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2014 DIGILAW 876 (GUJ)

V. D. Sharma v. Union of India

2014-08-05

AKIL KURESHI, MOHINDER PAL

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JUDGMENT : AKIL KURESHI, J. 1. The petitioner was a member of Railway Protection Force ('RPF' for short). At the relevant time, he was discharging his duty as an Inspector. On 21.04.2010, a trap was laid against him for demanding bribe from the complainant on the basis of a preliminary complaint being C.R. No. I-3 of 10 was registered at Bharuch ACB Police Station on 20.04.2010. In such complaint, it was alleged that on 12.04.2010, the complainant was called by the petitioner. He was threatened that the complainant was using excess area of the railways than what was granted for parking. If the complainant did not pay Rs.30,000/- of bribe, the petitioner would have his contract cancelled. He, eventually, reduced his demand to Rs.15,000/- but insisted that the same must be paid on 21.04.2010 at his office failing which, he would file cases against him and his contract for parking would be cancelled. Pursuant to such complaint, the trap which was laid, according to the administration, was successful. A charge sheet on completion of the investigation was filed before the competent Court at Bharuch. 2. On account of the petitioner's involvement in the said trap case, the department issued a charge sheet dated 06.01.2011 which contained identical allegations as those in the criminal proceedings. However, department further alleged that, by his conduct, the petitioner had violated Rule 3.1 (i)(ii)and (iii) of the Railway Service Conduct Rules, 1966 and that he had acted in a manner prejudical to the discipline and his conduct has discredited the reputation of the Force. He had acted for his personal gain and his conduct was unbecoming of a railway servant. 3. On the premise that proceedings parallelly in a criminal case as well as in a departmental inquiry would prejudice the petitioner in his defence in the criminal proceedings, the petitioner filed the present petition and prayed for stay against further hearing of the departmental proceedings. 4. Learned advocate Mr. Virat Popat for the petitioner contended that the allegations in the criminal case as well as in the departmental charge sheets are identical. Pending the criminal proceedings, therefore, it would not be appropriate or desirable to proceed with the departmental charge sheet. He further submitted that the petitioner has now crossed the age of superannuation. He, therefore, prayed that the respondents be prevented from proceeding departmentally till the criminal case against the petitioner is pending. Pending the criminal proceedings, therefore, it would not be appropriate or desirable to proceed with the departmental charge sheet. He further submitted that the petitioner has now crossed the age of superannuation. He, therefore, prayed that the respondents be prevented from proceeding departmentally till the criminal case against the petitioner is pending. 5. On the other hand, learned advocate Mr. Karnavat for the Railway administration opposed the petition contending that the case does not involve any complicated question of law or facts. Criminal proceedings may take much longer time. No prejudice would be caused to the petitioner if departmental inquiry is allowed to proceed. 6. The incident involved is one. Obviously therefore, the allegations which formed the foundation of the departmental proceedings and the criminal case would be same. We, therefore, proceed on such basis. However, in order to stay the departmental proceedings pending criminal trial, this itself would not be sufficient. The nature of allegations, the complexity of the law and facts involved and the time likely to be consumed in the criminal case are some of the relevant factors which need to be examined. The prime consideration being whether by allowing the department to proceed further, would the employee who is also an accused in a criminal case be prejudiced in his defense in such criminal case. 7. Such issues have come up before the Supreme Court on number of occasions. In case of Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. and ors. reported in (1988) 4 SCC 319 the Court observed as under: "7. 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. 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 case 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, straight jacket 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." 8. In case of State of Rajasthan v. B.K. Meena and ors., reported in (1996) 6 SCC 417 the Supreme Court observed as under: "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 disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case ad that no hard and fat rules can enunciated in that behalf. The only ground suggested in the above questions as constitution 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. 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 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 these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor 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 misdemeanor 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. It is not also in the interest of administration that persons accused of serious misdemeanor 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. 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 oblique 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." 9. In case of Depot Manager, A.P.State Road Transport Corporation v. Mohd. Yousuf Miya and ors. reported in (1997) 2 SCC 699 referring to its decision in case of State of Rajasthan v. B.K.Meena (supra), the Apex Court observed that: 8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in 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. 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, 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 offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings." 10. In case of Capt. M.Paul Anthony v. Bharat Gold Mines Ltd. and another reported in (1999) 3 SCC page 679 the Supreme Court culled out following principles: "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. (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 vindicated and in case he is found guilty, administration may get rid of him at the earliest. 11. These decisions have been later on referred to and relied upon in number of judgments of the Supreme Court. It is not necessary to refer to all of them in this judgment. 12. Coming to the facts of the case, simple allegations against the petitioner are that he demanded bribe from the complainant who had a contract for parking on railway property. A trap was laid where he was caught accepting bribe. The departmental proceedings cannot be delayed indefinitely awaiting outcome of the criminal case which often times, as we are all aware, likely to take considerable time to complete. 13. In the present case, additional feature is that, as informed to us by the counsel for the petitioner, even the trial has progressed and the petitioner would enter his defense before the trial court shortly. Proceeding further with the departmental inquiry, therefore, no way would prejudice the petitioner in his defense in the criminal case. Considering such facts, petition is dismissed. Rule is discharged. Interim relief stands vacated. Petition dismissed.