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2020 Supreme(Telangana) 71
IN THE HIGH COURT OF JUDICDATURE FOR THE STATE OF TELANGANA AT HYDERABAD
P. Naveen Rao, J.
Mr. Kedarnath Mahapatra, S/o. N.Ch.Mahapatra - Petitioner
Vs.
Union of India & Others - Respondents
Writ Petition No.3680 of 2018
Decided On : 04-05-2020
For the Petitioners: Sri. K. Sudhakar Reddy
For the Respondents: Sri. K.S.V Subba Rao
Point of Law
It is well settled that a departmental proceeding and proceedings in a criminal court are completely different. The purpose is different, the standard of proof is different and the approach is also different. The initiation of the process in a departmental proceeding, specially on charges with which we are concerned in the present matter can never be said to be amounting to contempt of court even if the criminal proceedings were pending.
Headnote:
Service Matter – Penal Code, 1860 – Section 354 (a) – Protection of Children from Sexual Offences Act, 2012 – Section 12 – Father of the girl child informed the Chairman of the Society in writing that his daughter was subjected to sexual harassment by the petitioner – Services of petitioner were placed under suspension by order –Held, pleadings in the affidavit filed in support of writ petition are vague. It is not asserted as to how prejudice would be caused to him in criminal case if domestic enquiry is conducted and what are the complicated questions of law and facts. It is not stated how his defense in criminal case would affect if school management relies on material in their possession and by examining the witnesses. Thus, petitioner failed in discharging his burden to pray for stalling departmental proceedings. As noted above, in criminal case, prosecution has to prove with clear evidence that by his actions petitioner has committed offence under IPC and POCSO Act. In the domestic enquiry employer can consider circumstances in which alleged incident happened to hold against employee – Further, in criminal case, having regard to allegations leveled against petitioner, there is no complicated question of law involved. Similarly, facts are also not complicated as sought to be contended – Petitioner is not entitled to stall the disciplinary proceedings further, merely on the ground that criminal case is pending against him – Directions issued – Writ Petition is dismissed. (Paras 32,33)
Facts of the Case:
Petitioner is working in the cadre of Principal in the respondent Society. At the relevant point of time petitioner was posted in the school run by the society in Hyderabad. This Court consciously not disclosing the details of girl student, parents and the school. Mother of girl student lodged complaint in the Rachakonda police station on 24.11.2017 alleging that petitioner misbehaved with her daughter
Finding of the Court:
pleadings in the affidavit filed in support of writ petition are vague. It is not asserted as to how prejudice would be caused to him in criminal case if domestic enquiry is conducted and what are the complicated questions of law and facts. It is not stated how his defense in criminal case would affect if school management relies on material in their possession and by examining the witnesses. Thus, petitioner failed in discharging his burden to pray for stalling departmental proceedings. As noted above, in criminal case, prosecution has to prove with clear evidence that by his actions petitioner has committed offence under IPC and POCSO Act. In the domestic enquiry employer can consider circumstances in which alleged incident happened to hold against employee – Further, in criminal case, having regard to allegations leveled against petitioner, there is no complicated question of law involved. Similarly, facts are also not complicated as sought to be contended - Petitioner is not entitled to stall the disciplinary proceedings further, merely on the ground that criminal case is pending against him
Result: Writ Petition is dismissed.
ORDER :
Facts to the extent relevant are as under:
Petitioner is working in the cadre of Principal in the respondent Society. At the relevant point of time petitioner was posted in the school run by the society in Hyderabad. This Court consciously not disclosing the details of girl student, parents and the school. Mother of girl student lodged complaint in the Rachakonda police station on 24.11.2017 alleging that petitioner misbehaved with her daughter at about 15.30 hours on 28.10.2017. Her daughter was studying in Class IX of the school and was aged about 14 years. Crime No. 820 of 2017 was registered under Section 354 (a) of IPC and Section 12 of Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) (for short referred to as POCSO Act). He was arrested and sent to judicial custody and was later released on bail. On 31.10.2017, father of the girl child informed the Chairman of the Society in writing that his daughter was subjected to sexual harassment by the petitioner.
2. In the complaint lodged with police, mother of girl student alleged that on 28.10.2017 at about 15.30 hours, when her daughter was ready to leave school, petitioner called her into his cabin, offered her snacks and lassi and when she was about to leave the cabin, he closed the door, held her and kissed her; when she raised hues and cries, petitioner opened the door after taking assurance from her that she would not disclose the incident to any other person. In the complaint lodged by the father of said girl student with the Chairman of the respondent society, complained that his daughter informed about the harassment only on 29.10.2017.
3. Services of petitioner were placed under suspension by order dated 7.11.2017. On 29.11.2017 disciplinary proceedings were initiated against petitioner referring to the alleged incident dated 28.10.2017. On 1.8.2017 enquiry authority was appointed. In this writ petition, petitioner is challenging the initiation and continuation of disciplinary proceedings.
4. Heard learned counsel for petitioner Sri Sudhakar Reddy and learned counsel for respondent Sri K V Subba Rao.
5. According to learned counsel for petitioner, as charges framed in the disciplinary proceedings are directly arising out of the crime No. 820 of 2017 registered in Kushaigude Police Station, if disciplinary proceedings are conducted before conclusion of trial in criminal case, grave prejudice would be caused to petitioner to defend in criminal case as he will be forced to disclose his defence in the disciplinary proceedings. According to the learned counsel, substance of the charge in the disciplinary proceedings is same to that of the charge leveled in criminal proceedings, the witnesses and documents cited are same and, therefore, disciplinary authority ought to have deferred conducting of disciplinary proceedings till conclusion of trial in the criminal case. Not accepting the request of petitioner and proceeding to hold disciplinary proceedings amounts to arbitrary exercise of power and is illegal. He would submit that petitioner’s case falls into the exception category as laid down by Supreme Court in several decisions.
5.1. In support of his contentions, learned counsel placed reliance on the following decisions:
State of Bihar & Ors Vs Phulpari Kumari Civil Appeal No. 8782 of 2019 dt 6.12.2019, S Bhaskar Reddy & Another Vs Superintendent of Police and another Civil Appeal No. 10592 of 2014 dt 28.11.2014, P Venkat Reddy Vs Senior Divisional Security Commissioner, Railway Protection Force, SCR, Vijayawada and another 2009 (6) ALD 111, Sima Sarkar Vs Bharat Sanchar Nigam Limited and others C.A.N 381 of 2016 in W.P.C.T No. 7 of 2010 dt 29.4.2019, Mallaraset Rambabu Vs State of Telangana WP No. 21012 of 2019 dt 15.10.2019 Capt. M.Paul Anthony v. Bharat Gold Mines Ltd., and another (1999) 3 SCC 679 and G.M. Tank v. State of Gujarat and others (2006) 5 SCC 4546.
6. Per contra, according to Sri K.S.V. Subba Rao, learned counsel appearing for responde
