Food Corporation of India & Ors. vs Kavi

Facts:

“6.

That, in pursuant to the memorandum of charges the petitioner filed his reply stating inter alia on the basis of allegation made in the FIR, Departmental Proceeding has been initiated against him, accordingly, he prayed not to proceed with the Departmental Proceeding and criminal case are same and akin though his name does not find lace in the FIR. It is humbly submitted that without considering his show cause reply the Opposite Party No.2 (General Manager (Region), Food Corporation of India) is taking steps to conclude the Departmental Proceeding by imposing punishment on the petitioner. If the Departmental Proceeding will be concluded prior to disposal of the criminal case then the petitioner will suffer irreparable loss and injury which cannot be compensated by any means.

7.

That as would be evident from the criminal case and charges in Departmental Proceeding, both are same and akin. Hence Departmental Proceeding has been initiated basing on the allegation made in the FIR which has led to criminal case. The foundation for initiation of Departmental Proceeding is the allegations made in the criminal case.

8.

That since the witnesses and documents in the Departmental Proceeding and criminal proceeding to be relied upon are same and akin the petitioner prayed before the authority to stay the Departmental Proceeding till conclusion of criminal proceeding on the ground that if he discloses his defence in the departmental proceeding the prosecution will take advantage of it and utilize the same in the criminal proceeding which will be detrimental to his defence in the criminal proceeding. It is the settled position of law when on the self-same charges the departmental proceeding and criminal proceeding are initiated the departmental proceeding should wait till conclusion of the criminal proceeding in the interest of justice, otherwise the delinquent officer will be prejudiced. When the settled position of law is like thus and on the basis of the said position of law the petitioner approached the authorities to stay the proceeding till conclusion of the criminal proceeding but no one has paid any to heed her (his) grievance on the other hand the enquiry officer is very much interested to conclude the enquiry at an earliest date.”

“It is therefore humbly prayed that this Hon‟ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs:

i)

To quash the memorandum dated 04.08.2025 under Annexure-2.

ii) To direct the Opposite Party No.2 not to proceed with the Memorandum dated 04.08.2025 under Annexure-2 till conclusion of the DSPE, CBI, ACB, Bhubaneswar P.S.case No. RC09(A)/2024-BBS (RC01520224A0009) dated 03.09.2024 pending in the court of learned Judge, CBI, Bhubaneswar.

iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice.

And for this act of kindness, the petitioner as in duty bound shall ever pray.”

“4.

It is accordingly contended that pending disposal of the CBI proceeding, the disciplinary proceeding be stayed.

5.

Learned Counsel for the Corporation on the other hand contended that there is no bar for continuance of both the proceedings, even though the charges are same.

6.

Having heard learned counsel appearing for the Parties and considering the submissions made and the fact that both the proceedings have been initiated on selfsame charges, this Court while disposing the Writ Petition, observes that the disciplinary proceeding initiated vide Memorandum dated 04.08.2025 under Annexure-2 may continue, but no final order will be passed, till disposal of the CBI proceeding. Learned CBI, Bhubaneswar Judge is directed to expedite the trial of DSPE, CBI, ACB, Bhubaneswar, P.S. Case No.RC09(A)/ 2024-BBS (RC0152024A0009) dated 03.09.2024.

7.

With the aforesaid observations and directions, the Writ Petition stands disposed of.”

“In the light of the fact and circumstances narrated above it is prayed that this Hon‟ble court may graciously be pleased to admit the writ appeal, call for records and after hearing the parties be pleased to allow the appeal by setting aside the impugned judgement dated 04.02.2026 passed by this Hon‟ble Court in its Single Bench in W.P.(C) No 3337 of 2026 as under Annexure-1;

And be further pleased to allow the present Appellant to continue with the Departmental Proceeding initiative vide Memorandum dated 04.08.2025 vide Annexure-2 following the due procedure of law and conclude the same at the earliest;

And may further be pleased to pass any other Order(s), Writ(s), Direction(s) as deemed fit and proper in the facts of the case;

And for this act of kindness, the Appellant shall as in duty bound ever pray.”

Hearing:

Contentions and arguments advanced by the counsel:

“It is fairly well-settled position in law that on∑ lhsic 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.

The purpose of departmental enquiry and of prosecution are 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. A three-judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation Vrs. Mohd. Yousuf Miya and Ors., (1997) 2 SCC 699 analysed the legal position in great detail on the above lines. The aforesaid position was also noted in State of Rajasthan Vrs. B.K. Meena, (1996) 6 SCC 417. There can be no straight jacket 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.

This question, as observed earlier, is of a perennial nature and has arisen more often than not in spite of the judicial pronouncements, specially by this Court, having settled the question and provided the answer. Still, the problem is raised either by the employer or by the employee in one or the other form. In the instant case, the order of dismissal had already been passed before the decision of the criminal case which ultimately resulted in the acquittal of the appellant. Whether the acquittal coupled with other circumstances, specially ex parte proceedings, of the case, will have the effect of vitiating the departmental proceedings or the order of dismissal passed against the appellant, is the question which is to be considered in this appeal.

13.

As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance. ***

19.

The entire case-law was reviewed once again by this Court in State of Rajasthan Vrs. B.K. Meena, (1996) 6 SCC 417 wherein it was laid down 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 to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions 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. 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., AIR 1960 SC 806 = (1960) 3 SCR 227 and Tata Oil Mills, AIR 1965 SC 155 = (1964) 7 SCR 555 is also not 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 considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite 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 undesirable elements are thrown out and any charge of misdemeanour 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 misdemeanour 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.”

1.

The “advisability”, “desirability” or “propriety” of staying the departmental proceedings “go into the scales while judging the advisability or desirability of staying the disciplinary proceedings” merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.

2.

One of the contending considerations would be that the disciplinary enquiry cannot — and should not be — delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings. ***

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.

(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. ***

34.

There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant's residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

35.

Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.”

“27.

In Ajit Kumar Nag Vrs. G.M. (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764 this Court in para 11 held as under:

„11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ‘beyond reasonable doubt’, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ‘preponderance of probability’. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.‟

28.

This Court in Depot Manager, APSRTC Vrs. Mohd. Yousuf Miya, (1997) 2 SCC 699 in para 8 held as under:

„The purpose of departmental enquiry and of prosecution are 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 (sic 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 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. In this case, … the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings.‟

***

31.

In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case, (1999) 3 SCC 679 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.

32.

In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 08.02.1979 and got subsistence allowance of Rs 700 p.m. i.e. 50% of the salary. On 15.10.1982 dismissal order was passed. The appellant had put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February 1986. On the basis of the same charges and the evidence, the department passed an order of dismissal on 21.10.1982 whereas the criminal court acquitted him on 30.01.2002. However, as the criminal court acquitted the appellant on 30.01.2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30.01.2002. But by then, the appellant had retired, therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension.”

“Effect of Acquittal in the Criminal Proceeding— Question No. 2:

***

25.

Expressions like “benefit of doubt” and “honorably acquitted”, used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.

26.

We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, “not proved”— in fact the charge even stood “disproved” by the very prosecution evidence. As held by this Court, a fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “not proved” when it is neither “proved” nor “disproved” [See Vijayee Singh and Others Vrs. State of U.P., (1990) 3 SCC 190].

27.

We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra).

28.

Apart from the above, one other aspect is to be noted. The Enquiry Officer‟s report makes a reference to the appellant passing 10th standard, and to a 10th standard marksheet exhibited as Exh. P-4 referring to the date of birth as 24.07.1974. Jagdish Chandra-PW1 (in the departmental enquiry) clearly deposed that since the appellant was regularly absent from Class 10, his name was struck off and he did not even pass 10th standard. The appellant has also come out with this version before the disciplinary authority, stating that the 10th class certificate of Ram Lal produced before the Enquiry Officer, is of some other Ram Lal.

29.

This issue need not detain us any further because it is not the case of department that the appellant sought employment based on 10th standard marksheet. It is their positive case that the appellant sought employment on the basis of his 8th standard marksheet. Shravan Lal-PW-4 in the departmental enquiry had also furnished the 10th standard marksheet procured from the Secondary Education Board, Ajmer. In cross-examination, on being asked, he admitted that the appellant was recruited on the basis of 8th standard marksheet, and he admitted that there was no alteration in the 8th standard marksheet.

30.

In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and 25.06.2008 refusing to reconsider and review the penalty respectively, are all illegal and untenable.”

“50.

The judgment acquitting the appellant reveals that the prosecution “miserably failed to prove its case beyond reasonable doubt” as both the informant and PW-2 refused to identify the appellant in court. This discussion confirms that the appellant‟s acquittal was based not on mere technicalities. In Ram Lal, (2024) 1 SCC 175, this Court held that terms like “benefit of doubt” or “honourably acquitted” should not be treated as formalities. The Court‟s duty is to focus on the substance of the judgment, rather than the terminology used.

51.

That apart, it is noteworthy that in course of the inquiry PW-2 had also declined to identify the appellant during cross-examination, and the informant was not called as a witness in the disciplinary proceedings. This sort of creates a parallel between the circumstances in both the criminal and disciplinary proceedings.

52.

Besides, the appellant’s case is strengthened by the principle of adverse inference. It can be reasonably inferred that the respondents deliberately withheld the scanned copy of the departmental file, which was essential for us to assess whether the charges, witnesses, evidence, and circumstances in both the criminal and departmental proceedings were substantially similar or identical, likely due to concerns over the potential adverse consequences.

53.

In light of the preceding discussion and the adverse presumption that is available to be drawn, we hold that the finding of the appellant being guilty of charge No.1 cannot be sustained following his acquittal in the criminal proceedings, which seem to have involved substantially similar or identical charges, evidence, witnesses, and circumstances.

55.

Law is trite that while exercising its powers under Articles 226 and 227 of the Constitution, the High Court does not exercise powers that are available to an appellate court. It is the decision-making process that falls for scrutiny. Be that as it may, the High Courts can rectify errors of law or procedural irregularities, if any, that lead to a manifest miscarriage of justice or breach of the principles of natural justice. Law is also well-established that the standards for establishing a guilt in disciplinary proceedings differ from those applicable to criminal proceedings. However, it is equally true that departmental authorities are obligated to provide a fair opportunity to the parties involved, and what constitutes a fair opportunity must be determined based on the facts and circumstances of each case, as has been laid down in State of Mysore Vrs. Shivabasappa Shivappa Makarpur, AIR 1963 SC 375.

56.

It is well-established that any action resulting in penal or adverse consequences must be consistent with the principles of natural justice. To sustain a complaint of natural justice violation, based on lack of opportunity for cross-examination, the party alleging the violation must show that prejudice was caused, as affirmed by this Court in L.K. Tripathi Vrs. State Bank of India, AIR 1984 SC 273.

57.

Upon perusal of the decisions of this Court in the preceding paragraphs, it is evident that the denial of the right to cross-examine PW-1 caused prejudice to the appellant, who should have been afforded the opportunity for cross-examination for three reasons: first, had PW-1 been cross-examined, particularly regarding the appellant‟s claim of personal animosity, it is plausible that such examination could have influenced the Inquiry Officer‟s findings, potentially leading to a different conclusion; second, the Inquiry Officer placed significant reliance on PW1‟s testimony to substantiate proof of the charges against the appellant which could have been demolished had a chance of cross-examination been extended; and third, PW-2, the only other witness, refused to identify the appellant during cross-examination.

58.

Further, we observe that the Inquiry Officer and the respondents 5, 4, and 2 have compromised their ability to reach a fair conclusion by considering factors extraneous to the evidence and merits of the case, viz., the fact that charge 2 was made part of the charge-sheet although the appellant had been punished therefor previously.

59.

Also, the Inquiry Officer and the respondents 5, 4, and 2 have disregarded that the informant, whose complaint initiated the disciplinary proceedings, was not made a witness. The testimonies of PW-1 and PW-2 reflect a failed attempt to establish the contents of the informant‟s written complaint, as the former was not crossexamined, and the latter failed to identify the appellant during crossexamination. Additionally, the potential bias of PW-1 as an interested witness, was not given proper consideration or weight.

60.

Regarding charge No. 2, while a previous finding in respect of a guilt can form part of a subsequent charge-sheet to award enhanced punishment, the law requires the disciplinary authority to give sufficient notice to the charged employee of such intention to take the same into consideration for deciding the question of punishment. Useful reference could be made to the decisions in State of Mysore Vrs. K. Manche Gowda, AIR 1964 SC 506 and Nicholas Piramal India Limited Vrs. Harisingh, (2015) 8 SCC 272. The argument of the appellant to the contrary is overruled. Since, however, the disciplinary proceedings have been found to be suffering from incurable defects, assessment of the appellant’s conduct for deciding on the punishment does not really survive.

61.

Concerning charge No. 3, the charge explicitly states that the appellant was arrested on 8th August, 1988. Consequently, it is implausible that the appellant could have resumed his duties on the same date, after his earned leave had expired, especially since the respondents have not raised any objection regarding the date of the appellant‟s arrest.

62.

Finally, what remains is charge no. 4. Having been arrested, the appellant could not have reasonably been expected to inform the fact of his arrest till such time he was granted bail. The appellant claimed that he requested PW-1 to notify the CID authorities of his arrest, but PW-1 failed to do so due to personal animosity. This appears to be probable, in the absence of any contra-material on record.

63.

Accordingly, this Court concludes based on the materials available on record that the disciplinary proceedings had not been conducted against the appellant in tune with principles of fairness as well as natural justice which severely prejudiced his defence. The impugned order, thus, is unsustainable.”

Analysis and discussions:

“14.

Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well-settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. The observations of the courts are neither to be read as Euclid‟s theorems nor as provisions of statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases. [Ref. Bharat Petroleum Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva Shramik Sanghatana (KV) Vrs. State of Maharashtra, (2008) 1 SCC 494 and Bhuwalka Steel Industries Ltd. Vrs. Bombay Iron & Steel Labour Board, (2010) 2 SCC 273.”

vi.

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.

vii.

The charges in the departmental proceeding and the criminal case are to be just similar and identical and the evidence, witnesses and circumstances are also to be all the same.

viii.

Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives.

ix.

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.

x.

While exercising its powers under Articles 226 and 227 of the Constitution of India, the High Court does not exercise powers that are available to an appellate court. It is the decision-making process that falls for scrutiny. The High Court can rectify errors of law or procedural irregularities, if any, that lead to a manifest miscarriage of justice or breach of the principles of natural justice.

xi.

Departmental authorities are obligated to provide a fair opportunity to the parties involved, and what constitutes a fair opportunity must be determined based on the facts and circumstances of each case.

Conclusion:

“4.

Learned counsel for the appellants submits that only on the ground that there is a substantive criminal case pending, till the disposal of the same, the appellants should not initiate any departmental proceeding against the respondent. Learned counsel submitted that in the present facts of the case, the High Court has relied upon judgments which do not completely bar the departmental proceedings to go on simultaneously to the criminal trial while ensuring that the defence of the employee in the criminal case may not be prejudiced. It was submitted that same are distinguishable inasmuch as they only state that it is desirable to keep the departmental proceeding pending where there is a criminal case pending but the distinguishing factor here is that it relates to integrity of the individual and the charges are relating to his discharge of duties in the appellant-Corporation. Thus, it was submitted that the respondent not being proceeded departmentally is against the public interest also for a person who has been charged of financial irregularity and accepting bribe is made to continue in the organisation without the employer having the right to even initiate the departmental proceeding.

5.

Learned counsel for the respondent submitted that the charges were identical in both the criminal case and the proposed departmental inquiry and thus, the High Court has rightly directed the appellants not to proceed with departmental proceeding. Further, he submitted that one charge was different in the criminal case and with regard to that the High Court has permitted them to proceed with the departmental proceeding but even after a long gap of time, no such proceeding has been initiated.

6.

Having considered the matter, we find that in the present facts and circumstances of the case, the order of the High Court is not justified. The respondent is said to have been the beneficiary of Rs.1,00,000/- (Rupees One Lakh Only) as bribe and for that, criminal case was instituted and departmental proceeding was proposed. Thus, preventing the appellants from initiating the departmental proceeding would not be proper as the charge is serious and relates to the very discharge of the duties and functions of the respondent in the appellant-Corporation.

7.

For the reasons aforesaid, the Civil Appeal is allowed. The order of the High Court is set aside. The appellants are free to initiate the departmental proceeding against the respondent of charges for which the department proceeding was proposed and also issued. Needless to say that the criminal proceeding shall be decided strictly on the basis of evidence adduced before the Court.”

“10.

Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/ competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. Vrs. Brahm Datt Sharma, (1987) 2 SCC 179 = AIR 1987 SC 943, Bihar State Housing Board Vrs. Ramesh Kumar Singh, (1996) 1 SCC 327, Ulagappa Vrs. Commr., (2001) 10 SCC 639 = AIR 2000 SC 3603, Special Director Vrs. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 = AIR 2004 SC 1467 and Union of India Vrs. Kunisetty Satyanarayana, (2006) 12 SCC 28.)”