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Judgment
Hon’ble Mr. Manish Garg, Member (J) :
In the present Original Application, the applicant has prayed for the following reliefs:
“(i)quash and set aside the action of respondents in not keeping in abeyance the departmental inquiry as initiated against the applicant till the witnesses and criminal trial are examined first;
(ii)direct the respondents to defer the departmental proceedings as initiated in pursuance to the charge sheet dated 25.04.2022 till the pendency of criminal trial; ·
(iii)May also pass any further order(s), direction(s) as be deemed Just and proper to meet the ends of justice”
Highlighting the facts of the case, learned Counsel for the applicant submitted that the present OA has been filed seeking stay/deferment of the departmental inquiry, as the very same allegations, incident, documents and witnesses are simultaneously the subject matter of the pending criminal trial before the competent CBI Court.
Learned counsel further submitted that the applicant has been charge-sheeted departmentally for allegedly paying illegal gratification for obtaining a favourable place of posting, while the same allegations form the basis of the criminal prosecution under Sections 7, 8, 12 and 13(2) read with Section 13(1)(d) of the PC Act and Section 120-B IPC.
Learned counsel contended that the departmental proceedings and criminal proceedings are founded on the identical set of facts and substantially the same evidence. The departmental inquiry relies upon the same transfer/posting documents, CFSL report and intercepted-call transcripts which are also relied upon in the criminal case. Further, the witnesses cited in the departmental inquiry are common to the criminal proceedings.
Learned Counsel further contended that if the departmental witnesses are examined and cross-examined before their examination in the criminal trial, the applicant would be compelled to disclose his defence prematurely, thereby causing serious prejudice to his defence in the criminal proceedings and affecting the protection contemplated under Article 21 of the Constitution.
Learned counsel placed reliance upon the decision of the Hon'ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Ors., AIR 1999 SC 1416, wherein the Hon’ble Court held that where the departmental and criminal proceedings are based on an identical/similar set of facts and the criminal charge is grave and involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till conclusion of the criminal case.
Reliance is also placed upon Kusheshwar Dubey v. Bharat Coking Coal Ltd. & Ors. (1988 AIR 2118), particularly on the principle that continuation of parallel proceedings in circumstances causing disclosure of the employee's defence may cause prejudice and implicate Article 21.
It is further submitted that the Principal Bench of this Tribunal, in OA No. 3139/2018, decided on 26.10.2018, in circumstances where the witnesses in the departmental and criminal proceedings were identical, directed that the disciplinary proceedings be deferred till conclusion of the criminal proceedings or for a period of two years, whichever was earlier.
Concluding the arguments, learned counsel for the applicant submitted that in view of the identity of allegations, evidence and witnesses, the pendency of the criminal trial and the likelihood of serious prejudice to the applicant's defence, the departmental inquiry ought to be stayed/deferred in accordance with the principles laid down in Capt. M. Paul Anthony (supra).
Opposing the grant of relief, learned Counsel for the respondents submitted that although the criminal case and departmental proceedings arise from the same factual background, the objects and nature of the two proceedings are entirely different. The criminal proceedings determine whether the accused has violated the penal law, whereas the departmental proceedings determine whether the employee has violated the CCS (Conduct) Rules, 1964.
Learned Counsel submitted that the standard of proof in the two proceedings is also different. Reliance was placed upon Ajit Kumar Nag v. General Manager (PJ), IOCL, Haldia & Ors., (2005) 7 SCC 764, wherein the Hon'ble Supreme Court held that while conviction in a criminal case requires proof beyond reasonable doubt, penalty in departmental proceedings can be imposed on the basis of preponderance of probability.
It was further contended that the principles of evidence and procedure applicable to a criminal trial are not the same as those governing a departmental inquiry. The departmental proceedings operate in a different field and have a different objective from criminal proceedings.
Learned Counsel further submitted that even in Capt. M. Paul Anthony (supra) it has been held that if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings, even if stayed earlier, can be resumed and proceeded with expeditiously.
In the present case, the FIR was registered on 01.06.2017, the charge-sheet was filed before the trial Court in August 2022, and the criminal trial was only at the stage of charge, with 75 prosecution witnesses yet to be examined. Therefore, the criminal proceedings are likely to take considerable time for conclusion.
Accordingly, learned Counsel submitted that in view of the prolonged pendency of the criminal proceedings and the distinct object and standard of proof governing the departmental inquiry, the applicant is not entitled to any relief, and the OA is liable to be dismissed.
In rejoinder learned Counsel for the applicant, submitted that there is no intention on the part of the applicant to delay either the criminal trial or the departmental inquiry. The applicant is regularly attending the criminal proceedings and is himself taking steps to ensure that the relevant prosecution witnesses, who are common to both proceedings, are examined first in the criminal trial. It was further submitted that the mere fact that 75 prosecution witnesses are cited in the criminal case is of no consequence, as the applicant is concerned only with the relevant/common witnesses. Accordingly, learned counsel for the applicant reiterated that his right to properly defend the criminal trial, protected under Article 21 of the Constitution, cannot be jeopardized by permitting examination of such witnesses first in the departmental proceedings.
Heard learned counsel for the respective parties and perused the pleadings available on record.
6. ANALYSIS :
The short question which arises for consideration is whether, in the facts and circumstances of the present case, the departmental proceedings initiated against the applicant vide charge-sheet dated 25.04.2022 deserve to be deferred during the pendency of the criminal proceedings arising out of the same transaction.
The law on the subject stands substantially settled by the Hon'ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., (1999) 3 SCC 679. The Hon'ble Supreme Court has held that there is no legal bar to the simultaneous continuation of departmental and criminal proceedings. However, where the departmental and criminal proceedings are based on identical and similar facts, and the criminal charge is grave and involves complicated questions of fact and law, it would be desirable to stay the departmental proceedings so as to ensure that the defence of the delinquent in the criminal case is not prejudiced.
At the same time, the Hon'ble Supreme Court has made it clear that no hard-and-fast rule can be prescribed and that the question has to be considered having regard to the facts and circumstances of each case. The nature of the charge, the evidence and material involved, the identity of witnesses, the possibility of prejudice to the defence of the delinquent and the progress of the criminal proceedings are all relevant considerations. The departmental proceedings also cannot be permitted to remain unduly delayed and, where the criminal proceedings do not proceed or are unduly delayed, the departmental proceedings may be resumed.
The same principle was reiterated in Kusheshwar Dubey v. Bharat Coking Coal Ltd., (supra), wherein the Hon'ble Supreme Court held that although there is no legal bar to simultaneous proceedings, in an appropriate case it may be desirable to defer the departmental proceedings where both proceedings arise out of the same set of facts. The Court, however, consciously refrained from laying down any rigid formula and left the matter to be determined on the facts of each case.
In the present case, it is not in dispute that the departmental proceedings and the criminal proceedings arise out of the same transaction. The departmental charge against the applicant alleges that he paid illegal gratification in cash for obtaining a favourable posting/change in transfer order. The criminal prosecution also arises from the same allegation and transaction. The applicant has specifically pleaded that the material relied upon in both proceedings substantially overlaps and that the witnesses and documents relevant to the departmental proceedings are also material to the criminal prosecution.
The apprehension expressed by the applicant that if the departmental proceedings are allowed to proceed simultaneously, he may be required to disclose his defence and cross-examine common witnesses before the criminal Court has had an opportunity to examine them, cannot be said to be wholly unfounded. In a case where the charges and the material evidence substantially overlap, such a situation has the potential of exposing the defence of the delinquent in the criminal prosecution and thereby causing prejudice to his right to effectively defend himself.
The decision of this Tribunal in OA No. 3139/2018, decided on 26.11.2018, also assumes relevance in this context. In that case, arising out of a CBI trap, this Tribunal found that the charges in the criminal and departmental proceedings were almost identical and that the lists of witnesses were identical. Following the principles laid down in Capt. M. Paul Anthony (supra), the Tribunal, while declining to quash the charge memo, directed deferment of the disciplinary proceedings till conclusion of the criminal proceedings or for a period of two years, whichever was earlier.
The respondents have relied upon Ajit Kumar Nag v. General Manager (P.J.), Indian Oil Corporation Ltd., (supra) to contend that departmental and criminal proceedings operate in different fields and are governed by different standards of proof. There can be no quarrel with the said proposition. However, the said distinction does not completely answer the question arising in the present case. The issue before us is not whether the departmental proceedings can legally coexist with criminal proceedings, but whether, in the peculiar circumstances of the present case, simultaneous continuation of the departmental proceedings is likely to prejudice the applicant's defence in the criminal prosecution. The answer to that question has to be found by applying the principles laid down in Capt. M. Paul Anthony (supra).
We are also conscious of the fact that the criminal proceedings in the present case have been pending for a considerable period. However, the respondents themselves submit that the trial is presently at the stage of charge and that a large number of prosecution witnesses are yet to be examined. The applicant has also stated that he is not seeking to delay the criminal proceedings and is taking steps for expeditious progress thereof. In these circumstances, merely because the criminal proceedings may take some further time cannot, by itself, justify compelling the applicant to disclose his defence in the departmental proceedings when the two proceedings substantially arise from the same set of facts and evidence.
In our considered view, the protection contemplated in Capt. M. Paul Anthony (supra) is intended to prevent a situation where the employee is placed in a position of having to disclose his defence in the departmental proceedings in a manner which may prejudice his defence in the criminal trial. The balance between the competing interests can adequately be maintained by deferring the departmental proceedings for a reasonable period, rather than either quashing the charge-sheet or directing an indefinite stay.
7. CONCLUSION :
We are, therefore, of the considered view that the present case falls within the category of cases where deferment of the departmental proceedings is warranted. Such deferment, however, cannot be indefinite. Keeping in view the principles laid down by the Hon'ble Supreme Court in Capt. M. Paul Anthony (supra) and the approach adopted by this Tribunal in OA No. 3139/2018, we consider it appropriate to direct as under:
The departmental proceedings initiated against the applicant pursuant to charge-sheet dated 25.04.2022 shall remain deferred till evidence of material witnesses in the criminal proceedings are recorded or for a period of six months from the date of this order, whichever is earlier. It is expected that the applicant shall also cooperate in the cross-examination of material witnesses in the criminal trial.
The charge-sheet is not quashed, and the respondents shall be at liberty to resume the departmental proceedings upon expiry of the aforesaid period, in accordance with law, if the criminal proceedings have not concluded by then.
Nothing contained in this order shall be construed as an expression of opinion on the merits of the criminal case or the departmental charges.
The O.A. stands disposed of in the aforesaid terms. Pending M.A.(s), if any, shall stand disposed of. There shall be no order as to costs.