Delhi High Court
Antony Faria vs Secretary, Council For The Indian ... on 26 April, 1996
Equivalent citations: (1997)ILLJ66DEL
Author: Cyriac Joseph
Bench: Cyriac Joseph
JUDGMENT Devinder Gupta, J.
1. The petitioner on November 4, 1995, filed a writ petition praying for the quashing of the charge sheet dated November 22, 1993, on the ground that enquiry proceedings initiated against him on the basis of charge sheet is illegal and void and for stay of enquiry proceedings till disposal of criminal case. Along with the petition, an application for interim relief was also moved praying for staying the departmental proceedings. On November 6, 1995, while issuing; notice to show cause in the petition, on the application for interim relief, (CM 6914/95) an order was made for staying the enquiry proceedings and directed that criminal proceedings before the Metropolitan Magistrate to be disposed of expeditiously. The respondents filed a separate application (CM 126/96) praying for vacation of stay. It is on these two applications that we have heard learned counsel for the parties on the question whether or not the stay granted by this Court deserves to be vacated.
2. Learned Counsel for the respondent has definitely contended that the respondent is entitled in law to proceed with the disciplinary action against the petitioner on the charges served upon him. The disciplinary proceedings have come to an end and the Enquiry Officer has also submitted his findings and report on November 13, 1995. Great prejudice will be caused in case the disciplinary proceedings are allowed to remain pending during the pendency of the criminal proceedings, since according to learned 2, counsel for the respondent, the two are independent proceedings having no connection with each other. Nature and scope of the criminal proceedings are totally different from departmental proceedings and result of either of the 2, proceedings will have no impact on the other proceedings.
3. Learned counsel for the petitioner on the other hand has contended that allowing the disciplinary proceedings to continue will result in manifest injustice to the petitioner. Continuance of departmental proceedings when criminal trial on the same issue is in progress would tantamount to compelling the petitioner to disclose 31 his defense, which is against the principles laid down innumerous decisions of the Supreme Court. The charge sheet against the petitioner is malicious and sham and it originates from the respondent No. 1, who is highly prejudiced against the petitioner. The entire and sole purpose of disciplinary proceedings is to ease out the petitioner from service because the petitioner has formed a Union and raised voice against the irregularities being committed in the 44 Council. No prejudice is likely to be caused in case stay granted by this Court is continued during the pendency of the writ petition since direction has been issued to the Criminal Court for expeditious disposal of the criminal case. Learned Counsel for the parties have also placed reliance upon a few decisions.
4. The facts in brief are that on November 22, 1993, a complaint (Annexure-PN) was sent by respondent No. 1 to Station House Officer, Police Station, Kalkaji and on that basis First Information Report No. 493/93 was registered at Police Station, Kalkaji for the offences punishable under 420/4681471 I.P.C. against the petitioner. Challan has since been presented and on September 16, 1995, the petitioner has been charge-sheeted which reads :
"I, Sanjay Kumar, Metropolitan Magistrate, New Delhi do hereby charge you Antony Faria S/o Henry Faria resident of 3265/A, Sector-3 Housing Board Colony, Faridabad, Haryana as under :
that on or before October 26, 1993 at Council for the Indian School Certificate Examinations, Pragati House, you submitted Certificate purported to be issued by AET Barrow for securing appointment post of EDP Manager on the basis of above said forged certificate dishonestly and fraudulently to cheat the Indian Council for the Indian School Certificate, Pragati House. Thus thereby committed an offence punishable under Section 420 I.P.C. within my cognizance.
Secondly, on or before October 26, 1993, that you dishonestly or intentionally forged certificate dated February 27, 1982, for the purpose of cheating, thus thereby committed an offence punishable under Section 468 I.P.C. within my cognizance.
Thirdly, on the above said date and place you knowingly and intentionally used said forged certificate, as genuine, for the purpose of cheating, thus thereby committed an offence punishable under Section 471 I.P.C. within my cognizance. And I direct you shall be tried by this Court on the said charges."
5. The above would suggest that the petitioner has been charged with the offence punishable under Sections 420/468 and 471 I.P.C. for the alleged act of seeking appointment to the post of E.D.P Manager on the basis of a photo copy of certificate, alleged to be forged, projecting the same to be genuine for the purposes of cheating.
6. On November 22, 1993, the petitioner was issued a notice calling upon him to explain the alleged misconduct and irregularities alleged to have been committed by him in connection with his service. In addition to the furnishing of the photo copy of the certificate dated February 27, 1982 on the letterhead of the council and purporting to the bearing the signatures of the then Secretary Mr. AET Barrow, the same was not a genuine document and signatures thereupon of Mr. Barrow were false and forged one and the same had been submitted by the petitioner seeking appointment to the post of E.D.P. Manager, 1, it was stated that the petitioner had failed to furnish the original despite various reminders. The petitioner was also asked to show cause against his conduct on the following two grounds :"
On October 26, 1993 you not only submitted a letter containing complaints, accusations, defamatory and derogatory remarks regarding the functioning of the Council and its superior officers to the Dy. Secretary of the Council but also sent copies of the same to various external and political authorities thereby causing severe and irreparable damage to the reputation of the council and its superior officers. In the aforesaid letter dated October 26, 1993, you have disclosed 3(confidential information relating to the Council's decisions in regard to holding of examinations and internal correspondence between superior officers of the Council to which you could not and should not have had access and the disclosure of which in any case, amounts to be of confidentiality by an employee of the level of Superintendent in the Council."
7. It appears that the finding no satisfactory, response from the petitioner, the respondents decided to hold disciplinary enquiry against the petitioner, for which an Enquiry Officer, namely, an advocate of the Supreme Court was appointed, whose appointment was objected to by the petitioner. On May 4, 1994, when a non Enquiry Officer, Shri S. K. Leekha was appointed, the petitioner again objected to this act of respondents and feeling aggrieved, he preferred a civil writ petition in this court, namely, C.W. No. 2665/94. The same, however, was dismissed on June 17, 1995. The petitioner has placed on record copy of the proceedings conducted by the Enquiry Officer, which do suggest that on October 18, 1995, in the presence of the petitioner, the Enquiry Officer observed that the enquiry stands concluded. Proceedings placed on record also suggest that it was far back as on November 10, 1994 that the petitioner acquired knowledge of the registration of a criminal case against him.
8. It is the case of the respondents that the Enquiry Officer concluded the proceedings after 72 sittings in which petitioner absented on 20 occasions. The petitioner cross examined the management Witnesses in 31 sessions covering a period from March 10, 1995 to August 30, 1995 and as many as 300 questions were asked by the petitioner to the management witnesses NO. 1, 2 and 3. It is also contended that petitioner has, been charged for gross act of misconduct, namely, forgery, disobedience of the orders of the superior officers, indiscipline, misbehavior and damaging the reputation of the Council and breach of trust. Disciplinary proceedings as such were being held by respondents on numerous acts of misconduct whereas criminal trial pertains only to the offence of forgery.
9. Petitioner's contention is that the issue pending before the Criminal Court is similar to the proceedings in departmental enquiry. Departmental enquiry is primarily based by the respondents only on the issue that petitioner produced a photostat copy of a fabricated certificate. In case stay order is vacated, the respondents would proceed with departmental proceedings, which have been conducted by the Enquiry Officer, in hot haste and according to learned counsel for the petitioner, there has been flagrant violation of the procedure prescribed by law in conducting enquiry. It was time and again brought to the Enquiry Officer that continuing with the enquiry would tantamount to compelling the petitioner to produce evidence against himself, which would be used against him before the Criminal Court and, therefore, he would be materially prejudiced in his defense in the criminal case.
10. Considering the submission made at the bar and going through the facts of the case, we are of the view that the stay granted earlier deserves to be vacated. It is now well settled that nature and scope of a criminal case is different from that of a departmental disciplinary proceedings. Even an order of acquittal in a criminal case cannot conclude the departmental proceedings. In Anoop Jaiswal v. Government of India and another (1984-1-LLJ-337), it was held that merely because the accused is acquitted neither the power of the authority concerned to continue the departmental enquiry is taken away nor, its discretion in any way fettered. The Court held that normally where an accused is honourably and completely acquitted, it would not be expedient to continue the departmental enquiry on the very same charges or grounds or evidence, but the fact, however, remains that merely because the accused is acquitted, the power of the authority concerned is neither taken away nor its discretion in any way fettered. This view was further reiterated in a later decision in Nelson Motis v. Union of India and Another, (1992-II-LLJ-744) (SC), and it was held that the nature and scope of criminal case is totally different from the departmental disciplinary proceedings and an order of acquittal cannot conclude the departmental proceedings.
11. When criminal proceedings and disciplinary proceedings are based on the same facts and where case is or grave nature and involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of criminal case so that defense of the employee in the criminal case may not be Prejudiced. But it is neither a rule of law nor is it mandatory that the decision of a criminal case or an appeal should be awaited before initiating a domestic departmental enquiry or proceedings on the same facts.
12. In Delhi Cloth and General Mills Ltd., v. Kushal Bhan (1960-I-LLJ-520), it was held that where the employer does not propose to stay the enquiry pending decision of a criminal trial on, the same facts, it cannot be said that principles of natural justice are in any manner violated. This proposition that the principles of natural justice do not require that the employer must wait for the decision of a criminal case or an appeal before proceeding with a domestic enquiry on the same facts was reiterated by the Supreme Court in J. K. Cotton Spinning & Weaving Company Ltd. v. Its Workmen, (1965-II-LLJ-153).
13. In Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. and others (1988-II-LLJ-470), the Supreme Court examined various decisions and held that while there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, yet there may he 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 simultaneous 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. Court further held that it is neither possible nor advisable to evolve hard and fast, straight jacket formula, valid for all cases and of general application, without regard to the particularities of the individual situation.
14. It has been notified that in addition to the subject matter of criminal proceedings, petitioner is also facing two other independent charges in the disciplinary proceedings of misconduct, which have no connection with the subject matter of the criminal charges. It is also not in dispute that the petitioner has cross examined the management witnesses in the departmental proceedings. According to the respondents' version and as per the record produced by the petitioner, departmental proceedings have come to an end. When petitioner has already cross examined management witnesses and enquiry proceedings have come to an end, we see no reason how the petitioner would be prejudiced while defending the criminal case. It is not a case in which departmental proceedings are yet to commence. It is a case where departmental proceedings have come to an end, as noticed above, scope of both the proceedings is not identical. Acquittal in the criminal case will not debar the continuance of the departmental proceedings. Even recording the finding of guilt in departmental proceedings cannot result in petitioner being convicted in criminal case. In the departmental proceedings there are charges other than the charge in the criminal case. When petitioner has cross examined the management's witnesses, it cannot be said that the petitioner will be prejudiced or he would not get a fair trial in criminal case. The thrust of the arguments of the petitioner's counsel is that by allowing the departmental proceedings to continue the petitioner will be compelled to disclose his offence. The petitioner's defense is already known from the trend of the cross-examine of the witnesses in departmental proceedings and at any rate since the enquiry has come to an end and evidence has been closed, it cannot be said that now he is likely to be prejudiced in any manner. On conclusion of the enquiry, its result cannot have any effect on the criminal charge or proceedings before criminals courts. Thus it is not a case of any prejudice being caused to the petitioner and we do not find it to be a case for continuing the stay.
15. Learned counsel for the petitioner during the course of his arguments placed reliance upon a decision of the Supreme Court in Gurcharan Dass Chadha v. State of Rajasthan, and contended that it was on filing of this petition by him that Enquiry Officer concluded the proceedings with a view to put pressure upon him, which amounts to contempt of Court. We are not inclined to accept the submission of learned counsel for the petitioner since we find that Enquiry Officer is not a party to these proceedings and there is no material record to show that Enquiry Officer was ever served with a copy of the stay order passed on November 6, 1995 staying the departmental proceedings. As noticed above, the departmental proceedings were concluded on October 18, 1995 and Enquiry Officer thereafter only submitted his report and findings.
16. While we have declined to continue the stay, it may be observed that we have examined neither the question as to the legality and validity of the enquiry proceedings, nor the other questions raised in the petition. Both the applications are accordingly disposed. The order passed in C.M. 6914/95 on November 6, 1995 stands vacated.
CM-4116/96 (sic) & CW 4116/95.
17. List before regular bench on May 14, 1966 for directions