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Judgment
P.D. Dinakaran, J.—The writ petition is directed against the order dated 14.3.2006 made in O.A. No. 791 of 2005 on the file of the third
respondent dismissing the said O.A. and refusing to stay the departmental proceedings initiated against the petitioner vide memorandum dated
1.9.2005, till the conclusion of the criminal case pending against the petitioner in C.C. No. 3 of 2005 on the file of Principal Special Judge for CBI
cases, for the offence punishable u/s 120-B, IPC read with Section 7, 13(2) and 13(1)(d) of the Prevention of Corruption Act (hereinafter referred
to as the ""PC Act"").
2.1. In brief, the petitioner was working as Superintendent, Customs, Tirupur, on deputation by the Central Excise Department. A trap was
decided to be laid on the petitioner on 5.7.2004 based on a complaint lodged by one Selvaraj. The conversation between the said Selvaraj and the
petitioner reveals that the petitioner demanded illegal gratification of Rs. 25,000/- from Selvaraj for clearing export consignment made under
shipping bill bearing serial No. 14624 dated 26.6.2004. Accordingly, the trap was executed and the petitioner was trapped. A criminal case was
initiated in C.C. No. 3 of 2005 for the offences referred to above.
2.2. Pending the above criminal case, the first respondent also initiated departmental proceedings against the petitioner for having committed a
gross misconduct and for the failure to discharge the duties of a public servant on 5.7.2004 in connection with the clearance of export consignment,
in contravention of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.
The core contention of the learned Counsel for the petitioner before the Tribunal as well as before this Court is that if the departmental
proceedings is permitted to be proceeded, he would be compelled to disclose his evidence in the departmental enquiry and the same would affect
the defence in the trial and also cause prejudice.
4.1. The Tribunal, in its well considered judgment dated 14.3.2006, has observed that even though both the criminal case and the departmental
proceedings initiated against the petitioner referred to above arise out of the same set of facts, the charge in the criminal case pending before the
criminal court is for the offences punishable u/s 120-B, IPC read with Section 7, 13(2) and 13(1)(d) of the PC Act, whereas the allegation alleged
in the departmental proceedings is with regard to the contravention of Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964. Thus, while the
criminal case is with reference to the demand of illegal gratification and acceptance of the same, the departmental proceedings was initiated for the
alleged misconduct on the part of the petitioner, viz. failure to discharge his duties to the utmost integrity and for having committed an act of
unbecoming of a Government servant.
4.2. Even though the learned Counsel for the petitioner made an attempt to elaborate his contention in this regard, in our considered opinion, it may
not be proper for us to go into those allegations which would otherwise affect the departmental proceedings and also cause prejudice to the
petitioner himself.
4.3. In the circumstances, suffice it to observe that we are satisfied with the reasons that weighed the Tribunal in its order dated 14.3.2006,
refusing to grant stay of the recovery proceedings which are based on the ratio laid down by the Apex Court in the following decisions:
(a) In State Of Rajastan v. B.K. Meena and Ors. 1996 SCC 1455, it is held as follows:
There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and
different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service
or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under
the Prevention of Corruption Act (and the Indian Penal Cod, if any) are established, what sentence should be imposed upon him. The standard of
proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary
proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the
decision may require reconsideration if the criminal case gets unduly delayed.
(b) In CAPT.M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. 1999 11 CTC 579, it is held as under:
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, administration may get rid of him at the earliest.
(c) In State Bank Of India and Ors. v. R.B. Sharma 2005 3 L.W. 71 it is held that there was no bar to proceed simultaneously with departmental
enquiry and trial of criminal case, unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law.
(d) In Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors. 1997 SCC 548 , it is held that what is required
to be seen is whether the departmental enquiry should seriously prejudice the delinquent in his defence in the trial in the criminal case and it is
always the question of fact to be considered in each case depending on its own facts and circumstances.
(e) In M. Sunderamoorthy Vs. State of Tamil Nadu through Inspector of Police, , it is held that unless the explanation is supported by proof, the
presumption created by the provision cannot be said to be rebutted.
(f) In C.I. Emden Vs. State of Uttar Pradesh, , while dealing with Section 4(1) of the P.C. Act, it is held that what the prosecution has to prove
before asking the court to raise a presumption against an accused person is that the accused person has received a gratification other than legal
remuneration. If it is shown that the accused received the said amount and the said amount was not legal remuneration, then the condition
prescribed by the section is satisfied. (g) In B. Hanumantha Rao Vs. State of Andhra Pradesh, , it is held that once the amount is found in
possession of the accused, the burden lies on him to explain the circumstances and prove his innocence as contemplated under Rules of Corruption
Act.
(h) In T. Shankar Prasad Vs. State of Andhra Pradesh, , it is held that Section 20(1) of the P.C.Act in essence and substance is the same as
Section 4(1) of the previous Act of 1947. The only condition for drawing legal conclusion u/s 20 during trial is that, it should be proved that the
accused has accepted or agreed to accept any gratification and that unless the presumption is disproved of or dispelled or rebutted, the Court can
treat the presumption as tantamounting to proof.
(i) In State of Andhra Pradesh Vs. C. Uma Maheswara Rao and Another, , it is held that presumption could be final if it remains undisturbed later.
The presumption in law of evidence is a rule indicating the stage of shifting the burden of proof.
4.4. In fine, what weighed the Tribunal is that in the departmental proceedings, the department is not only bound to take disciplinary action against
the delinquent, but also to keep administrative machinery unsullied by getting rid of bad elements, or otherwise it would be difficult to maintain a
clean administration. Thus the Tribunal has rightly rejected the contention of the learned Counsel for the petitioner that the petitioner would be
compelled to disclose his evidence, if the departmental proceedings is permitted to go on and that it would also prejudice his defence in the trial, on
the ground that as per Section 20 of the PC Act, the burden of proof is shifted on the petitioner when it is shown that the petitioner has accepted
or obtained or agreed to accept or obtain gratification other than legal remuneration as a motive or reward.
5.1. In this regard, it is apt to refer Section 20(1) of the PC Act, which reads as follows: ""Section 20: Presumption where public servant accepts
gratification other than legal remuneration.-
(1) Where, in any trial of an offence punishable u/s 7 or Section 11 or Clause (a) or Clause (b) of Sub-section (1) of Section 13, it is proved that
an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification
(other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or
obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is
mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
5.2. When Section 20(1) deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed
that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the
former part of the section is satisfied. The only condition for drawing such a legal presumption u/s 20 is that during trial it should be proved that the
accused had accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct
evidence, vide M. Narsinga Rao Vs. State of Andhra Pradesh, .
5.3. The only condition for drawing legal presumption u/s 20 is that during trial it should be proved that the accused has accepted or agreed to
accept any gratification. But the section does not say that the said condition should be satisfied only by direct evidence. When money was
recovered from the pocket of one of the accused persons, a presumption u/s 20 of the Act is obligatory, vide T. Shankar Prasad Vs. State of
Andhra Pradesh, .
5.4. When the expression ""shall be presumed"" is employed in Section 20(1) of the Act, it must have the same import of compulsion. Therefore, the
same has to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a
motive or reward for doing or forbearing to do any official act, etc. if the condition envisaged in the former part of the section is satisfied. The
section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the
accused has accepted or agreed to accept gratification, vide State of Andhra Pradesh Vs. C. Uma Maheswara Rao and Another, .
5.5. In view of the above settled proposition, the question of prejudice caused to the petitioner due to the disclosure of the defence, as rightly held
by the Tribunal, would not arise. Therefore, in complete agreement with the reasons that weighed the Tribunal and finding no merits in the writ
petition, the same is dismissed. WPMP No. 13381 of 2006 is also dismissed.