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2017 DIGILAW 238 (JHR)

Md. Shoaib v. State Of Jharkhand

2017-02-03

SHREE CHANDRASHEKHAR

body2017
JUDGMENT Mr. Shree Chandrashekhar, J. – Copy of order dated 09.11.2016 passed in Vigilance Case No. 21 of 2004 has been tendered in the Court. 2. Taken on record. Be tagged at its proper place. 3. Grievance of the petitioner is that the departmental proceeding initiated in the year, 2005 has remained pending for long 12 years without any proceeding. 4. Heard. 5. The petitioner, who was appointed as Store Keeper and posted at Sadar Hospital, Deoghar, superannuated from service on 28.02.2002. A vigilance inquiry vide, Vigilance P.S. Case No. 17 of 2004 registered on 12.10.2004 for offence under Sections 409/120B/420 IPC and under Section 13(1) (d) of the Prevention of Corruption Act, 1988 in which petitioner was one of the accused was started. By letter dated 05.11.2004, the Secretary, Health Department was informed about registration of the criminal case, whereupon by an order dated 13.08.2005 a departmental proceeding was initiated against the accused persons; the petitioner being one of them. The departmental proceeding did not progress at all and after the inquiring officer either superannuated or transferred, another inquiring officer was appointed. It is the appointment of another inquiring officer on 12.12.2014 which gave a cause of action to the petitioner to approach this Court. In the counter-affidavit filed on behalf of the Civil Surgeon-cum-Chief Medical Officer, Deoghar, these facts have not been denied. It is admitted by the respondents that the petitioner was posted as Store Keeper at Sadar Hospital, Deoghar at the relevant time, however, initiation of the departmental proceeding against him has been sought to be justified by taking a stand that he dealt with the files for the purchase of medicines. 6. The learned counsel for the State contends that a departmental proceeding and a criminal trial can continue simultaneously. The test in a criminal trial is beyond reasonable doubt whereas, in the departmental proceeding the test is preponderance of probability and while so, merely because the vigilance inquiry has ended in closure of the case, the departmental inquiry initiated against the petitioner cannot terminate. 7. There is no quarrel to the above proposition, but, the question involved in this case is, whether the materials relied on by the department in support of the charge framed against the petitioner are such that it must proceed, even after closure of the criminal case. 8. 7. There is no quarrel to the above proposition, but, the question involved in this case is, whether the materials relied on by the department in support of the charge framed against the petitioner are such that it must proceed, even after closure of the criminal case. 8. It is an admitted fact that a final form was submitted on 28.11.2011 in Vigilance P.S. Case No. 17 of 2004. After a notice was issued to the complainant, the trial Court passed an order dated 09.11.2016, whereby the proceeding against the accused persons was dropped. The allegation against the petitioner is that he misused his official position and for his personal benefit purchased medicines at a higher rate. This is precisely the allegation in the criminal case. In fact, a reading of the complaint on the basis of which Vigilance P.S. Case No. 17 of 2004 was registered would disclose detailed description of the purchase order, name of the supplier and other details. After conducting investigation in the matter a final report was submitted. It is also pertinent to note that it was the communication dated 05.11.2004 on the basis of which a departmental proceeding was initiated vide order dated 13.08.2005. By that time the petitioner had already superannuated from service. Whether the departmental proceeding could have been initiated against the petitioner after his superannuation or not is not the plea taken by the petitioner in the present proceeding and accordingly, I refrain from returning a finding on this issue. It is a fact that along with Prapatra-K (charge-memo) the only document in support of the charge framed against the petitioner is letter dated 05.11.2004 of the Vigilance Bureau. In the counter-affidavit the respondents have not disclosed any other material against the petitioner. It also stands admitted that the departmental proceeding did not progress at all; no witness has been examined by the department in these 12 years. The petitioner has raised a grievance to continuation of the departmental proceeding even 15 years after his superannuation. The respondent-State has failed to plead any reason for continuance of the departmental proceeding, without any proceeding. In the aforesaid facts, I am of the opinion that the continuance of the departmental proceeding against the petitioner would be an abuse of the process of law. The respondent-State has failed to plead any reason for continuance of the departmental proceeding, without any proceeding. In the aforesaid facts, I am of the opinion that the continuance of the departmental proceeding against the petitioner would be an abuse of the process of law. No doubt, a departmental proceeding can continue simultaneously with the criminal trial and merely because a criminal trial has ended in acquittal/closure, the same may not be a ground for closure of the departmental proceeding, however, in view of the evidence sought to be produced by the department in support of the charge framed against the petitioner, I am of the opinion that after the criminal proceeding in Vigilance Case No. 17 of 2004 was dropped, the departmental proceeding against the petitioner must terminate. In the instant case, no adjudication on complicated questions of fact is required. In fact, vigilance inquiry was the sole basis for initiation of the departmental proceeding. [ Capt. M. Paul Anthony v. Bharat Gold Mines Ltd." (1999) 3 SCC 679 ]. 9. In the light of the above discussions, the impugned order dated 12.12.2014 is quashed. Consequently, the departmental proceeding initiated against the petitioner vide order dated 13.08.2005 shall terminate. The writ petition stands allowed, in the aforesaid terms.