IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 14/03/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.21812 of 2005
W.P.M.P.No.23765 of 2005
M.K.Dange ... Petitioner
-Vs-
1. Chairman-cum-Managing
Director,
Oil and Natural Gas Corporation,
Jeevan Bharati Building,
124, Connaught Circus,
New Delhi 110 001.
2. The Director (Finance),
Oil and Natural Gas Corporation,
Jeevan Bharati Building,
124, Connaught Circus,
New Delhi 110 001.
3. The General Manager (F&A),
Oil and Natural Gas Corporation,
CMDA Building,
Egmore,
Chennai 600 008. ... Respondents
This writ petition has been filed under Article 226 of Constitution of
India, praying this Court to issue a writ of certiorarified mandamus, calling
for the records relating to Order No.ONG/SR/CO/DISCP/93 dated 7.12.1993 passed
by the Third respondent as extended by order No.17721(06)/SCRO/E.II/2003 dated
6.6.2005 passed by the third respondent, quash the same and direct the
respondents to reinstate the petitioner in service with all consequential
benefits, including payment of arrears of pay and allowances from the date of
his suspension till the date of his reinstatement together with interest at
12% per annum and consider him for promotion to the next higher posts on par
with his immediate juniors.
!For Petitioner : Mr.P.V.S.Giridhar
for M/s.PVS Giridhar Associates
^For Respondents : Mr.G.Masilamani, Sr.Counsel
for M/s.King & Partridge
:O R D E R
Prayer in the writ petition is to quash the order of suspension dated
7.12.1993 as extended by order dated 6.6.2005, passed by the third respondent
and direct the respondents to reinstate the petitioner in service with all
consequential benefits including payment of arrears of pay and allowances from
the date of his suspension till the date of reinstatement together with
interest at 12% per annum and consider the petitioner for promotion to the
next post on par with his immediate juniors.
2. When the miscellaneous petition was taken up for hearing, the
learned counsel appearing for the petitioner as well as the learned Senior
Counsel appearing for the respondents submitted that the arguments in both the
miscellaneous petition as well as the main writ petition will be the same.
Hence with the consent of both sides, the main writ petition itself was taken
up for final disposal.
3. The original order of suspension dated 7.12.1993, which is
also impugned in this writ petition reads as follows,
“It has been decided by the Competent Authority to conduct preliminary
enquiry into the matter relating to the passing of payment of Rs.3 0,84,124/-
in favour of M/s.Western Services International against the instructions of
ONGC without proper verifications. The continuance of Shri M.K.Dange,
Dy.Director (F&A) on duty is likely to prejudice investigation, enquiry or
trials.
2. Now, therefore, the undersigned in exercise of the powers
conferred under sub-Regulation (1) of Regulation 33 of ONGC CDA Regulations
1976 as amended from time to time read with powers conferred on my office vide
Item No.C2.2 of BDP 1993 of ONGC, hereby place Shri M.K. Dange, Dy.Director
(F&A) under suspension with immediate effect.”
4. The Charges framed against the petitioner for initiating the
disciplinary proceeding are as follows,
“a) Indulged in false fabrication of letter heads and letters in
the name of Western Services International, a Foreign Company of USA origin
which had certain contractual relations with the ONGC in the past with the
intention to make fraudulent claims of income-tax refund amount held in the
name of the said Western Services International.
b) Falsely introduced one Shri I.Rathnakar of Hyderabad as the
Proprietor of the said Western Services International to the Andhra Bank,
Chetpet Branch with a view to facilitate the said Shri I.Rathnakar opening an
account in the name of the said Western Services International for the purpose
of fraudulently encashing the cheque to be issued in the name of Western
Services International purporting to be the refund amount.
c) Falsely fabricated a letter purportedly 20.10.93 as if issued
from the Income-tax Wing at Dehradun to Shri D.P.Mukherjee, Additional
Director, Finance and Accounts, ONGC, Madras, authorising to refund of
income-tax held in the name of Western Services International.
d) Knowing fully well the fraudulent nature of the transactions,
prepared and signed a bank payment voucher dt.2.12.93 for Rs.30,84,124/- in
the name of the said Company to the tune of the said amount with an intention
to fraudulently encash the same and obtain the proceeds.
e) Negligently deducted an amount of Rs.33,10,819/- from the
refund amount held in the name of Western Services International and
authorised the remittance of the same to the Income-tax department towards the
Personnel Tax liability of Western Services International though the amount
actually belonged to ONGC.
Thus, Shri M.K.Dange, Sr.F&AO failed to maintain absolute integrity
and devotion to duty. He has committed fraud and dishonesty in connection
with the business or property of the Company. He has shown dereliction of
duty with ulterior motive and thereby he has committed gross misconduct and
contravened the provisions of Rule 4(1), a, b, c read with Sl.Nos.(3), (5) &
30 of Schedule II to Rule 3(J) of ONGC, CDA Rules, 1994.”
5. The petitioner herein, earlier challenged the original order
of suspension dated 7.12.1993 passed by the third respondent as confirmed by
order dated 30.5.2001 of the Chief Manager, ONGC, in W.P.No.15495 of 2002.
The said writ petition was dismissed by this Court on 22.8.2003. The
operative portion of the order dated 22.8.2003 reads as follows,
“For all the above reasons, I find no merit in the writ petition and
the same is liable to be dismissed. However, this Court has to take into
consideration of the fact that though on the given facts and circumstances
upheld the order of prolonged suspension, nevertheless, the trial cannot be
prolonged for no reasons as after the charges were framed and most of the
witnesses had been examined, it would be in the interest of the petitioner to
complete the trial as expeditiously as possible. However, in the absence of
any details as to the witnesses to be examined on behalf of the prosecution as
well as on behalf of the petitioner and the time to be consumed for the same,
I do not propose to fix any time limit for the criminal Court to complete the
trial. However, both the petitioner and the respondents are given liberty to
approach the 8th Additional (CBI) Court, Chennai for expeditious disposal of
the case. In the event of such applications being filed, the same shall be
duly considered by the learned Judge who shall expedite the trial and complete
the same as expeditiously as possible.”
The learned Judge thus upheld the order of suspension dated 7.12.1993 .
6. The learned counsel appearing for the petitioner contended
that after disposal of the above writ petition, the Principal Special Judge
for CBI cases tried the criminal case filed against the petitioner in
C.C.No.176 of 1997 and acquitted the petitioner from the charges. Based on
the acquittal, petitioner made a representation on 22.3.2005 to the second
respondent seeking revocation of suspension. Since there was no response, a
reminder was sent by the petitioner on 8.5.200 5 and thereafter the third
respondent by order dated 6.6.2005 extended the suspension until further
orders.
7. The thrust of the arguments made by the learned counsel for
the petitioner is that after the petitioner having been acquitted by the
criminal Court, there is no justification to keep the petitioner under
suspension and the prolonged suspension of the petitioner for 12 years is not
legally sustainable. The second contention urged by the learned counsel for
the petitioner is that the extension of suspension order is issued by the
third respondent in a mechanical manner without any application of mind and no
reason for such extension is stated. The third contention is that no ground
exists for continuing the order of suspension after the acquittal of
petitioner from the criminal case and due to the extension of suspension, the
petitioner is not only denied his salary and other benefits, but also his
promotional chances are being affected and several of his juniors are promoted
as Deputy Managers and Managers ahead of the petitioner. The learned counsel
cited the following judgments in support of his contentions,
a) AIR 1984 SC 626 (Corporation of Nagpur v. Ramchandra G.Modak)
b) 2002 WLR 546 (A.Boopalan v. The Assistant Director, Khadi and
Village Industries and another)
c) 2003 WLR 644 (C.Baskaran v. The Managing Director, Tamil Nadu State
Transport Corporation, Dindigul & Others)
d) 1996 WLR 332 (K.Thangaraj v. The Managing Director, Dheeran
Chinnamalai Transport Corporation Limited, Tiruchirapalli)
e) (1994) 28 Administrative Tribunals Cases 711 ( Sulekh Chand v.
Commissioner of Police) (SC).
8. The learned Senior Counsel appearing for the respondents
submitted that the petitioner was not honourably acquitted in the criminal
case as claimed by the petitioner, but his acquittal was solely on the basis
of benefit of doubt. The learned counsel also pointed out that the alleged
discriminatory treatment given to the petitioner has no substance since the
co-delinquent viz., Harid was dismissed from the service and the present
impugned order is only extension of the suspension order already issued and
the same should be read along with the original order of suspension dated
7.12.1993 and therefore no further reason need be given for extension of the
suspension. The learned Senior Counsel further submitted that even if the
delinquent is acquitted in the criminal case, it is the prerogative of the
department to conduct departmental enquiry. In support of the said
proposition the learned Senior Counsel cited the following decisions,
i) (2003) 9 SCC 164 (Principal, J.D.Patil Sangludkar and another v.
Ganesh)
ii) (2005) 7 SCC 764 (Ajit Kumar Nag v. General Manager (PJ), Indian Oil
Corpn. Ltd., Haldia and others), and
iii) (2006) 1 MLJ 511 (Indian Overseas Bank v. P.Ganesan).
9. In the light of the above submissions and contentions, the
following issues arise for determination in this writ petition,
1) Whether the management is justified in extending the order of
suspension even after the acquittal of the petitioner in the criminal case ?
2) Whether for extending the order of suspension, fresh reasons
should be recorded in the order of suspension ?
10. Issue No.1: It is not in dispute that even after the
acquittal by the Criminal Court, the department has the right to continue with
the disciplinary proceedings as held by the Honourable Supreme Court in the
decision reported in AIR 2003 SC .M.D., United Commercial bank, v.
P.C.Kakkar), wherein in paragraph 15 it is held as follows,
“… Acquittal in the criminal case is not determinative of the
commission of misconduct or otherwise, and it is open to the authorities to
proceed with the disciplinary proceedings, notwithstanding acquittal in
criminal case. It per se would not entitle the employee to claim immunity
from the proceedings. At the most the factum of acquittal may be a
circumstance to be considered while awarding punishment. It would depend upon
facts of each case and even that cannot have universal application.”
11. The Honourable Supreme Court in a very recent decision
reported in JT 2006 (1) SC 444 = (2006) 1 M.L.J. 166 (S.C.)
(Chairman-cum-M.D., T.N.C.S.Corpn. Ltd. & Ors. v. K.Meerabai) considered a
similar issue as to whether departmental proceeding can be initiated or
continued after the acquittal in the criminal case for the criminal charges.
In paragraph 25, the Honourable Supreme Court held thus,
“The scope of disciplinary proceedings and the scope of criminal
proceedings in a court of criminal law are quite distinct, exclusive and
independent of each other. The prosecution proceedings launched against the
respondent herein were in respect of offences punishable under Sections 409
and 477A IPC, whereas the departmental proceedings as initiated against her
were in respect of the charges of misappropriation and other fraudulent
practices such as deliberate omission to bring into accounts the stock
received showing bogus issues in the records, falsification of accounts,
submission of defective accounts, tampering of records, manipulation of
accounts and records etc. Thus, the respondent herein was proceeded against
for quite different charges and on different sets of facts before the court of
Chief Judicial Magistrate, on the one hand, and before the departmental
enquiry on the other.”
In the said judgment it is further held that the High Court was wrong in
setting aside the order of dismissal on the ground that the criminal Court
acquitted the delinquent and in paragraph 24 held thus,
“The order of dismissal passed by the disciplinary authority was based
on dispassionate and independent examination and appreciation of the entirety
of facts and evidence on record relating to the malpractices and
mis-appropriation indulged in by the respondent in collusion with the other
members of the staff causing thereby huge loss to the Corporation.”
In view of the above said decisions, it cannot be disputed that the
respondents/Management are entitled to proceed with the departmental
proceeding, in spite of the acquittal in the criminal case, more particularly,
when the criminal Court acquitted the petitioner by giving benefit of doubt.
At this juncture I feel it relevant to extract the findings of the criminal
Court in paragraph 58 of its judgment, which reads as follows,
“… as rightly contended by the accused, the benefit of doubt
emanating from the same should be extended in favour of the accused and
accordingly the benefit of doubt emerging from the case is extended in favour
of the accused. I hold therefore, that the prosecution has failed to
establish the case against the accused beyond reasonable doubt and accordingly
acquit the accused.”
A reading of the above judgment makes it clear that the petitioner was not
acquitted on merits and only on the basis of giving benefit of doubt.
12. The learned counsel appearing for the petitioner submitted
that even though the charges were framed in the year 1997, no earnest step was
taken to conduct the enquiry and complete the disciplinary proceeding.
13. In reply to the above submission, the leaned Senior Counsel
appearing for the respondents submitted that by the letter dated 27.3.199 7,
the petitioner requested for postponement of the enquiry due to the pendency
of investigation and filing of charge sheet by CBI in the 6th Additional City
Civil Court, Chennai and if the enquiry is conducted, the rights of the
petitioner will be in jeopardy and further stated that defending himself in
two different Forums will cause tremendous mental agony and financial strains.
A copy of the said letter is filed among the typed set of papers. The learned
Senior Counsel relying upon the said letter submitted that only due to the
said request of the petitioner the enquiry was not proceeded with and no
finality was reached in the departmental proceeding, and for the delay in
completing the disciplinary proceeding, the management should not be blamed.
Learned Senior Counsel also submitted that if a direction is issued to
complete the disciplinary proceeding within a stipulated period and if the
petitioner extends his co-operation, the management is willing to complete the
entire proceedings within the stipulated time.
14. Issue No.2: As regards the issue of non-application of mind
raised by the learned counsel for the petitioner in respect of extension of
suspension order, it is to be noted that the order dated 6.6.2005 is only an
extension of the earlier suspension order.
15. The order of suspension dated 7.12.1993 specifically states
that the continuance of petitioner in duty is likely to prejudice
investigation, enquiry or trial. Even according to the petitioner, the
investigation in the criminal case and the trial in the criminal case alone
were over and the enquiry in the disciplinary proceeding is yet to be over.
Hence the reason stated in the original order of suspension dated 7.12.1993
holds good for the continuance of suspension by order dated 6.6.2005.
16. The learned Senior Counsel submitted that as against the
judgment of the criminal Court, the CBI has filed an appeal before this Court
in Crl.A.No.501 of 2005 and the same has been admitted and pending, which was
also informed to the department by the Superintendent of Police, CBI, vide his
letter dated 19.7.2005 and therefore the criminal Court decision, namely, the
acquittal of the petitioner, has not become final. Hence, the learned Senior
Counsel submitted that the appeal is to be treated as continuation of original
proceedings, and the petitioner has no right to demand for setting aside the
suspension order during the pendency of criminal appeal and pending enquiry in
the departmental proceedings and consequently, the contention raised by the
counsel for the petitioner that the order of extension does not contain
reasons and therefore the non-application of mind is writ large, is
unsustainable.
17. (a) The decision cited by the learned counsel for the
petitioner in 2003 WLR 644 (C.Baskaran v. The Managing Director, Tamil nadu
State Transport Corporation, Dindigul & others) will not help the petitioner
since the very same suspension order, impugned in this writ petition, was
already upheld by this Court by order dated 22.8.2003 in W.P.No.15495 of 2002.
The only change of circumstance is that the criminal Court acquitted the
petitioner by giving benefit of doubt as against which a criminal appeal
referred to above has been admitted and pending before this Court.
(b) In the decision of this Court relied on by the learned counsel
appearing for the petitioner reported in 2002 WLR 546 (A.Boopalan v. The
Assistant Director, Khadi and Village Industries and another), there was a
delay in concluding the disciplinary proceeding for more than ten years
without any reason on the part of the management and therefore this Court held
that the disciplinary proceeding can be concluded and the petitioner therein
may be posted to any non-sensitive post. Here in this case, the disciplinary
proceeding was not proceeded with because of the the request made by the
petitioner through his letter dated 27.3.1997 as stated supra and therefore
the delay is attributable only against the petitioner and not against the
management for not concluding the disciplinary proceeding.
(c) In another decision cited by the learned counsel appearing for
the petitioner reported in 1996 WLR 332 (K.Thangaraj v. The Managing
Director, Dheeran Chinnamalai Transport Corporation Limited, Tiruchirapalli)
the suspension order was quashed on the ground that the charge was too trivial
in nature. The facts in that case was entirely different because the charges
levelled against the petitioner herein are very serious in nature.
(d) In AIR 1984 SC 626 (Corporation of Nagpur v. Ramchandra
G.Modak) at paragraph 6 the question dealt with by the Supreme Court was, if
the accused is acquitted in the criminal case whether or not the departmental
inquiry pending against him would have to continue. The Honourable Supreme
Court held that this is entirely the discretion of the disciplinary authority
and normally where the accused is acquitted honourably and completely
exonerated of the charges it would not be expedient to continue a departmental
inquiry on the very same charges. In the said case it is further held that
merely because he is acquitted, the power of the authority to continue the
departmental inquiry is not taken away nor its discretion in any way fettered.
If the authority feels that there is sufficient evidence and good grounds to
proceed with, it can certainly do so. In the said case, the inquiry was
almost completed and only the final order was to be passed and taking note of
the facts of the said case, the Court set aside the order of suspension and
directed to pass final orders in the disciplinary proceeding.
(e) In (1994)28 Administrative Tribunal Cases 711 (Sulekh Chand v.
Commissioner of Police) the acquittal by the criminal Court was on merits and
not on the ground of giving benefit of doubt. Hence the said decision has no
application to the facts of this case.
18. The learned senior Counsel for the respondents cited a very
recent decision of a Division Bench of this Court reported in (2006) 1 MLJ 511
(Indian Overseas Bank v. P.Ganesan) for the proposition that the proceedings
in a criminal case and departmental proceeding against the same person are
entirely different.
19. The power of the department to place an officer under
suspension pending enquiry in the disciplinary proceeding is well settled. In
the decision reported in AIR 1972 SC 554 (P.R.Nayak v. Union of India), the
Honourable Supreme Court considered the power of suspension conferred in Rule
3 of the All India Services (Discipline and Appeal) Rules, 1969, and held that
when the rule provides for passing an order of ad-interim suspension of an
employee during pendency of the enquiry, in respect of certain charges, is
well within the power. In the said case, the pending enquiry into the charges
were only contemplated and in fact, charges were not pending on the date of
suspension. Taking note of the said fact, the Honourable Supreme Court held
that the order of suspension being contrary to Rule 3 of the All India
Services (Discipline and Appeal) Rules, 1969, the suspension order was
unsustainable.
20. In this case, the sub-regulation (1) of Regulation 33 of ONGC
CDA Rules, 1994 as amended from time to time empowers the management to
suspend the petitioner, when a disciplinary proceeding against him is
contemplated or is pending. Therefore the petitioner cannot contend that the
suspension order presently extended is bad. The said rule also enables the
employee to approach the department to revoke the order of suspension and it
is open to the management to modify or revoke the order of suspension at its
discretion. Therefore it is clear that the impugned order of suspension as
extended, is sustainable in all respects.
21. On a careful analysis of the above cited decisions, to meet
the ends of justice, there will be a direction to the respondents to complete
the disciplinary proceedings within a period of six months from the date of
receipt of copy of this order. Petitioner is at liberty to seek for
revocation of the order of suspension as provided in the CDA Rules, 1994 and
it is upto the responde nts to accept or reject the same.
22. The writ petition is dismissed with the above direction. No
costs. Connected WPMP No.23765 of 2005 is also dismissed.
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