Delhi High Court
Brahma Prakash Kalra vs National Thermal Power Corporation And ... on 5 February, 2002
Equivalent citations: 2002(2)CRIMES463, 96(2002)DLT369, [2002(93)FLR808]
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. The petitioner is aggrieved by the proposed departmental proceedings initiated against him in respect of which a criminal case is pending.
2. The petitioner is alleged to have demanded/received a bribe and was caught by the raiding party of the CBI. A criminal case has been filed against the petitioner.
3. The respondents have proceeded departmently against the petitioner and issued a statement of articles of charges as annexed to the memorandum dated 6th August, 2001. It would be relevant to reproduced para 2 of the said statement of charges.
"By the above acts, Sh. Brahama Prakash Kalra demanded an illegal gratification of Rs. 2,200/- (Rupees two thousand two hundred only) from Sh. Rajinder Kumar Sethi and took the same from the said Sh. Rajinder Kumar Sethi. Thereby, he committed an act of misconduct in terms of Rules 5(2) of the NTPC, CDA Rules, 1976. He also failed to maintain absolute integrity and acted in a manner unbecoming of a public servant and thereby, he violated Rules 4(1)(i) and 4(1)(iii) of the above said Rules."
4. Learned Counsel for the petitioner has contended that both the criminal case and the departmental proceedings are based on some facts i.e. raid and recovery conducted against the petitioner. Learned Counsel further contends that the witnesses are the same. The same charges are being investigated both in the Criminal Court and by the Departmental Authority and the proceedings before the Departmental Authority will be prejudicial to the defense of the petitioner in the criminal case. Learned Counsel for the petitioner has also contended that the procedure adopted by the raiding party and the criminal action taken against him is in violation of the provisions of Section 17 of the Prevention of Corruption Act, 1988.
5. Learned Counsel for the petitioner has upon a decision of the Supreme Court in Capt. M. Paulanthony v. Bharat Gold Mines Ltd. and Anr., , and referred to para 13 of the judgment as under:
"As we shall presently see, that is consensus of judicial opinion amongst the High Court whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basis of principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas 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 to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in a criminal case. While in the departmental proceedings the standard of proof is one of prepondence of the probabilities in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."
6. Learned Counsel for the petitioner has contended that the case of the petitioner would fall within the category of "little exception" and thus is entitled to protection against the continuation of departmental proceedings. Learned Counsel for the petitioner also referred to paragraphs 14, 15, 16, and 17 of the aforesaid judgment where ratio of different judgments have been discussed in respect of proceedings against the employees simultaneously being carried on both in the Criminal Court and before the Disciplinary Authority.
7. Mr. Taneja learned Senior Counsel for the respondents on the other hand, has contended that there is no bar to the disciplinary proceedings continuing simultaneously with the criminal proceedings and has specifically referred to the facts that in the statement of article of charge, the allegations against the petitioner is that he demanded illegal gratification. Mr. Taneja contended that thus for the purpose of disciplinary proceedings against the petitioner, the mere demand is sufficient while in the criminal proceedings a higher degree of proof is required and it has to be proved that he demanded and received the amount. Thus it is contended that the violation of the Provisions of Prevention of Corruption Act, 1988 if any may have relevance for the criminal proceedings and not for the disciplinary proceedings.
8. Mr. Taneja had referred to a judgment of the Supreme Court in the case of Depot Manager, A.P. State Roadways Transport Corporation v. Mohd. Yousuf Miya and Ors. .
9. The Supreme Court considered the issue of the department inquiry and of criminal prosecution and held that the same are different and distinct aspect. The Supreme Court in paragraph 8 observed as under:
"We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial.T he evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
10. Mr. Taneja also referred to the judgment of Capt. M. Paulanthony's case (supra), to contend that the facts in that particular case were distinct inasmuch as the proceedings were concluded and the appellant was dismissed from service on 7.8.1986 while on 3.2.1987 the appellant was acquitted in the criminal proceedings on the findings that the prosecution has failed to establish its case. Mr. Taneja further contends that even if ration of the said judgment is applied to the facts of the present case, the departmental proceedings must continue. Mr. Taneja referred to paragraph 19 of the said judgment where the ratio laid down in State of Rajasthan v. B.K. Meena and Ors. , was referred to as under:
"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 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."
11. I have considered the submission advanced on behalf of the learned Counsel for the parties. It is not disputed that the criminal proceedings and the departmental proceedings operate in different and distinct areas. The Supreme Court has in the case of Capt. M. Paulanthony case (supra), referred to the desirability of expeditious disposal of departmental proceedings which are imitated and meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of the bad elements. It is in the interest of the delinquent officer so that there is prompt conclusion of the departmental proceedings. The Supreme Court has succinctly set out this aspect in the case of Depot Manager, A.P. State Roadways Corporation (supra), by holding that while crime is an act of commission in violation of law or of omission of public duty, the departmental enquiry is to maintain discipline in the service and efficiency of public service.
12. In view of the aforesaid it has to be considered whether the petitioner's case really falls within the "little exception' as contended by the learned Counsel for the petitioner. In my considered view the answer to this question would be in the negative.
13. There is force in the submission of the learned Counsel for the respondents that a reference to the statement of charge itself would show that so far as the respondents are concerned, if the petitioner has even demanded a illegal gratification, the same would be sufficient to proceed against the petitioner. It the petitioner is aggrieved by violation of any provisions of Prevention of Corruption Act, 1983, it would be open for him to agitate that issue before the Criminal Courts. It may be good ground for defense in the criminal proceedings but it is not an aspect to be considered in the present proceedings. The very nature of charge is such that exigency of good administration requires the disciplinary proceedings to be concluded expeditiously.
14. I am thus of the considered view that in the facts and circumstances of the case, the continuation of the departmental proceedings cannot be said to be of such a nature where the same need to be stopped pending adjudication by the Criminal Court of the case of filed against the petitioner.
The writ petition is dismissed.