Service matters, urgent advice needed
Athi Vishal HD
(Querist) 02 May 2015
This query is : Resolved
I am working in Police Dept as Clerk.
I am facing Criminal Case u/s 498 (A) and it is under Court trial.
My dept. has issued charge sheet u/s 11(3) of Karnataka Civil Service (CCA).
The department has leveled exact charge, as of criminal case with mention of section 498A.
when a criminal case (Not related to Office work, Purely personal) is pending before the Court, the Govt. holding of a departmental enquiry during pendency of a criminal prosecution in respect of the same subject-matter and same charge as it is in Charge sheet submitted to Court would amount to a contempt of court?
(The language in the charge sheet submitted to Court and charge sheet issued u/s 11(3) of KCS(CCA) Rules are same.)
Please guide me Sir.
Isaac Gabriel
(Expert) 02 May 2015
Pl.see the gist of the judgement in W.PW.P.NO.33748 OF 2014 on 19-12-2014 at the Madras High court, and take appropriate action with your head of Dept.,
5. I am of the view that if there is only some family dispute between the petitioner and his wife relating to their marriage, the same cannot be put against the petitioner for promotion. Even if a private complaint for bigamy is pending I am of the view that the same cannot be put against the petitioner. It is a different matter if allegation is made by the wife that the petitioner assaulted her and a criminal case is pending under Section 326 of IPC or a F.I.R is registered under Section 307 IPC. Therefore, I am of the view that the employee cannot be deprived of promotion on the ground that there is some family quarrel between the employee and his wife. The same can be taken note of while deciding the representation of the petitioner dated 10.12.2014. Further, once the petitioner was restored to duty he has to earn the increments automatically. Therefore, there is no reason for the respondents in not granting the annual increments to the petitioner. The annual increments could be declined only when there is a punishment that would be operating against him. It is not so. Hence, I am of the view that the respondents shall also sanction the increments to which the petitioner is entitled to. The 2nd respondent is directed to dispose of the representation dated 10.12.2014 in the light of the observations made above and a further direction is issued to the respondents to pay the annual increments in the light of the observation made above within a period of eight weeks from the date of receipt of copy of this order.
Sudhir Kumar, Advocate
(Expert) 03 May 2015
when a criminal case (Not related to Office work, Purely personal) is pending before the Court, the Govt. holding of a departmental enquiry during pendency of a criminal prosecution in respect of the same subject-matter and same charge as it is in Charge sheet submitted to Court would amount to a contempt of court?
NOT AT ALL.
There is absolutely no contempt of court. Dowry demand is a criminal misconduct no doubt. SO there is trial in the court.
On the same time dowry demand is a professional misconduct for Govt Servant. So it cannot be dubbed as "Not related to Office work". The deptt is justified in initiating deptt action.
Dr J C Vashista
(Expert) 03 May 2015
On the issue of cases u/s 498A the courts are of the firm opinion that it is not a misconduct on the part of delinquent official, refer "Nidhi Kaushik vs. Union of India" (DB)Delhi High Court decided in Jan 2015.
Kumar Doab
(Expert) 03 May 2015
Agreed with Mr. Gabriel and Dr.Vashista.
More and more authors/querists suffering need to update themselves thru various forums/blogs, and lawyers.
Rajendra K Goyal
(Expert) 03 May 2015
Agree with Expert Isaac Gabriel and Dr.J C Vashista ji.
T. Kalaiselvan, Advocate
(Expert) 05 May 2015
Agreed with the experts Mr. Gabriel and Dr. Vashista and their views about the subject. The author may take a clue from it.
Biswanath Roy
(Expert) 06 May 2015
Yes, it is a clear case of contempt in as much as the employer " interfered with due course of justice".
Sudhir Kumar, Advocate
(Expert) 07 May 2015
I am sorry. I always have the pleasure to agree with Mr Roy, Mr RK Goyal, Mr Kaialaselvan,Dr Vashistha and Mr Kumar Doab.
I am not so lucky in this case as I have to squarely disagree.
Nidhi Kaushik vs. State of NCT of Delhi was entirely different case wherein the applicant was denied the job by PSU on account of hiding information about the complaint under DV Act.
The decision of the Hon'ble court was
8. In view of the above, I find that there is no reason to grant relief
to the petitioner by quashing the letter dated 9.10.2012 and give the petitioner employment as prayed.
9. Writ petition is therefore leaving the parties to bear their own costs.
Sd/-
SEPTEMBER 04, 2013 VALMIKI J. MEHTA, J.
The present case is different than this case. In this case :-
(I) Petitioner is already in service.
(II) There is no allegation (at least as apparent form given facts) of concealing any information on papers leading to his employment.
Therefore the case is different.
The material information in this case is that :-
(i) he is alleged of dowry demand (rightly or wrongly).
(ii) dowry demand is a criminal offence The culpability of criminality (either to be in Jail or not) has to be decided only by court of appropriate jurisdiction, irrespective of the profession of the accused.
(iii) The court proceeds as per procedure laid down in Cr PC
(iv) The standard of evidence to be applied in criminal case is that the case should be proved beyond doubt. THE BENEFIT OF DOUNT IF ANY WILL BE GIVEN TO THE ACCUSED.
(iv) deciding authority in court are judicial officers.
(iv) dowry demand is also a professional misconduct for govt servant.
(v) The criminal court has nothing to do with professional misconduct. The culpability of professional misconduct (whether in or out of job) has to be examined by the deptt only.
(vi) For examining t the professional misconducts the deptt has been given quasi-judicial powers as per the statutory procedure laid down as per proviso of Article 309 of the constitution which is independent of Cr PC.
(vii) The standard of evidence to be applied in departmental inquiry is that the case need not be proved beyond doubt. The case can be decided on the basis of pre-ponderance of probability and on circumstantial evidence. THE BENEFIT OF DOUNT IF ANY CAN BE GIVEN TO THE PROSECUTION.
(viii) Subsequent acquittal from criminal case (in trial/appeal) is no binding for the deptt to take the employee back in service if he has been dismissed form service on account of departmental inquiry even if on the same charge.
(ix) In case departmental inquiry is not defended under a notion that the matter is in court the same will be taken ex-parte .
The only remedy can be to seek stay on deptt proceedings (highly subjective) on the ground that the defence of criminal case be leaked prematurely (if both the chargesheets are on same facts and same evidence and the same defence is proposed to be put)
Sudhir Kumar, Advocate
(Expert) 07 May 2015
I have not been able to download W.PW.P.NO.33748 OF 2014 on 19-12-2014 of Madras High Court so cannot express detailed reasons to disagree with Mr Issac Gabriel.
But I can only say that :-
(I) when matter comes to thana and FIR is filed it no more remains a matrimonial fight. It because a criminal case state v/s____ No ____ in the court of ___
(II) Govt servant can be denied promotion during pendancy of criminal case whether connected or not connected with official work.
(III) for allegation of dowry demand a departmental action can be taken ( and promotion denied during pendancy) even if no FIR is there.
(IV) Service rules do not provide for stoppage of annual increments during pendency of either of the case (unless departmental inquiry has resulted in penalty of stoppage of increments).
(V) As per the facts reproduced by Mr Issac Gabriel the applicant in that case was aggrieved of the stoppage of increments during criminal trial (charges not amounting to professional misconduct) and non-disposal of representation thereon. THE PRESENT CASE IS NOT THE SAME.
(VI) the judgement as quoted by Mr Gabriel has given directions to the deptt to consider the representation (apparently on subject no connected with the present issue) . It does not appear to have given a value judgment that no departmental action can be taken during trial in dowry demand case.
(VII) The allegations under s/307 are attempt of murder and 326 is simple hurt. This itself is not professional misconduct for Govt servant where dowry demand is a professional misconduct as well as criminal misconduct.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
Further
@ Mr victim of 498a.
please come clear
whether you are employee of postal deptt
or
you are employed in Karnataka Govt.
Biswanath Roy
(Expert) 07 May 2015
@ Learned Mr. Sudhir Kumar,
Be that whatever it may and be that whatever you say, if the Department during departmental enquiry deals with the subject matter pending before the court by reopening the same it will tantamount to interference with due course of justice and hence, it is contempt of court. The words "due course of justice" used in Section 13 of the Contempt of Courts Act are worthy of note and they contrast with the words used in section 2(c) due course of any "judicial proceeding" or "administration of justice". The words "due course of justice" used in sec.13 are of wide import and are not limited to any particular judicial proceeding. If the act complained of substantially interferes or tends to interfere with the broad stream of administration of justice, that is punishable under sec.13 of the Contempt of Courts Act.
Hence, I request you not to undermine the prestige of my knowledge in English, Federal, and Indian Laws with your fishy remark.You are also requested to go through the subject query once again to understand the question of the author.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
No disciplinary action during criminal trila is not interferance with court. Such decision cannot at all influence the decision of the court as standards of evidence are difference.
disciplinary action is also as good a statutory process as criminal trial and both do not interfere with each other. Disciplinary proceedings is not administrative action rather quasi-judicial.
This is not the first or last such case.
Let the querist file CP before court of law and have the decision.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
Govt has after due deliberation issued instructions as under [goi decision no 17 below rule 14 of CCS(CC&A) Rules
(17) Simultaneous action of prosecution in a court and initiation of departmental proceedings -
The M.H.A. O.M. No. 39/30/54-Ests. dated the 7th June, 1955 and No. 39/8/64-Ests. dated the 4th September, 1964, state that prosecution should be the general rule in all cases which are found fit to be sent to Court and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds and that in such cases, departmental action should not precede prosecution. References are being received in this Department seeking clarification as to whether departmental action can also be taken, where the same matter has been taken up in a court of competent jurisdiction for prosecution of the Government servant concerned.
2. What may be deduced from the above instructions is that in serious cases involving offences such as bribery/corruption etc., action should be launched for prosecution as a matter of course. The Hon’ble Supreme Court had held in their various judgements, the important ones being, State of Rajasthan Vs. B.K. Meena & Others(1996 6 SCC 417), Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited (1999 3 SCC 679), Kendriya Vidyalaya Sangathan & Others Vs. T. Srinivas (2004 (6) SCALE 467) and Noida Entrepreneurs Association Vs. Noida (JT 2007 (2) SC 620), that merely because a criminal trial is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. The approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the 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 the criminal proceedings, the question is whether the offences registered against the Government servant are established and if established, what sentence can be imposed on him. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of the serious charges leveled against him may have to be considered by the Competent Authority to proceed with departmental action.
3. However, if the charge in the criminal case 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. This will depend upon the nature of offence and the evidence and material collected against the Government servant during investigation or as reflected in the charge-sheet. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were kept pending 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, if the case so warrants.
4. In the case of Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry [2004 (10) SCALE Page 340], it has been held in Para 9 that “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 criminal case against the delinquent officer. Each case requires to be considered in the back drop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.” The apex court has referred to the conclusions given in Para 22 of Captain M. Paul Anthony’s case.
5. It is, therefore, clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the very same charges and the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon’ble Supreme Court, as mentioned in the preceding paragraphs.
[DOPT OM No. 11012/6/2007-Estt. (A), dated 1st August, 2007]
Sudhir Kumar, Advocate
(Expert) 07 May 2015
He may at the most seek stay on disciplinary proceedings if the charge and evidence is same in both cases and if he can prove that his defence may be prejudiced prematurely in departmental proceedings.
Guest
(Expert) 07 May 2015
Not withstanding the diverse opinions on the issue of interference with due course of justice or the contempt of court, it is definite that the charge sheet in departmental inquiry cases are debarred to contain any section of law, as the departmental inquiry cases are not the cases of legal nature, rather pertain to administrative indiscipline on the part of the employee as against the provision of the departmental rules prescribed on the conduct and discipline for the employees.
If any charge sheet contains reference of the provisions of the IPC, CrPC or the Evidence Act, such charge sheet can be liable to be quashed by the court of law. Otherwise, if inquiry proceedings are made on the basis of such charge sheet the penalty order issued on the basis of Sec. 498A, etc., the penalty, if awarded, can be nullified when challenged in the CAT/SAT of other competent court of law, as the case may be.
However, case of contempt of court is not likely to succeed, as per my opinion, if departmental proceedings are not based merely on the evidence adduced during court trial, rather are conducted as per the departmental inquiry proceedings with independenct evidence, not linked to the evidence in the court.
Both the cases, criminal as well as the disciplinary case of the department, are necessarily required to be dealt with on different angles, i.e., for crime towards the public life and for the indiscipline as of moral turpitude in the official life, respectively.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
Agreeing with Mr DHingra I would add that such chargehseet if professionally drafted need not have any reference to IPC/CrPC.
provisions of Rule 13A of CCS(Conduct) Rules and GOD No 5 thereunder, are sufficient as under :-
No Government servant shall-
(i) give or take or abet the giving or taking of dowry; or
(ii) demand directly or indirectly, from the parent or guardian of a bride or bridegroom, as the case may be, any dowry.
Explanation:- For the purposes of this rule, ‘dowry’ has the same meaning as in the Dowry Prohibition Act, 1961(28 of 1961).
(5) Acceptance of dowry by Government servants
It is provided in this Ministry’s OM No. 25/8/57-Estt.(A) dated the 25th March, 1957 (not reproduced) that dowry should be regarded as a customary gift which a Government servant may accept without prior sanction and that subject to the provisions of the rules relating to gifts and transactions in immovable and movable property, all such gifts should be reported to the Government or other prescribed authority.
2. The matter has been reviewed in the context of the provisions contained in the Dowry Prohibition Act, 1961. Section 2 of this Act defines dowry as ‘any property or valuable security given or agreed to be given directly or indirectly by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before the marriage as consideration for the marriage of the said parties, but does not include dowry or mahar in the case of persons to whom the muslim Personal Law (Shariat) applies’. For removal of doubts. Explanation I below Section 2 declares that ‘any presents made at the time of marriage to other party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of the section unless they are made as consideration for the marriage of the said parties’. Persons who are guilty of giving or taking or abetting the giving or taking of dowry, or demanding any dowry, directly or indirectly from the parents or guardian of a bride or bridegroom, as the case may be, are liable to the punishments prescribed in Sections 3 and 4 of the Act. In the circumstances, Government servant should not give or take or abet the giving or taking of dowry; nor should they demand dowry, directly or indirectly, from the parents or guardian of a bride or bridegroom as the case may be. Dowry can, therefore, no longer be treated as ‘customary gift’ as has been stated in this Ministry’s OM of 25.03.1957 referred to in para 1 above (not reproduced). Any violation of the provision of Dowry prohibition Act, 1961 by a Government servant will constitute a good and sufficient reason for institution disciplinary proceedings against him in addition to such legal action as may be taken against him in accordance with the provisions of the Act.
3. Receipt of presents by Government servants at the time of their marriage in the form of cash, ornaments, cloths or other articles, otherwise than as consideration for marriage from relatives and personal friends will be regulated by sub-rules (2) of rule 13 of the Central Civil Services (Conduct) Rules, 1964. The receipt of such presents from persons other than relatives and personal friends, will be regulated by sub-rule (1) of rule 13 ibid read with sub-rule (3) thereof. Purchases of items of movable property for giving presents at the time of marriage will be regulated by rule 18 (3) of the Central Civil Services (Conduct) Rules, 1964, like other transaction in movable property.
4. This Ministry’s OM No. 25/8/57-Ests.(A) dated 25.03.1957 (not reproduced) may be treated as cancelled.
[MHA OM No. 25/37/65-Ests.(A), dated 30.08.1965]
Sudhir Kumar, Advocate
(Expert) 07 May 2015
Further as per rule 13 A quoted above, mere demand of dowry by Govt servant is punishable as a professional misconduct.
However in 498a/IPC torture has also to be proved.
So both the proceedings are not same.
Biswanath Roy
(Expert) 07 May 2015
It is surprising that the debate is following a wrong chapter. As it transpires from the query of the author, his wife filed a complaint against him for harassment and cruelty as envisaged under section 498-A. IPC, for the purpose of this section, 'cruelty' means,(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.
In the present subject matter Sudhir Kumarji observed "dowry demand is also a professional misconduct". SOMEWHERE IN ANOTHER POST SUDHIR kUMAR JI FURTHER STATED,-"(iii) for allegation of dowry demand a departmental action can be taken (and promotion denied during pendency) even if no FIR is there.Where from Sudhir Kumarji imported the allegation of "dowry demand" in the present context I do not know. Dowry demand falls under Sec.4 of Dowry Prohibition Act whereas the subject query relates to Sec.498-A,IPC, Dowry cannot be demanded u/s.498-A,IPC because it is violative of Art.20(2) of the Constitution of India.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
It is the queriest alone who canclarify what is the allegation against him.
He has only stated the procedural rule applied that is rule11 of KCS(CCA) Rules. The specific provision of conduct rules is not intimated by him,
The query in short was
WHETHER CRIMINAL TRIAL IS A BAR ON DEPARTMENTAL PROCEEDING.
IT IS NOT A BAR.
My regard for Mr Roy and my indebteness for enlightenment I receive from him is not compelling me to chance decision.
Guest
(Expert) 07 May 2015
Mr. Sudhir,
Sorry to point out, I have not noticed anywhere in the description of the querist to have asked, "WHETHER CRIMINAL TRIAL IS A BAR ON DEPARTMENTAL PROCEEDING."
His actual query was:
"when a criminal case (Not related to Office work, Purely personal) is pending before the Court, the Govt. holding of a departmental enquiry during pendency of a criminal prosecution in respect of the same subject-matter and same charge as it is in Charge sheet submitted to Court would amount to a contempt of court?"
The querist raised a query pertaining to the contempt of court on the part of the department, but not about criminal trial as bar on departmental proceedings.
Biswanath Roy
(Expert) 07 May 2015
Thank you Sudhir Kumar ji for relieving us from unnecessary and irrelevant chatting.
Sudhir Kumar, Advocate
(Expert) 07 May 2015
Rule 3B (ii) of CCS (Condut) Rules is also clear.
Every Government servant shall, at all times-
(ii) observe the Government's policies regarding prevention of crime against women.
SO every crime against woman can be called professional misconduct for Govt servant.
Athi Vishal HD
(Querist) 09 May 2015
Respected Experts I am working in Police dept. of Karnataka State.In my case I have not charged u/s Dowri Prohibition Act.
I have charged only u/s 498(A) IPC.
The complaint given by my in-laws does not include the allegation of dowry demand and also the charge sheet submitted by Police does not have the allegation about dowry demand.
This is for your kind information.
Kumar Doab
(Expert) 09 May 2015
You have mentioned that:
"The department has leveled exact charge, as of criminal case with mention of section 498A. "
The section of IPC is mentioned in charge sheet!!!!!
You are not charged with dowry.
A lot has been discussed in this thread that you can apply.
Agreed with Mr. Roy and Mr.Dhingra also.
Isaac Gabriel
(Expert) 10 May 2015
The Delhi High court judgement referred by expert Roy could be held as the court made rule overriding Departmental instructions so far as the 498a cases against the Government servants.Querist may rely on it while dealing with the disciplinary action he faces,and knock the doors of judiciary if needed.
Guest
(Expert) 10 May 2015
Dear Shri Isaac Gabriel,
Your observation is correct to the extent that the Delhi HC judgment can be taken as overriding the Deopartmental instructions, but that is only for the Government servant, not for the departmental authorities, and that too when the case is taken for trial in to the competent court by the Government servant.
The departmental autrhorities are bound to observe the statutory rules of inquiry prescribed by the Parliament of India or the State concerned unless any judgment is duly translated in to shape of the Government's decision/ order by the Ministry of Home/ Home department. Otherwise, judgments are applicable in normal course on the concerned individual cases.
Sudhir Kumar, Advocate
(Expert) 10 May 2015
Nidhi Kaushik vs. State of NCT of Delhi was entirely different case wherein the applicant was denied the job by PSU on account of hiding information about the complaint under DV Act.
The decision of the Hon'ble court was
8. In view of the above, I find that there is no reason to grant relief
to the petitioner by quashing the letter dated 9.10.2012 and give the petitioner employment as prayed.
9. Writ petition is therefore leaving the parties to bear their own costs.
Sd/-
SEPTEMBER 04, 2013 VALMIKI J. MEHTA, J.
The present case is different than this case.
