Central Administrative Tribunal - Allahabad
Ashok Kumar Urf Ashok Kumar Shukla vs Bharat Gold Mines Ltd And Another. ... on 6 September, 2012
(Reserved on 31.07.2012) CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 06th day of September , 2012. HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MR. SHASHI PRAKASH , MEMBER (A) Original Application Number. 1378 OF 2009. Ashok Kumar Urf Ashok Kumar Shukla, aged about 49 years, son of Shri Ram Badan Shukla, presently working as Sr. Statistical Officer, S.E. Railway, Kolkata, R/o C/o Manoj Kumar Shukla, D-1/202, Kalindipuram, A.D.A Colony, Allahabad. Applicant. VE R S U S 1. Union of India through General Manager, Northern Central Railway (NCR), Headquarter, Allahabad. 2. General Manager, Northern Central Railway (NCR), Headquarter, Subedarganj, Allahabad. 3. F.A & CAO, Northern Central Railway (NCR), Headquarter, Subedarganj, Allahabad. 4. Chairman, Railway Board, Rail Bhawan, New Delhi. 5. General Manager, South Eastern Railway, Garden Reach, Kolkata. 6. S.D.G.M / (G.M (V), North Central Railway / H.Q, Allahabad. ..Respondents Advocate for the applicant: Shri Shyamal Narain Advocate for the Respondents: Shri Tarun Verma Shri Anil Kumar O R D E R
Delivered by Honble Mr. Sanjeev Kaushik, J.M. By means of the present Original Application filed under Section 19 of Administrative Tribunals Act 1985 the applicant seeks quashing of order dated 12.05.2009 issued by the General Manager (Vig.), North Central Railway, Allahabad and the major penalty charge sheet dated 07.08.2009 issued by the respondent No. 5 to conduct departmental inquiry against the applicant with further prayer to issue any order or direction which this Tribunal may deem fit in the circumstances of the case.
2. The facts of the case, which are necessary for adjudication, are that the applicant, who is a member of Indian Railway Accounts Service, joined on 07.09.1998. After completion of training he was posted as Assistant Divisional Finance Manager / Assistant Divisional Accounts Officer in Allahabad Division on 01.01.2002. Subsequently he was promoted as Divisional Finance Manager/ Divisional Accounts Officer on 01.01.2002. The applicant was further promoted as Divisional Finance Manager on 27.09.2004 and he continued to hold the same post till 23.02.2006 when he was relieved to join North Central Railway, Allahabad as Deputy Finance Advisor & Chief Accounts Officer. He continued to work as such till 14.05.2007 when he was placed under suspension vide order dated 14.05.2007 under rule 4 of Railway Servants (Discipline & Appeal) Rules 1968 (Annexure A-3). His suspension was extended by order dated 09.08.2007. Aggrieved against the long suspension and non-issuance of charge sheet the applicant filed statutory appeal as provided under rule 18 of 1968 Rules, on 16.09.2007 (Annexure A-5). A letter was written by the respondents on 23.10.2007 to the C.B.I, Lucknow pointing out certain irregularities committed by six persons in which the name of the applicant was not included. The aforesaid letter dated 23.10.2007 was later on converted into FIR on 26.10.2007. Another FIR was also registered under section 120-B IPC and Section 13(2) read with 13(1)(c) of Prevention of Corruption Act was lodged before CBI, Lucknow in which the applicant was also made accused for opening Demat Account. When the applicant did not receive any communication from the respondents regarding his pending appeal he submitted another representation through proper channel on 26.12.2007. It is thereafter the applicant was served with an order dated 05.02.2008 informing him that his suspension has further been extended in the light of the recommendation of the Review Committee for another period of 90 days (Annexure A-7). By the same letter the applicant was also informed that his appeal dated 11.02.2008 was under submission with the Appellate Authority i.e. President of India and the decision taken shall be communicated after receiving the same. Aggrieved against the above action of the respondents the applicant approached this Tribunal by way of O.A No. 369/08. The said O.A was finally decided by order dated 03.04.2008 (Annexure A-8). The applicant served the certified copy of the order of the Tribunal to the respondents with his representation on 08.04.2008 (Annexure A-9). the General Manager, North Central Railway, Allahabad by its order dated 07.05.2008 revoked the suspension order with immediate effect and simultaneously the applicant was transferred to South Eastern Railway where he joined on 09.05.2008 (Annexure A-10). He made another representation on 21.09.2008 to the Secretary, Railway Board, New Delhi to grant him full salary and other allowances for the period 14.05.2007 to 07.05.2008 during which he was under suspension. In the FIR before the CBI, Lucknow a criminal proceeding vide Criminal Case No. 9/09 instituted before Special Judge (Anti Corruption) under section 120-B, 420, 468 and 471 IPC and under Section 13(2) read with Section 13(1)(d) of Anti Corruption Act 1988 against the applicant alongwith two other officers namely Mohd. Naseem and Shri Sahadeo Prasad was initiated. For the first time the court took cognizance on 30.03.2009 when notices were issued to the applicant (Annexure A-12). The respondents took a decision on 12.05.2009 not to go for disciplinary proceeding for major penalty charge sheet in reference to co-accused in reference to Railway Boards Letter dated 03.02.1994 and 04.08.1965. The applicant was served with a charge sheet dated 07.08.2009 whereas, no charge sheet was issued to other two officers namely Mohd. Naseem and Shri Sahadeo Prasad in terms of letter dated 12.05.2009. Against the above action of the respondents the applicant filed O.A No. 932/09, which was disposed off vide order dated 15.10.2009 with direction to pay full salary to the applicant for the suspension period and liberty was granted to the applicant to file fresh O.A for the reasons recorded in the order, hence the O.A.
3. This Tribunal on 20.11.2009 when the matter came up for preliminary hearing, had granted ad interim relief by directing the respondents not to proceed with the charge sheet until further orders.
4. Pursuant to the notice the respondents contested the case of the applicant and filed their detailed Counter Reply stating therein that the Criminal as well departmental proceedings can go on simultaneously. It is alleged that since there are certain financial irregularities, therefore, the charge sheet for major penalty was served upon the applicant. With regard to non-initiation of departmental proceeding against Mohd. Naseem and Shri Sahadeo Prasad, it is averred in the Counter Reply that since they were directly working under the applicant and considering the report of the C.B.I that they have only been proposed for prosecution as such the competent authority took a decision not to proceed in the department proceeding till disposal of case and there is no question of pick and choose.
5. The applicant has also filed Rejoinder Affidavit in which he contradicted the averments of the respondents and had alleged malafide.
6. We have heard Shri Shyaml Narain, learned for the applicant and Shri Tarun Verma alongwith Shri Anil Kumar, learned counsel for respondents.
7. Learned counsel for the applicant attacked the action of the respondents for initiation of departmental inquiry simultaneously with the criminal case on three grounds. Firstly, that the initiation of departmental proceeding with criminal case is against the respondents own circular dated 04.08.1965. Secondly, the charge sheet has been issued without application of mind as no independent finding has been recorded by the competent authority to proceed in the matter and only on the direction given by the C.B.I the impugned charge sheet has been served by the applicant. Thirdly, he submitted that when the complete record has already been seized by the C.B.I then how it was possible on the part of the respondents to have applied their mind and came to the conclusion that the applicant be served with major penalty charge sheet. He placed reliance upon the respondents own circular dated 07.10.1986 to the effect in case the criminal case is pending, the departmental proceeding will be stayed till the criminal case is concluded. He also placed reliance upon latest instruction issued by the Govt. of Indian, Ministry of Railway, Railway Board on 09.10.2007 where they have reiterated regarding disciplinary proceeding in terms of para 22 of the judgment of Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd and another. reported in JT 1999 (2) SC 456. Alternatively he submitted that the departmental proceeding be stayed till the conclusion of the criminal case, which is pending against the applicant. In support of his arguments, learned counsel for the applicant has placed reliance upon following judgments: -
a. JT 1999 (2) SC 456 - Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd and another;
b. J.T 2004 (6) SC 297 Kendriya Vidyalaya Sangathan & Ors. Vs. T. Srinivas;
c. J.T 2007 (2) SC 620 NOIDA Entrepreneurs Assn. Vs. NOIDA and others;
d. 2008 SCC (2) 74 Akhilesh Kumar Singh Vs. State of Jharkhand and others;
e. 2010 SCC (5) 775 Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad.
8. Per contra Shri Tarun Verma, Learned Counsel for respondents argued that it is held by the Apex Court that both proceedings i.e. departmental as well as criminal proceeding cannot go simultaneously . He submitted that in the departmental proceeding the conduct of the employee is to be judged with reference to whether he is fit to be retained in service or not whereas, in the criminal proceeding the intention and the gravity of the act of the employee in terms of the provisions of Cr.P.C is to be arrived by the criminal court of law. He further argued that both proceedings are independent of each other. He did not dispute the fact that the respondents have issued two instructions on the subject but he submitted that while issuing the above instructions the Railway Board was conscious on this fact that the departmental proceeding is to be stayed only when the charges in the criminal case as well as in the departmental proceeding are same and grave in nature.
9. We have considered the rival submissions and have gone through the pleadings as well as the records.
10. The above factual matrix of the case shows that a very narrow legal controversy arises for consideration of the Court in the present case; and that is whether in the facts of the case, the Court should restrain or permit the continuation of departmental proceedings during the pendency of the criminal trial, which is stated to be on somewhat similar facts. It is fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the Court has to decide, taking into account special features of the case, whether simultaneous continuance of both would be proper. Before dealing with this controversy in relation to the facts of the present case, we may usefully refer to certain judgments and principle of law relating to the matter in controversy.
11. The first decision of this Court on the question was rendered in Delhi Cloth & General Mills Ltd. vs. Kushal Bhan - AIR 1960 SC 806, in which it was observed as under:
"It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee vs. M/s Newsman's Printing Works 1956 LAC 188, this was the view taken by the Labour Appellate Tribunal. 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."
12. The same question was again consider with a new angle in Jang Bahadur Singh vs. Baij Nath Tiwari AIR 1969 SC 30, as it was contended that initiation of disciplinary proceedings during the pendency of a criminal case on the same facts amounted to contempt of court. This plea was rejected and the Court observed as under:
"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 proceeding 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 initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. 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."
This decision indicate that though it would not be wrong in conducting two parallel proceedings, one by way of disciplinary action and the other in the criminal court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the employee in a domestic inquiry being tried in a criminal court. The case law was revisited by this Court in Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors. 1988 (4) SCC 319 and it was laid down as under:
"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 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 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."
The Court further observed as under:
"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.
13. In addition to the above judgments, reference to some other judgments of the Apex Court which have a direct bearing on the matter in issue would be proper. In the case of State of Rajasthan vs. B.K. Meena & Ors. (1996) 6 SCC 417, it was held as under:
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 emphasized, 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 facts 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.
14. In Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and 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.
15. The entire case law was reviewed once again by the Honble Supreme Court in Capt. M. Paul Anthony's case (supra) this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarized. They are as follows:
(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, the administration may get rid of him at the earliest.
16. Reliance was also placed on a recent judgment of the Supreme Court in the case of Noida Entrepreneurs Association v. Noida and Ors. , where the Supreme Court stated that order of the State Government initiated the departmental proceedings against the delinquent pending inquiry by C.B.I., which was passed on the basis of the report of the Commission appointed by it on some points and that the administrative decision that the departmental inquiry was not required was set aside by the Supreme Court as untenable and liable to be quashed. In this very case, the Court clearly stated the principle that it was not possible to lay down any guideline as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in a criminal case against the delinquent officer. Each case would have to be decided on its own facts. The Court held as under:
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.
17. Thus, it is imperative for the Court to evolve legal solution in relation to the factual matrix of a given case and it is neither permissible nor prudentially correct to set a straight jacket formula, which will universally answer the question in the negative or affirmative. The law has to be applied to the facts of a given case. The principle of ratio decidendi also requires that the point decided in a case should be followed and applied to another case, provided the factual matrix has the ingredients of similarity. The departmental proceedings can be stayed where the articles of charge in criminal trial and basis of departmental inquiry are identical, the evidence is similar, it is so complex and a technical matter that the Court would be in a better position to determine the controversy, and the findings of the Court so recorded are bound to have adverse effect.
18. There is no accepted percept of law to support the contention that in every case, where a departmental inquiry and criminal charge are based on similar facts, the progress of the departmental inquiry essentially must be stayed till the conclusion of the criminal trial. This could lead to results which are not the intent of the theme of law. There can be cases where it may be appropriate to stay the departmental proceedings; but in such cases, the ingredients noticed in various judgments must be satisfied. Pendency of criminal proceedings initiated on somewhat similar facts by itself would not be a sufficient ground for staying the departmental proceedings. They are independent proceedings, which fall under different jurisdiction of various fora or courts. Unless the charges are so inter-mingled, and the evidence in support thereof is complex and technical, it may not be appropriate for the bank to continue the proceedings in the face of regular trial before the criminal Court. Loss of confidence may not be the cause which will squarely fall, in view of the well settled principles of law, in such category. Prejudice to an employee is one of the factors which the Court would consider by heeding to such a request. Prejudice is not to be inferred. It is something which should be apparent on the record, and the delinquent should be able to demonstrate that prejudice likely to be suffered by him is to such an extent that judicial intervention would be essential. Whenever an employee is involved in corruption or any other case constituting criminal offence, commencement of the departmental proceedings is inevitable. If the submission of the petitioner is to be accepted, in all such cases, departmental proceedings should be stayed awaiting conclusion of criminal trial, which would mean that for years together, finality of criminal trial would not be there, unless and until final court's pronouncement of judgment upon guilt of the accused or otherwise. That does not appear to be the intent of the service jurisprudence or criminal law, in light of the above stated judicial dictum.
19. Now applying the above ratio to the facts of the present case we have perused the original record pertaining to the initiation of departmental proceeding. Nowhere the respondents have noted or applied their mind to take a positive decision to initiate departmental proceeding against the applicant on the same set of allegation, which is subject matter of criminal case pending before the C.B.I Court, Lucknow. The record is clear that the respondents dealt with the case of the applicant for sanction of prosecution in the criminal case. Nowhere the respondents have applied their mind while taking a decision to initiate departmental proceeding against the applicant. As per settled law it was necessary for the respondents to take a decision in terms of the judgment in the case of Capt. M. Paul Anthony (Supra), therefore, only on this ground the impugned charge sheet is liable to be quashed being issued without application of mind. The matter can be seen from another view that the respondents themselves have not initiated departmental proceeding against the applicant despite the fact that the FIR has been lodged against the applicant way back on 26.10.2007 whereas, the disciplinary proceedings were initiated against him for the first time on 07.08.2009 i.e almost after two years from the date of lodging of FIR. Once the respondents did not proceed for two years and have issued the charge sheet only at the instance of CBI and that too for sanction of prosecution against the applicant, therefore, the arguments advanced by the learned counsel for the applicant that action of the respondents lacks the application of mind stands proved. In view of the above without going into legality of the charge sheet, we quash the same only on the ground that the charge sheet has been issued without application of mind.
20. Accordingly, the O.A is allowed in the above terms . No costs.
(SHASHI PRAKASH) (SANJEEV KAUSHIK) MEMBER- A MEMBER- J /Anand/ ?? ?? ?? ?? 19 O.A No. 1378 of 2009