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2010 DIGILAW 2154 (ALL)

RAMVIR SINGH TOKAS (ASI/CLK) v. UNION OF INDIA

2010-07-22

ANIL KUMAR

body2010
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri Bhoopendra Nath Singh, learned counsel for the petitioner and Dr. Ashok Nigam, Assistant Solicitor General of India assisted by Sri S.K. Rai, Advocate. 2. Facts in brief as submitted by the learned counsel for the petitioner are that the petitioner was initially selected and appointed on the post of Constable in Central Industrial Security Force (Ministry of Home Affairs) (hereinafter referred to as the CISF), in pursuance to the same he joined his duties, thereafter selected as ASI/Clerk in the CISF on 28th August, 1989, joined the said post in the month of November, 1989 and started discharging his duties with said capacity. While he was posted at CISF Unit LPG Tikri Kalan (N. Delhi), a charge-sheet dated 15/16 January, 2001 issued by the respondents in which the following charges were levelled : CHARGE - I- That you No. 803470127 ASI (CLK) Rambir Singh Tokas of CISF Unit LPG (BP Tikrikalan, Delhi have deliberately and with your dishonest intentions submitted a bill of re-imbursement amount to Rs. 4020/- as cost of spectacles for your wife namely Smt. Darshan Devi in contravention of the Medical Attendance Rules of the Force. Thus, the act done intentionally by you amounts to gross misconduct, detrimental to the interest of other members of the Force and attempt to defraud the Force and also a grave indiscipline and contrary to devotion to duty with absolute dignity and utmost honesty. Further, by your aforesaid act, you have caused the supervisory officers of the Force to use, the lawful powers vested In them, injurious to the interest of the other members of the Force. Thus, you have rendered yourself unbecoming a member of an Armed Force of the Union. Hence the charge. CHARGE - II- That you No. 803470127 ASI(Clk) Rambir Singh Tokas of CISF Unit LPG(BP Tikrikalan, Delhi have paid Rs. 3400/- for spectacles of your wife Smt. Darshan Devi but for the purpose of re-imbursement, you have intentionally and deliberately submitted a forged bill of Rs. 4020/- in support of your claim knowing fully well that the said bill is not genuine one. The aforesaid act committed by you amounts to a gross misconduct and indiscipline. As a member of the Force, you have acted in disregard of the norms/rules of the Force which amounts to dereliction of duty and also against absolute devotion towards dut. 4020/- in support of your claim knowing fully well that the said bill is not genuine one. The aforesaid act committed by you amounts to a gross misconduct and indiscipline. As a member of the Force, you have acted in disregard of the norms/rules of the Force which amounts to dereliction of duty and also against absolute devotion towards dut. Thus, you have rendered youself unbecoming to be a member of the Armed Force of the Union. Hence the charge. And after receiving the same he submitted a representation dated 1st February, 2001 requesting therein that the departmental inquiry may be postponed till the criminal case lodged against him on the basis of FIR No. 68/99 is decided as the charges which were levelled on him vide charge-sheet dated 15/16.1.2001 are identical and similar in nature on the basis of Criminal case pending against him in competent Court. 3. However, the said request of the petitioner was not considered and on 26th September, 2001 the disciplinary authority appointed Sri B.D. Deepak, Assistant Commandment, CISF Unit OCS, Shakurbasti as Inquiry Officer to conduct the inquiry in the matter in question. Further during the course of the inquiry proceedings petitioner also submitted representation before the Inquiry Officer inter alia stating therein that till the disposal of the criminal investigation or proceedings the departmental inquiry be kept in abeyance but no heed was paid by the Inquiry Officer, for redressal of his grievances so he filed a Writ Petition (No. CWP No. 259/2002) before the High Court at Delhi. 4. In the said writ petition, on 15th February, 2002, the Delhi High Court passed an order that “in the meanwhile, respondents are directed not to conduct any departmental enquiry as criminal investigations are being carried out on FIR registered against the petitioner, till the next date of hearing”. 5. On 12th July, 2002 an order was passed by which petitioner was Compulsorily Retired. Aggrieved by the said order, petitioner filed an appeal before the Appellate Authority (DIG, CISF, North Zone, New Delhi) and also moved an application for withdrawal of writ petition filed by him before the Delhi High Court and the same was allowed. On 18th June, 2003, the Appellate Authority set aside the order of compulsory retirement, as a result of which he was reinstated in service and posted at CISF, ITI, Raebarely. 6. On 22.3.2003 respondent No. 5 Gp. On 18th June, 2003, the Appellate Authority set aside the order of compulsory retirement, as a result of which he was reinstated in service and posted at CISF, ITI, Raebarely. 6. On 22.3.2003 respondent No. 5 Gp. Commandant, (Disciplinary authority), CISF Gp. Hqrs, Allahabad passed an order the operative portion of the same is as under : “Now, therefore, the undersigned, in exercise of the powers conferred by sub rule (5) of Rule-36 of CISF Rules, 2001, hereby appoints Shri O.P.S. Chauhan Asstt. Commandant of CISF Unit BHEL, Jagdishpur to enquire into the charges framed against said ASI/CLK R.S. Tokas vide memo No. (353) 15/16-01-2001. Shir O.P.s. Chauhan, Enquiry Officer is hereby directed to proceed further from the stage at which Smt. Jyoti Sinha, previous Enquiry Officer, left the Enquiry and complete it expeditiously.” 7. Thereafter on 1.10.2003 (Annexure-9) the petitioner made a representation to the Competent Authority requesting therein that as the criminal case is pending at New Delhi before the Criminal Court in respect to the same incident, so as per the legal position if the departmental proceedings and the criminal proceedings are based on similar set of facts and the charges in the criminal proceedings against the employee are of grave nature and involve complicated question of law and fact it would be desirable to stay the departmental proceedings till the conclusion of the criminal proceedings. 8. Further as no heed was paid to the said request, so the petitioner as such the petitioner approached this Court for redressal of his grievances by filing the instant writ petition and the main prayer which are prayed by him are as under : (a) Issue a writ in the nature of mandamus or certiorari or any other writ, directions or order to the respondents, especially for Gp. Commandant CISF Gp. Hqrs Allahabad, for not holding the departmental enquiry proceedings till the disposal of criminal proceedings pending at New Delhi against the petitioner on the identical and similar set of charge, evidences, witnesses and materials etc. (b) For issue of direction to the CISF authorities for posting him in and around Delhi so as to attend the alleged criminal proceedings without spending money from his own pocket. 9. (b) For issue of direction to the CISF authorities for posting him in and around Delhi so as to attend the alleged criminal proceedings without spending money from his own pocket. 9. Sri Bhoopendra Nath Singh, learned counsel for the petitioner while pressing the present writ petition submitted that as the charges which are levelled on the petitioner by the charge-sheet on the basis of which disciplinary proceedings are being conducted against him are based on the FIR and in respect to the same criminal proceedings are being adjudicated in the Criminal Court at New Delhi, so the disciplinary proceedings shall be stayed till the decision of the criminal case. 10. It was further submitted on behalf of the petitioner that in case the disciplinary proceedings are not stayed and allowed to continue then the petitioner’s case will be seriously prejudiced which is pending before the criminal Court. In support of the submissions, learned counsel for the petitioner rely on the following cases : (i) Depot Manager, A.P.S.R.T. Corpn. v. Mohd Yousuf Miya, AIR 1997 SC 2232 (ii) Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And another 1999(82) FLR 627 11. On behalf of the respondents it is submitted that the purpose of the departmental inquiry was merely to help the department to come to a definite conclusion regarding the conduct of the delinquent and to decide what penalty, if any, that could be imposed upon him. Even assuming that the charges which the delinquent had been called upon to meet were in substance the same, nonetheless there was no bar for holding the disciplinary proceedings during the pendency of the criminal trial, so the present writ petition filed by the petitioner is misconceived and liable to be dismissed. 12. I have heard the counsel for the parties and perused the record. 13. After hearing the learned counsel for the parties and going through the pleadings on record, I am of the opinion that it is well-settled principle of law that the degree of proof required in a departmental inquiry is vastly different than the degree of proof required to prove a criminal charge. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings and the criminal proceedings are entirely different in nature. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceedings. The Rules relating to the appreciation of the evidence in the two inquiries may also be different. The standard of proof, the mode of enquiry and the Rules governing the enquiry and the trial in both the cases are entirely distinct and different. 14. The law is well-settled that the inquiry officer can come to a different conclusion than arrived at by a Criminal Court and that it is immaterial whether the charges were identical or the witnesses were the same, as long as the power exercised by the criminal Court and the inquiry under the relevant law and the service law was distinct and separate. There is no bar for holding a disciplinary proceeding during the pendency of the trial though the basis may be one and the same. It is for the disciplinary authority to decide as to whether in a given case it should keep the domestic inquiry pending till the outcome of the Criminal trial or not. 15. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 , the Supreme Court held: “It is true that very often employers stay enquiries pending the decision of the criminal trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the Criminal trial Court before taking action against an employee.” and again held: “We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the Criminal case may not be prejudiced.” 16. In the case of R.P. Kapur v. Union of India, AIR 1964 SC 787 , the Hon’ble Supreme Court has held that: “If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable.” 17. Similar view was reiterated by the Supreme Court in Tata Oil Mills’ Co. Ltd. v. Workmen, AIR 1965 SC 155 . 18. In the case of Jang Bahadur Singh v. Baij nath Tiwari, AIR 1969 SC 30 , the legal position was summoned by the Supreme Court as under: “The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceeding. The employee is free to move the Court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of Court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers.” 19. In the case of Corpn. of the City of Nagpur v. Ramchandra, (1981) 2 SCC 714 , the Supreme Court has held that: “6.The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction[discretion] in any way fettered.” 20. In Kusheshwar Dubey v. M/s Bharat Coking Coal Ltd. and others, AIR 1988 SC 2118 , the Supreme Court held that : “there was no legal bar to simultaneous proceedings being taken against an employee even though there may be cases where it may be appropriate to defer the disciplinary proceedings awaiting the disposal of the Criminal case. The Supreme Court held that it was neither possible nor advisable to evolve a hard and fast straiacket formula and that in cases where the charge against the employee was of a grave nature and involved complex questions of law and fact, in that event the disciplinary proceedings could be deferred till the decision of the criminal trial.” 21. In the case of State of Rajasthan v. B.K. Mena and others, 1996(6) SCC 417 , the Supreme Court held that: "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 proceeding 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. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceeding 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 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 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 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 inspite 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 theres proceeding 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. 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 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 a decision taken keeping in view the various principles laid down in the decisions referred to above.” 22. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, 1999(2) AWC 1579 (SC), the Supreme Court held that: “The conclusions which are deductible 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. (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) 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 the 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 vindicatd and in case he is found guilty, administration may get rid of him at the earliest. 23. In State Bank of India and others v. R.B. Sharma, 2004 (3) AWC 2699 (SC), the Supreme Court held that: “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.” 24. In the case of Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764 , the Supreme Court has held that: “11. As far as acquittal of the appellant by a Criminal Court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a Criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot convicted by a Court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a Criminal Court, the impugned order dismissing him from service deserves to be quashed and set-aside.” 25. In G.M. Tank v. State of Gujarat and others, 2006(5) SCC 446 , the Supreme Court has held that: “a criminal complaint was also lodged against the appellant under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act, 1947 which was based on same set of facts, charges, evidence and witnesses. The criminal Court honourably acquitted the appellant of the said offence by holding that the prosecution failed to prove the charges levelled against the appellant. The said order of the trial Court was not further challenged by the State and therefore, it became final and conclusive. Before the Supreme Court, the main contention of the appellant was that there was no evidence against him to hold him guilty. The fact of his honourable acquittal by the trial Court during pendency of challenge to his dismissal order was brought to the notice of the Division Bench of the High Court, but it was not considered by it. Before the Supreme Court, the main contention of the appellant was that there was no evidence against him to hold him guilty. The fact of his honourable acquittal by the trial Court during pendency of challenge to his dismissal order was brought to the notice of the Division Bench of the High Court, but it was not considered by it. On the above facts, it was contended that the dismissal of the appellant was bad in law and, therefore, was liable to be set aside.” 26. The law as enunciated by the Supreme Court leaves no scope for doubt that all said and done, there is no bar for simultaneous proceedings being taken against the delinquent in the form of criminal action and also disciplinary proceedings unless the charges are extremely serious and grave requiring the judicial determination in preference to the verdict in the domestic inquiry proceeding. 27. In the instant case, even though the criminal action and disciplinary proceedings are grounded upon the same sets of fact, in my view, there is no provision of law empowering the Court to stay the departmental proceedings merely because criminal prosecution is pending in the criminal Court. 28. Further, the purpose of the two proceedings are quite different. The object of the department proceedings is to ascertain whether the delinquent is required to be retained in service or not. On the other hand the object of criminal prosecution is to find out whether the offence in the penal statute has been made out or not. Therefore, the area covered by the two proceedings are not identical. 29. Moreover, the object in both the proceedings are different. Whereas the departmental proceedings are taken to maintain the discipline and the efficiency in the service, the criminal proceedings are initiated to punish a person for committing an offence violating any public duty. 30. For the foregoing reasons, the petitioner is not entitled for relief as claimed by him in the present case subsequently there is no merit in the present writ petition, the same is dismissed. No order as to costs. —————