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2016 DIGILAW 1257 (GUJ)

Suresh Nathalal Rathod v. Union of India

2016-07-05

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 08.04.2016 passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "Tribunal") in Original Application No. 322/2015 by which the learned Tribunal has dismissed the said Original Application and refused to quash and set aside the disciplinary proceedings/Charge Memorandum and the Notice of Inquiry issued by the Inquiry Officer, the original applicant has preferred the present Special Civil Application under Articles 226/227 of the Constitution of India. 2. Facts leading to the present Special Civil Application in nut-shell are as under: 2.1 That in the year 2010, the petitioner was serving as Enforcement Officer at Sub-Regional Office, Employees' Provident Fund Organization, Vapi. A trap was laid on 18.05.2010 by the Anti-Corruption Department and the petitioner was caught red-handed while accepting bribe of Rs. 1,50,000/-. As a result of the same, he was arrested and was both, in police custody as well as the judicial custody. That in connection with the aforesaid incident, an FIR being CR No. I-12/2010 came to be lodged before the Surat City ACB Police Station on 19.05.2010. That thereafter, after thorough investigation, a charge-sheet has been filed against him before the learned Special Sessions Court, Surat and the trial against the petitioner for the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") is pending. Charges are yet to be framed by the learned Sessions Court. 2.2 That the petitioner was released on bail. The petitioner was also placed under suspension with effect from 18.05.2010 and later on the same was revoked and was given posting at Sub-Regional Office, New Delhi by order dated 13.08.2014. That thereafter the petitioner has been given posting at Sub-Regional Office of the EPF Organization, Rajkot. 2.3 That thereafter the petitioner has been served with the office Memorandum dated 12.05.2015 whereby he has been served with the list of documents and the list of witnesses along with Article of Charges. That the petitioner was called upon to furnish his defence statement in writing. That the petitioner submitted defence statement in writing on 17.06.2015 and denied all the Article of Charges. That thereafter by an order dated 08.07.2015, the CPF Commissioner, New Delhi has appointed the Inquiry Officer, One Smt. Nisha as Inquiry Authority to inquire into the charges framed against the petitioner. That the petitioner submitted defence statement in writing on 17.06.2015 and denied all the Article of Charges. That thereafter by an order dated 08.07.2015, the CPF Commissioner, New Delhi has appointed the Inquiry Officer, One Smt. Nisha as Inquiry Authority to inquire into the charges framed against the petitioner. It is the case on behalf of the petitioner that thereafter pursuant to the notice given by the Inquiry Officer of preliminary hearing on 17.07.2015, he remained present before the Inquiry Officer. However, the petitioner also submitted by writing to the CPF, New Delhi on 08.03.2015 making a grievance that he has not been served with the copy of the documents demanded earlier and therefore, it was requested to stay the inquiry till the time the copy of the documents sought for by the petitioner is made available to him. That thereafter departmental inquiry commenced on 07.08.2015 at Vapi. The petitioner remained present. According to the petitioner on representation being made by the petitioner that he was unable to deal with the charges leveled against him in absence of any documents furnished by the authorities as demanded by him in his letter dated 17.06.2015, an order was passed directing the Presenting Officer to offer inspection of listed documents and supply certified copies of the same to the petitioner. That thereafter there were further correspondences by the petitioner. Thereafter the hearing of the inquiry was held on 30.09.2015 at Vapi. The Presenting Officer submitted the listed documents. That thereafter the departmental inquiry came to be adjourned/postponed from time to time. That thereafter the petitioner requested to stay the proceedings of the departmental inquiry till the outcome of the pending criminal case which was not accepted by the department and the Disciplinary Authority. Therefore, the petitioner approached the learned Tribunal by way of O.A. No. 322/2015 challenging the disciplinary proceedings, Memorandum of Charges, Notice issued by the Inquiry Officer etc. and to restrain the respondent - EPF authorities from proceeding in the departmental inquiry against him. 2.4 That by impugned judgment and order the learned Tribunal has dismissed the O.A. which has given rise to the present petition filed by the petitioner under Articles 226/227 of the Constitution of India. 3. and to restrain the respondent - EPF authorities from proceeding in the departmental inquiry against him. 2.4 That by impugned judgment and order the learned Tribunal has dismissed the O.A. which has given rise to the present petition filed by the petitioner under Articles 226/227 of the Constitution of India. 3. Shri A.J. Yagnik, learned advocate appearing on behalf of the petitioner has vehemently submitted that in the present case the initiation of departmental inquiry during the pendency of the criminal case is illegal, bad in law inasmuch as the same would cause serious prejudice to the case of the petitioner in the criminal trial. 3.1 It is further submitted by Shri Yagnik, learned advocate appearing on behalf of the petitioner that genesis of the case is the same in criminal case as well as in the departmental inquiry, the evidences and witnesses which are likely to be recorded both in the criminal trial as well as departmental inquiry, are going to be the same. It is submitted that therefore, if the evidence that may be adduced on the record and statement/deposition of the witnesses which are going to be recorded in the departmental inquiry may be used for the purpose during the course of the criminal trial, it would cause serious prejudice to the petitioner and the petitioner would not be in a position to get just and fair trial. 3.2 It is further submitted by Shri Yagnik, learned advocate appearing on behalf of the petitioner that in domestic inquiries, the final decision will be based on preponderance of probabilities and due to which serious prejudice will be caused to the petitioner. It is further submitted by Shri Yagnik, learned advocate appearing on behalf of the petitioner that the charges leveled against the petitioner both in the criminal proceedings as well as in the departmental proceedings are of a serious nature and further that the charges in the departmental proceedings may, on conclusion result in imposition of a major penalty being grave consequences of the petitioner. It is submitted that therefore the petitioner would greatly stand prejudiced by disclosing his defence in the departmental proceedings before he does so in the criminal trial. It is submitted that therefore the petitioner would greatly stand prejudiced by disclosing his defence in the departmental proceedings before he does so in the criminal trial. 3.3 Shri Yagnik, learned advocate appearing on behalf of the petitioner has heavily relied upon the following decisions of the Hon'ble Supreme Court in support of his above prayer and in support of his prayer to quash and set aside the impugned departmental proceedings. "1. State of Rajasthan v. B.K. Meena and Ors., (1996)6 SCC 417 2. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., (1999)3 SCC 679 " 3.4 In the alternative Shri Yagnik, learned advocate appearing on behalf of the petitioner has requested to direct the authority to stay the departmental proceedings till the criminal case/trial is concluded. Making above submissions and relying upon above decisions it is requested to allow the present Special Civil Application and quash and set aside the impugned departmental proceedings and/or in the alternative to stay the departmental proceedings till the conclusion of the criminal trial. 4. Present petition is vehemently opposed by Shri Joy Mathew, learned advocate appearing on behalf of the respondents. It is vehemently submitted by Shri Mathew, learned advocate appearing on behalf of the respondents that in the facts and circumstances of the case and looking to the charges leveled against the petitioner and after considering the decision of the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. & Ors. v. Sarvesh Berry reported in (2005)10 SCC 471 ; Kendriya Vidyalaya Sangathan & Ors. v. T. Srinivas reported in 2005 (1) GLH 565 and by giving cogent reasons the learned Tribunal has not committed any error in dismissing the original application and refusing to quash and set aside the charges/departmental proceedings. Making above submissions and relying upon above decisions, it is requested to dismiss the present petition. 5. Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned Tribunal dismissing the original application and refusing to quash and set aside the charge-sheet/departmental proceedings. Making above submissions and relying upon above decisions, it is requested to dismiss the present petition. 5. Heard learned advocates appearing for respective parties at length. We have perused the impugned judgment and order passed by the learned Tribunal dismissing the original application and refusing to quash and set aside the charge-sheet/departmental proceedings. 5.1 At the outset it is required to be noted that the petitioner sought for quashing and setting aside the departmental proceedings mainly on the ground of pendency of the criminal proceedings and on the ground that witnesses in both criminal trial as well as departmental proceedings are common and/or the same and the charge in the criminal trial and the departmental proceedings is also the same. Therefore, it was the case on behalf of the petitioner herein that there cannot be any simultaneous proceedings with respect to the same charge; both in criminal trial as well as departmental proceedings. 5.2 However, it is required to be noted that as such the petitioner was serving as Enforcement Officer and a charge has been filed against him for the offence under Section 13(1)(d) of the PC Act. That in a trap which was led on 18.05.2010 by the Anti Corruption Bureau, the petitioner was caught red-handed while accepting bribe of Rs. 1,50,000/-. That after thorough investigation a charge-sheet has been filed against him before the Special Sessions Court, Surat on 19.05.2012 by ACB and the same is pending on the file of learned Special Sessions Judge, Surat. That thereafter a departmental proceeding shall be initiated against the petitioner by issuing memorandum dated 12.05.2015. The specific charge against the petitioner is as under: "That the said Sh. Sureshbhai Nathalal Rathod, EO while working as Enforcement Officer at Sub-Regional Office, Vapi during the year 2010 allegedly inspected M/s. AMAR Remedies on 20.01.2010 but did not submit any report till 18.05.2010. Sh. Rathod allegedly suppressed the fact of PF evasion by the establishment detected by him after verification of the records with ulterior motives of obtaining illegal gratification from the said establishment. Sh. Rathod allegedly demanded a bribe of Rs. 1,50,000/- from Shri Karanbhai Lalitbhai Shah, the Chief Accountant cum Liaison Officer of AMAR Remedies for submitting a favourable report in respect of the said establishment in the matter of evasion of PF dues. He allegedly accepted Rs. Sh. Rathod allegedly demanded a bribe of Rs. 1,50,000/- from Shri Karanbhai Lalitbhai Shah, the Chief Accountant cum Liaison Officer of AMAR Remedies for submitting a favourable report in respect of the said establishment in the matter of evasion of PF dues. He allegedly accepted Rs. 50,000/- as bribe on 15.05.2010 and was caught red handed in the office of M/s. Amar Remedies, Surat on 18.05.2010 Silvasa by ACB Surat while accepting illegal gratification of Rs. 1,00,000/- from Shri Karanbhai Lalitbhai Shah. Further Sh. Rathod did not indicate in the tour diary of January 2010 about his visit to the establishment. He after his arrest on 18.05.2010 had submitted a report dated 21.06.2010 about huge evasion and non-deposit of PF dues. He thus not only suppressed the facts of his visit to the establishment but also suppressed the fact of PF evasion by the establishment with ulterior motive." 5.3 That the petitioner replied to the Charge Memorandum by filing written statement of defence on 17.06.2015. It appears that on perusal of the written statement of defence of the petitioner, not being satisfied with the same, the respondents have taken a decision to proceed with the inquiry. That the Inquiry Officer was appointed and at that stage the petitioner approached the learned Tribunal to quash the Charge Memorandum dated 12.05.2015. 5.4 Now, considering the aforesaid charge it appears that it is alleged against the petitioner not only with respect to accepting Rs. 1,00,000/- Rs. 1,50,000/- towards illegal gratification but the charge is that while he was serving as Enforcement Officer, Sub-Regional Office, Employees' Provident Fund Organization, Vapi during the year 2010, allegedly inspected M/s. Amar Remedies on 20.01.2010 but did not submit any report till 18.05.2010. He suppressed the fact of PF evasion by the establishment detected by him after verification of the records with ulterior motives of obtaining illegal gratification from the said establishment; he did not indicate in the tour diary of January 2010 about his visit to the establishment and after his arrest on 18.05.2010 had submitted a report dated 21.06.2010 about huge evasion and non-deposit of PF dues. Thus, it is alleged that not only he suppressed the facts of his visit to the establishment but also suppressed the fact of PF evasion by the establishment with ulterior motive. Thus, it is alleged that not only he suppressed the facts of his visit to the establishment but also suppressed the fact of PF evasion by the establishment with ulterior motive. Considering the aforesaid charge/s it cannot be said that the charge against the petitioner in the criminal trial and in the departmental proceedings are the same. From the aforesaid it can be said that charges against the petitioner in the departmental proceedings can be said to be different and not only with respect to accepting the bribe of Rs. 1,50,000/-. Under the circumstances and in the facts and circumstances of the case, the submission on behalf of the petitioner that simultaneous proceedings i.e. criminal trial and the departmental proceedings cannot be permitted to go, cannot be accepted. Even otherwise the law on simultaneous criminal proceedings as well as the departmental proceedings are now not res integra. 5.5 In the case of State of Bank of India and Ors. v. R.B. Sharma reported in (2004)7 SCC 27 while quashing and setting aside the High Court's order staying departmental inquiry on the ground of on-going the criminal proceedings the Hon'ble Supreme Court has observed that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. In the case of Sarvesh Berry (Supra), in paras 7 to 12, the Hon'ble Supreme Court has observed and held as under: "7. It is fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the Court has to decide, taking into account special features of the case, whether simultaneous continuance of both would be proper. 8. The purposes 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 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 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. 9. A three-Judge Bench of this Court in Depot Manager, A. P. SRTC v. Mohd. Yousuf Miya analysed the legal position in great detail on the above lines. 10. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena. 11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. A three-Judge Bench of this Court in Depot Manager, A. P. SRTC v. Mohd. Yousuf Miya analysed the legal position in great detail on the above lines. 10. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena. 11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. 12. In Capt. M. Paul Anthony's case this Court indicated some of the fact-situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: "22. (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, the administration may get rid of him at the earliest." 5.6 In the case of T. Srinivas (Supra) and after considering the decision of the Hon'ble Supreme Court in the case of B.K. Meena (Supra) and Capt. M. Paul Anthony (Supra), the Hon'ble Supreme Court has observed that initiation of departmental inquiry cannot be stayed looking to the seriousness of the misconduct. In the case before the Hon'ble Supreme Court the government employee was also facing criminal trial on charges of corruption under the PC Act. In the said decision the Hon'ble Supreme Court has further observed that stay of departmental proceedings should not be a matter of course. 5.7 In the case of Capt. M. Paul Anthony (Supra) in para 22 the Hon'ble Supreme Court has concluded as under: "22. (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 vindicated and in case he is found guilty, the administration may get rid of him at the earliest." 5.8 Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of B.K. Meena (Supra) by the learned advocate appearing on behalf of the petitioner is concerned, as such the observations made by the Hon'ble Supreme Court in paras 14 to 16 would go against the petitioner and/or would not be of any assistance to the petitioner, rather it would assist the department. 5.9 Considering the aforesaid facts and circumstances and more particularly as observed hereinabove, even the charge in the departmental inquiry and the charge in the criminal trial as such can be said to be different (as noted hereinabove). The prayer of the petitioner either to quash and set aside the impugned charge-sheet/charge memo or to stay the departmental proceedings till the criminal proceedings are concluded, cannot be accepted. The learned Tribunal has rightly dismissed the original application. We are in complete agreement with the view taken by the learned Tribunal. We see no reason to interfere with the impugned order passed by the learned Tribunal rejecting the original application and refusing to quash and set aside the charge memo. 6. In view of the above and for the reasons stated above, present petition deserves to be dismissed and is, accordingly, dismissed. Notice/Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith.