Alok Prem Prakash Varshneya vs Union Of India on 27 February, 2018

[Cites 17, Cited by 1]

Gujarat High Court

Alok Prem Prakash Varshneya vs Union Of India on 27 February, 2018

1. This petition under Article 226 of the Constitution of India is filed challenging the action of the respondent-Airport Authority in initiating disciplinary proceedings against the petitioner while the criminal proceedings are pending. The petition is filed with prayers as under:-

"A. The Honourable Court be pleased to issue a writ of mandamus or any other writ, order or direction under Article 226 of the Constitution of India quashing and setting aside the memorandum dated 09.08.2017 proposing initiation of inquiry against the Petitioner.

Page 1 of 18 C/SCA/21391/2017 ORDER

B. The Honourable Court be pleased to issue a writ of mandamus or any other writ, order or direction under Article 226 of the Constitution of India directing the Respondent No.3 to postpone the disciplinary proceedings till the completion of the criminal proceedings against the Petitioner on the basis of the First Information Report dated 28.07.2016.


              C.       Pending           admission,             hearing      and        final
                       disposal           of       the     present          petition        be
                       pleased            to        restrain          the      Respondent
                       Authorities                from     proceeding          with        the

disciplinary proceedings initiated against the Petitioner vide memorandum dated 09.08.2017.

2. The facts in brief are that the petitioner is an employee of the Airport Authority of India-respondent herein. While the petitioner was working as Airport Director at Aurangabad, a complaint was received on 28.07.2016 that the petitioner had demanded bribe to permit the complainant's company to carry out the work of ground handling for non-scheduled flights at Aurangabad. 2.1 On the basis of the complaint, an FIR came to be filed by the CBI, Pune and after due investigation and sanction accorded by the respondent authority, charge sheet came to be filed. The prosecution in this connection is pending before the Special Judge, CBI Page 2 of 18 C/SCA/21391/2017 ORDER Cases, Aurangabad. In the meanwhile, the petitioner was also suspended, contemplating departmental inquiry in this regard.

2.2 A departmental inquiry came to be initiated by issuing memorandum dated 02/09 August 2017 for violation of Regulation 19 of the AAI Employees (CDA) Regulations, 2003. The articles of charge and statement of imputation were also furnished along with such memorandum. The petitioner, aggrieved by such action of initiation of departmental proceedings, has preferred the present petition.

3. Learned Advocate for the petitioner submitted that the petitioner is wrongly implicated in the offence and therefore, the proceeding are also based on an incident narrated in the FIR, which is non-existent. It is submitted that the petitioner has worked with the respondent authority with due diligence and his services have been acclaimed by the respondent authorities. 3.1 Learned Advocate for the petitioner with great emphasis has submitted that the grounds for initiating the departmental proceeding are identical to the criminal proceedings and therefore, simultaneous proceeding of both the proceedings is likely to prejudice the petitioner. It is submitted that though there is no Page 3 of 18 C/SCA/21391/2017 ORDER quarrel with the proposition that both, criminal and departmental proceedings can proceed further simultaneously, however, case of the petitioner is required to be viewed differently as both proceedings are based on identical facts, identical evidences and identical witnesses and therefore, permitting to proceed the departmental proceedings would jeopardies the defence that the petitioner is likely to take up in his prosecution. It is therefore emphatically prayed that though the departmental proceedings may not be stayed for all time to come, but atleast, stay be granted for the limited period so as to protect the interest of the petitioner insofar as the criminal proceedings are concerned.

3.2 Learned Advocate for the petitioner thereafter relied upon decision of the Supreme Court in the case of M.Paul Anthony Vs. Bharat Gold Mines Limited, reported in 1999 (3) SCC, 679, contending that where the evidences in both the proceedings, viz. departmental proceedings and criminal proceedings are same, without there being any iota of difference, in that case it is desirable to stay the criminal prosecution.

3.3 Learned Advocate for the petitioner then relied upon decision of the Supreme Court in the case of State Bank of India & Ors. Vs. Neelam Nag, reported in AIR 2016 Page 4 of 18 C/SCA/21391/2017 ORDER SC, 4351. On the basis of this judgment, learned Advocate for the petitioner has submitted that in the facts before the Apex Court, the case pertained to embezzlement, which was pending since more than 10 years, yet the Supreme Court has exercised its discretion in favour of the delinquent by staying the ongoing disciplinary proceedings until closing of recording of evidence of prosecution witnesses cited in the criminal trial. Learned Advocate for the petitioner further submitted that the petitioner would be satisfied if similar course is adopted in the facts of the present case.

4. As against this, learned Advocate Shri B.S.Raju for respondent No.2-authority has submitted that it cannot be said that in the instant case, the departmental proceedings and the criminal prosecution are for identical purpose and nature. It is submitted that filing of the FIR, sanction granted for prosecution and the charge sheet filed for the purpose of prosecuting the petitioner is one of the circumstances which is considered as a misconduct, for which the departmental proceedings are initiated. Therefore, it cannot be said that the prosecution and the departmental inquiry are identical in nature, for the same purpose and are based on same evidences. It is submitted that the Supreme Page 5 of 18 C/SCA/21391/2017 ORDER Court has time and again clarified the law on this aspect that simultaneous proceeding of both departmental and criminal prosecution is permissible as both proceedings operate in altogether different spheres. Even the standard of proof for both is different. It is submitted that the prosecution is at the stage of charge sheet and even charge is not framed yet. At this stage, the question of considering the defence has not even arisen. It is further submitted that considering the nature of misconduct, especially when show cause notice is issued on account of the petitioner having failed to maintain integrity and devotion to duty, the authority, under the provisions of the AAI Employees (Conduct, Discipline and Appeal) Regulations, 2003, is entitled to and justified to proceed with the departmental inquiry. 4.1 In support of his submissions that both, departmental and criminal proceedings can run simultaneously, he has relied upon the following judgments of the Apex Court as well as this Court:-

              I.       In      case       of      State      of     Rajasthan         Vs.

                       B.K.Meena         &     Ors.,      reported       in   (1996)     6

                       SCC, 417.


              II.      In case of Depot Manager, A.P.State Road

Transport Corporation Vs. Mohd. Yousufmiya Page 6 of 18 C/SCA/21391/2017 ORDER & Ors., reported in (1997) 2 SCC, 699.

III. Kendriya Vidhyalaya Sangathan & Ors. Vs. T.Srinivas, reported in (2004) 7 SCC, 442. IV. Decision of Division Bench of this Court in the case of Suresh Nathalal Rathod Vs. Union of India & Ors., in SCA No.7630 of 2016 dated 05.07.2016.

V. Decision of Division Bench of this Court in the case of Girishbhai Bavalbhai Patel Vs. Union of India & Ors., in SCA No.20521 of 2016 dated 10.07.2017.

4.2 Learned Advocate for the respondent therefore prayed that the petition be dismissed and the respondent authority may be permitted to proceed further with the departmental proceedings against the petitioner.

5. Having heard learned Advocates for the rival parties and having considered the documents on the record of the case, it appears that an FIR came to be registered against the petitioner by the CBI (ACB), Pune being RC Pune/2016/A/2011 for offence under Section 7 of the Prevention of Corruption Act, 1988. The gist of the allegations is that the petitioner, who was discharging his duties as Airport Director at Aurangabad, had Page 7 of 18 C/SCA/21391/2017 ORDER demanded bribe from the employee, who was representing an Aviation Company for allowing his company to carry out the work of non-scheduled flights at Aurangabad Airport. Pursuant to the FIR, the investigation commenced and the CBI filed a charge-sheet for offences under Sections 7, 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. It also appears that the chairman of Airport Authority of India has passed the sanction order for prosecution of the petitioner. It appears that insofar as departmental action is concerned, the petitioner was put under suspension by order dated 03.08.2016 on account of his arrest in connection with the ACB case on 30.07.2016. The suspension was thereafter revoked after the review by the Apex Review Committee on 02.02.2017.

6. It appears that under the memorandum dated 02/09 August 2017, the petitioner was served with the articles of charge and the statement of imputation. The charge against the petitioner was that the petitioner, in his capacity as Airport Director, Aurangabad Airport, had failed to maintain absolute integrity and failed to exhibit devotion to duty and acted in a manner which is unbecoming of him as an employee of the authority. This charge was on account of the incident of taking bribe which he was not legally entitled and acted in the manner Page 8 of 18 C/SCA/21391/2017 ORDER prejudicial to the interest of the authority and having committed an act which amounts to a criminal offence involving moral turpitude and an act which amounts to misconduct. It was brought to the notice of the petitioner that in view of the aforesaid, the petitioner had contravened the Provisions of Regulation 4(1) (a),

(b) and (d) and thus committed misconduct as defined in Regulation 5(ii), (v), (xvii) & (xxxix) of the AAI Employees (Conduct, Discipline & Appeal) Regulations, 2003. Along with the article of charge, statement of imputation and documentary evidence were also served upon on the petitioner.

7. It appears that by communication dated 22.08.2017, the petitioner made a representation to the Airport Authority requesting the authority to stay the departmental proceedings till the conclusion of the criminal case. By an order dated 10.10.2017, under Regulation 29 AAI Employees (Conduct, Discipline & Appeal) Regulation, 2003. an inquiry officer came to be appointed. A copy of this communication was forwarded to the petitioner.

8. The submission of the petitioner that in view of the ongoing trial, the departmental proceedings may not be permitted to proceed further may not be accepted in view of the well established proposition of law that Page 9 of 18 C/SCA/21391/2017 ORDER the simultaneous proceedings of both, criminal and departmental can be permitted.

9. In the case of B.K.Meena (supra), the Apex Court has considered the distinction between the approach and objectives of the two different types of proceedings namely departmental inquiry and criminal trial. In para 14, the Apex Court has observed and held as under:-

"14. 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 disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case ad that no hard and fat rules can enunciated in that behalf. The only ground suggested in the above questions as constitution 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 Page 10 of 18 C/SCA/21391/2017 ORDER 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. The ground indicated in D.C.M. and Tata Oil Mills is not also 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 consideration 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 on endlessly where high officials or persons holding high public offices 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 government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the 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 Page 11 of 18 C/SCA/21391/2017 ORDER 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. 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."

10. Referring to the facts of the case on hand pertaining to the investigation by the CBI and filing of charge-sheet and the departmental inquiry, this court is of the view that the same does not form complicated Page 12 of 18 C/SCA/21391/2017 ORDER questions of law and fact that the charges can be termed to be of a grave nature involving complicated questions of facts and law.

11. The Apex Court in case of Kendriya Vidyalaya Sangathan (supra) has passed the order that while staying the disciplinary proceedings against the delinquent till the conclusion of trial on the ground that where the Courts below did not take into consideration the seriousness of charges relating to the acceptance of illegal gratification by the delinquent and desirability to continue the delinquent in service inspite of such charges against him, thereafter proceeded to hold that stay of departmental proceedings in such case cannot be a matter of course. Advisability, desirability or propriety in regard to the departmental inquiry has to be determined taking into consideration all facts and circumstances of the case. In the instant case also, the applicant is facing with the charge of accepting bribe in criminal prosecution and the charge under the departmental proceedings being the petitioner having conducted himself in a manner failing to maintain absolute integrity, failed to exhibit devotion to duty and in a manner which is unbecoming to an employee of the authority by involving himself in a criminal offence amounting to moral turpitude.

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12. An identical question arose before this Court in case of Suresh Nathalal Rathod (supra). In para-8, the Court has proceeded to explain the distinction between the departmental inquiry and the criminal prosecution and the standard of proof to be adopted in these proceedings. Para 8 reads as under:-

"8. The purposes of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is 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 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. 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 Page 14 of 18 C/SCA/21391/2017 ORDER law. Offence generally implies infringement of public 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 Indian Evidence Act, 1872 (in short 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. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence 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."

13. Insofar as the submission on behalf of the petitioner that the evidence and the witnesses of both criminal prosecution and the departmental inquiry are the same and therefore, if the departmental inquiry is permitted to proceed, the right of the petitioner would be prejudiced and that he may have to disclose his evidence, firstly, it cannot be said that the departmental proceeding and the criminal prosecution are Page 15 of 18 C/SCA/21391/2017 ORDER of identical nature only on the basis of same set of evidence. It is pertinent to observe that the charge under the departmental inquiry against the petitioner is failure to maintain absolute integrity, failure to exhibit devotion to duty, acting in the manner which is unbecoming of a employee of the authority and involving in a criminal offence amounting to moral turpitude and misconduct thereby contravening the provisions of the AAI (conduct, discipline & Appeal) Regulation, 2003. In support of the criminal prosecution, there is registration of FIR, leading to investigation and filling of the charge sheet on basis of prima facie evidence. The departmental proceedings are therefore, based on the existence of the aforesaid facts whereas the criminal prosecution is to proceed in as a criminal trial for establishing the charges of offence under Sections 7, 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988. Therefore, the departmental proceedings will not have any bearing on criminal prosecution. Therefore, argument on behalf of the petitioner that the charges in the departmental proceedings and the charges in criminal prosecution are identical, cannot be accepted.

14. Moreover, nowhere in the pleadings before this Court or representation before the authority, the Page 16 of 18 C/SCA/21391/2017 ORDER petitioner has pleaded as to how the defence of the petitioner will be prejudiced in criminal trial if the departmental inquiry is permitted to proceed. In absence of any material before this Court in this regard, it will be difficult to hold that merely on the basis of averments of common witnesses/common evidence in departmental proceedings and criminal trial, the petitioner will be prejudiced.

15. In case of Neelam Nag (supra) relied upon by learned Advocate for the petitioner to support his contention that the Apex Court had also stayed the disciplinary proceedings pending the criminal trial, it would not be necessary to observe that in the said judgment the Apex Court had considered the peculiar facts of the case while acceding to the contention of the appellant that the pendency of the criminal case again the respondent, cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for indefinite period and in larger public interest and therefore, following the method adopted in case of Stanzen Toyotetsu India Private Limited Vs. Girish V. & Ors., reported in (2014) 3 SCC 636, directed the concerned Sessions Court to conclude the trial within a stipulated period and also directed that if such trial is not concluded within the stipulated period, the Page 17 of 18 C/SCA/21391/2017 ORDER disciplinary against the respondent shall be resumed by the inquiry officer. Such being the directions in peculiar facts of that case, more particularly where the trial was at advanced stage to such an extent that only few witnesses remain to be examined, whereas in the instant case, the situation is completely different, where the criminal trial is yet to commence, as reportedly, even the charge is yet to be framed.

16. In view of the aforesaid reasonings, this court is not inclined to accept the submissions of the learned Advocate for the petitioner that simultaneous proceedings of the criminal trial and departmental inquiry is likely to prejudice the defence or the case of the petitioner in the criminal trial. The petition therefore deserves to be dismissed and is hereby dismissed. Notice is discharged. No order as to costs.

(M.R.SHAH, J.) (A.Y.KOGJE, J.) SHITOLE Page 18 of 18

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Gujarat High Court