Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 1082 (PAT)

Ajay Kumar v. Bihar State Electricity Board

2000-09-06

R.M.PRASAD

body2000
Judgment RADHA MOHAN PRASAD, J. 1. In this writ petition, prayer on behalf of the petitioner is for quashing the resolution No. 254 dated February 5, 2000 of Bihar State Electricity Board, hereinafter referred to as the Board, initiating a departmental proceeding for the same set of charges based on same set of facts with same set of witnesses and common evidence for which a Vigilance P.S. Case No. 2 of 1996 filed by the Vigilance Department of the Board under Secs. 420, 467, 468, 471, 477-A I.P.C. and Sec. 5(2) read with Sec. 5(l)(d)oftheP.C. Act, 1947, amended Sec. 13(2) read with Section 13(l)(d) of the P.C. Act, 1988 against the petitioner has also been lodged, and further commanding the respondents to stay further proceeding in the departmental proceeding till the disposal of the said Vigilance Case pending before the Special Judge (Vigilance), South Bihar, Patna. 2. Learned counsel for the petitioner has confined his relief only with respect to the second one wherein prayer is for stay of further proceeding in the departmental proceeding till the disposal of the said Vigilance Case. 3. In short, the relevant facts are that the petitioner in pursuance to the advertisement published by the Board inviting applications for the post of Assistant Electrical Engineer in the year 1983 applied for the same and was selected in the written test conducted by the Board and joined the said post. While on transfer from Gaya was posted at Barhi was allowed to retain Boards quarter at Gaya in view of the Board resolution No. 3388 dated August 7, 1985 and paid the penal rent for the same. According to him, he was also entitled to get house rent allowance at Barhi under H.R.A. Rules, 1980. Accordingly, he retained the quarter at Gaya while transferred to Barhi and drew his H.R.A. at Barhi. However, having learnt that withdrawal of H.R. A. in such circumstances is not permissible, he without entering into the controversy refunded Rs. 1,704.00 to the Board voluntarily and paid the penal rent at Gaya. Later on while considering his case for promotion to the post of Electrical Executive Engineer the said allegation of withdrawal of H.R.A. was considered by the competent authority and was granted promotion to the said post. 1,704.00 to the Board voluntarily and paid the penal rent at Gaya. Later on while considering his case for promotion to the post of Electrical Executive Engineer the said allegation of withdrawal of H.R.A. was considered by the competent authority and was granted promotion to the said post. This fact is evident from the extract of the file and the recommendation of the D.P.C. dated December 21, 1991 with respect to it, contained in Annexure-5 and 511. Later on, the allegation of forged caste certificate vide registration No. 2525 dated July 13, 1981 was duly verified by the Inspector General (Vigilance) vide his letter No. 1506 dated August 5, 1993and the same was confirmed as genuine document by the office of the Assistant Commissioner, Tribal Development, Mandia (M.P.) vide letter dated January 10, 1994. True/photostat copy of the said certificate and the letters have been annexed as Annexures 6, 6/1 and 6/2. 4. It is alleged that in connivance of some of the colleagues of the petitioner, frivolous allegations were made and Vigilance Department initiated the aforesaid Vigilance P.S. Case No. 2 of 1996 and submitted charge-sheet with respect to the same set of facts and directed the Board vide letter No. 1383 dated June 28, 1999 to initiate departmental proceeding against him on the same set of facts, witnesses and common evidence, pursuant to which departmental proceeding impugned order was initiated. It is submitted that the action of the Board is completely without jurisdiction inasmuch as the Joint Secretary without obtaining the permission as required under law initiated the proceeding on the dictates of the Vigilance. Further it is alleged that it is a clear case of non-application of mind which has not only adversely affected the career but also affected the trial against the petitioner as the petitioner in the departmental inquiry disclosed his evidence. 5. Mr. Prasad, learned senior counsel appearing for the petitioner, without going into the merit of the charge, has submitted that the Apex Court in the case of Capt. 5. Mr. Prasad, learned senior counsel appearing for the petitioner, without going into the merit of the charge, has submitted that the Apex Court in the case of Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. and another, AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999- 1-LLJ-1094 wherein the Apex Court has drawn exception to allow the criminal case as well as departmental proceeding to proceed simultaneously, held that where the departmental proceedings and the criminal case are based on the same set of facts and evidence in both the proceedings are common without there being any variance, the departmental proceeding may not be allowed to proceed simultaneously with the criminal case. 6. Mr. Mihir Kumar Jha, learned counsel appearing for the Board has submitted that in the same decision the Apex Court while taking into consideration judicial opinion amongst High Courts and various pronouncements of the Apex Court on the basic principle that proceedings in a criminal case and departmental proceeding can proceed simultaneously with a little exception clearly explained that the basis for this proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. Whereas in departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, 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 the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Learned counsel also referred to the conclusion arrived at by the Apex Court in paragraph 22 of the said judgment and submitted that even if the departmental proceedings and criminal case are based on identical and similar set of facts yet, according to the Supreme Court the stay of the departmental proceedings till the conclusion of the criminal case is desirable only where the charge is of grave nature which involves complicated question of facts, which will depend upon the nature of offence, 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. According to Mr. Jha, learned counsel appearing for the Respondent-Board, the Apex Court has also cautioned that even the said factors cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. 7. It is, thus, submitted by the learned counsel for the Board that in the present case even if the charge in both the proceedings are common they cannot be said to be of grave in nature warranting stay of the departmental proceedings, more so, when there is no likelihood of the criminal case to be concluded soon. 8. This Court is unable to accept the said submission of the learned counsel for the Board. It seems from Annexure-7 that Vigilance case was instituted in January, 1996 and the charge-sheet was submitted in June, 1999, whereas the departmental proceeding has been initiated only on February 5, 2000 vide impugned order, contained in Annexure-8. Bare perusal of the memo of charges contained in Annexure-7 and the charge-sheet annexed to the order initiating departmental proceedings, contained in Annexure-8 show that both are verbatim based on same set of facts and evidence also in both proceedings is common without there being any variance. 9. Thus, this Court finds substance in the submission of the learned counsel for the petitioner that the present case is covered by the exception carved out by the Apex Court in thecaseof M. paul anthony V/s. Bharat gold Mines Ltd. (supra). 9. Thus, this Court finds substance in the submission of the learned counsel for the petitioner that the present case is covered by the exception carved out by the Apex Court in thecaseof M. paul anthony V/s. Bharat gold Mines Ltd. (supra). In the facts and circumstances aforementioned, there is no question of any delay much less undue delay being caused in disposal of the departmental proceedings as the proceeding has only been initiated recently on February 5, 2000. The perusal of the memo of charge/charge-sheet in the criminal case and the charge-sheet of the departmental proceeding clearly demonstrates that the charge in the criminal case is grave and based on complicated question of facts and law. Moreover, on consideration of the same the petitioner was given promotion and a recommendation was made to the Chairman vide Annexures-5 and 5/1 by the D.P.C. that the petitioner had refunded the amount and there is no indication that he has acted dishonestly in the matter, accordingly, the D.P.C. requested that if approved the case of the petitioner may be cleared and he be considered for promotion on the basis of his A.C.Rs. and upon consideration of the same petitioner was granted promotion. 10. Learned counsel for the Respondent-Board has also placed reliance on the decision of the Division Bench of this Court in the case of State of Bihar V/s. Ram Lakhan Singh, 1997 (1) PLJ R 49. This Court fails to appreciate as to how the said decision is of any help to the Respondent-Board. In the said case, the departmental proceedings initiated against the delinquent Government servant was charged with defalcation of Government revenue. Criminal proceeding was also under investigation and the learned Judge had stayed whole of the departmental proceeding. The Division Bench found that only some of the charges were common in both the departmental proceedings and criminal proceeding. Accordingly, it was held that no interference is called by this Court in the departmental proceedings against the respondent even though the matter is further being investigated. The Division Bench found that only some of the charges were common in both the departmental proceedings and criminal proceeding. Accordingly, it was held that no interference is called by this Court in the departmental proceedings against the respondent even though the matter is further being investigated. As all the charges on the basis of which the Respondent had been proceeded departmentally were not subject-matter of criminal investigation at that moment and yet the learned Judge stayed whole departmental proceedings, this Court held that no case had been made out for stay of the departmental proceedings, against the respondent and accordingly allowed the appeal and set aside the impugned order of the learned Judge. 11. In the present case, I have already noticed above, both departmental proceedings and criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is grave in nature which involves complicated question of law and fact and also the evidence in both the proceedings is common without there being any variance. Thus, in my opinion, the principle decided in the aforesaid case of State of Bihar v. Ram Lakhan Singh (supra) has got no application to the facts of the present case, this Court does not feel inclined to go into the validity of the initiation of the departmental proceeding itself. Moreover, the said question has not been pressed by the learned counsel for the petitioner. 12. Accordingly, this writ petition is allowed and the respondents are directed to stay further proceedings in the departmental proceedings till the disposal of the criminal case.