Jyotish Baruah vs Airport Authority of India and Others

This Writ Appeal has been filed against the order dated 26.6.2001 passed by the learned Single Judge of this Court in Misc. Case No. 845/2001 in WP(C) No. 1505/2001

A writ application was filed by the present Appellant with the prayer that writ of Mandamus maybe issued directing the authority not to proceed with the departmental proceeding/enquiry against the Petitioner pursuant to the charge sheet under Memorandum No. C-14013/2/2000 Dis(ii) dated 19.8.2000 and Memorandum No. C. 14013/2/2000 Dis (iii) dated 19/20.8.2000 till the final decision of the Criminal Case vide Lahoal P.S. Case No. 72/95.

What may be stated herein is that on 2.3.95, an information was filed before the O/C, Mohanbari Police Out Post, Dibrugarh against the writ Petitioner-Appellant with regard to defalcation of a huge amount of money and that was subsequently sent to Lahoal Police Station wherein it was registered as Lahoal P.S. Case No. 72/95. The investigation in that matter still is not completed. In the meantime, two departmental proceedings were initiated as against the writ Petitioner for the defalcation of money by his employer i.e. by the Airport Authority of India and in both the departmental proceedings, writ Petitioner-Appellant filed his written statement and it was at the stage of hearing, that he approached this Court and filed this writ application. Earlier to it, an application was filed before the disciplinary authority to stay the proceedings and that was rejected and this writ application was filed. The learned Single Judge of this Court on 7.3.2001 passed the following order:

In the interim, it is ordered that the letter under Ref. No. AAI/NER/DGME(C)/ENGG(E)/DIB (VIG)/2001/3184-86 dated 6.2.2001 (Annexure-D) and the letter under Ref No. AAI/NER/DGME(EyENGG(E)/DIB (VIG)/2001/3187-89 dated 6.2.2001 (Annexure-E) issued by the Deputy Manager, Engg. (Elect.) shall stand stayed.

The Airport authority filed an application for vacating the stay order and that was registered as Misc. Case No. 845/2001 and on 26.6.2001, the learned Single Judge passed the following order:

Mr. Chowdhury, learned senior counsel submitted that the Airport Authority of India initiated a disciplinary proceedings against the writ Petitioner on three charges for defalcation of money. These charges are : I) Traffic Revenue, ii) Non-traffic Revenue, and iii) Establishment Cash. The charges relate to Non-traffic revenue and the FIR which is under investigation by the Lahoal P.S. relates to Traffic Revenue only. Mr. Chowdhury further pointed out that the police on receipt of the FIR has started investigation and yet to file charge-sheet. Therefore, it cannot be contended that a criminal proceedings is pending against the writ Petitioner for which the departmental proceedings is required to be stayed.

I have gone through the Article of charges available in the writ petition as well as the copy of the FIR and 1 am prima facie of the opinion that the matter relating to stay of the departmental proceedings could be agitated by the writ Petitioner only after commencement of the criminal proceedings in accordance with law. It would be premature to hold at this stage that the departmental proceedings cannot be carried on in view of the FIR lodged with the Police. As such, I dispose of this Misc. petition and vacate the interim order dated 7.3.2001 passed by this Court.

Liberty is, however, granted to the writ Petitioner to approach this Court for issue of appropriate stay orders only when the criminal proceedings commences against him.

Against this order, this writ appeal was filed and on 6.8.2001, a stay order was passed by the Division Bench of this Court directing not to proceed with the disciplinary proceeding until further order from this Court It was also directed that in the meantime, Officer-in-charge of Lahoal Police Station shall-compete the investigation and submit the charge sheet and/or final report within a month from that date. More than a month has elapsed, but nothing has been done. An application has been filed by the Airport Authority to vacate the stay order. When this application for vacating stay order came up for hearing, learned Counsel for both sides agreed that the entire matter i.e. writ appeal may be disposed of. Accordingly we have taken the writ appeal for disposal.

We have heard Mr. P.J. Saikia, learned Counsel for Appellant and Mr. K.N. Choudhury learned Counsel for Respondents.

Mr. P.J. Saikia, learned Counsel for Appellant submits that investigation itself also is a part of the criminal proceeding and as such it must be deemed that a criminal proceeding is pending as against the Petitioner-Appellant and in view of that matter, disciplinary proceeding is to be stayed, otherwise, prejudice shall be caused to him.

On the other hand, Mr. K.N. Chowdhury, learned Counsel for Respondents joins in issue and submits that investigation is not a part of the criminal proceedings and no prejudice can be caused to the Appellant in view of the fact that already written statement has been filed and he has disclosed his defence and at this stage, the question of staying the disciplinary proceeding does not arise, otherwise also, this is not a case where the disciplinary proceeding is to be stayed.

Mr. P.J. Saikia, learned Counsel in support of his contention draws our attention to the meaning of the criminal proceeding and criminal procedure as given in Black''s Law Dictionary, Sixth Edition, Centennial Edition. That is quoted below:

Criminal proceeding. One instituted and conducted for the purpose either of preventing the commission of crime, or for fixing the guilt of a crime already committed and punishing the offender ; as distinguished from a "civil" proceeding, which is for the redress of a private injury. Strictly, a "criminal proceeding" means some step taken before a Court against some person or persons charged with some violation of the criminal law. See also Criminal procedure." "Criminal Procedure. The rules of law governing the procedures by which crimes are investigated, prosecuted, adjudicated, and punished. Generic term to describe the network of laws and rules which govern the procedural administration of criminal justice, e.g. laws and Court rules (e.g. Rules of Criminal Procedure) governing arrest, search and seizure, bail etc. compare criminal law. See also Code of Criminal Procedure."

Mr. P.J. Saikia, learned Counsel also draws our attention to Section 2(h) and 2(i) of Code of Criminal Procedure which define "investigation" and "Judical Proceeding" as follows:

(h) "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a Police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(i) "Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath ;

He also relies on AIR 1966 Ker 11 Full Bench (Alberi Accused No. 1, Petitioner v. State of Kerala and Anr. Complainant, Counter Petitioner No. 2). The facts of that case can be seen from paragraph 2 of the judgment. That is quoted below:

The two accused persons in this case, it is alleged, gave information to the police charging four named persons with the offence of robbery punishable u/s 394 of the Indian Penal Code. The Police investigated the charge and referred it as false. The accused did not take the matter any further by instituting a complaint in Court, and they were prosecuted for an offence under the second part of Section 211 of the Indian Penal Code. A preliminary inquiry was held under Chapter XVIII of the Criminal procedure and the accused were committed to Sessions on the finding that there was a prima facie case against them for an offence falling under the third paragraph of the entry in respect of Section 211 of the Indian Penal Code and therefore an offence exclusively triable by a Court of Sessions. When the case came on for trial before the Assistant Sessions Judge, to whom it had been made over by the sessions Judge, a preliminary objection was taken on behalf of the accused that the offence alleged against them fell only within the first part and not within the second part of Section 211 of the Indian Penal Code. Therefore, the case was triable only by a Magistrate of the first class and not by the Court of Session. The learned Assistant Sessions Judge took the view that there was some substance in this contention, but he nevertheless decided to proceed with the trial because he had neither the power to quash the commitment nor the power to make a report to the High Court u/s 438 of the Code of Criminal Procedure. However, he wrote a very long order in the matter and sent a copy of it to the Sessions Judge who has made a report which has been numbered Criminal Reference No. 50 of 1964. The 1st accused in the case has come up in revision - his petition is Criminal Revision Petition No. 408 of 1964 - and has prayed that the order of commitment be quashed.

Thereafter, in paragraph 5 of the judgment, the Kerala High Court pointed out as follows:

Neither to word "proceeding" nor the phrase "Criminal proceeding" is defined in the Indian Penal Code but we think that the word, "proceeding" is used in Section 211 in the ordinary sense of a prescribed mode of action for prosecuting a right or redressing a wrong and not in the technical sense of a proceeding taken in a Court of law, even the expression "legal proceeding" appearing in Section 446 of the Companies Act has been construed to include proceedings taken by Income Tax authorities for recovery of arrears of Income Tax. (see AIR 1946 16 (Federal Court) ). A criminal proceeding, it seems to us, is as that phrase is defined by Black in the second edition of his Law Dictionary, page 301, a proceeding instituted and conducted for the purpose either of preventing the commission of crime or for fixing the guilt of a crime already committed and punishing the offender". The definition of "investigation" in Section 4(1)(1) of the Code of Criminal Procedure as including all the proceedings under this code for the collection of evidence conducted by a police officer" makes it clear that an investigation under chapter XIV of that Code is a proceeding and the definition of "judicial proceeding" in section 4(1)(m) as including "any proceeding in the course of which evidence is or may be legally taken on oath" shows that the word, "proceeding" is not necessarily confined to something done in a Court of law. If an investigation under Chapter XIV is a proceeding we think it necessarily follows that it is a criminal proceeding and the very fact that the expression "criminal proceeding" in Section 211 of the Indian Penal Code is not qualified by the word "judicial" or by anything else to show that it is confined to a| proceeding before a Court or law or other tribunal, makes it clear that it is wide enough to include a proceeding under Chapter XIV of the Code of Criminal Procedure.

With great respect, we are unable to accept the assumption made in Empress of India v. Pitam Rai ILR 5 All 215, Empress v. Parahu ILR 5 All. 598, Queen Empress v. Bisheshar ILR 16 All 124 or the view expressly stated in AIR 1931 134 (Nagpur) . The King v. Ma Ban Gyi AIR 1938 Rang 397 and in Emperor v. Karsan Jesang AIR 1941 Bom 414 that the phrase, "Criminal preceding" in Section 211 of the Indian Penal Code refers only to a criminal proceeding in Court and we respectfully agree with the view taken in the leading cases in Carim Buksh v. Queen Empress ILR 17 Cal 574 a decision by a bench of five judges and Queen Empress v. Nanjunda Rau ILR 20 Mad 79 that when a man sets the criminal law in motion against a person by giving information to the police that that person has committed a cognizable offence, he institutes a criminal preceding against that person within the meaning of Section 211 o the Indian Penal Code. For, as we have said, the police are bound by law to investigate the accusation against the person whether they believe it or not and make a final report u/s 173 of the Code of Criminal Procedure. That that final report may be against some other person or against none at all cannot alter the fact that a criminal preceding was instituted against the person accused. Nor does the circumstances that a police investigation need not necessarily be directed against a definite person (though in the vast majority of cases it is) alter the fact that it is a proceeding against a person when it is so directed.

The decision of this case is absolutely on a different footing on the different background. Here the Kerala High Court did not rely on the decisions of the Allahabad High Court, Bombay High Court, Rangoon High Court and Nagpur High Court and relied on the decisions of the Calcutta High Court and Madras High Court.

We have looked to those decisions in order to find out whether the judgment of the Full Bench of Kerala High Court can be accepted as the correct proposition of law because the judgment of the Kerala High Court is not binding on us and it has only a persuasive value.

In ILR 16 All 124 (Queen Empress v. Bisheshar) a reference was made in order to find out whether the judgment of Calcutta High Court relied on by the Kerala High Court is the correct proposition of law or not and the Division Bench of Allahabad High Court pointed out that they are unable to accept the decision of the Calcutta High Court; they would like to follow the earlier Division Bench decision of that Court and it was laid down by the Allahabad High Court as follows:

To constitute the offence defined in the second paragraph of Section 211 of Act No. XLV of 1980, it is necessary that criminal proceedings should be instituted. Where the offence committed does not go further than the making of a false charge to the police, the making of such charge does not amount to the institution of criminal proceedings and the offence committed will fall within the first paragraph of Section 211, notwithstanding that the offence so falsely charged may be one of those referred to in the second paragraph of that section ; Queen Empress v. Pitam Rai (1) and Queen Empress v. Parahu (2) followed ; Karim Buksh v. The Queen Empress (3) dissented from.

ILR 20 Mad 79 (Queen Empress v. Nanjunda Rau). That case is absolutely on a different footing. The facts of that case are as follows:

A false charge sheet of dacoity was made to the police station - house officer, who, after some investigation, referred it to the magistrate as false, and the magistrate ordered the charge to be dismissed without taking any action against the parties implicated. The person who preferred the charge was now tried under Penal Code, Section 211 and was found to have acted with the intent and the knowledge therein mentioned, and he was convicted and sentenced to four years'' rigorous imprisonment.

The question was whether a criminal proceeding was instituted and relied on the decision of the Calcutta High Court, it was dissented by the Allahabad High Court. The Madras High Court pointed out that the institution of criminal proceeding u/s 211 and that conviction and sentence were in accordance with law.

ILR 5 All 215 (Empress of India v. Pitam Rai). That was a case with regard to the fact that when actually a criminal preoceeding is deemed to be instituted on a false charge u/s 211 and the Allahabad High Court by referring to Section 211 pointed out as follows:

The actual institution of Criminal proceedings on a false charge is essential to the application of the latter part of Section 211 of the Indian Penal Code, and if a person only makes a false charge, his case falls under the first part of the section irrespective of the fact that the false charge relates to "an offence punishable with death, transportation for life, or imprisonment for seven years of upwards."

To the same effect, there are other decisions in ILR 5 All 598 (Empress v. Parahu).

ILR 17 Cal 574 (Karim Buksh v. The Queen Empress). The brief facts are as follows : The accused Karim Buksh was charged with having falsely instituted criminal proceedings against one Khoaz Mundul by charging him with committing mischiefby fire (an offence u/s 436 of the Penal Code, knowing that there was no just or lawful ground for such charge, and with having thereby committed an offence u/s 211 of the Penal Code. In that background, the Calcutta High Court pointed out as follows:

A person who sets the criminal law in motion by making a false charge to the police of a cognizable offence institutes criminal proceedings within the meaning of Section 211 of the Penal Code; and if the offence fall within the description in the latter part of the section, he is liable to be punishment there provided.

AIR 1941 Bom 414 (Emperor v. Karsan Jesang and Ors.). In that case, law was laid down as follows:

No doubt the criminal law may be set in motion by giving information to the police of a cognizable offence; but unless proceedings are instituted in a Court of law, it is not correct to say that criminal proceeding have been instituted. A mere charge however serious e.g. dacoity which goes no further than a police inquiry does not give rise to a case triable only by a Court of session. If the matter gets into Court, and a man is put on his trial on a false charge that is a much more serious matter. If the case gets no further than a police inquiry, it does not fall within second part but falls within the first part of Section 211 and can be tried by a first class Magistrate ; 16 All 124, Foll. 17 Cal 574 (KB.) Dissent.

To the same effect is the decision of the Rangoon High Court and Nagpur High Court.

In AIR 1931 134 (Nagpur) the Nagpur High Court pointed out as follows:

Investigation by a police is note a criminal proceedings against any person and therefore setting the criminal law in motion by making a charge to the police of a cognizable offence against a person does not amount in the institution of criminal proceeding against that person within the meaning of the second part of Section 211 : 17 Cal. 574 ; 20 Mad 79, Expl. and Diss. from; 16 All 124; 5 All 215; 3 P.R. 1888 Cr. : Parmeshwar Lall Vs. Emperor, ref: 2 N.L.R. 119, Overruled.

We are in respectfully agreement with the decisions of Allahabad High Court, Bombay High Court, Nagpur High Court, Rangoon High Court. Even if the decisions of the Calcutta High Court and Madras High Court are also made applicable, that also will not change the colour of the present case. As a matter of fact, there was no need for us to decide this question, but it has been decided by us because it was urged and argued vehemently by the learned Counsel for Appellant. We hod that a criminal proceeding comes into existence only when the matter comes before the Court and not earlier to it.

For the purpose of staying of a departmental proceeding, the Court must consider the fact that a criminal proceeding takes shape and only at that stage the Court can consider the question of staying the departmental proceeding, but not earlier to it because what will be the charges is not known at that stage; only an information has been lodged.

Learned Counsel for Appellant places reliance on the following decisions with regard to his contention that departmental proceeding is to be stayed.

I) Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, There the facts are absolutely different. The FIR lodged against public servant and the same was pending before the competent Court and meanwhile the employer started a disciplinary proceeding against the opposite party and the public servant filed a suit before the trial Court for declaration that appointment of the Enquiry Officer is illegal and for restraining the Petitioners permanently from continuing with the departmental proceeding during the pendency of the criminal case. That was allowed by the trial Court and confirmed by the lower appellate Court. There was a revision before the High Court and the High Court held as follows:

There is no bar for an employer to proceed with the departmental proceeding with regard to the same allegation for which the criminal case is pending and against that SLP was filed before the Supreme Court and before the Supreme Court the earlier cases of Delhi Cloth and General Mills Ltd. and Tata Oil Mills Co. Ltd. and other cases of High Courts were relied and in paragraph 7 of the judgment the law has been laid down as follows:

The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order to stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and general application without regard to the particulars of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guidelines.

The Supreme Court did not lay down any strait-jacket formula and/or general guideline, left the matter to the judicial discretion of the Court and the touch-stone and yardstick which must be applied is to find out whether simultaneous proceedings shall be prejudicial to a person. That also is the law as laid down in State of Rajasthan Vs. B.K. Meena and others, In para 14, it has been held as follows:

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 maybe 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. and Tata Oil Mills 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 case are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They got 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 or administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand 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 kies 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 accordingly 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.

II). Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, wherein it was pointed out that proceeding in a criminal case and the disciplinary proceeding can proceed simultaneously with a little exception. The little exception is whether the disciplinary proceeding and the criminal case are based on the same set of fact and the evidence in both the proceedings has commenced without there being a variance and thereafter the Supreme Court considered the earlier case and in para 22, it has been laid down as follows:

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 his honour maybe vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

From the guidelines which have beer quoted above, it will be seen that in this case also the matter is pending before the police since 1995 and the matter has not progressed much and it is not known whether the disciplinary proceeding and the criminal case are based on identical and same set of facts.

That being the position of law and facts, we hold that there is no justification to stay the disciplinary proceeding as against the writ Petitioner-Appellant. We uphold the order of the learned Single Judge. The authority may proceed with the disciplinary proceeding as, as on today, no criminal proceeding has come into existence.

The Writ Appeal shall stand dismissed.

All misc. petitions also shall stand dismissed in view of the judgment passed in the Writ Appeal as indicated above.