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2001 DIGILAW 402 (DEL)

AMAR SINGH v. NATIONAL SEEDS CORPORATION LIMITED

2001-09-20

MUKUNDAKAM SHARMA

body2001
MUKUNDAKAM SHARMA ( 1 ). The petitioner seeks for quashing of the charge sheet issued and the departmental proceedings instituted against the petitioner on the ground of delay in instituting the said proceedings and also on the ground that the departmental proceedings instituted by the respondents and the criminal cases pending against the petitioner in the court of the Special Judge, delhi are on identical set of facts. ( 2 ). It Is stated in the writ, petition that the petitioner while working ay Upper Division clerk was placed under suspension vide order dated 2/1/1982. Somewhere around the same time a criminal case was registered against the petitioner at Delhi and another criminal case at Jaipur which pertained to misappropriation of cash by the petitioner while wor king as Cashier in the post or upper Division Clerk at Regional office of the corporation at Jaipur during the years 1976-81. It is also stated in the petition that in the cr iminal case which was registered against the petitioner and tried by the Special Judge, CBI, Jaipur, the petitioner was acquitted for want of a valid sanction. The said judgment and order of the special Judge, CBI, Jaipur was passed on 19/5/1999 and a copy thereof is placed on record. So far the cr iminal case registered at Delhi is cuncerned, it is stated that a charge sheet in the said case was framed by the Special Judge at Delhi on 11. 11-1993 and the said case is at, present pending trial wherein witnesses are being examined. However a memorandum of charges dated 30/11/2000 was issued to the petitioner whereby the petitioner was intimated that the respondent proposes to hold a departimental enquiry against the petitioner on the charges mentioned in the aforesaid charge sheet dated 30/11/2000. ( 3 ). It was contended by the counsel appearing for the petitioner that a bare perusal of the said charge sheet would Indicate that the said charge sheet contained charges in respect of the same allegations which formed the subject matter of the criminal cases instituted and registered against the petitioner at Jaipur and also at Delhi. ( 3 ). It was contended by the counsel appearing for the petitioner that a bare perusal of the said charge sheet would Indicate that the said charge sheet contained charges in respect of the same allegations which formed the subject matter of the criminal cases instituted and registered against the petitioner at Jaipur and also at Delhi. It was also contended that in the trial pending against the petitioner in the court of the Special Judge, delhi out of 42 witnesses only 25 witnesses have been examined so far whereas the remaining witnesses which are vital to the cases are yet to be examined and therefore, if the petitioner is forced to disclose his defence In respect of the said charges in the criminal case pending at Delhi the same would pre judicially affect the interest of the petitioner. He also contended that some of the charges in the departmental enquiry are absolutely identical to the charges on which the trial is going on in the cour t of the Special judge at Delhi and therefore, the charge sheet is i table to be quashed on the ground of identical facts being involved in both the cases and also on the ground of delay in instituting the departmental proceedings inasmuch as the incidents in the charges contained in the Memorandum of char yes pertained to the period between 1976-1981. ( 4 ). Counsel appear ing for the respondent however, submitted that so Far the departmental proceedings and criminal cases, are cuncerned they stand on two different footings and since in the criminal case instituted and registered at Jaipur the petitioner was acquitted on the technical ground of absence of proper and valid sanction there is no bar for institution of departmental proceedings on the said charges. It was also submitted by him that in case the departmental proceedings would have been instituted alongwith the criminal case which was registered against the petitioner the petitioner would have been prejudiced and would have approached the court on the ground that the departmental proceedings cannot be instituted on the same charges as that of the cr iminal case. He submitted that the departmental proceedings are instituted on charges pertaining to alleged mis-appropriation of cash by the petitioner while functioning at Jaipur during the period from 1976-1981 immediately after the petitioner was acquitted by the court of Special Judge at Jaipur. He submitted that the departmental proceedings are instituted on charges pertaining to alleged mis-appropriation of cash by the petitioner while functioning at Jaipur during the period from 1976-1981 immediately after the petitioner was acquitted by the court of Special Judge at Jaipur. He also relied upon the contents of the additional affidavit filed by him wherein it is contended by the respondents that without prejudice to the rights of the respondent Corporation to hold enquiry against the petitioner on the various a1legations made against him the subject matter of the criminal proceedings now pending before the court of the Special Judge Delhi would not be dealt with in the departmental proceedings and that the enquiry shall be confined to the charges drawn up against the petitioner in respect of Jaipur only. He also relied upon the statements made therein that the delay in holding of enquiry came about on the legal advice received by the Corporation not to hold the enquiry during the pendency of the criminal proceedings and further delay was caused in obtaining legal opinion as to whether it could hold enquiry during pendency of the criminal case before the Court of Special 3udge, CBI, Delhi. ( 5 ). In the light of the aforesaid statements and submissions of the learned counsel appealing for the parties I have perused the records placed before me. It is established from the records that in the criminal case instituted and registered against the petitioner in the Special ,court at jaipur the petitioner was acquitted on the ground of want of valid and proper sanction by the competent Authority. Therefore, the aforesaid acquittal was on the technical ground and was not on merits of the allegations. Besides the charges in the criminal proceedings and the charges in the departmental proceedings stand on two different footings. In departmnetal proceedings the departmant has to prove the case on preponderance of probabilities whereas in the criminal case the prosecution has to prove the guilt of the petitioner beyond reasonable doubt. Nature of each proceeding i. e. of the criminal proceedings and the departmental proceedings is also different. It is well settled law that departmental proceedings and criminal trial can also go on simultaneously with respect to the same allegations and that success of the delinquent employee in one cannot be a ground for dropping the other proceedings. Nature of each proceeding i. e. of the criminal proceedings and the departmental proceedings is also different. It is well settled law that departmental proceedings and criminal trial can also go on simultaneously with respect to the same allegations and that success of the delinquent employee in one cannot be a ground for dropping the other proceedings. Besides the departmental proceedings is quasi- judicial in nature where the law of evidence is not applicable but a cr iminal case is a legal proceeding to be conducted strictly in conformity with the law laid down in the Code of Criminal procedure and the law of Evidence and other procedure governing trial. It is also well settled by several decisions of the Supreme Court that the fact that the delinquent employee was exonerated in the cr iminal proceedings cannot be a ground for quashing the departemtal proceedings , the mode of enquiry, the standard of proof and the rules governing the enquiry and trial being different in both the enquiries. In this connection reference may be made to the decision of the Suprerne Court in m. Paul Anthony Vs. Bharat Gold Mines Ltd. ; (1999) 3 SCC 679 . In the said decision it was stated thus in paragraph 22:- "the conclusions which are deducible from various decisions of this court referred to above are: (i) Departmental proceedings 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 proceedings 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 depar tmental 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 his at the earliest. " ( 6 ). As against the petitioner two criminal cases were instituted, one at Jaipur and the other at Delhi. A departmental proceeding has also now been instituted against the petitioner on the charges which are on identical and similar set of facts as that or the criminal cases. But there is no dispute to the fact that the criminal case instituted against the petitioner has ended in acquittal on technical ground. In the affidavit fixed by the respondents it is stated that so far the departmental proceeding is concerned, the respondent shall confine the said proceedings only in respect of the charges pertaining to the set of facts which were also the subject matter of the criminal case instituted at Jaipur and in which the petitioner stood acquitted fur want of a valid and propel sanction. Therefore, although the charge sheet contained charges pertaining to alleged mis-appropriation of cash both at Jaipur and at delhi but the departmental proceedings for the present are being confined only to the allegations and facts of the criminal case at Jaipur in respect of which the petitioner now stands acquitted in the criminal court. In that view of the matter, there can be no bar for the respondent to proceed with the aforesaid departmental proceedings but the same shall have to be confined only in respect of the allegations concerning incidents at Jaipur. The petitioner would not be in any manner prejudiced if the said departmental proceeding is allowed to be proceeded with in the light of the observations and in the light of the decisions of the Suprerne Court. ( 7 ). The petitioner would not be in any manner prejudiced if the said departmental proceeding is allowed to be proceeded with in the light of the observations and in the light of the decisions of the Suprerne Court. ( 7 ). So far the pled with regard to quashing of the charge sheet on the mound of delay in instituting the same is concerned, it is worthwhile to mention that even if the said charge sheet was issued to the petitioner at the relevant point of time when the criminal case was instituted against him the petitioner could have definitely taken up a stand as taken even now that both the cases are identical in nature and therefore, the petitioner can not be forced to disclose his defence in the departmental proceedings which would prejudicially affect his a interests. Now since the criminal case at Jaipur stands disposed of as against him and since a valid explanation has been given by the respondents for the delay in institution of the said departmental proceedings I deem it appropriate to hold that the charge sheet should not be quashed and the departmental enquiry should not be stayed in the facts and circumstances of the present case on the ground of delay. It is however, made clear that the departmental proceedings shall be confined only to the allegations and facts pertaining to jaipur only and no part of the Delhi case shall be enquired into by the respondents till the criminal case registered and pending against the petitioner at Delhi court is disposed of by the concerned criminal court. ( 8 ). Counsel for the petitioner in support of his contention that there is delay in instituting the departmental proceedings and on that count the same should be quashed, relied upon various decisions of this court and also of the Supreme court. In the said decisions namely - Shri Hari ram and others Vs. DDA, Civil Writ Petition no. 4748/1997 decided on 19/7/2000; Ashok Kumar Vs. DDA, CWP No. 3145/1994 decided on 27/7/1994; h. C. Khurana Vs. DDA, C. W. P. No. 747/2001 decided on 27/3/2001; State of M. P. Vs. Bani Singh, 1990 (2) SLR 798 and State of A. P. Vs. DDA, Civil Writ Petition no. 4748/1997 decided on 19/7/2000; Ashok Kumar Vs. DDA, CWP No. 3145/1994 decided on 27/7/1994; h. C. Khurana Vs. DDA, C. W. P. No. 747/2001 decided on 27/3/2001; State of M. P. Vs. Bani Singh, 1990 (2) SLR 798 and State of A. P. Vs. N. Radhakrishnan, (1998) 4 SCC 154 , it was held that the delay in institution of the departmental proceedings and in conclusion thereof may vitiate the proceedings depending on the facts and circumstances of each case. It was held in those decisions that each case has to be considered taking into account all relevant facts and circumstances and that a balance has to be maintained between the purity of administration and adverse effect which the prolonged proceedings have on an employee and that un-explained delay in institution and conclusion of the proceedings may cause prejudice to the employee. ( 9 ). Having regard to the facts of the present case that the petitioner was acquitted in the criminal case at Jaipur on a technical around namely for want of valid and proper sanction and also having regard to the fact that if the departmental proceedings would have been instituted simultaneously with that of the criminal proceedings registered against the petitioner, as case for staying the departmental proceeding would have been made out and under such circumstances the delay in institution of the departmental proceedings stands explained. The charges in the departmental proceedings relating to Jaipur are serious in nature and in my opinion they require an enquiry. Therefore, the facts of the said cases on which reliance is placed by Lhe counsel appearing for the petitioner are distinguishable from the facts of the present case. ( 10 ). IN that view of the matter I dismiss the writ petition with the observation that the departmental proceedings instituted against the petitioner could be proceeded with by the respondents but the same shall be confined only to the charges relating to the Jaipur case as mentioned in the charge sheet and no part of the delhi transaction shall be considered and enquired into till trial in criminal case pending and registered against him at Delhi is concluded. In the circumstances, however, there will be no order as to costs.