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2016 DIGILAW 1660 (JHR)

Dhananjay Prasad v. Central Coalfields Limited

2016-12-13

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has sought for quashing the order dated 24.11.2015 (Annexure-5), whereby a decision has been taken by the respondent no. 3 to hold enquiry in terms of Clause 28.1 of the Certified Standing Order and further prayer has been made for stay of the further departmental proceedings and the petitioner has further prayed for payment of arrears of salary. 2. The facts, as disclosed in the writ application, in a nutshell are that initially the petitioner was appointed on the post of Accounts Trainee at Regional Store under the Respondent no. 1. In course of time, the petitioner was promoted to the post of the Assistant Store Keeper and Store Keeper. While continuing on the post of the Store Keeper, a complaint, First Information Report dated 24.04.2012 was registered against the petitioner under Sections 13 (2) read with Section 13 (1) (e) of the Prevention of Corruption Act and after thorough enquiry, the C.B.I. submitted charge sheet against the petitioner on 31.05.2013. The allegations in the charge sheet pertains to acquisition of disproportionate assets. The petitioner was taken into custody in connection with the First Information Report, dated 24.04.2012, but ultimately, vide order passed in Special Leave of Appeal (Cr.) No. 390 of 2015 by the Hon’ble Apex Court, the petitioner was enlarged on bail. Thereafter, the petitioner submitted his joining before the respondent No. 3, but, in stead of accepting his joining report, the respondent No. 4 issued a Charge-sheet against the petitioner on the allegation of committing misconduct within the meaning of Clause-26.15 and 22.22 of the Certified Standing Order of the respondent No. 1. After receipt of the charges, the petitioner submitted his reply denying and disputing the allegations made in the Charge-sheet. The respondent No. 3 vide the impugned order dated 24.11.2015 decided to initiate Departmental proceeding against the petitioner and appointed the respondent No. 4 as enquiry Officer. Due to initiation of the departmental proceedings which is identical to the criminal case, the petitioner left with no alternative has been constrained to approach this Court for redressal of his grievances. 3. Learned counsel for the petitioner has submitted with vehemence that the sole ground for initiation of the departmental proceeding is the pendency of a criminal case before the Court of law. 3. Learned counsel for the petitioner has submitted with vehemence that the sole ground for initiation of the departmental proceeding is the pendency of a criminal case before the Court of law. Learned counsel for the petitioner further submits that the allegation of misconduct alleged in the charge-sheet being subject-matter of a criminal trial, cannot run parallel in view of the settled principles of law law laid down by the Hon'ble Apex Court. Learned counsel for the petitioner further submits that the allegations as well as the nature of evidences being same and identical in criminal trial as well as Disciplinary proceedings, the decision for initiation of Departmental proceeding is not sustainable in the eye of law. It has also been submitted by the learned counsel that the charge sheet suffers from the vices of nonconsideration of Clause 26.15 and 26.22 of the Certified Standing Order of the respondent No. 1 and moreover, the allegations imputed against the petitioner do not constitute any misconduct within the meaning of Clause 26.15 and 22.22 of the Certified Standing Order so as to justify the continuance of the Disciplinary proceedings and therefore, the impugned proceeding is against the provisions of Article 14 of the Constitution of India. Learned counsel for the petitioner further submits that due to continuance of departmental proceeding, the very defence will be disclosed. It has been further submitted that the witnesses are common in criminal case and departmental proceedings and therefore, in the interest of justice, departmental proceedings ought to be stayed and the disclosure of defence would lead to serious consequences and therefore, the petitioner is entitled to be protected against all prejudice. He further submits that if the departmental proceeding is allowed to continue, the defence will be disclosed, which would have an impact on the criminal case. Learned counsel for the petitioner further argues that it is the settled principle of law that the departmental proceeding can be stayed, while the criminal case is pending. In this respect, the learned counsel for the petitioner has referred to the decision reported in (1999) 3 SCC 679 , in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another and (ii) L.P.A. No. 265 of 2016 in the case of Subrato Sengupta-versus-State Bank of India & Ors. In this respect, the learned counsel for the petitioner has referred to the decision reported in (1999) 3 SCC 679 , in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another and (ii) L.P.A. No. 265 of 2016 in the case of Subrato Sengupta-versus-State Bank of India & Ors. By referring to the said judgments, the learned counsel for the petitioner has submitted that since the criminal case and the departmental proceedings are based on similar facts and the witnesses being the same, the departmental proceedings ought to be stayed. 4. Learned counsel for the respondents has vociferously submitted that in a catena of judgments, the Hon'ble Supreme Court has been pleased to, inter alia, hold that the pendency of the criminal case against an employee in respect of same matter is no bar to initiate the disciplinary proceeding. It is admitted position that the criminal proceeding takes much longer time and it will therefore, not be possible to stop domestic enquiry till conclusion of the criminal proceeding. Learned counsel for the respondents further submits that it is a well settled law that both the departmental proceeding and criminal proceedings can run concurrently and mere pendency of the criminal trial cannot be a ground to stop the departmental proceeding as the petitioner has failed to show any prejudice on account of departmental proceedings carried out against him. Learned counsel for the respondent further submits that the petitioner has also failed to adduce the similarity of the allegations made to him in the departmental charge sheet issued to him with that of the charge sheet filed by the prosecuting agency before the Trial court as also the evidences to be adduced in both the proceedings i.e. departmental proceeding and the criminal proceeding. Moreover, the enquiry is at the advanced stage. Learned counsel for the respondent further submits that the very defence, which has already 19 sittings till filing of the writ application, have already been held and the enquiry is at the advanced stage, therefore, it would not be in the fitness of things to stay the departmental proceedings. In support of his contentions, learned counsel for the respondents has referred to the decision rendered in the case of Hindustan Petroleum Corporation Limited & Ors.-versus-Sarvesh Berry reported in (2005) 10 SCC 471 , paras 13 and 14. 5. In support of his contentions, learned counsel for the respondents has referred to the decision rendered in the case of Hindustan Petroleum Corporation Limited & Ors.-versus-Sarvesh Berry reported in (2005) 10 SCC 471 , paras 13 and 14. 5. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents and the learned counsel for the respondents has reiterated the submissions made in the counter affidavit. 6. From perusal of the respective submissions, the moot question, which falls for determination by this Court, is as to whether the departmental proceedings initiated against the petitioner is liable to be stayed till conclusion of the criminal proceedings. 7. After going through the records, it appears that the allegations made in the criminal proceedings and also in the departmental proceedings are identical, but, on perusal of the decisions cited by the learned counsel for the petitioner, in my considered opinion, there cannot be a straight jacket formula to deal with such a situation. Ruled out, in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another, as reported in (1999) 3 SCC 679 , especially at paragraph no. 22, the Hon'ble Supreme Court has held as under: “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, the administration may get rid of him at the earliest.” Dealing with same issue, Hon’ble Apex Court in its recent decision in the case of Stanzen Toyotetsu India Private Limited-versus-Girish V. and others reported in (2014) 3 SCC 636 , at paragraph 16 of the judgment has been pleased to inter alia hold as under: - “16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases wher the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees.” The question, which are deducible from the above referred decision is as to whether the departmental proceedings and criminal proceedings can proceed simultaneously, as there is no bar. 8. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees.” The question, which are deducible from the above referred decision is as to whether the departmental proceedings and criminal proceedings can proceed simultaneously, as there is no bar. 8. Therefore, from the judgments referred above, I find that it can be safely concluded that there is no hard and fast rule to stay departmental proceeding during pendency of the criminal proceeding, but, it is well settled that the nature of evidence to prove one's guilt in departmental proceeding is different and distinct from the criminal trial. In a criminal trial to bring home the charges, one has to prove the same beyond all reasonable doubts, but so far as in a departmental proceeding, on the basis of preponderance of probability, on finding of guilt, a delinquent employee can be punished. Notwithstanding the fact that the charges in both the proceedings are same and identical, but, in a departmental proceeding, the action of a delinquent employee may constitute an act of indiscipline, so as to come within the ambit of misconduct, which is subversive to discipline and detrimental to the interest of the Company, such misconduct can only be adjudicated in a departmental proceedings. Therefore, in my considered view, the continuance of departmental proceeding ought not to be stayed notwithstanding pendency of criminal case of similar nature. 9. Viewed thus, the writ petition, sans merit, is dismissed. Prtition dismissed.