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2011 DIGILAW 57 (RAJ)

Hari Prakash Sharma v. Union of India

2011-01-07

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—Heard the learned counsel for the petitioner. 2. By this writ petition, a prayer has been made to stay departmental enquiry pending criminal case on the same charges. 3. Learned counsel for the petitioner submits that if chargesheet for departmental enquiry disclose same charges as exist in the criminal case and in both the cases, evidence to prove the case is same with involvement of complicated questions of law, departmental enquiry needs to be stayed. To substantiate his arguments, references of the judgment of the Hon'ble Apex Court in the case of Indian Overseas Bank, Annasalai and Anr. vs. P. Ganesan and Anr., (2008) 1 SCC 650 ; has been given. The judgments in the case of Hindustan Petroleum Corpn. Ltd. vs. Sarvesh Berry, (2005) 10 SCC 471 , Kendriya Vidyalaya Sangathan and Ors. vs. T. Srinivas, (2004) 7 SCC 442 , the case of SBI and Ors. vs. R.B. Sharma, (2004) 7 SCC 27 = RLW 2004(4) SC 502 and lastly the judgment in the case of Noida Entrepreneurs Association vs. Noida and Ors. (2007) 10 SCC 385 = RLW 2007(4) SC 2790 have also been referred. 4. It is submitted that case in hand fall in the aforesaid category and if the petitioner is asked to make statement or cross-examine the witnesses produced by the management during the course of departmental enquiry, he would require to disclose his defence, effecting his rights in the criminal case. In the present matter, charge sheet for departmental enquiry contains same charges, as exist in criminal case. The evidence is also same apart from involvement of complicated question law, thus departmental enquiry is required to be stayed. 5. I have heard the learned counsel for the petitioner and perused the record as well as the judgments cited as above. 6. Vide Annexure-1, the petitioner was served with charge sheet containing charges that he had accepted of Rs. 35,000/- as illegal gratification. Details of the charges have been disclosed therein. The charge sheet also mentions about registration of criminal case against the petitioner thus, it is no doubt that charges in the departmental enquiry and criminal case are common though at this stage it cannot be said that evidence in both the cases would but common but even if it is presumed to be common, the question comes as to whether departmental enquiry can be stayed only on this count. The aforesaid question was answered in the case of Indian Overseas Bank (supra). The Hon'ble Apex Court analyzing the earlier judgments held that the departmental enquiry can be stayed provided charges and evidence in criminal case and departmental enquiry are common and there exists complicated question of law. Taking aforesaid judgment into consideration, I am require to look into as to whether complicated questions of law arise in this case so as to make out the case for calling interference in the departmental enquiry and to stay the same till disposal of the criminal case. 7. After considering the submissions made by the learned counsel for the petitioner, I do not find involvement of complicated questions of law. What has been urged before me is that if departmental enquiry is allowed to proceed with the examination of the petitioner and to cross examine the management witnesses, petitioner would be required to disclose his defence. The aforesaid cannot be said to be a complicated question of law. The other argument is that merely for the reason that a case under Prevention of Corruption Act has been registered, the departmental enquiry should not be allowed to continue in view of the judgment in the case of Hindustan Petroleum (supra). 8. It is no doubt that mere registration of the case under Prevention of Corruption Act can not mean that a departmental enquiry cannot be stayed. However, it has also to be seen that the case involves complicated questions of law, in absence of which the departmental enquiry cannot be stayed. In my opinion, the present case does not make out any complicated questions of law so as to stay the departmental proceedings pending criminal case. 9. It would be necessary and greatly apt to quote certain paras of the judgments referred to above. Para 18 of the judgment in the case of Indian Overseas (supra) is quoted thus: "Legal position operating in the field is no longer res integra. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter." 10. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter." 10. Perusal of the aforesaid goes to show that, to stay the departmental enquiry, it is required to be looked into firstly that the charges in both the proceedings are common, secondly evidence in both the proceedings are common and thirdly there exist complicated question of law. If all the requirements are satisfied, then departmental enquiry can be stayed till final disposal of the criminal case. 11.In the case of State of Rajasthan vs. B.K. Meena, (1996) 6 SCC 417 = RLW 1997(1) SC 1, it was held:- "The only ground suggested in the decisions of the Supreme Court 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. 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, of staying the departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighted and a decision taken keeping in view the various principles laid down in the Supreme Court's decisions." 12. Even in the case of Hindustan Petroleum (supra), the issue was elaborately discussed after referring to the earlier judgment. Para 8 of the said judgment is quoted here:- "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. Para 8 of the said judgment is quoted here:- "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. 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." 13. In the case of Capt. 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." 13. In the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another; (1999) 3 SCC 679 in para 14 it was held as under: "The first decision of this Court on the question was rendered in Delhi Cloth & General Mills Ltd. vs. Kushal Bhan in which it was observed as under: "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. In Bimal Kanta Mukherjee vs. Newsman's Printing Works this was the view taken by the Labour Appellate Tribunal. 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." 14. In the case of Kendriya Vidyalaya Sangathan (supra), the allegation against the employee was in respect of acceptance of illegal gratification. A similar challenge was made before the Central Administrative Tribunal and therein the disciplinary proceedings were stayed. The order of CAT was challenged before the High Court. The High Court dismissed the writ petition. The Management preferred Special Leave Petition before Hon'ble Supreme Court Considering the charges and nature therein, the Hon'ble Apex Court set-aside the order passed by the Central Administrative Tribunal and of the Hon'ble Court. Para 11 and 13 of the aforesaid judgment is quoted thus:- 11" In the instant case, from the order of the tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. Para 11 and 13 of the aforesaid judgment is quoted thus:- 11" In the instant case, from the order of the tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, reading of the two impugned orders indicates that both the tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the tribunal not the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the appellant in service inspite of such serious charges levelled against him. This Court in the said case of State of Rajasthan (supra) has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that in the disciplinary and different. It held that 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 are established and, if established, what sentence should be imposed upon him. The court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan the facts which seems to be almost similar to the facts of this case held that the tribunal fell in error in staying the disciplinary proceedings." 13. "As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, Hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases." 15. So far as the cases of Noida Entrepreneurs Association and B.K. Meena are concerned, it also propounded the same principles of law, as disclosed above. 16. So far as the cases of Noida Entrepreneurs Association and B.K. Meena are concerned, it also propounded the same principles of law, as disclosed above. 16. In view of the discussions made, I do not find any merit in the writ petition. Accordingly the same is dismissed in limine.