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Judgment
Sanjay Karol, J.—Petitioner has prayed for the following reliefs:-
(i) That the respondent may be restrained from proceeding with departmental proceedings initiated against the petitioner vide memorandum dated 24.11.2010, Annexure P-3, during the pendency of criminal proceedings against him pursuant to FIR Annexure P-1.
Annexure P-3 is the memorandum enclosing the Statement of Articles of Charges served in the disciplinary proceedings initiated against the petitioner, who was inducted into the H.P. Administrative Service in the year 1997. He was posted in District Chamba where many Hydro Electric Power Projects are being set up by private companies and was under transfer. On 11.2.2010 he was travelling from Chamba in a private Vehicle No. HP-44A-0029 when Police intercepted and searched the same. Allegedly a sum of Rs.11,90,000/- was recovered from a briefcase, which was in his exclusive and conscious possession. He was unable to explain possession of such huge amount of cash in his custody. Police also recovered one LCD LG Plasma 81 cm. T.V., one Samsung Digital Camera and other electronic household items. FIR No.2/2010 dated 11.2.2010 was registered against the petitioner at Police Station, S.V. A.C.B, Chamba (HP). He was arrested but released on bail on 24.2.2010. On 12.2.2010 petitioner was placed under suspension. On 24.11.2010 he was served with the Memorandum containing Statement of Articles of Charges and statement of imputation of misconduct/misbehaviour in support thereof.
Articles of charges read as under:-
STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SH. RAJ DEV SINGH JASROTIA, HPAS.
ARTICLE-I
That the said Sh.Rajdev Singh Jasrotia, HPAS while travelling from Tissa after his transfer from the post of Sub Divisional officer (Civil), Tissa, District Chamba on 11.2.2010 in a vehicle bearing registration No. HP-44-A-0029 was intercepted at Hatli near Tunu Hatti by Sh. Arvind Chaudhary, Deputy Superintendent of Police in which the said Sh. Rajdev Singh Jasrotia, was found to be in possession of a sum of Rs.11.90 lakhs which was recovered from a brief case which was in his exclusive and conscious possession. Sh.RDS Jasrotia was not able to give any convincing or satisfactory answer to the Police party regarding possession of such huge amount of cash in his possession and consequently a case FIR No.2/2010 dated 11.2.2010, PS, SV&ACB, Chamba has been registered against the said Sh.RDS Jasrotia which is pending investigation.
Thus, the said Officer by having such a huge amount of money in his possession without any satisfactory explanation has failed to maintain absolute integrity and devotion to duty in violation of provisions of rule-3 of Central Civil Services (Conduct) Rules, 1964 and has rendered himself liable for disciplinary action.
ARTICLE-II
That the said Sh.Rajdev Singh Jasrotia, HPAS, the then Sub Divisional officer (Civil), Churah at Tissa has also accepted one LCD, LG Plasma T.V. 81 CM worth Rs.30,800/- from Project Officer of Tarolla Power Limited within his jurisdiction allegedly as a gift for the office of SDO (Civil), Tissa. In his capacity as SDO (Civil), Tissa he was having official dealings with the said project. At the time of interception on 11.2.2010 at Hatli Sh. Jasrotia was found to be carrying this TV with him which he had received from the above private party as a gift for the office. By removing this TV from the office to which it rightfully belongs or alternatively by receiving this gift for himself from the private party with whom the said Sh.Jasrotia was having official dealings, he has acted in contravention of Rule 3 of the CCS (Conduct) Rules, 1964 by failing to maintain absolute integrity or alternatively violating the provision of Rule 13(1) of Central Civil Services (Conduct) Rules, 1964 which prohibits Govt. servants from accepting gifts from any individual, commercial or Industrial firms having official dealings with him.
Thus the said Sh.Raj Dev Singh Jasrotia has failed to maintain devotion to duty and has conducted himself in a manner unbecoming of a Govt. servant and has violated provisions of Rule 3(1) of CCS (Conduct) Rules, 1964 and has rendered himself liable for disciplinary action.
Sd/-24.11.10 Principal Secretary to the Government of Himachal Pradesh
Petitioner responded to the same by filing reply dated 9.12.2010 (Annexure P-4), which is extracted in toto as under:-
To
The Principal Secretary (Personnel)to the Government of Himachal Pradesh, Shimla-171 002
Sub:-Reply to memorandum No. Per(A-IV)B(14)-2/2010 dated 24 Nov 2010.
Sir,
The documents referred to in Annexure-III with the memorandum under reply have not been supplied to me. These documents would be necessary for enabling me to put forth my case effectively. Therefore, copies of the documents referred to in Annexure-III may kindly be supplied to me.
It is submitted that Article-I of the charges framed against me is subject matter of case FIR No.2/2010 dated 11.2.2010 registered at Police Station, SV&ACB, Chamba. As a matter of fact Article-I is reproduction of the allegations leveled against me in the aforesaid FIR. I have reasons to believe that all the witnesses cited against me in the memorandum under reply would also be examined as witnesses in the criminal trial pursuant to aforesaid case FIR.
The allegations in Article-II also appear to have arisen out of the same alleged incident as the list of documents at Annexure-III refers to "recovery memo of TV, LCD Plasma 81 cm". I have reasons to believe that the allegations contained in Article-II would also be a subject matter of criminal trial against me pursuant to aforesaid FIR. The allegations alleged in article-I & II are wrong and hence denied.
If the aforesaid inquiry precedes criminal trial, my defence before criminal court would be seriously prejudiced. In these circumstances it would be expedient in the interest of justice to stay departmental proceedings pending criminal trial pursuant to case FIR No.02/2010 dated 11.2.2010."
(Emphasis supplied)
Government did not accede to the petitioner''s request for staying the departmental proceedings. It was rejected vide order dated 18.3.2011. Consequently petitioner filed the instant petition on 23.3.2011.
Opposing the petition, the State has filed reply, inter alia, stating that considering the gravity of misconduct departmental proceedings stand initiated and also investigation in relation to the FIR being complete, challan is prepared which is to be submitted before the Court having competent jurisdiction. State has filed two affidavits dated 20.9.2011 and 24.11.2011. The second affidavit is filed to clarify the stand taken in the first affidavit. In crux the State has stated that:-
..The petitioner has also been chargesheeted for similar allegations including committing misconduct and an Inquiry has been initiated against the petitioner under Rule-14 of the CCS (CCA) Rules, 1965, for failure to maintain absolute integrity and devotion to duty and receiving illegal gratification from sources with which he was having official dealings and also accepting gifts as is clear from the chargesheet served upon the petitioner.
....that in case the petitioner is innocent then he should not worry about the outcome of the criminal as well as departmental case as he may take defence on similar footing in both the matters.
According to Mr. Dilip Sharma, learned counsel for the petitioner even as per the respondents'' own case, petitioner stands charge-sheeted on similar allegations, hence departmental proceedings ought to be stayed. In support of his contention, he has relied upon the decisions of the Apex Court in The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, , State of Rajasthan Vs. B.K. Meena and others, , Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, and State Bank of India and Others Vs. R.B. Sharma, whereas according to Mr. R.K.Sharma, learned senior Additional Advocate General, if petitioner is innocent he should not worry about the outcome of the criminal as well as departmental proceedings as it is open for him to take up defence on similar footing in both the proceedings. In support, he has also relied upon the decisions of the Apex Court in B.K.Meena (supra), Capt. M.Paul Anthony (supra), Kendriya Vidyalaya Sangathan and Others Vs. T. Srinivas, , Hindustan Petroleum Corporation Ltd. and Others Vs. Sarvesh Berry, and Indian Overseas Bank, Annasalai and another vs. P.Ganesan and others, (2008) 1 SCC 650.
In the instant case charge is serious. It is a case where a senior level government Officer, in the course of discharge of his duties was allegedly caught red handed by the police carrying cash amounting to Rs.11.90 lacs. He was also found to be possessed with a T.V., which was allegedly gifted by the contractor working in the area where petitioner was posted.
Facts relevant with regard to registration of FIR and institution of departmental proceedings are not in dispute.
After considering the decisions rendered by the Apex Court in Tata Oil Mills Co. Ltd. Vs. Its Workmen, , Jang Bahadur Singh Vs. Baij Nath Tiwari, two Judge Bench of the Apex Court in B.K.Meena (supra), culled out various principles/determining factors which are to be considered by the Courts for staying disciplinary proceedings initiated against the delinquent officials during pendency of proceedings initiated separately/simultaneously under the penal laws of the land. The Court was dealing with the case where a Senior member of the Indian Administrative Service while discharging his duties as Additional Collector, Development cum Project Director, District Rural Development Agency, was found to have amassed wealth by misappropriating public funds to the tune of Rs.1.05 crores. An FIR was lodged against him on 12.3.1990 and after conducting preliminary inquiry on the basis of complaint dated 8.12.1989 the Officer who was arrested on 26.3.1990 and remained in custody till 10.8.1990 was placed under suspension on 22.5.1990. Prosecution sanction was refused by the Government but disciplinary proceedings were initiated against him on 13.10.1992. He responded to the Articles of Charges supplied to him by filing a detailed reply. Subsequently challan was presented in the Court of learned Chief Judicial Magistrate on 15.5.1993. He initiated proceedings for stay of disciplinary proceedings pending criminal prosecution and the matter eventually landed up before the Apex Court and the order staying disciplinary proceedings, during the pendency of the criminal proceedings, passed by the High Court was vacated and both proceedings were directed to be continued simultaneously. One of the factors which weighed with the Court was disclosure of defence by the delinquent official.
Reproduction of relevant portion of the said report, in my considered view, would be extremely beneficial for proper adjudication of the present lis:-
Purporting to follow the decision of this Court in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, the Tribunal allowed the respondent''s plea and stayed the disciplinary proceeding pending the criminal proceedings.
We are of the opinion that the order of the Tribunal is unsustainable both in law and on the facts of the case. In S.A. Venkataraman Vs. The Union of India (UOI) and Another, , the petitioner therein was subjected to disciplinary proceedings in the first instance and was dismissed from service on 17th September, 1953. On 23rd February, 1954, the police submitted a charge-sheet against the petitioner therein in a criminal Court in respect of the very same charges. The petitioner challenged the initiation of criminal proceedings on the ground that it amounts to putting him in double jeopardy within the meaning of clause(2) of Article 20 of the Constitution of India. A Constitution Bench of this Court rejected the said plea holding that there is no legal objection to the initiation or continuation of criminal proceedings merely because he was punished earlier in disciplinary proceedings. It is thus clear - and the proposition is not disputed by Mr. K.Madhava Reddy, learned Counsel for the respondent - that in law there is no bar to, or prohibition against, initiating simultaneous criminal proceedings and disciplinary proceedings. Indeed not only the said two proceedings, but if found necessary, even a civil suit can also proceed simultaneously. Mr. Madhava Reddy, however, submits that as held by, this Court in certain later decisions, it would not be desirable or appropriate to proceed simultaneously with the criminal proceedings as well as disciplinary proceedings.
In The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, it was held that the principles of natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action against the employee. At the same time, the Court observed : "We may however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced." In Tata Oil Mills Co. Ltd. Vs. Its Workmen, it was observed, following The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, that :
it is desirable that if the incident giving rise to a charge framed againsta workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. But to say, that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or malafide.
In Jang Bahadur Singh Vs. Baij Nath Tiwari, , the contention that initiation of disciplinary proceedings during the pendency of criminal proceedings on the same facts amounts to contempt of court was rejected. After considering the ratio of these three decisions, this Court held in Kusheshwar Dubey, [ (1998) 4 SCC 349 at page 323, paras 7 & 8] :
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 of 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 of general application without regard to the particularities 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 guideline.
In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial Court''s order of injunction which had been affirmed in appeal.
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. and Tata Oil Mills is not also 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, consideration 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 official, 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 advise 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.
We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may he unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him.
Now, let us examine the facts of the present case. The memo of charges against the respondent was served on him, alongwith the articles of charges, on 13-10-92. On 9-2-93, he submitted a detailed reply/defence statement, running into 90 pages, controverting the allegations levelled against him. The challan against him was filed on 15-5-93 in the criminal court. The respondent promptly applied to the Tribunal and got the disciplinary proceedings stayed. They remain stayed till today. The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames, the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The respondent has already disclosed his defence in his elaborate and detailed statement filed on 9-2-93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise -a speculatory reason. We cannot accept it as valid. Though the respondent was suspended pending enquiry in May, 1990, the order has been revoked in October 1993. The respondent is continuing in office. It is in his interest and in the interest of good administration that the truth or falsity of the charges against him is determined promptly. To wit, if he is not guilty of the charges, his honour should be vindicated early and if he is guilty, he should be dealt with appropriately without any avoidable delay. The criminal Court may decide - whenever it does - whether the respondent is guilty of the offences charged and if so, what sentence should be imposed upon him. The interest of administration, however, cannot brook any delay in disciplinary proceedings for the reasons indicated hereinabove.
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 Code, if any) are established and, if 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.
(Emphasis supplied)
In view of the above principles laid down by the Apex Court, reliance upon the earlier decision rendered by two Judge Bench of the Apex Court in Kusheshwar Dubey (supra), by the learned counsel for the petitioner is thus misconceived. In any event the decision on facts is distinguishable. The Apex Court was dealing with a case where allegation was of physicial assault and not use or abuse of power by a senior government level officer and misappropriation of public funds by him.
The principles laid down in B.K.Meena were reiterated by a three Judge Bench of the Apex Court in Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., wherein the Court was dealing with a case of a delinquent official, who was negligent in driving the vehicle as a result of which it met with an accident in which a cyclist died. Both criminal prosecution and departmental proceedings were initiated on same set of facts and circumstances against the driver, on whose request High Court stayed the departmental proceedings, but the Apex Court vacated the stay by reiterating that "the offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law".
The two Judge Bench of the Apex Court in Capt. M.Paul Anthony (supra), was dealing with the case where on 2.6.1995 raid was conducted by the Superintendent of Police in the house of the delinquent officer from where mining sponge gold ball and gold bearing sand was recovered. FIR was lodged same day. Said Official was placed under suspension on 3.6.1995 and on 4.6.1995 he was served with a charge-sheet proposing to initiate regular departmental proceedings against him. On 11.6.1985 delinquent officer made a representation to the disciplinary authority denying the allegations. He requested for dropping of the proceedings or in the alternative postponement of the same till the conclusion of criminal proceedings, simultaneously instituted against him. His request was rejected. The inquiry officer found him guilty of the charges and disciplinary authority dismissed him from service on 7.6.1986. However on 3.2.1987, in the criminal case he was acquitted with a categorical finding that the prosecution failed to establish its case. Thereafter petitioner filed a petition under Article 226 of the Constitution of India, challenging his order of dismissal on various grounds including that departmental and criminal proceedings being based on same set of facts, disciplinary proceedings ought to have been stayed till the outcome of the criminal proceedings and since in the criminal case appellant stood acquitted for the reason that prosecution failed to establish its case, the delinquent official was entitled for reinstatement. With the aforesaid facts, the Apex Court framed the following question to be answered by itself:
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.
After considering earlier judicial pronouncements, the Court held that disciplinary proceedings could be legally continued even where the employee is acquitted in the criminal case as the nature and proof in a criminal case are to be different and separate from those in the departmental proceedings. It also held that 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 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 is required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Perhaps the only exception being where departmental proceedings and criminal case are based on same set of facts and evidence in both the proceedings is common without there being variation. But this is also hedged by certain condition. The Court also culled out following principles of law:-
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.
(Emphasis supplied)
Thus after reiterating the law laid down in B.K.Meena (supra), the Apex Court, in the given facts and circumstances answered the question by concluding that in criminal proceedings, delinquent official had been acquitted not by giving benefit of doubt, but on account of the fact that prosecution had failed to establish its case. Significantly what weighed with the Court was the fact that the delinquent official had not been paid subsistence allowance as a result of which he could not undertake journey from his home town in Kerala to the Kolar Gold Fields (Karnataka) where departmental proceedings were being held. The delinquent official was thus precluded from properly defending himself and in fact was proceeded ex parte. It was under these circumstances, the Court quashed the order of dismissal of the delinquent official.
The principles laid down by the Apex Court in Capt. M.Paul Anthony (supra), were reiterated in R.B.Sharma (supra), wherein departmental proceedings were initiated on the same set of facts on the basis of which proceedings before the Court in criminal case were initiated. In the given facts and circumstances, the Apex Court remanded the matter back to the High Court to be considered afresh for staying of the disciplinary proceedings during the pendency of the criminal case. But while doing so, it clarified that "there cannot be any straightjacket formula as to in which case departmental proceedings are to be stayed".
Significantly, in T.Srinivas (supra), the Apex Court had occasion to deal with a case where CBI had laid a trap and the delinquent officer was caught receiving bribe. He was served with a charge-sheet under the relevant rules. Criminal proceedings were also simultaneously initiated against him. Delinquent filed an application for stay of the disciplinary proceedings, which request was allowed by the Central Administrative Tribunal and order affirmed by the High Court on the ground that criminal proceedings arising out of the very same set of facts were pending. The Apex Court vacated the stay by holding that neither the Tribunal nor the High Court decided the matter by taking "into consideration the seriousness of the charge which pertains to the acceptance of illegal gratification and the desirability of continuing the respondent in service inspite of such serious charges levelled against him.
(Emphasis supplied)
Significantly the defence taken by the delinquent official was the very same one which is taken by the petitioner in the instant case. It was pleaded that charges to be investigated in the departmental proceedings are identical to the charge levelled against the delinquent official in criminal proceedings. This decision was subsequently relied upon by a three Judge Bench of the Apex Court in Noida Entrepreneurs Association vs. Noida and others, (2007) 10 SCC 385.
Also it would be pertinent to note that two Judge Bench of the Apex Court in G.M. Tank Vs. State of Gujarat and Another, had an occasion to deal with a situation where departmental proceedings were initiated on the inquiry carried out by the Anti Corruption Bureau to the effect that the delinquent officer was possessing moveable and immovable properties disproportionate to his known source of income. Both criminal trial and disciplinary proceedings were initiated simultaneously. On the basis of inquiry report he was removed from service. However, in the criminal proceedings he was exonerated honourably. The Apex Court framed the following questions for consideration:-
Whether in the case of no evidence, the employee can be dismissed from service?
Whether acquittal, absolutely on merits amounting to clear exoneration of the appellant by the Special Court under the P.C. Act does ipso facto absolve the appellant from the liability under the disciplinary jurisdiction when the charges levelled against the appellant in the departmental proceedings and the criminal proceedings are grounded on the same set of facts, charges, circumstances and evidence.
On facts, the Court came to the conclusion that not only did the prosecution fail to prove the guilt of the accused but even in the departmental inquiry, the departmental witnesses had failed to show that the delinquent officer had not satisfactorily accounted for the properties owned and possessed by him. The Court found that in fact there was no evidence against the delinquent officer, thus in the given facts and circumstances, the Court quashed the order of dismissal passed against the delinquent officer by the disciplinary authority.
Subsequently in P.Ganesan (supra), another two Judge of the Apex Court, by taking into account the decision rendered in G.M.Tank (supra) reiterated the principles earlier laid down by the Apex Court in Delhi Cloth and General Mills, B.K.Meena, Capt. M.Paul Anthony (supra) and further held that "What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
(Emphasis supplied).
Significantly, it further held that even if allegations in both the proceedings are similar, that fact by itself would not be a ground to stay the disciplinary proceedings for the reason that disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. In fact it would only be in the interest of the delinquent officer that prompt decision in the disciplinary proceedings is taken so as to ensure that reputation of an honest officer is not saddled on unfounded charges levelled for ulterior motives. All factors for and in favour of the petitioners have to be weighed on an even scale.
Facts of Mohd. Yousuf Miya, R.B.Sharma, T.Srinivas and P.Ganesan (supra) appear to be almost similar to that of the petitioner. Significantly petitioner has failed to establish the prejudice which is likely to be caused to him if both the proceedings are simultaneously instituted and continued against him even on the very same set of facts. Except for bald assertion that the case involves complicated questions of law and fact, there is no material to establish the same. Similarly except for bald assertion that the right of the petitioner to defend himself in a criminal trial would be seriously jeopardized there is nothing on record to even prima facie show as to how it would result into the same. Petitioner has also chosen not to clarify the charges. No defence is pleaded except for bare denial. Petitioner has also failed to show what complicated questions of fact and law are actually involved in the instant case. The word, ''desirable'', ''advisable'' or ''appropriate'' is in the context whether staying of disciplinary proceedings would become necessary and/or whether defence of the employee in the criminal case may not be prejudiced, which in the instant case has not been shown. That apart, this right is hedged. It is not a matter of rule that in every case disciplinary proceedings have to be stayed. It is not a matter of course either. In my considered view seriousness of the charge is a very relevant factor for considering the petitioner''s request for staying the disciplinary proceedings. Principles laid down in various pronouncements as referred to and emphasized hereinabove squarely apply to the instant case.
An employee holds the position of a trustee where honesty and integrity are inbuilt requirements of such functionaries. Factors to be considered for initiation and adjudication of separate proceedings are different and distinct. Scope of both is quite distinct, exclusive and independent of each other. One is with regard to the guilt of the accused and the other is with regard to dereliction of duty. Scope of inquiry is different and with regard to different persons.
Here petitioner is charged for having failed to maintain absolute integrity, devotion to duty and conducting himself in a manner unbecoming of a government servant. Allegedly huge amount of Rs.11.90 lacs was recovered and that too in cash from an officer belonging to the Cadre of State Administrative Service who had no reason, basis or justification to carry the same in a vehicle while undertaking journey. He was posted at Tissa, District Chamba, H.P. and was under transfer. He was leaving Tissa for the place of his next posting. Alongwith cash, allegedly his other household articles, including electronic goods were recovered. According to the State, T.V. was officially gifted by Tarolla Power Limited and was required to be kept in the office at Tissa itself. Charge is thus serious and grave.
Petitioner is not the only accused in the criminal case. There are other persons also. What are the circumstances, the nature of evidence and witnesses to be examined before the trial Court are factors to be considered by the prosecution in the criminal proceedings in relation to an offence under the penal laws of the land. It may not be necessary that both proceedings would ultimately be decided on very same set of evidence. Prosecution witnesses and defence witnesses may differ. Keeping in view the principles laid down by the Apex Court in the aforesaid decisions and more particularly in B.K.Meena, Mohd. Yousuf Miya and Noida Entrepreneurs Association (supra), in my considered view no case for interference is warranted.
For all the aforesaid reasons, petition as also all applications stand dismissed. Observations made hereinabove are only for the purpose of deciding the present petition and criminal as well as departmental proceedings will be decided on its own merits uninhibited by any of the observations made hereinabove.