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2009 DIGILAW 501 (PAT)

Nagendra v. State Of Bihar

2009-03-30

J.B.KOSHY, RAVI RANJAN

body2009
JUDGEMENT 1. This appeal has been filed against the order dated 9.2.2009 passed by the learned Single Judge in C.W.J.C. No. 1953 of 2009 dismissing the writ petition filed for quashing the departmental proceeding initiated against the petitioner vide office order dated 25.10.2007. 2. The appellant while working as Junior Engineer Zila Parshad Hajipur, Vaishali was charge-sheeted in Special Case No. 8/ 07 dated 7.2.2007 for the offence under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. Allegation against the petitioner is that he was caught red handed while accepting illegal gratification of Rs. 10,000/-. He was put under suspension w.e.f. 7.2.2007 vide Officer Order read with memo no. 2029(E), Patna dated 18.4.2007 although the suspension order was not served on him as he was in judicial custody. The appellant was proceeded departmentally under Rule 17 of the Bihar CCA Rules, 2005 vide office order no. 322 dated 25.10.2007. The appellant appeared before the enquiry officer on 18.9.2008 and filed a petition and demanded all relevant papers. He also referred to several decisions and requested that since the facts and evidences are identical in criminal case and departmental proceeding, the departmental proceeding may be kept in abeyance till the disposal of the criminal trial. He also submitted that the appellant- petitioner will be forced to disclose his defence in departmental enquiry and he will be prejudiced in the criminal trial. In Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, AIR 1960 SC 806 it was held that natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action, it is advisable for the employer to wait the decision if the case is of grave nature or involves question of fact or law. In Tata Oil Mills Co. Ltd. Vs. Workmen, (1964)2 LLJ 113 SC it was observed as follows:- "It is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. In Tata Oil Mills Co. Ltd. Vs. Workmen, (1964)2 LLJ 113 SC it was observed as follows:- "It is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to dislose the defence which he may take before the criminal court. But to say that domestic enquiry may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide." 3. He has also relied upon a decision reported in AIR 1988 Supreme Court 2118" Kusheshwar Dubey Vs. M/s Bharat Coking Coal Ltd. and Others. In the case criminal court stayed the departmental proceeding. The High Court vacated the stay. On the facts of that case Hon ble Apex Court held that the High Court was in error in vacating the stay granted by the criminal court. 4. In this regard it will be proper to quote paragraph 6 of the abovenoted decision which is as follow:- "The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular cases as to whether the disciplinary proceedings should be interdicted, pending criminal trial. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular cases as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straightjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline." 5. Learned counsel for the appellant has submitted that the charges before the criminal court and the departmental enquiry committee being identical the respondent could not initiate the parallel proceeding as it would prejudice the defence of the appellant in the criminal trial. He submitted that the facts and the material that would be relied upon in the departmental enquiry would be the same upon which the prosecuting agency before a Criminal Court would also rely and hence the respondents will be compelled to disclose his defence in advance which would seriously prejudice his case before the Criminal Court. The referred decision in Kendriya Vidyalaya Sangathan Vs. T. Srinivas, reported in 2004(4) PLJR (SC)127 wherein it was held by the Apex Court that proceeding in a criminal court and departmental proceeding can go on simultaneously. The decision of this court staying the departmental proceeding pending criminal trial was set aside by the High Court. He also referred to the decision in State of Rajasthan Vs. B.K. Meena reported in (1996) 6 SCC 417 and has submitted that the approach and objective in the criminal proceedings and the disciplinary proceedings are altogether district and different. Therefore, the appeal has no merit and it should be dismissed. He has relied upon paragraph 17 of the aforesaid decision which is as follow:- "There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. Therefore, the appeal has no merit and it should be dismissed. He has relied upon paragraph 17 of the aforesaid decision which is as follow:- "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 cases 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." 6. On the facts of this case we are of the opinion that even if charges are same no difficult question of law or facts are involved. It is only a small trap case/and no prejudice will be caused, if evidence is taken in departmental enquiry. As per the present situation in Bihar State, criminal case taken against the petitioner will go on for years and will not be over before the superannuated date of the petitioner. In view of the nature of allegation we are of the opinion that it is not a fit case to stay the departmental proceeding. The learned Single Judge also noticed that ambit of the criminal case and departmental proceeding are totally different and observed as follows: "The Court is constrained to record taking judicial notice of the facts that criminal case of the kind remain pending for years together and no finality is reached for decades. If the departmental proceeding is quashed or stayed on that ground then the disciplinary authorities would be prevented from going into the set of charges which has different implication." 7. We fully agree with the above view. The appeal is dismissed.