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2000 DIGILAW 657 (PAT)

State Of Bihar v. Kanhai Rajak

2000-05-01

D.P.S.CHOUDHARY, NAGENDRA RAI

body2000
Judgment 1. These two Letters Patent Appeals one (L.P.A. No. 1208/99) by the State of Bihar & Ors. and the other (L.P.A. No. 364/2000) by Kanhai Rajak have been filed against the order dated 19.8.1999 passed by a learned Single Judge of this court in C.W.J.C. No. 9842 of 1999, whereby the order of dismissal passed against appellantKanhai Rajak has been kept in abeyance till the disposal of the criminal charge pending against him under the Prevention of Corruption Act (hereinafter referred to as the Act) and he shall be treated as under suspension till he retires or the criminal case is disposed of, whichever is earlier. The State of Bihar is aggrieved by the direction for keeping the order of dismissal in abeyance and appellant Kanhai Rajak is aggrieved by that part of the order, by which his prayer to quash the departmental proceeding on the ground of pendency of the criminal case has been rejected. 2. For the sake of convenience Kanhai Rajak is hereinafter referred to as the appetlant and the State of Bihar as the respondent. 3. The facts necessary for disposal of the present appeals are that appellant Kanhai Rajak, at the relevant time, was posted as the Superintending Engineer in the Water Resources Department in the Government of India. On 2.11.1992, Vigilance P.S. Case No. 40 of 1992 was registered against him under sections 5(1), 5(2), 13(2) and 13(e) of the Act on the allegation of his having been found in possession of the property disproportionate to his known source of income. On 9.9.1994, a departmental proceeding was initiated against the appellant with further addition that he had purchased the property without taking permission from the departmental authority. One R.S. Pathak, Chief Engineer, was appointed as the enquiry officer. He called upon the appellant to submit his explanation and the latter submitted his explanation on 21.8.1996. In the meantime, the appellant was put under suspension and that order was upheld by this court, on 31.3.1997, a charge-sheet was submitted in the vigilance case with regard to the allegation of having amassed wealth disproportionate to the known source of income. He called upon the appellant to submit his explanation and the latter submitted his explanation on 21.8.1996. In the meantime, the appellant was put under suspension and that order was upheld by this court, on 31.3.1997, a charge-sheet was submitted in the vigilance case with regard to the allegation of having amassed wealth disproportionate to the known source of income. While the enquiry was pending, the appellant on 1.8.1997 filed an application before the Deputy Secretary, Irrigation, Sichai Bhawan, Patna (not before the enquiry officer) stating therein that in view of the submission of the charge-sheet in the criminal case, no departmental proceeding should be held or action should be taken on the basis of the preliminary report of the Investigating Officer of the vigilance case. A copy of the said application was appended as Annexure 4 to the writ application. According to the appellant, the said application was not considered and after completion of the departmental proceeding, on 27.5.1997 a second show-cause was served upon him asking to show cause as to why he should not be removed from service. A copy of the said notice was appended as Annexure 5 to the writ application. 4. The appellant, challenged the aforesaid second show-cause notice before this court in C.W.J.C. No. 9842 of 1997 and further prayed that the departmental proceeding be stayed till the conclusion of Vigilance Case No. 40 of 1992. While the said writ application was pending, the disciplinary authority passed the final order dismissing the appellant from service on 10.12.1998 and the said order was brought on record by filing an amendment petition as Annexure 8 and a prayer was also made for quashing of the same primarily on the ground that the matter in the departmental proceeding as well as in the criminal case being the same, the departmental proceeding should not have proceeded and the dismissal order should not have been passed during the pendency of the criminal case and the same should have been stayed. He also challenged the order of dismissal on other grounds, including the violation of principle of natural justice. 5. He also challenged the order of dismissal on other grounds, including the violation of principle of natural justice. 5. Learned counsel appearing for the appellant submitted that the order of dismissal was vitiated on two grounds, firstly that the departmental proceeding as well as the criminal proceeding were pending with regard to the same very allegation and in that view of the matter, the departmental proceeding should have been stayed till the disposal of the criminal case and secondly that the. appellant was not afforded any opportunity to defend himself in the departmental proceeding. 6. The respondent-State in its counter-affidavit has admitted the fact that the criminal case as well as the departmental proceeding both were initiated against the appellant. It is also stated that the appellant was found in possession of the properties both at Patna and Hazaribagh worth Rs. 7,48,309.35 as per the evaluation report while the net amount of saving from his known source of income was Rs. 73,201/- only. The departmental proceeding was conducted in proper manner and the enquiry officer submitted his report to the concerned disciplinary authority and the Government after considering the enquiry report and other materials, found the charges to have been proved against the appellant and he was asked to show cause by notice dated 27.5.1997 as to why he should not be removed from service. In reply to the same, the appellant stated that as the criminal trial was pending, the departmental proceeding should be stayed till the decision of the court in the criminal case, and in the meantime he moved this court challenging the second show cause notice. The matter was considered by the appointing authority, who came to the conclusion that in view of the circular of the appointment department dated 23.8.1963 and the law settled on the said point, the departmental proceeding cannot be stayed till the conclusion of the criminal trial, which is pending since long and, thereafter, the order of dismissal was passed. Thus, the stand of the respondent State is that the departmental proceeding has been conducted according to law and the same could not be stayed only on the ground of pendency of a criminal case. 7. Thus, the stand of the respondent State is that the departmental proceeding has been conducted according to law and the same could not be stayed only on the ground of pendency of a criminal case. 7. Two points arise for consideration in these appeals; firstly as to whether the departmental proceeding should have been stayed during the pendency of the criminal case and secondly whether on merit the order of dismissal is justified or not. These two points were pressed before the learned Single Judge also, but he has disposed of the writ application by staying the operation of the order of dismissal till the disposal of the criminal case and by ordering to treat the appellant under suspension as mentioned above. 8. Before proceeding to consider the points involved in these appeals, we would like to say that the purpose and object of the departmental proceeding and the criminal proceeding are quite different. The departmental proceeding is held to find out whether the misbehaviour or misconduct in terms of the Service Rule has been proved or not. In case the misconduct is proved what punishment is to be awarded. The main purpose of the departmental proceeding is to keep the administrative machinery unsullied by getting rid of bad elements. The offence as defined under the General Clauses Act means an act or omission punishable by any law for the time being in force. The criminal case is registered against the employee to find out as to whether he has committed any offence as defined under the Indian Penal Code or any other law and on proof of the offence, what sentence is to be imposed. The parties in both the proceeding are also not the same. In the departmental proceeding, the proceeding is initiated by the employer to find out the misconduct against the employee, whereas, in a criminal case, the aggrieved party is the State, which is the custodian of law and order. The case may be registered by an employer or by any other person but in law the aggrieved person is always the State. The mode of enquiry, standard of proof and the rules governing enquiry and trial are also different. The departmental proceeding is not a judicial proceeding in strict sense. The case may be registered by an employer or by any other person but in law the aggrieved person is always the State. The mode of enquiry, standard of proof and the rules governing enquiry and trial are also different. The departmental proceeding is not a judicial proceeding in strict sense. It is a quasi judicial proceeding where the law of evidence is not strictly applicable and even inadmissible evidence is admissible in the departmental proceeding. The criminal proceeding is a judicial proceeding, where the law of evidence as well as the Code of Criminal Procedure or other Special Law governing the trial is applicable. The departmental proceedings are conducted by the departmental authorities, whereas, the criminal cases are tried by the court as defined under the Code of Criminal Procedure or under the relevant law. In a case of departmental proceeding, the mode of proof is the proponderance of probabilities, whereas, in a criminal case, the matter has to be proved beyond reasonable doubt. The misconduct against an employee may include an ingredient of offence also but it is not necessary that in all cases, the ingredients of offence will be a part of the misconduct. Similarly, the ingredients of offence may or may not be the proof of misconduct as provided under the terms of the different Service Rules, the punishment awarded in the departmental proceeding cannot be treated as a punishment or penalty imposed in a criminal case after due investigation. 9. The Apex Court in the case of the State of Rajasthan vs. B.K. Meena, reported in (1996) 6 SCC 417 , pointed out the difference between the criminal proceeding and the departmental proceeding, which runs as follows : "The approach and the objective in the criminal proceeding and the disciplinary proceeding is 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 him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, 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." 10. 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." 10. Thus, both the proceedings are different in several respects as mentioned above. The departmental proceeding and the proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously. However, when the criminal case involves complicated questions of law and tact it is desirable to stay the departmental proceeding till the conclusion of the criminal trial. In this connection, reference may be had to the recent judgment of the Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 , where their Lordships, after considering all the decisions on the points rendered by the Apex Court, have arrived at certain conclusions in paragraph 22, which runs as follows : "22. The conclusions which are deducible from various decisions of this Court referred to above are : (i) Departmental proceeding and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee 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. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the 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. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceeding but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceeding but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed 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." 11. It has been held by the Apex Court that there is no iegal bar in continuing the departmental proceeding and the proceeding of the criminal case simultaneously, but in case both the cases are based on identical and similar set of facts and the charge in the criminal case is of a grave nature, which involves complicated questions of law and fact, it is desirable to stay the departmental proceeding. However, that question has to be determined after taking into consideration the facts and circumstances of a particular case. It was also held by their Lordships that if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceeding, even if it was stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude it at an early date, so that if the employee is found guilty, he should be punished and the administration may get rid of him at the earliest and if he is not found guilty then his honour may be vindicated at the earliest. 12. Thus, it is clear that even if the departmental proceeding and the criminal case are based on identical facts and it is desirable to stay the departmental proceeding but since the criminal case is likely to take a longer time, the departmental proceeding either may not be stayed or, if already stayed, then it should be resumed and brought to its conclusion. 13. 13. In this case, as the materials show, the Vigilance case was registered in 1992, but up-till now there is no progress in the trial and it is well-known that in this State the disposal of the case takes longer time. In that view of the matter, the disciplinary authority was justified in not staying the departmental proceeding on the ground of pendency of the criminal case and as such the order of dismissal passed by the disciplinary authority cannot be flouted on the said ground. Learned counsel for the State, in our view, rightly argued that the order of dismissal should not have been stayed by the learned single Judge on the ground of pendency of the criminal case. Accordingly, that direction of the learned Single Judge is set aside. 14. The learned counsel for the appellant submitted that even if the order of dismissal would not have been stayed or quashed on the ground of pendency of a criminal case, then the order of dismissal is vitiated on account of denial of opportunity of hearing to the appellant during the proceeding. 15. The said question, it appears, has not been at all gone into by the learned Single Judge. We are of the view that the same should be first considered and decided by the learned Single Judge. Accordingly, the impugned order passed by the learned Single Judge is set aside and the matter is remitted for reconsideration in the light of the observations made above. 16. In the result, both the appeals stand allowed.