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1998 DIGILAW 251 (PAT)

Ajit Kumar Das v. State of Bihar

1998-03-23

LOKNATH PRASAD

body1998
JUDGMENT Loknath Prasad, J. In this writ application, the petitioner has prayed for quashing the order dated 23.11.1996, that is, Annexure 2, passed by Additional Secretary, Govt. of Bihar, Forest & Environment, whereby the petitioner has been informed about the initiation of a disciplinary proceeding and he was directed to file his show cause before 'the Enquiry Officer. 2. From the allegations made in the petition and also from the counter affidavit in this case, certain facts are well admitted. Admittedly the petitioner was working as a Divisional Forest Officer in the State Trading Division, Gumla, from Feb. 1990 and he superannuated from that post on 30.11.1994. The office of the petitioner was first of all inspected by Conservator of Forest, State Trading on 7.11.94 on the complaint of certain irregularities and the petitioner was also informed to remain present on 16th and 17th of Nov. 1994 with various documents, but he was conspicuously absent and on 16th and 17th of Nov. 1994, a detailed inspection was made by Conservator of Forest, Sri A.K. Mishra and he found that in violation of the established Rules, the petitioner as D.F.O., State Trading, sold timber to various persons, but the amount of the same was not deposited in the Bank of India account through the Treasury and it was detected at that time that the petitioner defalcated the Govt. money, that is, the price of the timber worth Rs. 32,92,000/- and suspicion was cast that as the petitioner has taken away various Registers and documents to his home place, so the defalcation amount may go higher. Sri Mishra then filed an FIR on 29.11.94, that is, Annexure-1 as against the petitioner and on that basis, Gumla P.S. Case no. 225/94 was instituted under Section 409 IPC. During investigation, the defacation amount was found to be to the tune of Rs. 1,47,00,000/- or so. The matter was reported to the Govt. and the Govt. vide order dt. 29.11.94 put the petitioner under suspension and the suspension order was served to the petitioner in the afternoon of 30.11.94 and at that time he also superannuated. Also a departmental proceeding was drawn up by the Govt. by a separate notification of the Forest Deptt. dt. The matter was reported to the Govt. and the Govt. vide order dt. 29.11.94 put the petitioner under suspension and the suspension order was served to the petitioner in the afternoon of 30.11.94 and at that time he also superannuated. Also a departmental proceeding was drawn up by the Govt. by a separate notification of the Forest Deptt. dt. 12.7.96 and Sri A.K. Sinha, Chief Conservator of Forest was appointed as the Enquiry Officer, but Sri Sinha died on 18.8.96 and could not take up the enquiry and, thus, vide order dt. 23.11.96, that is, Annexure 2 which is being challenged in this writ application, Sri A.Kumar was appointed as Enquiry Officer and memorandum of charges was also framed and the petitioner was informed to appear before the Enquiry Office and to submit his show cause. But the petitioner instead of filing any show cause filed this writ application in which an ad interim stay was granted on 6.3.97 and till further the departmental proceeding was stayed. 3. No doubt in the writ application, various grounds were alleged for quashing the departmental proceeding, such as, that the departmental proceeding was not initiated within two years from the date of retirement and, in fact, Sri A.K. Mishra, Conservator of Forest who was the main accused himself and he was also made an accused in the aforesaid criminal case and in order to save his skin, he had implicated the petitioner and, further the departmental proceeding and the criminal case cannot proceed simultaneously because if the departmental proceeding is taken up first, then the petitioner has to disclose his defence in the departmental proceeding which will cause prejudice in his defence in the criminal case. So in any view of the matter, the departmental proceeding should be stayed till disposal of the criminal case. 4. So far the other allegation, such as, that the departmental proceeding has not been initiated within two years of the date of retirement and the criminal case was Initiated by Sri A.K. Mishra, the Conservator of Forest to save his skin - these points were not pressed at the time of hearing. Moreover from the counter affidavit it is clear that the irregularities were first of all detected on 7.11.94 and a detailed inspection was, also made on 16th and 17th Nov. 1994 and then the FIR was instituted on 29.11.94 and immediately the Govt. Moreover from the counter affidavit it is clear that the irregularities were first of all detected on 7.11.94 and a detailed inspection was, also made on 16th and 17th Nov. 1994 and then the FIR was instituted on 29.11.94 and immediately the Govt. was informed and the petitioner was put on suspension w.e.f. 30.11.94 and the departmental proceeding was initiated on 12.7.96, that too, by order of the Govt. and Sri A.K. Sinha was appointed as Enquiry Officer and due to death of the Enquiry Officer Sri Sinha, the impugned order dt. 23.11.96 was passed, through that, another Enquiry Officer was appointed and the petitioner was informed to appear before the Enquiry Officer and also file show cause after receiving the memorandum of charges. Thus it can be said that definitely the departmental proceeding was initiated within two years of so-called date of superannuation of the petitioner. Regarding the allegation that petitioned had been implicated by Sri A.K. Mishra in the writ application, practically no denial was made regarding the allegation of embezzlement which is of huge amount. 5. So the only point seriously urged on behalf of the petitioner by the learned counsel was that admittedly the criminal case, Gumla P.S.Case no. 225/94 was instituted as against the petitioner and in that case uptill now final form has not been submitted as the CID which is investigating the case has prayed for sanction order and the Investigation as against the petitioner Is pending though supplementary chargesheet against the other accused has already been submitted and if at all the petitioner will face a departmental enquiry and has to disclose his defence in the enquiry, then certainly he will be put to prejudice because he will have to disclose his defence in the departmental enquiry prior to the disposal of the criminal case. So the natural justice demands and for the fair departmental enquiry and criminal case, it Is desirable to stay the departmental proceeding till the disposal of the criminal case. 6. On the other hand, the counsel for the State submitted that the departmental proceeding and the criminal case may proceed simultaneously and there is no legal bar in proceeding of both the matters together. Moreover, there will be abnormal delay in conclusion of the criminal case as uptill now the sanction as against the petitioner has not been obtained. 6. On the other hand, the counsel for the State submitted that the departmental proceeding and the criminal case may proceed simultaneously and there is no legal bar in proceeding of both the matters together. Moreover, there will be abnormal delay in conclusion of the criminal case as uptill now the sanction as against the petitioner has not been obtained. So in such a situation, the departmental proceeding cannot be withheld for indefinite period. 7. Learned counsel for the petitioner at the time of admission has relied upon a case law of the Supreme Court reported in AIR 1997 SC 13 (State of Rajasthan vs. V.K. Meena and another). The Apex Court in that very case has clearly observed that there is no legal bar if both the proceedings-disciplinary and criminal-go on simultaneously. However in certain situation, it may not be desirable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. It was held by the Apex Court in State of Rajasthan case (supra) that the desirability of staying the criminal case is to be determined in each case taking into consideration the facts and circumstances of the case, and so far criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public office are involved and if criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry, and in such a situation, even though the disciplinary proceeding was once stayed, may be vacated, because in such a situation, the situation demands that departmental proceedings are concluded expeditiously. Moreover the approach and objective In the criminal proceeding and the disciplinary proceeding is altogether distinct and different and in the disciplinary proceeding question is whether the person is guilty of such misconduct which requires punishment as the case may be; whereas in criminal proceeding, the question is whether the offence registered against him under the Penal Code or any other law are established and if so 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 the cases are entirely distinct and different. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. In such a situation, the staying of disciplinary proceeding pending criminal proceeding should not be a matter of course but on a considered decision; and even if the departmental proceeding at one stage is stayed, it may require reconsideration if the criminal case gets unduly delayed. 8. So in view of the principle laid down by the Apex Court that too after considering various decisions on this point, it can be safely said that the departmental proceeding and criminal case in respect of same charges can proceed simultaneously and the departmental proceeding should not be stayed only for the reason that the officer concerned will be put to prejudice in disclosing his defence because the manner of conducting the departmental proceeding and the criminal case is quite different and the degree of proof is also quite different and it is in the interest of the employee and that of the employer that departmental proceeding should be concluded as expeditiously as possible, more particularly, when there is a chance of delay of disposal of the criminal case. 9. In the instant case also there is every chance that there will be abnormal delay in disposal of the criminal case which is still in investigating stage. So in view of the principle laid down by the apex Court, I am of the opinion that departmental proceeding should proceed 15 expeditiously as possible and there is 10 valid ground for staying the departmental proceeding only for the reason that the petitioner got some emote doubt that he will be put to prejudice in disclosing his defence in the departmental proceeding. In that view of he matter, I am of the opinion that there 5 no merit in this writ application and so t is dismissed, but, without any costs.