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2010 DIGILAW 1797 (PAT)

Raj Mangal Ram v. State Of Bihar

2010-08-09

NAVIN SINHA

body2010
JUDGEMENT 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. A supplementary affidavit is stated to have been filed on behalf of the State on 5.8.2010. The same is not available on the record. The Court therefore requested Counsel for the petitioner to make available his copy for perusal so as not to hold up the proceedings on that ground. The office is directed to trace the supplementary affidavit and place the same on record. 3. The petitioner questions the simultaneous criminal prosecution and departmental proceedings on what he alleges are the same set of charges with common witnesses. 4. The petitioner at the relevant point of time was posted as District Transport Officer, East Champaran at Motihari. He is alleged to have demanded an illegal gratification of Rs. 25,000/- to release a truck bearing registration No. UP 78N 2699 in favour of its owner. Vigilance Case No. 52 of 2006 was lodged against him on 13.9.2006 by the informant, a Police Official, in whose presence the negotiations are alleged to have taken place and payment of a lesser amount of Rs. 20,000/- was agreed to be exchanged to be paid to an agent whose name is alleged to have been disclosed by the petitioner as mentioned in the FIR one Md. Mustaque of Ward No. 8 Chikpatti, Motihari. 5. The original complaint lodged by the truck owner states that the petitioner had demanded illegal gratification of Rs. 21,000/-. The FIR is a sequal when action was taken on the complainant. 6. At the centre of the controversy was an over laden truck detained by the petitioner in context of which the allegations surfaced. In pursuance of the vigilance case a trap was laid and the petitioner was caught red handed receiving the illegal gratification money which was doused with chemical powder. Investigation having been concluded he is said to have been charge-sheeted also. 7. A departmental proceeding has also been initiated against the petitioner and charges have been framed on 1.10.2007 served on him on 23.1.2008. 8. Learned Counsel for the petitioner contended that the charges in the criminal trial and in the departmental proceedings being identical, the departmental proceedings should be stayed till conclusion of the criminal trial. If the departmental proceedings are not stayed the petitioner may be compelled to disclose his defence which may prejudice him in the criminal trial. 8. Learned Counsel for the petitioner contended that the charges in the criminal trial and in the departmental proceedings being identical, the departmental proceedings should be stayed till conclusion of the criminal trial. If the departmental proceedings are not stayed the petitioner may be compelled to disclose his defence which may prejudice him in the criminal trial. The witnesses by which the charge is sought to be proved are common. Placing reliance on (1999)3 SCC 679 (Capt. M. Paul Anthony V/s. Bharat Gold Mines Ltd. & Anr.) from para 20 of the judgment learned Counsel submitted that the present case involved complicated questions of law and therefore it was a fit case for stay of the departmental proceedings. Building up the argument it was urged that the FSL team which carried out the test with regard to the water in which the petitioner was asked to dip his hands after he allegedly received powdered currency notes was not constituted in accordance with law. The person carrying out the test was not competent to do so. Therefore if the forensic test was not carried out properly it would defeat the allegation against the petitioner for having received illegal gratification. The mode, method and manner to prove the FSL report were complicated questions of law to be tested in the trial itself. The next contention urged was, that the petitioner is alleged to have made a demand for illegal gratification of Rs. 21,000/-. Relying upon Annexure-10 to the supplementary affidavit dated 5.8.2010 on information obtained by him under the Right to Information Act the contention was that given the over laden weight of the truck in question the total statutory fine itself was Rs. 21,400/-. Therefore, what the petitioner was demanding was only the statutory penalty. The last submission was that the petitioner continues under suspension since 14.9.2006. That is a matter to be more appropriately considered by the authorities for the ground urged of prolonged suspension in the nature of the allegation if the petitioner represents for the same. Lastly reliance was placed on a judgment of the Andhra Pradesh High Court reported in 2009(5) ALT 644 (P. Venka Reddy V/s. The Senior Divisional Security Commissioner, Railway Protection Force & Anr.). 9. In the case of Capt. Lastly reliance was placed on a judgment of the Andhra Pradesh High Court reported in 2009(5) ALT 644 (P. Venka Reddy V/s. The Senior Divisional Security Commissioner, Railway Protection Force & Anr.). 9. In the case of Capt. M. Paul Anthony (supra) concluding the discussion with regard to simultaneous charge in the criminal trial and in a departmental proceeding the conclusion relevant for the present purpose are as follows: "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) .......... " 10. It needs no elaborate discussion that criminal trial and departmental proceedings stands on entirely different footing. The purpose of the former is to punish the offender in the interest of the society and by enforcement of police powers of the State to uphold the rule of law. The standard of proof shall be beyond all reasonable doubt. In a departmental proceeding it is the aspect of administrative discipline and desirability of continuing one in service given the nature of allegation against him, that are the prime consideration. The findings are arrived at on preponderance of probabilities. 11. The law stands well settled that in normal circumstances for the aforesaid reasons the departmental proceedings are not to be lightly stayed. The findings are arrived at on preponderance of probabilities. 11. The law stands well settled that in normal circumstances for the aforesaid reasons the departmental proceedings are not to be lightly stayed. Merely because the evidence may be common would not constitute per se sufficient reason to stay the departmental proceedings. On the same evidence it may not be possible to arrive at a finding beyond all reasonable doubt but it may be possible to arrive at a finding on preponderance of probabilities. An acquittal based on reasonable doubt does not amount to negation of the departmental proceeding. 12. In AIR 1997 Supreme Court 13 (State of Rajasthan V/s. B.K. Meena) it has been held at paragraph 14 and 15 as follows: "14. 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". 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 not also 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, consideration is that the disciplinary enquiry cannot beand should not bedelayed 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, consideration is that the disciplinary enquiry cannot beand should not bedelayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high official, or persons holding high public offices 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 advise 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 should 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. 15. 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. 15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in some cases, charges are levelled with obiique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him." 13. In AIR 2007 Supreme Court 1161 "Noida Entrepreneurs Assn. V/s. Noida" it has been held at paragraph 11 as follows: "11. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the Evidence Act). Converse is the case of departmental enquiry. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the Evidence Act). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances." 14. In the opinion of this Court, even if the argument with regard to the trap issue is considered they may at best constitute irregularities which may not necessarily vitiate the trial. What will be the evidentiary value of the trap in view of any alleged irregularities of procedure remains to be considered during trial. To say that there were irregularities in the trap matter is one thing, to say that no trap was ever laid is another thing. It is not the case of the petitioner that he was not apprehended in any trap case. 15. The argument that the petitioner was only demanding the statutory liability of Rs. 21,000/- is a matter of his defence to be considered during departmental proceedings itself. The material placed by him at Annexure-10 demonstrates that the statutory fee payable on the truck in question for being over laden was Rs. 21,400/-. The allegation against the petitioner relates to a demand of Rs. 21,000/- only. In an allegation of illegal gratification the amount is irrelevant. Whether the petitioner demanded the amount without agreeing to grant formal receipt etc. when the allegations would assume a different dimension shall all be matters to be considered in departmental enquiry itself. That he may not have been apprehended in a properly lodged trap case shall be distinguishable from the charge that whether he made an intelligent demand for an amount equivalent to statutory demand. when the allegations would assume a different dimension shall all be matters to be considered in departmental enquiry itself. That he may not have been apprehended in a properly lodged trap case shall be distinguishable from the charge that whether he made an intelligent demand for an amount equivalent to statutory demand. These are matters to be considered during the departmental proceedings itself. 16. This Court is not persuaded by the reasoning in the case of P. Venka Reddy (supra) as contained in para 12 to direct that the departmental proceedings be stayed till disclosure of the witnesses and documents in the criminal trial on the supposition that in view of nature of the evidence surfacing in the criminal trial the disciplinary authority may have a rethink. This Court is not satisfied that it has the proper jurisdiction to control the powers of the disciplinary authority to conduct the departmental proceedings if powers be there otherwise under the law. 17. Let the departmental proceedings be concluded expeditiously within the time fixed by the Government circulars in respect of the same provided the petitioner himself coopertates. If the petitioner does not cooperate adequately, the Enquiry Officer and the disciplinary authority shall be at liberty to proceed appropriately in accordance with law ex-parte also if necessary but only after recording full reasons and grounds to their satisfaction and the efforts made to persuade the petitioner to cooperate so that in any event of the matter proceedings are concluded within the aforesaid time. 18. The writ application is dismissed.