Madras High Court
M. Vincent Paul vs The Chief Educational Officer And Ors. on 8 March, 2002
Equivalent citations: (2002)2MLJ15
ORDER K. Sampath, J.
1. The prayer in the main writ petition is for certiorari to call for the records relating to the proceedings of the second respondent in Charge No. 15 of 2001, dated 30.8.2001 and quash the same.
2. The prayer in the writ miscellaneous petition, W.M.P. No. 28223 of 2001, is to stay all further proceedings in charge No. 15/2001, dated 30.8.2001 of the second respondent, pending disposal of the main writ petition. In this writ miscellaneous petition, on 12.10.2001, D. Murugesan, J. on being prima facie satisfied, following the decisions of the Supreme Court in Kusheshwar Dubey v. Bharat Coking Coal Limited and State of Rajasthan v. B.K. Meena , wherein it has been held, "that where criminal as well as disciplinary actions were grounded on the same facts, the stay of disciplinary action would be justified", granted stay of further proceedings in charge No. 15 of 2001, dated 30.8.2001, of the second respondent pending further orders.
3. W.M.P. No. 32054 of 2001 has been filed by respondents 2 and 3 in the main writ petition to vacate the order of interim stay granted on 12.10.2001 in W.M.P. No. 28223 of 2001.
4. There are two proceedings initiated against the writ petitioner. One is a criminal proceeding under Section 377 read with 511, I.P.C. and it is pending before the Court of the Judicial Magistrate III, Salem; and the writ petitioner has been enlarged on bail. So far as the other proceeding is concerned, it is a departmental action initiated by the School against the writ petitioner.
5. The version of respondents 2 and 3 is as follows:
On 29.3.2001 at about 2.35 p.m. one Sahayanathan (Office Assistant in the School) informed the Headmaster that he saw the writ petitioner taking a IX Standard student N. Allaudin Badshato the bathroom. The Headmaster asked him and two other staff members (one Teacher, B. Karthikeyan by name, and a non-teaching staff S. Kulandasamy) to go and find out the facts. They went to the bathroom. Whey they entered the bathroom, the writ petitioner forcibly rushed out. They found, the student Allaudin Badash standing inside without trousers and underwears. The writ petitioner left the school campus through the play ground. The teacher, the non-teaching staff and the office Assistant brought the student to the Headmaster. On enquiry, the student told the Headmaster that the writ petitioner took him to the bathroom, molested him and attempted unnatural sex on him, and seeing the staff, the writ petitioner rushed out. There was uproar among the students and the staff. In the evening, the members of the Management met and decided to lodge a complaint with the police. A written complaint to the Inspector of Police, Hasthampatti Police Station, Salem, was given at about 8.00 p.m. on the same day and the complaint was registered as CSRNo.57 of 2001. The police, after inquiring the student and the staff, registered an First Information Report in Cr.No.182 of 2001, under Section 377 read with 511, I.P.C. The writ petitioner was arrested on 31.3.2001. and kept under judicial custody in the the Central Prison, Salem from 1.4.2001. This was intimated to the Chief Educational Officer/first respondent in the writ petition, by the Inspector of Police by letter dated 3.4.2001. A copy of which, was marked to the school. On 4.4.2001, the Correspondent, by order No. 6 of 2001, placed the writ petitioner under suspension. The suspension order was communicated to the writ petitioner through the Jail Superintendent. In an emergent meeting, on 29.3.2001, the staff council passed a resolution condemning the act of the writ petitioner and requesting the Management to take severe action. So also, the Teachers' Association passed a similar resolution condemning the act, and removed the writ petitioner from its membership and expressed its fullest co-operation for the actions to be taken against the writ petitioner. This was also given publicity in several newspaper, with the result, the reputation of the institution got severely damaged. In those circumstances, the Management decided to initiate disciplinary proceedings against the writ petitioner, issued a charge memo on 30.8.2001 in memo No. 15 of 2001 framing charges and asking him to submit his explanation. Copies of the documents, relied on by the Management, were also annexed to the charge memo. The writ petitioner submitted his explanation on 7.9.2001. The Management appointed an Enquiry Committee, comprising a Chairman and two Members. The Enquiry Committee fixed the enquiry at 10.00 a.m. on 22.9.2001, and notified the writ petitioner by a registered letter dated 12.9.2001. On 20.9.2001, the writ petitioner sent a telegram to the Chairman stating that he was sick and unable to attend the enquiry, and sought adjournment. The Chairman adjourned the enquiry to 25.9.2001. On 21.9.2001, the Chairman received a letter from the writ petitioner seeking a month's time for attending the enquiry, enclosing a medical certificate. This was followed by another letter, dated 22.9.2001, requesting to adjourn the enquiry after 16.10.2001. The enquiry was adjourned to 17.10.2001, and the same was intimated to the writ petitioner by the Chairman by a registered letter dated 25.9.2001. However, on 17.10.2001, the writ petitioner sent a letter to the Chairman stating that this Court by an order, dated 12.10.2001, had admitted his writ petition challenging the disciplinary proceedings and granted an order of stay against the same.
6. The case of the writ petitioner is as follows: He was appointed as P.G. Assistant (Political Science) on 6.2.1992 in the respondent/school. He had an unblemished record of service in the previous Institute where he worked, and also in the present school till 1997. In 1997, the third respondent, namely, Fr. Zakrias, joined the school as Headmaster and ever since he assumed charge, he was trying to subjugate the teachers, who did not fall in line with him. The petitioner is one of the victims. The charges framed against him are utterly baseless and made with a view to malign him and to remove him from the school. The students have also been implicated in this obnoxious act of the Headmaster. The second respondent has initiated action against the writ petitioner only at the instance of the third respondent who is actuated by malice. A memo, dated 30.8.1999, was served on the writ petitioner asking him to show cause as to why he went for the valuation at Madurai camp without obtaining prior permission from the management. The proceedings resulted in the imposition of a punishment of stoppage of increment for a period of one year. In the said order, it is mentioned that though the school got State first rank in the subject Political Science, the participation of the writ petitioner in the valuation work gave room for suspicion among the general public. The writ petitioner has filed an appeal before the Director of School Education, which is still pending. On 20.12.2000, the Headmaster issued a memo to the petitioner alleging certain irregularities by the petitioner in connection with having signed a surety. The petitioner submitted his explanation on 21.12.2000, and on 3.1.2001 a Warning memo was also issued to the petitioner. One Cruz Arokiyasamy, who worked in the School as P.G. Teacher in Botany was dismissed because of the vindictive attitude of the Headmaster. Another teacher by name Vincent Paulraj was transferred vindictively. These things would show that the action of the second and the third respondents against the petitioner is tainted with malice. The allegations against the petitioner in the charge memo, dated 30.8.2001, of the second respondent, and the offences alleged to have been committed by the petitioner, are based on identical set of facts. The nature and scope of the departmental proceedings as well as the criminal trial, are similar to each other and under the said circumstances, the departmental proceedings would seriously prejudice the petitioners defence at the criminal trial. Any defence that is available to the writ petitioner in respect of the alleged offence in the criminal trial cannot be prematurely revealed at this stage before the departmental proceedings. The charges are grave in nature involving complicated questions of fact, and the evidence to be adduced in both the proceedings would be one and the same. The students were coerced into giving statements and under such circumstances, if the petitioner reveals his defence before the departmental enquiry, it will undoubtedly undermine his case in the criminal trial. The impugned proceedings were initiated only when the petitioner requested for reinstatement, after a lapse of five months after the alleged occurrence.
7. The principles Nemo debit bis vexari a man must not be put twice in peril for the same offence is incorporated in Article 20(2) of the Constitution. But the Constitution Bench of the Supreme Court has pointed out in S.A. Venkataraman v. Union of India and Anr. , that the ambit and the contents of this guarantee found in Article 20(2) are much narrower than those of the common law rule in England where if a man is indicted again for the same offence, he can plead as a complete defence, his former acquittal or conviction or as it is technically expressed take the plea of 'autrefois acquit' or 'autrefois convict' or the doctrine of 'Double Jeopardy' in the American Constitution. The principle of 'autrefois acquit' is absent in Article 20(2). To enable a citizen to invoke Article 20(2), there should have been both prosecution and punishment in respect of the same offence. Both the factors must coexist in order that the operation of the clause may be attracted. The Supreme Court has further observed:
It seems that our Constitution makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to the regulated by the general law of the land.
8. Section 300 of the Code of Criminal Procedure, 1973 also contains the principle of autrefois acquit or autrefois convict.
9. The Constitution does not define 'offence'. But, Article 376 provides that unless the context otherwise requires, the General Clauses Act, 1897, shall apply.
10. Section 26 of the General Clauses Act, 1897, provides:
Where an act or omission constitutes an offence under two or more enactments then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.
11. There is a substantial difference between a 'departmental inquiry' and a 'criminal trial' with respect to standard of rules, applicability of the Evidence Act and so on. As a rule, the departmental proceedings should not be stayed pending the criminal trial unless the charge in the criminal trail involves complicated questions of fact and law. The only ground to stay the departmental proceedings is that the defence of the employee in the criminal case should not be prejudiced.
12. In S.A. Venkataraman v. Union of India , already referred to, it has been held by the Constitution Bench that, "an order of dismissal of a servant could not be regarded as a punishment for an offence punishable under particular Sections of the Indian Penal Code.... A somewhat analogues case would be that of a member of the Bar whose name was struck off the rolls on grounds of professional misconduct, in exercise of disciplinary jurisdiction by the proper authority. The professional misconduct might amount to a criminal offence, but if we were to accept the petitioner's contention as correct, the man could not be prosecuted for it, even though the authority inflicting the penalty of removal was not a competent Court to investigate any criminal charge nor was the punishment imposed in exercise of disciplinary jurisdiction a punishment for an offence". In that case before the Supreme Court, certain imputations of misbehaviour by the petitioner therein, who was a member of Indian Civil Service, while holding officers of various descriptions under the Government of India, came to the notice of the Central Government and the latter being satisfied that there were prima facie good grounds for making an enquiry directed a formal and public enquiry to be made as to the truth or falsity of the allegations made against the petitioner, in accordance with the provisions of the Public Servants (Inquiries) Act of 1850. An ex-Chief Justice of the Calcutta High Court was appointed as Commissioner under Section 3 of the said Act to conduct the enquiry and report to the Government, on the result of the same, his opinion on the several articles of charge formulated against the petitioner. The Commissioner found, on a consideration of the evidence, that four of the charges under various sub-heads were proved against the petitioner and submitted a report to that effect to the Government. The Government, by a subsequent letter informed the petitioner that, on careful consideration of the report, the President accepted the opinion of the Commissioner and in view of the findings on the several charges arrived at by the latter, was provisionally of opinion that the petitioner should be dismissed. Opportunity was given to the petitioner by a letter in terms of Article 311(2) of the Constitution to show cause against the action proposed to be taken in regard to him and it was stated that any representation, which he might desire to make, would be taken into consideration before the final order was passed. The petitioner made a representation which was considered by the Government and after consultation with the Union Public Service Commission the President finally decided to impose the penalty of dismissal upon the petitioner. The order of dismissal also was subsequently passed. A few months thereafter, the police submitted a charge sheet, against the petitioner before the Special Judge, Sessions Court, Delhi charging him with offences under Sections 161/165 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act and upon that, summons were issued by the learned Judge directing the petitioner to appear before this Court on a particular day. The legality of this proceeding was challenged before the Supreme Court. The substance of the petitioner's case was that the proceedings that has been started against him were without jurisdiction in as much as they mounted to fresh prosecution for offences for which he had been prosecuted and punished already and this came within the prohibition of Article 20(2) of the Constitution. The Supreme Court took up for consideration, whether there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution which would justify the issue of a writ for enforcement of the same? The Supreme Court held against the petitioner and while dismissing the petition observed as follows:
In our opinion, therefore in a enquiry under the Public Servants (Inquiries) Act of 1850, there is neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes that act of omission an offence.
The Supreme Court held that there was no violation of Article 20(2) of the Constitution. In the same judgment, adverting to the powers exercised by the Commissioner under the Public Servants (Inquiries) Act, 1850, the Supreme Court observed as follows:
A Commissioner appointed under this act has no duty to investigate any offence which is punishable under the Indian penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word "prosecution" has been used, would not make the proceeding before the Commissioner, one for prosecution of an offence.
As the Commissioner has to form his Opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry. This is conclusively established by the provisions of Sections 21 and 22 of the-Act. At the close of the enquiry, the Commissioner has to submit a report to the government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoriativeness which are the essential tests of a judicial pronouncement. The opinion is not even being on the Government. Under Section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion. When Special Commissioners are appointed, their report could be referred to the Court or other authority to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take.
Even in the present case, the Committee of Three has been appointed to find out whether there is truth in the imputation of misbehaviour made against the petitioner and it is only as instances of misbehaviour that the several charges framed are investigated, upon which disciplinary action might be taken by the school authorities if they so choose. The Committee is to submit a report to the school authorities regarding its finding on each one of the charges made. It will be expressing only an opinion and the opinion will lack both finality and authoriativeness which are the essential tests of a judicial pronouncement. Let us not forget that in the case before the Supreme Court in S.A. Venkataraman's case , both proceedings arose from the same set of facts. The possible difference between that case and the present one is that the enquiry under the Public Servants (Inquiries) Act of 1850 had concluded and thereafter proceedings under I.P.C. and Prevention of Corruption Act commenced. In my reckoning even if the two proceedings had been simultaneous the decision by the Supreme Court would not have been different. This perception of mine is reinforced by the view expressed by the Supreme Court in State of Rajasthan v. B.K. Meena to which decision I will be referring further down.
13. In Delhi Cloth and General Mills Limited v. Kushal Bhan , which arose by way of Civil appeal from a decision of the Industrial Tribunal, the facts were as follows:
The respondent before the Supreme Court was working in the appellant/company as a peon. The cycle belonging to the Head Clerk of the company was stolen. The company reported the matter to the police. Sometime later, the cycle was recovered from the railway station cycle stand at the instance of the respondent who took the police there and picked out the stolen cycle from among 50/60 cycles standing there. This was brought to the notice of the company and there upon a charge sheet was served on the respondent to the effect that he had stolen the cycle of the Head Clerk, that it had been recovered at his instance, and that a criminal case was pending against him with the police. He was asked to show cause why he should not be dismissed for misconduct. The respondent submitted his explanation. As his explanation was unsatisfactory, date was fixed for enquiry. The respondent appeared before the enquiry committee but stated that as the case was pending against him, he did not want to produce any defence till the matter was decided by the Court. He further stated that he did not want to take part in the enquiry and was not prepared to give any answers to questions put to him. When questions were put to him at the enquiry, he refused to answer them and eventually he left the place. The company, however, completed the enquiry and directed the dismissal of the respondent on the ground that the misconduct had been proved against him. Thereafter an application was made under Section 33(2) of the Industrial Disputes Act, 1947 by the Company to the tribunal for approval of the action taken against the respondent. In the meantime, the respondent had been acquitted by the Criminal Court on the ground that the case against him was not free from doubt. The Court of the judgment of the Criminal Court was produced before the tribunal and it refused to approve the order of dismissal. The company went to the Supreme Court.
The two Judges bench of the Supreme Court approved the decision of the Labour Appellate Tribunal in Shri Bimal Kanta Mukherjee v. Newman's Printing Works 1956 Lab I.C. 188, that it would be fair if employers stayed enquiries pending the decision of the criminal trial Courts, but it could not be said that principles of natural justice required that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee. The Supreme Court however added that if the case was of a grave nature or involved questions of fact or law, which were 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 might not be prejudiced. Holding that the case before it was of a very simple nature that the employer could not be blamed for the course adopted by him, that there was no failure of natural justice, and that if the employee did not choose to take part in the enquiry no fault could be found with that enquiry, the Supreme Court allowed the appeal in favour of the employer.
14. In Tata Oil Mills Company Limited v. The Workmen , the Supreme Court Bench, consisting of three judges of whom two constituted the earlier Bench, reiterated the principles in the following terms:
As this Court has held in the Delhi Cloth and General Mills Limited v. Kushal Bhan , it is desirable that if the incident giving rise to a charge framed against a 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 anything (sic.) that if an employer proceeds with the domestic enquiry inspite 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 mala fide.
15. Another two Judges Bench of the Supreme Court in Jang Bahadur Singh v. Baij Nath Tiwari , which was a case relating to disciplinary proceedings against the Headmaster of an educational institution, has observed as follows:
The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceedings pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The Civil or Criminal Court has no such power. The imitation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the Course of justice in the pending Court proceedings. The employee is free to move the Court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to Contempt of Court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers.
The facts were as follows:
The respondent, who was the principal of the college, drew from the Boys' Fund of the College two sums of Rs. 189 for payment of scholarship to two Harijan students. On withdrawal of the monies, he sent to the Harijan Tatha Samaj Kalyan Adhikari a form called Form No. 14 containing a receipt of the Scholarship signed by the two students and countersigned by himself. The Adhikari wrote to the appellant informing him of the complaint made by the students that inspite of the submission of Form No. 14 they had not received the scholarship. Sometime later, the District Inspector of Schools visited the college and on finding that the scholarships had not been paid, called for an explanation for nonpayment. Thereafter, the appellant forwarded the Inspector's letter to the respondent/Headmaster and asked him to give an explanation. The respondent sent a reply stating that payments were made to the students, and that the delay in payment was due to the absence of the students from the College and the fact that the register on which receipts had to be obtained were with the Inspector during the relevant period. A meeting of the managing committee was called on to consider the Inspector's letter and the respondent's explanation. The managing committee met and resolved to take disciplinary action against the respondent. The appellant passed an order suspending the respondent pending the inquiry. The order stated that it was passed in exercise of the power vested in the appellant by the rules and the resolution of the managing committee. A copy of the resolution was also attached. The respondent filed a writ petition in the High Court of Allahabad praying for appropriate writs quashing the order of suspension, and obtained an ex parte order from the High Court staying the operation of the suspension order. Subsequently, after hearing both the parties, the High Court vacated the stay order. Thereafter, the appellant served a charge sheet on the respondent. The respondent was required to submit his explanation. Instead of submitting his explanation, the respondent filed a petition in the High Court asking for committal of the appellant for Contempt of Court. His contention was that the aforesaid charge was the subject-matter of inquiry in the pending writ petition, and that as the respondent had launched a parallel inquiry in the matter, he had committed Contempt of Court. The High Court accepted the contention and held that the respondent was guilty of Contempt of Court and directed him to pay a fine of Rs. 500 and costs. The appellant moved the Supreme Court and the Supreme Court allowed the appeal holding that an authority conducting an inquiry in good faith in exercise of the powers vested in it by statutory regulations was not guilty of Contempt of Court, merely because a parallel inquiry was imminent or pending before a Court.
16. The above three decisions and other decisions of High Courts were referred to by the Supreme Court in Kusheshwar Dubey v. Bharat Coking Coal Limited and it has been held as follows:
While there can 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 employees to seek such an order of stay or injunction from the Court. Where 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. It is neither possible nor advisable to evolve a hard and fast, straitjacket formula valid for all cases and of general application without regard to the particularities of the individual situation.
In that case, no doubt, the criminal action and the disciplinary proceedings were grounded upon the same set of facts. The Supreme Court opined 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 has been affirmed in appeal.
17. None of the above decisions has referred the law laid down by the Constitution Bench of the Supreme Court in S.A. Venkataraman's case perhaps because it was not cited. In State of Rajasthan v. B.K. Meena , S.A. Venkataraman's case has been relied upon and in para. 11, it is stated as follows:
In S.A. Venkataramn v. Union of India , the petitioner herein was subjected to disciplinary proceedings to the first instance and was dismissed from service on 17.9.1953. On 23.2.1954, 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 simulta neous criminal proceedings and disciplinary proceedings. Indeed not only the said two proceedings, but if found necessary, even a civil suit can also proceed simultaneously.
18. In State of Rajasthan v. B.K. Meena , after referring to a number of its own judgments, the Supreme Court held as follows, para 14 is worth being reproduced:
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 or law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case taking into consideration all the facts and circumstances of the case, the ground indicated in Delhi Cloth and General Mills Limited v. Kushal Bhan and Tata Oil Mills Company Limited v. The Workmen is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag an endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good governance 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 misdemeanor 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 misdemeanor 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.[Italics supplied] 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." The Supreme Court further observed as follows: "We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be 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 the 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.
The Supreme Court further noted as follows:
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.
As in that, the writ petitioner herein was already disclosed his defence. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in the criminal case. In para. 17 of the said judgment, the Supreme Court has observed 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 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.
19. In Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya , a three judges Bench of the Supreme Court again observed that no inflexible guidelines can be laid down with regard to simultaneous conduct of departmental enquiry and criminal trial. Each case requires to be considered in its own facts and circumstances. It must be seen whether the departmental enquiry would prejudice the delinquent's defence at the criminal trial.
20. In Capt. M. Paulanthony v. Bharat Gold Mines Limited , the same principles have been reiterated. The principles have been set down in para 22:
The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, through separately,
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal, case against the delinquent employee is of a grave nature, which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case,
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet,
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.
21. In V. Prabakaran v. V.S. Thilaivanan 2000 Writ L.R. 717, E. Padmanabhan, J., after referring to a number of decisions of the Supreme Court, held that the disciplinary action need not be stayed, though the learned Judge held that the criminal charges for which the petitioner was being prosecuted and the departmental charges related to different misconduct and they were not grounded on the same set of facts or imputations and it was not as if by proceeding further with the departmental enquiry, the petitioner would be prejudiced.
22. From the facts and circumstances of this case, I am of the clear view that there can be no stay of disciplinary enquiry initiated against the writ petitioner. For his alleged misbehaviour within the school premises, he is sought to be proceeded against. The incident had received wide, perhaps unwanted, publicity in the news media. The school has had a great reputation about it. It is but proper that the public impression, on account of the news of the alleged demeanour of the petitioner about the School, is erased by the truth being brought out.
23. It was represented by the learned Counsel for the petitioner that he would cooperate in the criminal proceedings and see to it that an early finality came to it. It is upto the petitioner to get a finality of cooperating with the prosecution and enabling the Court to come to an early decision. But then it cannot be over looked that earlier on the petitioner had asked for his discharge and his discharge petition came to be dismissed.
24. So far as the enquiry is concerned, I am of the considered view that it will not prejudice the delinquent's defence at the criminal trial. It need not wait the decision in the Criminal Court. The Criminal Court decision may end either way. It may not reach finality in the near future. There may be appeal or revision to the higher Court and in the meantime the students in the school, who have been cited as witnesses, would pass out and may not be available for enquiry and in a case like this, delay is to be totally avoided. It is better that they and the other office staff are examined when their memory is fresh. The disciplinary proceedings must be proceeded with without any further delay. However, no final decision shall be taken without reference to this Court.
25. For all the reasons stated above, I vacate the interim stay granted, dismiss the stay petition and allow the vacate stay petition.