propriety' of staying the departmental
proceedings enter the scales, while judging whether the
disciplinary proceedings should be stayed, merely as one of the
factors which cannot be considered in isolation dehors the other
circumstances of the case. But the charges in the criminal case
must, in any case, be of a grave and serious nature involving
complicated questions of fact and law. One of the contending
considerations would be that the disciplinary enquiry cannot - and
should not - be delayed unduly. It is well- known that criminal
cases drag on endlessly, get bogged down on one or the other
ground, and hardly ever reach a prompt conclusion. The interests
of administration and good governance demand that these
proceedings are concluded expeditiously, undesirable elements are
thrown out, and any charge of misdemeanor is enquired into
promptly. The disciplinary proceedings are meant not really to
punish the guilty but to keep the administrative machinery
unsullied by getting rid of bad elements. The interest of the
delinquent officer also lies in a prompt conclusion of the
disciplinary proceedings. If he is not guilty of the charges, his
honour should be vindicated at the earliest possible moment and,
if he is guilty, he should be dealt with promptly according to the
law. It is not also in the interest of administration that persons
accused of serious misdemeanor should be continued in office
indefinitely, i.e., for long periods awaiting the result of criminal
proceedings. It only serves the interest of the guilty and dishonest.
While it is not possible to enumerate the various factors, for and
against the stay of disciplinary proceedings, these are some of the
important considerations to be borne in mind as very often
disciplinary proceedings are stayed for long periods pending
criminal proceedings. All the relevant factors, for and against,
should be weighed and a decision taken keeping in view the
aforesaid principles. (B.K. Meena2; M.Paul Anthony3).
It is not desirable to lay down any guidelines as inflexible
rules in which the departmental proceedings may or may not be
stayed pending trial in a criminal case against the delinquent
officer. Each case requires to be considered in the backdrop of its
own facts and circumstances. (Mohd. Yousuf Miya1). 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
on the one hand to prolong the criminal case, and at the same time
to contend that the departmental proceedings should be stayed on
the ground that the criminal case is pending. (Sarvesh Berry4).
Bearing these principles in mind, let us now examine the
facts of the present case. A copy of the charge sheet, filed before
the Court of the SPE & ACB, in Cr. No.28 of 2009, has been placed
before us for our perusal. The charge, levelled against the first
respondent for offences under Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988, is as under:
The total assets of Accused officer during the check period is of
Rs.83,86,332.00/-. The total income of Accused Officer during check period is
of Rs.15,10,032.80/-. The total expenditure of Accused officer during the check
periodis Rs.47,68,553.93/-. The over expenditure of A.O. is Rs.32,58,521.13/-.
Therefore, the A.O. was found in possession of disproportionate assets
worth Rs.1,16,44,853/- (total assets of Rs.83,86,332.00/- + Over expenditure
Rs.32,58,521-13/-) which is disproportionate to his known sources of income
for which theA.O. could not account for.
The Government of Andhra Pradesh, being the competent authority has
accorded sanction vide G.O.Ms. No.160 Revenue (Vigilance-IV) Department
dated 13.03.2012 to prosecute the A.O. in the competent Court of Law.
Therefore, the A.O. is liable for punishment under Section 13(1)(e) read
with 13(2) of P.C. Act, 1988 for possessing Disproportionate assets in his name,
in the names of his family members and in benami names. Hence the charge.
Section 13 of the Prevention of Corruption Act relates to
criminal misconduct by a public servant and, under sub-rule (1)(e)
thereof, a public servant is said to commit the offence of criminal
misconduct if he, or any person on his behalf, is in possession or
has, at any time during the period of his office, been in possession,
for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income. Section 13(2) thereof stipulates that any public
servant, who commits criminal misconduct, shall be punishable
with imprisonment for a term which shall be not less than one year
but which may extend to seven years and shall also be liable to
fine. In cases involving Section 13 (1)(e) of the Prevention of
Corruption Act, the onus is on the accused to prove that the assets
found were not disproportionate to his known sources of income.
The Explanation to Section 13(1) of the Prevention of Corruption
Act provides that, for the purposes of the Section, "known sources
of income" means income received 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 knowledge of the accused. There is no
question, therefore, of any disclosure of the defence in the
departmental proceedings. In the criminal case, the accused has to
prove the source of acquisition, and has to satisfactorily account
for the same. (Sarvesh Berry4).
While the charge levelled against the 1st respondent, in the
criminal case, is for possessing assets disproportionate to his
known sources of income, and thereby having committed offences
under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, the charge levelled against him in the disciplinary
enquiry is for his failure to submit his annual property statements
for the years 2006, 2007, 2008 and 2010; and for acquiring
movable and immovable properties without informing the
department. Both the charges, in the disciplinary enquiry, are for
contravention of Rule 9(7) of the Conduct Rules.
Rule 9(1) the Conduct Rules stipulates that no Government
employee shall, except after previous intimation to the
Government, acquire or dispose of or permit any member of his
family to acquire or dispose of any immovable property by
exchange, purchase, sale, gift or otherwise either by himself or
through others. Rule 9(7) of the Conduct Rules stipulates that
every Government employee, other than a member of the Andhra
Pradesh Last Grade Service and a Record Assistant in the Andhra
Pradesh General Sub-ordinate Service, shall, on his first
appointment to the Government Service, submit to the
Government a statement of all immovable property/ properties
irrespective of its value and movable property/ properties whose
value exceeds Rs.1,00,000/- owned, acquired or inherited by him
or held by him on lease or mortgage either in his own name or in
the name of any member of his family, in the forms prescribed in
Annexure-I and II separately. The said employee is also required to
submit to the Government, before 15th January of each year,
through the proper channel, a declaration in the forms given in
Annexure-I and II of all immovable/movable property/properties
owned, acquired or inherited by him or held by him on lease or
mortgage, either in his own name or in the name of any member of
his family. The declaration shall contain such further information
as Government may, by a general or special order, require. If, in
any year, a Government employee has not acquired or disposed of
any immovable or movable property or any interest therein, he
shall submit a declaration to that effect.
The issue whether or not the assets acquired by the 1st
respondent are disproportionate to his known sources of income is
not the subject matter of the disciplinary enquiry. The first charge
levelled against him in the disciplinary enquiry is that he did not
submit his annual property statements for certain years. Rule 9(7)
of the Conduct Rules requires a Government servant to declare his
assets annually, and submit an annual property statement to the
competent authority. The 2nd charge, levelled against the first
respondent in the disciplinary proceedings initiated against him,
is regarding his having acquired movable and immovable property
without informing the department. Rule 9(1) of the Conduct Rules
requires a Government servant to inform the Government of his
intention, to acquire movable and immovable property, before its
acquisition. Even if the assets acquired by a Government servant
is not disproportionate to his known sources of income, he is,
nonetheless, required to submit his annual property statements,
and inform the Government of his intention to acquire movable
and immovable property, before its acquisition. It is evident,
therefore, that the charges levelled against the 1st respondent in
the disciplinary enquiry is distinct and different from the charge
levelled against him in the criminal case.
In the order, under challenge in this Writ Petition, the
Tribunal held that if the enquiry was permitted to be proceeded
with, the 1st respondent would be forced to disclose his defence in
advance. The ground, "that the defence of the employee in the criminal
case may not be prejudiced", is hedged by the condition that
disciplinary proceedings may be stayed in cases of grave nature
involving questions of fact and law. This means that not only the
charges must be grave, but the case must involve complicated
questions of law and fact. This ground is not also an invariable
rule. It is only a factor which will weigh while judging the
advisability or desirability of staying disciplinary proceedings. (B.K.
Meena2).
In his explanation dated 14.03.2011, filed during the
disciplinary proceedings, the 1st respondent contended that it is
his ex-wife who had acquired the assets after their divorce, and he
could not be faulted for non-disclosure of the assets, purchased by
her, to the Government as she was no longer a member of his
family. As the charged officer has already disclosed his defense in
his letter of explanation dated 14.03.2011, submitted in the course
of departmental proceedings, (Stanzen Toyotestu India (P)
Ltd.12), he cannot seek deferment of disciplinary proceedings on
this ground. It is difficult, therefore, to accept his submission that
the disciplinary proceedings being held against him would result in
his having to reveal his defence in the criminal case. Even
otherwise, a perusal of the charge memo shows that the assets
allegedly purchased by the 1st respondent were shown to be held
not only in the name of Smt.G. Sarita (his wife whom he claims to
have divorced), but also in the name of his son Sri G.Vijaya
Sekhar, and G. Ramadevi his relative. The petitioners herein have,
merely, initiated disciplinary proceedings, and it is for them to
establish the charge, levelled against the 1st respondent, therein.
It is also open to the 1st respondent, during the course of the
disciplinary enquiry, to produce evidence in his defence to show
that he is not guilty of the charges levelled against him.
With regards the contention that disciplinary proceedings
were instituted against the petitioner for extraneous reasons, it is
no doubt true that not all disciplinary proceedings are based upon
true charges. Some of them may be unfounded and, in some
cases, the charges may have been levelled with oblique motives.
These possibilities, however, do not detract from the desirability of
early conclusion of disciplinary proceedings. Indeed, in such
cases, it is all the more in the interest of the charged officer that
the proceedings are expeditiously concluded. Delay in such cases
really works against him. It is in the interest of the charged officer,
and in the interest of good administration, that the truth or falsity
of the charges against him is determined promptly. If he is not
guilty of the charges, his honour should be vindicated early and, if
he is guilty, he should be dealt with appropriately without
avoidable delay. The criminal court may decide - whenever it does -
whether he is guilty of the offences charged and, if so, what
sentence should be imposed upon him. The interest of
administration, however, cannot brook any delay in conclusion of
disciplinary proceedings. (B.K. Meena2).
What was put in issue by the 1st respondent, before the
Tribunal, was the very initiation of disciplinary proceedings against
him. While a subsequent charge memo was issued to the
petitioner, vide proceedings dated 12.04.2012, the said charge
sheet was not the subject matter of challenge before the Tribunal
and, as the Tribunal is the Court of first instance, it would be
wholly inappropriate for this Court to examine its validity for the
first time in proceedings under Article 226 of the Constitution of
India. As the very premise on which the Tribunal passed the
impugned order, that both the charges in the disciplinary enquiry
and in the criminal case are the same, is unfounded, the order of
the Tribunal must be and is, accordingly, set aside.
We should not be understood to have cast any reflection on
the merits of the case. What we have said is confined to the
question of the desirability or advisability of staying the
disciplinary proceedings against the charged officer pending the
criminal proceeding/case against him. (B.K. Meena2). The
disciplinary proceedings shall be continued in accordance with law
uninfluenced by any observations made, on the merits of the case,
either in the order of the Tribunal or this Court.
The Writ Petition is disposed of accordingly. The
miscellaneous petitions pending, if any, shall also stand disposed
of. No costs.
____________________________
RAMESH RANGANATHAN, J
__________________________________
M. SATYANARAYANA MURTHY, J
Date:27.03.2015
WRIT PETITION NO.35583 OF 2014
27-03-2015
1.The State of Andhra Pradesh rep. by its Principal Secretary, Revenue
(Vigilance.I) Department, Secretariat, Hyderabad & Anr. .Petitioners
G.L.Ganeswara Rao S/o.Markandeyulu, Inspector of Survey, O/o.The A.P.Survey
Training Academy, Gachibowli, Hyderabad, R/o.Krishna Apartments, Troop Bazaar,
Kothi, Hyderabad. & Anr.Respondents
Counsel for the petitioners: Government Pleader for Services (AP)
Counsel for respondent No.1: Sri M.V.Rajaram
<GIST:
>HEAD NOTE:
?Citations:
(1997) 2 SCC 699
2 (1996) 6 SCC 417
3 (1999) 3 SCC 679
4 (2005) 10 SCC 471
5 (2012) 1 SCC 442
6 [1960 (3) S.C.R. 227
7 1969 (1) SCR 134 = AIR 1969 SC 30
8 AIR 1988 SC 2118 = (1988) 4 SCC 319
9 (2006) 5 SCC 446
10 (2013) 15 SCC 414 = (2014) 2 ALD 89 (SC)
11 (1901) AC 495
12 (2014) 3 SCC 636
13 AIR 2004 SC 4144
14 [1964 (7) S.C.R. 555
THE HONBLE SRI JUSTICE RAMESH RANGANATHAN
AND
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.35583 OF 2014
ORDER: (per Honble Sri Justice Ramesh Ranganathan)
This Writ Petition is filed by the State of Andhra Pradesh and
the Director of Survey and Settlements aggrieved by the order
passed by the A.P. Administrative Tribunal (for short the Tribunal)
in O.A.No.1152 of 2011 dated 23.07.2014. The 1st respondent
herein, an Inspector of Survey, Settlement & Land Records,
invoked the jurisdiction of the Tribunal to declare the proceedings
dated 05.02.2011, issued by the Commissioner of Survey and
Settlements, as arbitrary, illegal, malafide, in violation of Articles
14 and 21 of the Constitution of India, and ultravires Rule 20 of
the Andhra Pradesh Civil Services (Classification, Control and
Appeal) Rules, 1991 (the Appeal Rules for short).
The 1st respondent was initially appointed as a Deputy
Surveyor in the year 1982. He was subsequently promoted as a
Surveyor, then as a Deputy Inspector and later as the Inspector of
Survey in the years 1992, 2002 and 2003 respectively. The Anti-
Corruption Bureau registered a criminal case against him, in Cr.
No.28 of 2009 dated 26.12.2009, for possession of assets
disproportionate to his known sources of income. The 1st
respondent was placed under suspension on 05.02.2010.
Aggrieved thereby, he filed O.A. No.2259 of 2010. The Tribunal, by
its order dated 28.04.2010, directed that he should be reinstated
into duty. Consequently he was reinstated, and is continuing in
service ever since. On the ground that his case was not considered
for promotion, to the next higher post, the petitioner filed O.A.
No.3092 of 2010, and the Tribunal directed the petitioners herein
to consider his case for promotion without reference to the criminal
case. Alleging that the order of the Tribunal was not implemented,
he filed C.A. No.822 of 2010. The Tribunal directed the
Commissioner of Survey and Settlements to appear before it on
10.03.2011. In the meanwhile proceedings dated 05.02.2011 were
issued proposing to hold an enquiry against the 1st respondent in
accordance with the procedure laid down in Rule 20 of the Appeal
Rules. Rule 20 of the Appeal Rules prescribes the procedure for
imposing major penalties and, under sub-rule (1) thereof, no order
imposing any of the penalties, specified in clauses (vi) to (x) of Rule
9, shall be made except after an inquiry is held, as far as may be,
in the manner provided therein and Rule 21 or in the manner
provided by the Andhra Pradesh Civil Services (Disciplinary
Proceedings Tribunal) Act, 1960 or the Andhra Pradesh Lokayukta
and Upa-Lokayukta Act, 1983, where such inquiry is held under
the said Acts.
The charges levelled against the first respondent herein, in
the proceedings dated 05.02.2011, are that:-
(1) He had failed to submit the Annual Property Statements for the year
2006, 2007, 2008 and 2010. Thus he had violated Sub-Rule 7 of Rule 9 of The
Andhra Pradesh Civil Services (Conduct) Rules, 1964.
(2) He had acquired movable and immovable properties, worth about
Rs.40,75,500/- (Rupees Forty Lakhs, seventy five thousand, five hundred only)
as shown below, without informing the Department. Thus he had violated Sub-
Rule 7 of Rule 9 of The Andhra Pradesh Civil Services (Conduct) Rules, 1964
(hereinafter called the Conduct Rules).
The charge memo gives details of the property, which the 1st
respondent had allegedly acquired, in a tabular form which is as
under:
Sl. No.
Particulars of property
Held in the name
of
Value
1.
Constructed House G+2
floors in Plot No.8 of Maruthi
Nagar, Phool Bagh,
Vizianagaram in the year
2004 (Plinth area 3,500
Sq.feet)
Smt. G. Saritha
W/o A.O.
18,00,000.00
2.
Purchased 0.27 cements of
Agricultural lands in Sy.
NO.222/IB of Bheemavaram
Mandal, W.G. Dist., vide Doc.
No.7803/07 of SRO,
Bheemavaram
Smt. G. Saritha
W/o A.O.
42,000.00
3.
Purchased Ac.2.66 cts of
Agriculture land in Sy.
No.675/1 of Rayakuduru (V)
Veerawasaram (M) W.G. Dist
vide Doc. No.13355/07
Smt. G. Saritha
W/o A.O.
4,65,500.00
4.
Purchased Ac.0.75 cts of
Agriculture land in Syu.
No.420/5 of Tanduru (V),
Bheemavaram (M) of W.G.
Dist vide Doc. No.3007/2008
of SRO, Narsapuram, W.G.
Smt. G. Saritha,
W/o A.O.
1,31,500.00
5.
Purchase Ac.1.00 cts of
Agriculture land in Sy.
No.418/1 of Tanduru (V),
Bheemavaram (M), W.G. Dist
vide doc NO.3008/08 of SRO,
Narsapuram, W.G.
Smt. G. Saritha,
W/o A.O.
1,75,000.00
6.
Purchased Ac.3.09 cts of
Agriculture land in Sy.
No.76/1B, 76/2 & 77/1B of
Aratlakatta (V), Palkol (M),
W.G. Dist vide Doc.
No.2683/07 of SRO,
Veeravasaram, W.G.
Smt. G. Saritha,
W/o A.O.
6,61,500.00
7.
Purchased Ac.1.71 cts of
Agriculture land in Sy.
No.674/1 of Rayakuduru (V)
Veeravasaram (M), W.G. Dist
vide Doc. No.1356/2007 of
SRO, Veeravasaram, W.G.
Sri G. Vijaya
SEkhar, S/o A.O.
3,00,000.00
8.
Purchased Maruthi Swift car
bearing No.AP 5679
Smt. G. Saritha,
W/o A.O.
4,00,000.00
9.
Purchased Yamatha Motor
Cycle
Sri G.L.
Ganeswara Rao
(A.O)
45,000.00
10.
Purchased TVS Apache
Motor Cycle
Sri G. Vijaya
SEkhar, S/o A.O.
55,000.00
11.
Plot No.6, Maruthi Nagar,
Phoolbagh colony Road,
Vijaya Nagar
G. Baa Ramadevi
(Relative of the
A.O
Total:
40,75,500.00
It is this charge memo which was subjected to challenge,
before the Tribunal, by the 1st respondent herein. By its order, in
O.A. No.1152 of 2011 dated 23.07.2014, the Tribunal held that
charge No.1 related to non-submission of annual property
statements for the years 2006, 2007, 2008 and 2010; charge No.2
related to his acquiring assets disproportionate to the known
source of income to a tune of Rs.40,75,500/-; the documents
sought to be relied upon, to prove the disproportionate assets, and
the witnesses were the same both in the enquiry and in the
criminal case pending before the ACB Court; since the competent
court was already seized of the matter on the same issue, the
impugned proceedings should not have been issued till the
disposal of the criminal case; if the enquiry was permitted to be
proceeded with, the 1st respondent would be forced to disclose his
defence in advance in the disciplinary enquiry; he would thereby
suffer irreparable injury; on the other hand, the Government would
not suffer any injury since they could take further action in the
matter depending upon the result in the criminal case; if they wait
till the disposal of the criminal case, they would have the
advantage of the findings of the competent criminal court on the
same issue; both the charges were, admittedly, interlinked; the so
called disproportionate assets were acquired during the said years;
the claim of the 1st respondent was that he was not the owner of
those assets; if his claim was accepted by the Special Court for
SPE & ACB cases, he may come out with clean hands; in that
event further enquiry may also be not necessary; and the
departmental enquiry initiated against the petitioner should not be
continued till the disposal of the criminal case filed by the ACB.
The O.A. was allowed in part and the respondents were
directed not to proceed with the departmental enquiry initiated
against the 1st respondent, vide proceedings of the Commissioner
dated 05.02.2011, till the disposal of the ACB cases pending on the
file of the Special Judge for SPE & ACB cases, Vijayawada basing
upon Cr. No.28 of 2009 dated 26.12.2009. The Tribunal observed
that its order did not preclude the authorities from taking further
action, after disposal of the criminal case, in accordance with law.
Aggrieved thereby the present Writ Petition.
Learned Government Pleader for Services would submit that,
while the charge sheet filed in Cr. No.28 of 2009 before the Special
Judge for SPE & ACB cases, Vijayawada related to acquisition of
assets beyond the known sources of income, and for offences
under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, the charges levelled against the 1st respondent in
the disciplinary enquiry was for his failure to submit the annual
property statements for the years 2006, 2007, 2008 and 2010, and
for acquiring movable and immovable properties without informing
the department; these charges, which are the subject matter of the
disciplinary enquiry, are distinct and different from the charge
levelled against the 1st respondent in the criminal case; and the
Tribunal had erred in directing the authorities not to conduct
disciplinary enquiry till completion of the criminal case.
On the other hand Sri M.V. Rajaram, Learned Counsel for
the 1st respondent, would submit that the case of the 1st
respondent, as is evident from his explanation dated 14.03.2011,
is that he had divorced his wife Smt.G. Sarita on 04.05.2007
(customary divorce), and thereafter by a Court divorce on
09.09.2008 in the Lok Adalat Vizianagaram; the properties
mentioned in the charge sheet were purchased by his ex-wife after
he had divorced her; he had intimated the Commissioner, of his
divorce, on 22.10.2008; on dissolution of their marriage, she was
no longer his wife; as these assets did not belong to the 1st
respondent, but to his ex-wife, he could not be faulted for not
intimating the authorities of the assets purchased by her after
their divorce; the entire foundation, of both the disciplinary
enquiry and the criminal case, would depend on whether the
assets purchased by the ex-wife of the 1st respondent was required
to be declared by him, and to be treated as his assets; after
divorce, his ex-wife cannot be treated as part of his family;
conducting the disciplinary enquiry, before completion of the
criminal case, would force the 1st respondent to disclose his
defence; he would suffer irreparable injury thereby; and the
Tribunal was, therefore, justified in directing the respondents to
defer disciplinary proceedings till completion of the criminal case.
Before examining the question whether, and in what
circumstances, disciplinary proceedings should be stayed pending
finalisation of the criminal case, it is necessary to take note of the
scope of both these proceedings. The purpose of a departmental
enquiry and of prosecution are two different and distinct aspects. A
crime is an act of commission in violation of the law or of an
omission of public duty. The departmental enquiry is to maintain
discipline in service, and the efficiency of public service. The word
offence, generally, implies infringement of public rights
punishable under criminal law. In the trial of a criminal offence
strict rules of evidence, in terms of the provisions of the Evidence
Act, is applicable. Converse is the case of a departmental enquiry.
The enquiry, in departmental proceedings, relates to the conduct
or the breach of duty by the delinquent officer, and he is liable to
be punished for his misconduct under the relevant statutory rules
or law. Strict standard of proof, or applicability of the Evidence
Act, stands excluded in a departmental enquiry. The degree of
proof required to establish a charge in a departmental enquiry is
not as high as in the case of a criminal charge. (Depot Manager,
APSRTC v. Mohd. Yousuf Miya ).
The approach and the object of criminal proceedings and
disciplinary proceedings are altogether different. In 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 criminal proceedings
the question is whether the offences which he is charged of, under
the Prevention of Corruption Act, are established and, if
established, what sentence should be imposed upon him. The
standard of proof, the mode of enquiry and the rules governing the
enquiry and trial in both cases differ. (State of Rajasthan v. B.K.
Meena ). Proceedings in a criminal case and the departmental
proceedings operate in distinct jurisdictional areas. In
departmental proceedings, where a charge relating to misconduct
is investigated, the factors operating in the mind of the disciplinary
authority may be many such as enforcement of discipline or
investigating the level of integrity of the charged officer etc. The
standard of proof required in those proceedings is also different
than that required in a criminal case. While, in the 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. (M. Paul Anthony v.
Bharat Gold Mines Ltd. ; Hindustan Petroleum Corpn. Ltd. v.
Sarvesh Berry ; Divisional Controller, Karnataka State Road
Transport Corporation v. M.G.Vittal Rao ).
On the question whether a departmental enquiry should be
deferred pending completion of criminal proceedings, it must be
borne in mind that, ordinarily, disciplinary proceedings need not
await completion of the criminal case. Principles of natural justice
do not require that the employer should wait for the decision of the
criminal court before taking disciplinary action against the
employee. (Delhi Cloth and General Mills Ltd. v. Kushal Bhan ;
B.K. Meena2). The issue in the disciplinary proceedings is
whether the employee is guilty of the charges on which it is
proposed to take action against him. The same issue may arise for
decision in a civil or criminal proceeding pending in a court. But
the pendency of court proceeding does not bar the taking of
disciplinary action. The power of taking such action is vested in
the disciplinary authority. The civil or criminal court has no such
power. The initiation and continuation of disciplinary proceedings
in good faith is not calculated to obstruct or interfere with the
course of justice in the pending court proceeding. (Jang Bahadur
Singh v. Baij Nath Tiwari ). The departmental enquiry must be
conducted expeditiously so as to ensure efficiency in public
administration. (Mohd. Yousuf Miya1).
While there is no legal bar for simultaneous proceedings
being taken, it may be appropriate in certain cases to defer
disciplinary proceedings. In such cases, it would open to the
delinquent employee to seek an order of stay or injunction from the
Court. Whether, in the facts and circumstances of a particular
case, there should or should not be such simultaneity of the
proceedings would then receive judicial consideration and the
court will decide, in the given circumstances of a particular case,
as to whether disciplinary proceedings should be interdicted
pending criminal trial. (Jang Bahadur Singh7; Kusheshwar
Dubey v. Bharat Coking Coal Ltd. ; B.K. Meena2).
As reliance is often placed, on G.M.Tank v. State of
Gujarat ), by Courts and Tribunals in directing stay of disciplinary
proceedings, pending disposal of the criminal case, it is necessary
to note the factual matrix in which the observations were made
therein by the Supreme Court, for every judgment must be read as
applicable to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be found there
are not intended to be expositions of the whole law, but governed
and qualified by the particular facts of the case in which such
expressions are to be found. A case is only an authority for what it
actually decides. It cannot be quoted for a proposition that may
seem to follow logically from it. Such a mode of reasoning assumes
that the law is necessarily a logical code, whereas it must be
acknowledged that the law is not always logical. (Arasmeta
Captive Power Company Limited v. Lafarge India Private
Limited ; Quinn v. Leathem ).
In G.M. Tank9, the appellant before the Supreme Court
joined the service of the respondent in the year 1953. He was to
superannuate in February, 1986. After he had put in 26 years of
service with the respondent i.e. from 1953 to 1979, he was placed
under suspension on 8.2.1979, and was paid subsistence
allowance at 50% of his salary. On the basis of the same charges
and evidence, the department passed an order of dismissal on
21.10.1982 whereas the Criminal Court acquitted him, nearly
twenty years thereafter, on 30.1.2002. While holding that, until
such acquittal, there was no reason or ground to hold the
dismissal to be erroneous and, as the appellant had retired by
then, the order of dismissal should be set aside without back
wages and the appellant should be paid pension, the Supreme
Court observed:-
.In our opinion, such facts and evidence in the department as well as
criminal proceedings being the same without there being any iota of difference;
the appellant should succeed. The distinction which is usually proved between
the departmental and criminal proceedings on the basis of the approach and
burden of proof would not be applicable in the instant case. Though finding
recorded in the domestic enquiry was found to be valid by the courts
below, when there was an honourable acquittal of the employee during the
pendency of the proceedings challenging the dismissal, the same requires
to be taken note of and the decision in Paul Anthony's case (supra) will
apply. We, therefore, hold that the appeal filed by the appellant deserves to be
allowed..
(emphasis supplied)
The law declared by the Supreme Court in G.M. Tank9 is
that, if the facts and evidence in the departmental and criminal
proceedings are the same without there being an iota of difference,
and the employee has been honourably acquitted in the criminal
case, the appeal presented by him, against the order of
punishment imposed on him by the disciplinary authority
pursuant to the departmental enquiry, must be allowed, and the
order of punishment set aside. The question whether disciplinary
proceedings should be stayed pending disposal of the criminal case
was not even in issue in G.M. Tank9.
While there is no legal bar to the holding of the disciplinary
proceedings and the criminal trial simultaneously, stay of
disciplinary proceedings may be an advisable course in cases
where the criminal charge against the employee is grave, and
continuance of the disciplinary proceedings is likely to prejudice
their defense before the Criminal Court. (B.K. Meena2; Delhi
Cloth and General Mills Ltd.6; Stanzen Toyotestu India (P) Ltd.
v. Girish V ; Mohd. Yousuf Miya1). Both proceedings can be
held simultaneously, except where the departmental proceedings
and the criminal case are based on the same set of facts, and the
evidence in both the proceedings is common, (State Bank of India
v. R.B. Sharma ; M.G.Vittal Rao5; Jang Bahadur Singh7;
Kusheshwar Dubey8, without there being a variance. (M.Paul
Anthony3; Sarvesh Berry4).
If the case is of a grave nature and involves questions of fact
or law, which are not simple, it would be advisable for the
employer to await the decision of the trial court, so that the
defence of the employee in the criminal case may not be
prejudiced. (Delhi Cloth & General Mills Ltd.6; Tata Oil Mills
Company Limited v. Workmen ). The seriousness of the charge
alone is not the test. What is also required to be demonstrated is
that the case involves complicated questions of law and fact.
(Stanzen Toyotestu India (P) Ltd.12). The question, whether the
departmental enquiry would seriously prejudice the delinquent in
his defence at the trial in a criminal case, is always a question of
fact to be considered in the facts and circumstances of each case.
(Mohd. Yousuf Miya1). The Court examining the question must
keep in mind that criminal trials get prolonged indefinitely. The
Court, therefore, has to draw a balance between the need for a fair
trial to the accused on the one hand and the competing demand
for an expeditious conclusion of the on-going disciplinary
proceedings on the other. An early conclusion of the disciplinary
proceedings is, itself, in the interest of the employees. (Stanzen
Toyotestu India (P) Ltd.12). Staying of disciplinary proceedings,
pending completion of criminal proceedings, should not be resorted
to as a matter of course but should be a considered decision. Even
if stayed at one stage, the decision may require reconsideration if
the criminal case gets unduly delayed. (B.K. Meena2). To say that
domestic enquiries may be stayed pending criminal trial is very
different from saying that if an employer proceeds with the
domestic enquiry, inspite of the fact that the criminal trial is
pending, the enquiry for that reason alone is vitiated and the
conclusion reached in such an enquiry is either bad in law or
malafide. (Tata Oil Mills Company Ltd.14; Delhi Cloth and
General Mills Ltd.6).
The principles, applicable in this regard, 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 the 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 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. (Mohd. Yousuf Miya2; M.Paul Anthony3;
Sarvesh Berry4).
It is neither possible nor advisable to evolve a hard and fast
strait-jacket formula valid for all cases and of general application
without regard to the particularities of the individual situation.
(Kusheshwar Dubey8; Jang Bahadur Singh7; B.K. Meena2). The
'advisability', 'desirability' or 'propriety' of staying the departmental
proceedings enter the scales, while judging whether the
disciplinary proceedings should be stayed, merely as one of the
factors which cannot be considered in isolation dehors the other
circumstances of the case. But the charges in the criminal case
must, in any case, be of a grave and serious nature involving
complicated questions of fact and law. One of the contending
considerations would be that the disciplinary enquiry cannot - and
should not - be delayed unduly. It is well- known that criminal
cases drag on endlessly, get bogged down on one or the other
ground, and hardly ever reach a prompt conclusion. The interests
of administration and good governance demand that these
proceedings are concluded expeditiously, undesirable elements are
thrown out, and any charge of misdemeanor is enquired into
promptly. The disciplinary proceedings are meant not really to
punish the guilty but to keep the administrative machinery
unsullied by getting rid of bad elements. The interest of the
delinquent officer also lies in a prompt conclusion of the
disciplinary proceedings. If he is not guilty of the charges, his
honour should be vindicated at the earliest possible moment and,
if he is guilty, he should be dealt with promptly according to the
law. It is not also in the interest of administration that persons
accused of serious misdemeanor should be continued in office
indefinitely, i.e., for long periods awaiting the result of criminal
proceedings. It only serves the interest of the guilty and dishonest.
While it is not possible to enumerate the various factors, for and
against the stay of disciplinary proceedings, these are some of the
important considerations to be borne in mind as very often
disciplinary proceedings are stayed for long periods pending
criminal proceedings. All the relevant factors, for and against,
should be weighed and a decision taken keeping in view the
aforesaid principles. (B.K. Meena2; M.Paul Anthony3).
It is not desirable to lay down any guidelines as inflexible
rules in which the departmental proceedings may or may not be
stayed pending trial in a criminal case against the delinquent
officer. Each case requires to be considered in the backdrop of its
own facts and circumstances. (Mohd. Yousuf Miya1). 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
on the one hand to prolong the criminal case, and at the same time
to contend that the departmental proceedings should be stayed on
the ground that the criminal case is pending. (Sarvesh Berry4).
Bearing these principles in mind, let us now examine the
facts of the present case. A copy of the charge sheet, filed before
the Court of the SPE & ACB, in Cr. No.28 of 2009, has been placed
before us for our perusal. The charge, levelled against the first
respondent for offences under Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988, is as under:
The total assets of Accused officer during the check period is of
Rs.83,86,332.00/-. The total income of Accused Officer during check period is
of Rs.15,10,032.80/-. The total expenditure of Accused officer during the check
periodis Rs.47,68,553.93/-. The over expenditure of A.O. is Rs.32,58,521.13/-.
Therefore, the A.O. was found in possession of disproportionate assets
worth Rs.1,16,44,853/- (total assets of Rs.83,86,332.00/- + Over expenditure
Rs.32,58,521-13/-) which is disproportionate to his known sources of income
for which theA.O. could not account for.
The Government of Andhra Pradesh, being the competent authority has
accorded sanction vide G.O.Ms. No.160 Revenue (Vigilance-IV) Department
dated 13.03.2012 to prosecute the A.O. in the competent Court of Law.
Therefore, the A.O. is liable for punishment under Section 13(1)(e) read
with 13(2) of P.C. Act, 1988 for possessing Disproportionate assets in his name,
in the names of his family members and in benami names. Hence the charge.
Section 13 of the Prevention of Corruption Act relates to
criminal misconduct by a public servant and, under sub-rule (1)(e)
thereof, a public servant is said to commit the offence of criminal
misconduct if he, or any person on his behalf, is in possession or
has, at any time during the period of his office, been in possession,
for which the public servant cannot satisfactorily account, of
pecuniary resources or property disproportionate to his known
sources of income. Section 13(2) thereof stipulates that any public
servant, who commits criminal misconduct, shall be punishable
with imprisonment for a term which shall be not less than one year
but which may extend to seven years and shall also be liable to
fine. In cases involving Section 13 (1)(e) of the Prevention of
Corruption Act, the onus is on the accused to prove that the assets
found were not disproportionate to his known sources of income.
The Explanation to Section 13(1) of the Prevention of Corruption
Act provides that, for the purposes of the Section, "known sources
of income" means income received 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 knowledge of the accused. There is no
question, therefore, of any disclosure of the defence in the
departmental proceedings. In the criminal case, the accused has to
prove the source of acquisition, and has to satisfactorily account
for the same. (Sarvesh Berry4).
While the charge levelled against the 1st respondent, in the
criminal case, is for possessing assets disproportionate to his
known sources of income, and thereby having committed offences
under Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, the charge levelled against him in the disciplinary
enquiry is for his failure to submit his annual property statements
for the years 2006, 2007, 2008 and 2010; and for acquiring
movable and immovable properties without informing the
department. Both the charges, in the disciplinary enquiry, are for
contravention of Rule 9(7) of the Conduct Rules.
Rule 9(1) the Conduct Rules stipulates that no Government
employee shall, except after previous intimation to the
Government, acquire or dispose of or permit any member of his
family to acquire or dispose of any immovable property by
exchange, purchase, sale, gift or otherwise either by himself or
through others. Rule 9(7) of the Conduct Rules stipulates that
every Government employee, other than a member of the Andhra
Pradesh Last Grade Service and a Record Assistant in the Andhra
Pradesh General Sub-ordinate Service, shall, on his first
appointment to the Government Service, submit to the
Government a statement of all immovable property/ properties
irrespective of its value and movable property/ properties whose
value exceeds Rs.1,00,000/- owned, acquired or inherited by him
or held by him on lease or mortgage either in his own name or in
the name of any member of his family, in the forms prescribed in
Annexure-I and II separately. The said employee is also required to
submit to the Government, before 15th January of each year,
through the proper channel, a declaration in the forms given in
Annexure-I and II of all immovable/movable property/properties
owned, acquired or inherited by him or held by him on lease or
mortgage, either in his own name or in the name of any member of
his family. The declaration shall contain such further information
as Government may, by a general or special order, require. If, in
any year, a Government employee has not acquired or disposed of
any immovable or movable property or any interest therein, he
shall submit a declaration to that effect.
The issue whether or not the assets acquired by the 1st
respondent are disproportionate to his known sources of income is
not the subject matter of the disciplinary enquiry. The first charge
levelled against him in the disciplinary enquiry is that he did not
submit his annual property statements for certain years. Rule 9(7)
of the Conduct Rules requires a Government servant to declare his
assets annually, and submit an annual property statement to the
competent authority. The 2nd charge, levelled against the first
respondent in the disciplinary proceedings initiated against him,
is regarding his having acquired movable and immovable property
without informing the department. Rule 9(1) of the Conduct Rules
requires a Government servant to inform the Government of his
intention, to acquire movable and immovable property, before its
acquisition. Even if the assets acquired by a Government servant
is not disproportionate to his known sources of income, he is,
nonetheless, required to submit his annual property statements,
and inform the Government of his intention to acquire movable
and immovable property, before its acquisition. It is evident,
therefore, that the charges levelled against the 1st respondent in
the disciplinary enquiry is distinct and different from the charge
levelled against him in the criminal case.
In the order, under challenge in this Writ Petition, the
Tribunal held that if the enquiry was permitted to be proceeded
with, the 1st respondent would be forced to disclose his defence in
advance. The ground, "that the defence of the employee in the criminal
case may not be prejudiced", is hedged by the condition that
disciplinary proceedings may be stayed in cases of grave nature
involving questions of fact and law. This means that not only the
charges must be grave, but the case must involve complicated
questions of law and fact. This ground is not also an invariable
rule. It is only a factor which will weigh while judging the
advisability or desirability of staying disciplinary proceedings. (B.K.
Meena2).
In his explanation dated 14.03.2011, filed during the
disciplinary proceedings, the 1st respondent contended that it is
his ex-wife who had acquired the assets after their divorce, and he
could not be faulted for non-disclosure of the assets, purchased by
her, to the Government as she was no longer a member of his
family. As the charged officer has already disclosed his defense in
his letter of explanation dated 14.03.2011, submitted in the course
of departmental proceedings, (Stanzen Toyotestu India (P)
Ltd.12), he cannot seek deferment of disciplinary proceedings on
this ground. It is difficult, therefore, to accept his submission that
the disciplinary proceedings being held against him would result in
his having to reveal his defence in the criminal case. Even
otherwise, a perusal of the charge memo shows that the assets
allegedly purchased by the 1st respondent were shown to be held
not only in the name of Smt.G. Sarita (his wife whom he claims to
have divorced), but also in the name of his son Sri G.Vijaya
Sekhar, and G. Ramadevi his relative. The petitioners herein have,
merely, initiated disciplinary proceedings, and it is for them to
establish the charge, levelled against the 1st respondent, therein.
It is also open to the 1st respondent, during the course of the
disciplinary enquiry, to produce evidence in his defence to show
that he is not guilty of the charges levelled against him.
With regards the contention that disciplinary proceedings
were instituted against the petitioner for extraneous reasons, it is
no doubt true that not all disciplinary proceedings are based upon
true charges. Some of them may be unfounded and, in some
cases, the charges may have been levelled with oblique motives.
These possibilities, however, do not detract from the desirability of
early conclusion of disciplinary proceedings. Indeed, in such
cases, it is all the more in the interest of the charged officer that
the proceedings are expeditiously concluded. Delay in such cases
really works against him. It is in the interest of the charged officer,
and in the interest of good administration, that the truth or falsity
of the charges against him is determined promptly. If he is not
guilty of the charges, his honour should be vindicated early and, if
he is guilty, he should be dealt with appropriately without
avoidable delay. The criminal court may decide - whenever it does -
whether he is guilty of the offences charged and, if so, what
sentence should be imposed upon him. The interest of
administration, however, cannot brook any delay in conclusion of
disciplinary proceedings. (B.K. Meena2).
What was put in issue by the 1st respondent, before the
Tribunal, was the very initiation of disciplinary proceedings against
him. While a subsequent charge memo was issued to the
petitioner, vide proceedings dated 12.04.2012, the said charge
sheet was not the subject matter of challenge before the Tribunal
and, as the Tribunal is the Court of first instance, it would be
wholly inappropriate for this Court to examine its validity for the
first time in proceedings under Article 226 of the Constitution of
India. As the very premise on which the Tribunal passed the
impugned order, that both the charges in the disciplinary enquiry
and in the criminal case are the same, is unfounded, the order of
the Tribunal must be and is, accordingly, set aside.
We should not be understood to have cast any reflection on
the merits of the case. What we have said is confined to the
question of the desirability or advisability of staying the
disciplinary proceedings against the charged officer pending the
criminal proceeding/case against him. (B.K. Meena2). The
disciplinary proceedings shall be continued in accordance with law
uninfluenced by any observations made, on the merits of the case,
either in the order of the Tribunal or this Court.
The Writ Petition is disposed of accordingly. The
miscellaneous petitions pending, if any, shall also stand disposed
of. No costs.
____________________________
RAMESH RANGANATHAN, J
__________________________________
M. SATYANARAYANA MURTHY, J
Date:27.03.2015
Comments
Post a Comment