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2002 DIGILAW 738 (CAL)

Sumit Kumar Bose v. State of West Bengal

2002-12-23

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J. By this writ application, the writ petitioner, an Assistant Engineer of the West Bengal State Electricity Board, has prayed for direction upon the respondents not to proceed with the disciplinary proceeding initiated by the employer against the petitioner till the disposal of the criminal proceedings under sections 7, 8 and 9 of the Prevention of Corruption Act ("Act"). 2. It appears from record that on the allegation of the employer that the petitioner, an Assistant Engineer, was caught red handed while he was receiving Rs. 10.000/-, the balance unpaid amount of the demanded amount of Rs. 50,000/- from one Mr. Patel for giving him electric connection, a criminal case under sections 7, 8 and 9 of the Act has been initiated and the same is now pending. 3. On the selfsame allegation, the employer has also issued a show cause notice upon the petitioner asking the petitioner to explain his conduct after framing charges of unnecessarily harassing Mr. Patel, a prospective consumer and demanding as well as accepting illegal gratification from such consumer for personal gain. 4. The petitioner's grievance is that although he has requested the employer not to proceed with such disciplinary proceeding till the disposal of the criminal proceedings pending before the Criminal Court, the employer has paid no heed to the request of the petitioner. 5. Therefore, the only question that arises for determination in this writ application is whether in the fact of the present case the employer should be restrained by an order of injunction from proceeding with the departmental proceeding till the disposal of the pending criminal case. 6. Mr. Bag, the learned counsel appearing on behalf of the petitioner has placed strong reliance upon the following decisions of the Supreme Court in support of his contention under such circumstances the departmental proceeding should remain stayed:- a) Delhi Cloth & General Mills Ltd. vs. Kushal Bhan, ( AIR 1960 SC 806 ); b) State of Rajasthan vs. B.K. Meena & Ors., ( AIR 1997 SC 13 ); c) Kusheshwar Dubey vs. Bharat Coking Coal Ltd. & Ors., [ 1988 (4) SCC 319 ]. 7. Mr. 7. Mr. Mitra, the learned counsel appearing on behalf of the West Bengal State Electricity Board has however opposed the aforesaid prayer of the petitioner and has contended that merely because a criminal case is pending, such fact cannot constitute a ground for automatic stay of the departmental proceedings till the disposal of such criminal case. Mr. Mitra further submits that the petitioner has not made out any valid ground for stay in the fact of the present case. In support of such contention, Mr. Mitra has relied upon a decision of the Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., reported in AIR 1997 SC page 1416. 8. After hearing the learned counsel for the parties and after going through the materials on record I find that the subject-matter of the departmental proceeding and that of the criminal case are almost same. In both the proceedings the main question is whether the petitioner has accepted a sum of Rs. 50,000/- as alleged by the employer as illegal gratification for personal gain. The witnesses of the incident of the alleged acceptance of Rs. 10,000/- from Mr. Patel are also same in the departmental proceeding. In my view, as pointed out by the Supreme Court in the cases referred to by Mr. Bag, while there can be no legal bar for simultaneous proceeding being taken but there may be cases where it would be appropriate to defer the disciplinary proceeding awaiting disposal of the criminal case. In my view, in the present case, if in the departmental proceeding the petitioner is asked to disclose his defence, he will seriously prejudiced in the pending criminal case for disclosure of his defence. The prosecution in such a situation will be in a position to manufacture evidence against the petitioner to suit its purpose. Under the Code of Criminal Procedure a special privilege is conferred upon an accused not to disclose any defence. By compelling the petitioner to disclose his defence, the petitioner will be deprived of such right given to him under law. In the present case the proceeding was initiated in the year 1999. The petitioner is at present kept under suspension. Under the Code of Criminal Procedure a special privilege is conferred upon an accused not to disclose any defence. By compelling the petitioner to disclose his defence, the petitioner will be deprived of such right given to him under law. In the present case the proceeding was initiated in the year 1999. The petitioner is at present kept under suspension. No material has been placed before this Court showing any conduct of the petitioner which would lead to the conclusion that the petitioner is trying to delay the disposal of the criminal proceedings. Under such circumstances, I am of the view that the departmental proceeding should remain stayed till the disposal of the pending criminal case. 9. In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr. (supra) relied upon by Mr. Mitra, the Supreme Court was dealing with a case where under •similar circumstances the prayer for stay of departmental proceeding having been rejected, the same was disposed of ex-parte and the petitioner therein was dismissed from service. Subsequently, however in the criminal case; he was acquitted. As that stage, the petitioner approached the High Court through a writ petition under Article 226 of the Constitution of India challenging the validity of the order of dismissal on various grounds including the one that the departmental proceeding based on the same set of facts on which the criminal case was launched against him ought to have been stayed awaiting the result of the criminal case. It was also pointed out that since the petitioner had already been acquitted and the prosecution case against the petitioner based on the "raid and recovery" which also constituted the basis of departmental proceeding had not been found to be true, he was entitled to be reinstated in service. The writ petitioner was allowed by a learned Single Judge with the finding that the departmental proceeding and the criminal case being based on the same set of facts, the departmental proceeding should have been stayed till the result of the criminal case and since in the criminal case the petitioner had already been acquitted and the prosecution case was not established, the respondents could not legally refuse reinstatement or the consequent back wages to the petitioner. While directing reinstatement of the petitioner, the High Court gave liberty to the respondent to initiate fresh disciplinary proceedings against the petitioner after perusing the judgment passed in the criminal case. Such judgment of the learned Single Judge was however set aside by the Division Bench and the petitioner challenged the order of the Division Bench before the Supreme Court. 10. In the fact of such a case, the Supreme Court set aside the order of the Division Bench and order of the learned Single Judge in so far as it allowed the writ petition was upheld. 11. While disposing of such writ application, the Supreme Court merely reiterated the general principle that a stay of departmental proceeding till the disposal of the criminal case is not a matter of course and if the departmental proceeding 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 proceeding till the conclusion of the criminal case. 12. In the case before us, the departmental proceeding and criminal case are based on identical and similar set of facts and charge in the criminal case against the delinquent employee is of a grave nature and the same involves complicated questions of law and fact as would appear from the fact that the employer wanted to examine sixteen witnesses in support of its allegation. Under such circumstances, it will be unfair to compel the petitioner to disclose his defence in the criminal case. 13. I thus find substance in the instant writ application. The respondents are restrained from further proceeding with the departmental proceeding till the disposal of the criminal case. Since the criminal case is pending from 1999 the concerned Court is directed to dispose of the criminal proceedings as early as possible without granting any unnecessary adjournment to either of the parties. 14. In the facts and circumstances of the case there will be however no order as to costs. 15. Let this order be communicated to the concerned court at the costs of the petitioner. Such costs be put in by January 3, 2003. Writ application allowed.