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2003 DIGILAW 349 (RAJ)

Govind Kalwani v. Rajasthan High Court, Jodhpur

2003-03-04

H.R.PANWAR, RAJESH BALIA

body2003
JUDGMENT 1. - Heard learned counsel for the petitioner. 2. By this writ petition, the petitioner seeks a writ of mandamus to stay the continuance of the disciplinary proceedings initiated against him vice Memorandum Annexure/1 dated 19.12.2002 till the disposal of the criminal case launched against him before the Anti Corruption Bureau, Jodhpur on the ground of tendency of that criminal prosecution against him on the very same allegations by the complainant. 3. It has been contended by the learned counsel for the petitioner that since the allegations levelled in the FIR and the complaint made to this Court against the petitioner, who is an officer of this Court in the rank of Deputy Registrar (Non-RJS), being the same, on the basis of the principles enunciated by the Supreme Court in M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416 further proceedings in the disciplinary enquiry initiated against him ought to have been stayed pending criminal case against him. In this connection, he has submitted that the petitioner made a representation to this effect before the Disciplinary Authority, which has been rejected vide communication (Annexure/12) dated 26.2.2003. 4. The crux of the charge as disclosed in the Memorandum of Charges is that the complainant had a criminal case pending against her in the criminal court. The petitioner approached her for settling tie case in her favour through one of the Judge of this Court provided she pays money as bribe or cohabits with him. Apart from making a complaint to the Chief Justice of this Court, a FIR was also lodged before the Superintendent of Police-11, Anti Corruption Bureau, Jaipur through the Additional Superintendent of Police, Anti Corruption Bureau, Jodhpur. After holding a preliminary enquiry, the petitioner was placed under suspension vide order dated 31.10.2002 and was served with the statement of Charges. and Statement of Allegations vide Memorandum Annexure/1 dated 19.12.2002. The criminal complaint is pending investigation. According to the learned counsel for the petitioner, matter is pending for sanction of competent authority to prosecute the accused-petitioner. 5. On the aforesaid premise, the learned counsel contends that looking to the gravity and complexity of the charges, two parallel proceedings to enquire into the same set of charges ought not to be proceeded and the disciplinary proceedings should await the judicial pronouncement in criminal trial that is likely to follow. 5. On the aforesaid premise, the learned counsel contends that looking to the gravity and complexity of the charges, two parallel proceedings to enquire into the same set of charges ought not to be proceeded and the disciplinary proceedings should await the judicial pronouncement in criminal trial that is likely to follow. In this regard, the learned counsel places reliance on the following principle culled out by the Supreme Court in M. Paul Anthony's case (supra) : "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." 6. We have given our anxious consideration to the material placed before us and the contentions raised by the learned counsel appearing for the petitioner and we regreat our inability to sustain the same. 7. The principle is well settled by a catena of decisions which have been considered in detail by the apex court in M. Paul Anthony's case (supra) that there is no anathema in continuing parallel proceedings by way of disciplinary proceedings and the criminal case simultaneously as there is no legal bar in that regard. It is true that upon identity of charges in two proceedings, its complexity is the relevant consideration in considering the desirability to continue with Departmental enquiry or stay the disciplinary proceedings till the conclusion of the criminal case. However, at the same time, this is not the solitary factor to be taken into account while considering whether in a given case, the disciplinary proceedings should be stayed pending criminal proceedings. It depends upon the facts and circumstances of each case and the paramount consideration, which needs to be taken into account is whether the stay of disciplinary proceeding until the conclusion of the criminal proceedings would serve the public interest of not sullenging the administration, so not to lower the confidence of the people in a fair administration. 8. It depends upon the facts and circumstances of each case and the paramount consideration, which needs to be taken into account is whether the stay of disciplinary proceeding until the conclusion of the criminal proceedings would serve the public interest of not sullenging the administration, so not to lower the confidence of the people in a fair administration. 8. The principle enunciated by the Supreme Court in State of Rajasthan v. B.K. Meena, (1996) 6 SCC-417 has been quoted and reiterated with approval in M. Paul Anthonomy's case (supra) which spells the competitive considerations which must weigh while taking the decision to stay or not to stay the disciplinary proceedings during the pendency of criminal case. We are tempted to quote the same is extenso : "It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situation, it may not be 'desirable', 'advisable' or 'appropriate', to proceed with the disciplinary proceedings when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced.' This ground has, however, been hedged in by providing further that this may be done in cases of grave nature Involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety' as the case may be, has to be "determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M., AIR 1960 SC 806 and Tata Oil Mills, AIR 1965 SC 155 is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be... and should not be....delayed unduly. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be... and should not be....delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanor is inquired in to promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion off the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasis some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and decision taken keeping in view of the various principles laid down in the decision referred to above." 9. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and decision taken keeping in view of the various principles laid down in the decision referred to above." 9. The aforesaid observations make it abundantly ' clear that while conceding that the valid ground for staying the disciplinary proceedings is that the defence of the employee may not be prejudiced. The Court reiterated the view expressed by it on earlier occasions since the decision in Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 about the desirability in such cases to stay the disciplinary proceedings. The first retirement was that charge must not only be grave but should also involve complex questions of fact and law. The two conditions are conjunctive and not dis-conjunctive. The Court has consistently used the expression 'advisability', 'desirability' or 'propriety' in considering the question of staying the disciplinary proceedings during the pendency of the criminal proceedings and not a compulsive result. 10. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be 'determined in each case taking into consideration all the facts and circumstances of the case and no hard and fast straight jacket rule can be laid down. It is only a factor which will got into the scales while judging-the advisability or desirability of staying the disciplinary proceedings. 11. Thus, finding the premise of relevant consideration to be taken into consideration for the purpose of staying the disciplinary proceedings, the court has also pointed out contending consideration that disciplinary proceedings cannot be and should not be delayed unduly. With this consideration, the Court also took notice of the fact that speculatively long time which is usually taken in conclusion of the criminal trial, notwithstanding the repeated advice and admonition from superior court. Secondly and more importantly the Court delineated the basic object and purpose of continuing with the disciplinary proceedings is to keep the administrative machinery unsullied by getting rid of bad elements. The Court made it known in no uncertain terms that the interest of justice demands that undesirable elements are thrown out and any charge of misdemeanour is inquired into promptly. The disciplinary proceedings are meant not really to punish. the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The Court made it known in no uncertain terms that the interest of justice demands that undesirable elements are thrown out and any charge of misdemeanour is inquired into promptly. The disciplinary proceedings are meant not really to punish. the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings, If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. 12. Thus, after taking not consideration a large number of cases from 1960 to 1997, in M. Paul Anthony v. Bharat Gold Mines Ltd.'s case (supra), the Court culled out the principles governing consideration of a request for setting aside the disciplinary proceedings : (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 (i) and (iii) above cannot be considered in isolation to stay 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 departmental proceedings, even if they were stayed on account of 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, administration may get rid of him at the earliest." 13. that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest." 13. In view of the aforesaid, each case is to be judged in the light of its entire facts and circumstances keeping in mind the contentions relevant factors weighing on the scales. 14. If we weight the contentions relevant factors on the scales in the present case, we find that though' the charges alleged in the complaint as well as in the FIR are identical but the other circumstances outbalances the case of the petitioner that because of pendency of criminal as well as departmental proceedings on the same facts, the departmental proceedings deserves to be stayed till the conclusion of the criminal trial. Because firstly as on today, the criminal proceedings are only at the investigation stage and no challan has been filed and it is nobody's guess whether criminal challan is to be filed by the Investigation Agency, and if so, how much time it is likely to take and how much time, it is further likely to take in framing of charges. The gravity of charges is apparent from the fact that if affects not only the integrity and alleged unbecoming conduct of the petitioner but sullies the very integrity and credibility of this Institution entrusted with administration of justice. If any alleged act on the part of anyone tends to compromise the confidence of the people, it is imperative that an enquiry into such allegations and accusations are promptly made and concluded and any shred of cloud is cleared earliest, then to wait for out come of the criminal trial in to such allegations against the accused, the time to be taken which that could be no body's guess. It is in the public interest as well as in the interest of the delinquent Officer himself that an enquiry into the allegations of the nature which have been alleged against him is concluded as early as possible and it should not be delayed unnecessary. 15. In the above circumstances, we are of the opinion that request is not only improper in the facts and circumstances of this case but it is not sustainable.Accordingly, this writ petition fails and is hereby dismissed in limine.Writ Petition Dismissed. *******