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2006 DIGILAW 1105 (PAT)

State Of Bihar v. Ram Harsh Das

2006-11-22

NARAYAN ROY, SHEEMA ALI KHAN

body2006
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. Delay in filing this writ application is condoned. 3. This writ application is directed against order dated 28.10.1999 passed by the Patna Bench of the Central Administrative Tribunal (hereinafter to be referred to as "Tribunal") in O.A. No. 217 of 1998, whereby and whereunder the departmental proceeding initiated against respondent no. 1 vide memo no. 765 dated 24.1.1998 has been quashed. 4. The facts gathered from the materials on record show that respondent no. 1 was made an accused in a CBI Case bearing RC 43 of 1986 on the ground of alleged conspiracy to defalcate public money in purchase of police uniform and allied materials and after investigation the Central Bureau of Investigation submitted charge-sheet against the accused persons including respondent no. 1 on 29.3.1996. After submission of charge-sheet a departmental proceeding was initiated against respondent ho. 1 vide memo no. 765 dated 24.1.1998, wherein show cause notice was issued. Respondent No. 1 challenged the initiation of the departmental proceeding before the Tribunal in O.A. No. 217 of 1998 resulting into passing of the order impugned. 5. Learned counsel for the petitioners submitted that the Tribunal passed the order impugned without appreciating the correct proposition of law and without appreciating the facts involved in it. It is further contended that the criminal charge and the departmental proceeding can proceed simultaneously in view of the charges of the criminal case and the departmental proceeding. There is no hard and fast rule in initiation of a departmental proceeding pending criminal charges against a Government servant. Thus, the order passed by the learned Tribunal is wholly without jurisdiction and not sustainable in law. 6. Learned counsel for respondent no.1, on the contrary, submitted that the criminal charges are pending against respondent no. 1 since last 13 years and at the fag end of his service tenure a notice was served upon him asking him to explain as to why a departmental proceeding may not be initiated for pecuniary loss caused to the State of Bihar by indulging in uniform scam. It is further contended that since the delinquent officer is already facing the criminal charge and he has superannuated on 31.5.2000 the departmental proceeding cannot be initiated against him. It is further contended that since the delinquent officer is already facing the criminal charge and he has superannuated on 31.5.2000 the departmental proceeding cannot be initiated against him. It is also contended that charges basically in the criminal case and the departmental proceeding was one and the same and the defence of the delinquent officer, thus, shall be prejudiced by the findings recorded in the departmental proceeding. It is also contended that during the pendency of the criminal charge, since the delinquent officer was promoted and was allowed to continue in services, it would be open to the disciplinary authority to start a departmental proceeding and in view of the ratio laid down by the Apex Court in the case of State of Punjab vs. Dewan Chuni Lal (AIR 1970 Supreme Court 2086) the impugned order is well sustainable in law and the writ application is liable to be dismissed. 7. The issues involved in this matter as to whether departmental proceeding would be unwarranted in view of the pendency of the criminal charge against the delinquent is no more res integra. In case of State of Rajasthan vs. B.K. Meena and Ors. [(1996)6 Supreme Court Cases 417] the Supreme Court held that stay of departmental proceeding by the CAT was not sustainable both in law and facts, as the stay of disciplinary proceeding cannot be and should not be as a matter of course. The Apex Court on these premises held as follows: "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 situations, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. 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". 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. and Tata Oil Mills 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 bedelayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly even 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 misdemeanour is enquired 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 the 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 shouJd be dealt with promptly according to law. The interest of the 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 shouJd be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the 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 emphasise 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 a decision taken keeping in view the various principles laid down in the decisions referred to above." xx xx xx "There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings 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 case are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed." 8. Again in case of Captain M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another [(1999)3 Supreme Court Cases 679] the Supreme Court in principle held that since scope of the criminal charge and the departmental proceeding is different both can be continued independently. 9. Again in case of Captain M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another [(1999)3 Supreme Court Cases 679] the Supreme Court in principle held that since scope of the criminal charge and the departmental proceeding is different both can be continued independently. 9. In case of Kendriya Vidyalaya Sangathan and Others vs. T. Sriniwas [(2004)7 Supreme Court Cases 442] the Apex Court held that stay of disciplinary proceeding during the pendency of criminal trial involving identical facts and charges would not justify stay of departmental proceeding as a matter of course. It is further observed that the advisability, desirability or propriety, as the case may be, in regard to departmental inquiry has to be determined in each case taking into consideration of facts and circumstances of the case. 10. From the legal propositions, as noticed above, it appears that approach and objective in the criminal proceeding and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceeding the question would be as to whether respondent no. 1 is guilty of such conduct as would warrant his removal from services or a lesser punishment, as the case may be; whereas in the criminal proceeding the question is whether the offences disclosed against him under the Prevention of Corruption Act and the Indian Penal Code 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, therefore, entirely distinct and different. 11. The submission of learned counsel for respondent no. 1 that defence of respondent no. 1 would be prejudiced, if the delinquent is subjected to a departmental proceeding, in this view of the matter, is wholly misconceived. 12. The departmental proceeding, thus, initiated against the delinquent employee, in no way, would prejudice his defence in the trial. 13. Now coming to the question raised by learned counsel for respondent no. 1 that so far the effect of the departmental proceeding after superannuation of the delinquent in the meantime is concerned, it is held that the disciplinary authorities now would not be denuded of their powers, as envisaged in Rules 43(b) and 139 of the Bihar Pension Rules. 14. Now coming to the question raised by learned counsel for respondent no. 1 that so far the effect of the departmental proceeding after superannuation of the delinquent in the meantime is concerned, it is held that the disciplinary authorities now would not be denuded of their powers, as envisaged in Rules 43(b) and 139 of the Bihar Pension Rules. 14. In view of the findings and the legal propositions, as noticed above, the order impugned passed by the learned Tribunal is held to be wholly without jurisdiction and not sustainable in law. 15. In the result, this application is allowed and the order impugned is set aside. Sheema Ali Khan, J. 16 I agree.