Central Administrative Tribunal - Delhi
Hc (Exe.) Sanjeev Kumar vs Govt. Of Nct on 27 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.1951/2013
Reserved on: 01.11.2013
Pronounced on: 27.02.2014
Honble Shri Sudhir Kumar, Member (A)
Honble Shri V. Ajay Kumar, Member (J)
HC (Exe.) Sanjeev Kumar,
No.180/F (Under suspension)
PIS No.28011070
S/o Shri Satya Pal Singh Panwar
R/o Barrack No.2, PS Krishna Nagar,
Krishna Nagar, Delhi. Applicant.
(By Advocate: Ms.Jasvinder Kaur)
Versus
1. Govt. of NCT, Players Building,
Through Commissioner of Police,
M.S.O.Building, Police Headquarters,
I.P.Estate, New Delhi.
2. Additional Commissioner of Police (Operation)
PHQ,I.P.Estate, Delhi.
3. Deputy Commissioner of Police,
FRRO, New Delhi. Respondents.
(By Advocate: Shri Vijay Pandita)
ORDER
Shri Sudhir Kumar, Member (A):
The facts of this case lie in a very narrow compass. The applicant joined in Delhi Police as a Constable on 03.07.2001, and in the year 2012, he was posted in Shift B at IGI Airport. On the intervening night of 05/06.12.2012, while he was not on official duty that day at IGI Airport, the applicant allegedly tried to facilitate the illegal boarding of 9 passengers into an International flight to Kuwait without Proper Immigration Clearance from the Office of Protector of Emigrants (POE in short). An F.I.R.No.386/12 dated 06.12.2012 under Section 420/120-B/34 IPC was lodged on the basis of complaint of one of the passengers, namely Shri Sikinametla Ganesh, at the Police Station, IGI Airport, in which the applicant was also implicated. He has produced a copy of the FIR at Annexure A-3. He was immediately placed under suspension on 06.12.2012, and the Respondent No.2 decided to hold a disciplinary enquiry against him on the basis of his involvement in facilitating boarding of the said passengers. A Summary of Allegations (SOA, in short) as per Annexure A-4 dated 31.01.2013, and the list of witnesses was served upon him and the Inquiry Officer was appointed. A portion of that SOA may be reproduced here in order to appreciate the case:-
SUMMARY OF ALLEGATIONS It is alleged that HC (Exe.) Sanjeev Kumar No.180/F, while posted in Shift B at IGI Airport indulged in illegal and corrupt activities for getting undue monetary gain and was present at IGI Airport on the intervening night of 05/06.12.2012 despite not being on official duty on that day. There were 9 South Indian passengers (3 male & 6 female) namely Pagadala Anitha W/o Sreeramulu Pagadala, Mdduru Adi Lakshumma W/o Madhva Kumar Madduru, Andluru Subba Reddy S/o Subba Reddy, Thuganti Saraswathi W/o Rajasekhar Thuganti, Vaara Kumar W/o Vaara Gangadhar, Usurugunta Anjaiah S/o Usurugunta Chalapathi, Sikinametla Ganesh S/o Yadagiri Sikinametla, Pasupuleti Chamundeswari W/o Bhaskar Pasupuleti and Damamu Ramanamma W/o Reddeiah Damamu who sought immigration clearance for Dubai by fight No.AI-995. All the passengers had double Visas (employment Visa for Kuwait and tourist Visa for Dubai). All the passengers revealed that they were lured by their agents that they will be sent to Kuwait without POE clearance despite of the fact that they all had ECR category passports. They all stated to have given different sums of money to their agents. They also stated that when they reached the Airport T-3, a person, later on identified as HC (Exe.) Sanjeev Kumar No.180/F, met them outside the airport and introduced himself as Immigration official and he is collected their boarding cards from the airline counter without any of the 9 passengers reporting at the airline counter. A case FIR No.386/12 dated 06.12.2012 u/s 420/120-B IPS PS IGIA Airport has been registered on the statement of one of the above said passengers namely Sikinametla Ganesh.
Ms.Bharti Samantray, AFRRO/Shift-D reported that CCTV footages clearly show an Immigration official, later on identified as HC (Exe.) Sanjeev Kumar No.180/F, collecting the Boarding Cards for the 9 passengers and distributing the same to them. JIO-II Mohd. Zabir, Reader Shift-B watched the CCTV footage in CISF CCTV Control Room and identified the person collecting the Boarding Cards and distributing them to the 9 passengers as HC (Exe.) Sanjeev Kumar No.180/F, posted in Shift-B as C.O. As per the statement of Mr. Rahul Roy (employee ID 1110908) from SATS, he issued Boarding Cards for the 9 passengers in question. He further stated that he had printed the boarding cards for the nine passengers around 4:30 pm even before the passengers arrived at the airport and handed over the same to HC (Exe.) Sanjeev Kumar No.180/F. He further admitted that at least on the two previous occasions he had issued Boarding Cards at the instance of HC (Exe.) Sanjeev Kumar No.180/F, for monetary consideration. He further stated that HC (Exe.) Sanjeev Kumar No.180/F, had promised to pay him Rs.2000/- per Boarding Card this time also.
For this act, HC (Exe.) Sanjeev Kumar No.180/F, was placed under suspension with immediate effect vide this office order No.8517-43/For (HAP) (P-I) dated 06.12.2012.
2. Since the applicant felt that the documents supplied to him were deficient in as much as certain documents were incomplete, he made a representation dated 13.02.2013, addressed to the Inquiry Officer, asked for deficient/incomplete documents and also for certain additional documents as per Annexure A-5 which is as under:
Further, the following documents are required as additional documents for the same having material bearing in the SOA:
i) Copy of boarding cards of all the 9 pax in question.
ii) Copy of CCTV footage mentioned in SOA.
Ownership record in respect of mobile No.8377889001, which was allegedly being used by the applicant on the date of alleged incident.
3. Out of 9, the respondents thereafter supplied him only eight boarding cards, for the other 8 passengers, excluding the one of Shri Sikinametla Ganesh, who had filed the FIR No.386/12 dated 06.12.2012, and who had ostensibly displayed it at the Police Station for filing of the F.I.R. at that time, which was later untraced. The applicant was informed that a copy of the CCTV footage mentioned in SOA can be viewed only, and a copy cannot be provided, and the ownership record in respect of the Mobile No.8377889001, as sought for him, was also provided to him.
4. However, since both the disciplinary enquiry as well as the criminal trial in the FIR No.386/12 dated 06.12.2012 at Police Station, IGI Airport were stemming out of the same facts, and the contents of Summary of Allegation, as well as that of the FIR No.386/12 were similar, the applicant represented on 14.02.2013 to the Respondent No.3 to hold the disciplinary enquiry in abeyance, as otherwise he would be constrained to reveal his defence during the disciplinary enquiry, and that would jeopardize his case in the criminal trial. In doing so, the applicant had relied upon a number of the judgments of the Honble High Courts as well as the Honble Supreme Court in his representation produced at Annexure A-6. However, the respondents did not heed to his representation and the Disciplinary Authority rejected his request. He then made a similar representation to the Appellate Authority, Respondent No.2, on 04.03.2012, which has been produced by him through Annexure A-7. In spite of that, when the Inquiry Officer continued with the disciplinary proceedings and the next date for disciplinary enquiry was fixed for 05.06.2012, the applicant approached this Tribunal by filing this OA on 29.05.2013. When the matter came up for hearing before the Vacation Bench on 04.06.2013, learned counsel for the applicant had pointed out that the next date of hearing in the inquiry proceedings was 05.06.2013, and the Vacation Bench, while issuing notice both on admission and on interim relief, returnable on 18.06.2013, had ordered that the respondents would adjourn the hearing in the departmental enquiry, which was fixed for 05.06.2013.
5 The case of the applicant is that since both the proceedings in the disciplinary enquiry as well as the criminal trial in the FIR No.386/12 were stemming out of same facts, and the contents of Summary of Allegation, as well as that of the FIR No.386/12, are similar, the applicant would be constrained to reveal his defence during the departmental enquiry, which would jeopardize his case in the criminal trial. He has taken the ground that even the list of witnesses in both the departmental enquiry and the criminal case would also be the same, and, therefore, conduct of the departmental enquiry by the Inquiry Officer would pre-empt the decision and the role of trial court. Citing the judgment of the Honble Apex Court in the case of Delhi Cloth & General Mills vs. Kushal Bhan, 1960 AIR 806: 1960 SCR (3) 227, which view has been reiterated subsequently in the case of State of Rajasthan vs. B.K.Meena & Others, (1996) 6 SCC 417, he has submitted that the Honble Apex Court has held that if the case is of grave nature, or involves questions of facts 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. He had further cited a portion of the ratio decided by the Honble Apex Court in the case of State of Rajasthan vs. B.K.Meena & Others (supra) that staying the disciplinary proceedings 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. Thereafter, he has cited portions of the Honble Apex Courts judgment in Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. & Another JT 1999 (2) 453, in support of his contention. He has reiterated his ground that in the present case not only are the departmental proceedings and the criminal case based on identical facts, but that continuance of the departmental proceedings would also vitiate fair trial in the criminal court.
6. He has further cited the order passed by this Tribunal in OA 2823/2009 (ASI Hari Kishan & Others vs. GNCTD & Others) in which it had been reiterated that each case had to be examined in the context of its peculiarity of circumstances. He has also taken the ground that the respondents are illegally and arbitrarily keeping him under suspension, in absolute violation of Rule 10 of CCS (CCA) Rules, whereby it has been specifically and categorically provided for that the order of suspension should be reviewed after every 3 months, and in absence of such review, the order of suspension would be infructuous. In the result, he has prayed for the following reliefs:
8.1 Quash and set aside impugned orders dated 26.02.1013 and 22.05.2013;
8.2 Respondents be directed to pay the costs of the case to the applicants (sic applicant).
8.3 May pass such other further orders/directions deem fit and proper in the facts of the case in favour of the applicant and against the Respondents.
7. The respondents filed their counter reply on 14.06.2013. They had taken shelter behind the same judgment of the Honble Apex Court in the case of State of Rajasthan vs. B.K.Meena (supra), and had further relied upon the ratio of the Honble Apex Courts judgment in Depot Manager, A.P.S.R.T.C vs. Mohd. Yousuf Miya, (1997) 2 SCC 699, by citing extensively therefrom. They had, thereafter, reproduced Para 22 of the Honble Apex Courts judgment in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd. (supra) in which five relevant conclusions, which are deducible from various decisions of the Honble Apex Court, had been summarized by the Honble Apex Court itself, to which we shall revert later.
8. They had also relied upon Paras 16 and 17 of the Honble Apex Courts judgment in the case of NOIDA Enterpreneurs Assn. vs. NOIDA, (2007) 10 SCC 385, in which it was held by the Honble Apex Court that since the standard of proof required in the departmental proceedings is not the same as required to prove a criminal charge, therefore, even if there is an acquittal in the criminal proceedings, the same does not bar departmental proceedings, and that being so, the order of the State Government having decided not to continue with the departmental proceedings was clearly untenable, and such order was quashed, and the departmental proceedings were ordered to be continued. The respondents had further submitted that the Standing Order No.A-20 of Delhi Police (previous SO No.125/10), specifically provides that the departmental proceedings and the proceedings in a criminal case can proceed simultaneously, and had further relied upon the Honble Apex Courts judgment in Kendriya Vidyalaya Sangathan and Ors. vs. T.Trinavas AIR 2004 SC 4127, in which it was held that there should be no stay of parallel departmental enquiry, because the consideration of the seriousness of charges required desirability of retaining the employee concerned in service to be examined.
9. It was, therefore, submitted that in all the cases, where police officers are facing criminal proceedings, especially under Prevention of Corruption Act, or the cases where apart from Prevention of Corruption, moral turpitude is also involved, the DE proceedings can also be initiated simultaneously, and should not be kept in abeyance due to pendency of such criminal proceedings, even if the evidence in both the proceedings may be the same. They had further submitted that in a similar and identical case of Tula Ram vs. Govt. of NCT of Delhi and Others (OA No.916/2012), this Tribunal had rejected a similar relief, as prayed for, and the OA had been dismissed on 04.12.2012, in delivering which judgment one of us Member (A) was a party.
10. The respondents had thereafter given the details of the incident concerned, with which we are not concerned at this stage, because those facts have not yet been appreciated by either the Inquiry Officer, or by the Disciplinary Authority, or by the Appellate Authority, and the stage for judicial review in regard to the conclusions arrived at by these Disciplinary Authorities, after completion of the departmental proceedings based on the relevant facts, have not yet been reached.
11. The respondents had thereafter once again reiterated their submissions by way of para-wise reply after submitting that they had obeyed the interim orders passed by the Tribunal on 04.06.2013, and had adjourned the DE proceedings scheduled for 05.06.2013. In their para-wise reply also, the respondents had taken similar contentions and had submitted that in two other important judgments of this Tribunal on this very particular issue, in the case of Kamal Bhadoriya vs. Govt. of NCT of Delhi & Others (OA No.1554/05) decided on 24.04.2006 and in the case of Nabab Singh Malik vs. Govt. of NCT of Delhi & Others (OA No.2097/06) decided on 05.06.2007 also, it had been held earlier by this Tribunal that the departmental enquiry cannot be kept in abeyance.
12. In response to the last ground taken by the applicant, that the respondents have illegally and arbitrarily kept him under suspension for a long time, the respondents had cited that the Honble High Court of Delhi had in Writ Petition No.8770/2009 in Govt. of NCT of Delhi vs. Satya Pal Yadav held, in para 6 of that judgment, that the CCS (CCA) Rules are not applicable to the employees of Delhi Police, and the same issue has already been again authoritatively determined in the case of Union of India vs. Sanjay Sharma, 150 (2008) DLT 588. The respondents, therefore, pleaded that the OA deserves to be dismissed, as the applicant has no cause of action, or even a prima facie case, to seek any relief from this Tribunal.
13. The applicant did not file any rejoinder to the counter reply before the case was taken up for hearing.
14. In order decide the issue, we may take liberty of borrowing from the following paragraphs from the order dated 04.12.2012 pronounced in OA 916/2012, in the case of Tula Ram vs. Govt. of NCT of Delhi & Others (supra):
6. The respondents filed their reply on 04.04.2012. Apart from citing the case of State of Rajasthan vs. B.K.Meena, (1996) 6 SCC 417, they have also cited the case of Depot Manager, A.P.S.R.T.C vs. Yousuf Miya, (1997) 2 SCC 699 in which at page 703 the Honble Supreme Court has held 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 not a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."
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 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 commission 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 no 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, 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. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304 A and 338 I. P. C. Under these circumstances, the High Court was not right in staying the proceedings.
7. The appeals are accordingly allowed. No costs.
7. The respondents have also relied upon the case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd., (1999) 3 SCC 679 in which at page 691the Honble Apex Court has held as follows:
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, 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. (Emphasis supplied)
7. The Respondents have further relied upon the case of NOIDA Enterpreneurs Assn. vs. NOIDA, (2007) 10 SCC 385 in which the Honble Apex Court held as follows:
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.
17. Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav stated that an appropriate motion shall be made before the departmental authorities to keep the proceedings in abeyance till conclusions of the criminal proceedings. If such prayer is made, the same shall be considered in the light of the principles set out by this Court in Hindustan Petroleum Ltd.'s case (supra) and Uttaranchal Road Transport Corpn.'s case (supra). It is ordered accordingly. (Emphasis Supplied)
9. The respondents have further submitted that in terms of the Standing Order No.A-20 (previous SO No.125/10) issued by the Competent Authority regarding conduct of departmental proceedings in Delhi Police, it has been clearly provided that the departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously. It is seen that this Standing Order No.A-20 has taken note of the directions of the Honble Apex Court in the case of Capt. M.Paul Anthony (supra) and also the Apex Courts finding in Kendriya Vidyalaya Sangathan and Ors. vs. T.Trinavas AIR 2004 SC 4127, in which the Honble Apex Court has clearly laid down the law that there will be no stay of parallel departmental enquiry, and it has been prescribed in the Standing Order that in such cases where police officers are facing criminal proceedings, departmental enquiry proceedings should also be initiated simultaneously, and should not be kept/held in abeyance due to the pendency of such criminal proceedings, even if the evidence in both the proceedings may overlap, or may be the same. The respondents had, therefore, prayed that the OA may be dismissed.
10. Heard the case in detail. Learned counsel for the applicant relied heavily upon the judgment in the case of Capt. M.Paul Anthony (supra) and also relied upon the case of Divisional Controller K.S.R.T.C.vs.M.G.Vithal Rao, 2012 (1) AISLJ 155, in which the Honble Apex Court has summarized the whole case-law on this subject, and has held as follows:
12. The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time. In State of Rajasthan v. B.K. Meena & Ors., AIR 1997 SC 13, this Court while dealing with the issue observed 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 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 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............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 on 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..........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 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 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 misdemeanour 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........"
(Emphasis added)
13. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., AIR 1999 SC 1416, this Court held that there can be no bar for continuing both the proceedings simultaneously. The Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806; Tata Oil Mills Co. Ltd. v. The Workmen, AIR 1965 SC 155; Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30; Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1988 SC 2118; Nelson Motis (Supra); and B.K. Meena (Supra), and held that proceedings in a criminal case and departmental proceedings can go on simultaneously except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. In departmental proceedings, factors prevailing in the mind of the disciplinary authority may be many, such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. Where the charge against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case. In case the criminal case does not proceed expeditiously, the departmental proceedings cannot be kept in abeyance for ever and may be resumed and proceeded with so as to conclude the same at an early date. The purpose is that if the employee is found not guilty his cause may be vindicated, and in case he is found guilty, administration may get rid of him at the earliest.
However, while deciding the case, taking into consideration the facts involved therein, the Court held:
"Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
14. In State Bank of India & Ors. v. R.B. Sharma, AIR 2004 SC 4144, same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:-
"The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of 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 a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service."
15. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of this Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case.
16. A similar view has been reiterated by this Court in Senior Superintendent of Post Offices v. A. Gopalan, AIR 1999 SC 1514; Kendriya Vidyalaya Sangathan & Ors. v. T. Srinivas, AIR 2004 SC 4127; Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh & Anr., (2004) 8 SCC 200; Commissioner of Police Delhi v. Narendra Singh, AIR 2006 SC 1800; South Bengal State Transport Corporation v. Span Kumar Mitra & Ors., (2006) 2 SCC 584; and Punjab Water Supply & Sewerage Board v. Ram Sajivan, (2007) 9 SCC 86. (Emphasis supplied)
11. We have given or anxious consideration to the facts of the case, and the case law on the point as cited. In the instant case, while the incidence of accident in respect of which the criminal case has been registered, and in respect of which the departmental enquiry has been instituted, was one incident only, which had happened on 13.02.2009, however, if the applicant is so rash and negligent a driver as to have caused the death of a person, the desirability, propriety and advisability of his being allowed to continue to function in the same capacity of a driver, without being subjected to a disciplinary enquiry, just because a criminal case is also pending against him on a charge arising out of the same accident, which may be delayed unduly, cannot be a ground to bar the respondents from continuing with the disciplinary proceeding. As was observed by the Apex Court in State of Rajasthan vs. B.K.Meena (supra), the disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, while punishment in the form of a sentence in the criminal case may take a long time in coming, the administration cannot be prevented from trying to keep the administrative machinery unsullied by getting rid of bad elements. In the case of M. Paul Anthony (supra)also the Honble Apex Court has laid down the principles in para-22 of the judgment, as reproduced above in para-7 above, for deciding as to whether departmental proceeding case can continue along with the criminal case and para 22 (i) & 22 (v) of the Honble Apex Court judgment would also specifically apply to the instant case.
12. In fact, as has been stated by the Honble Apex Court in the latest case of Divisional Controller, K.S.R.T.C. vs. M.G. Vithal Rao (supra) in para 13 of its order, in the ratio of Capt. M. Paul Anthonys case (supra) also it has been held that there can be no bar for continuing both the criminal and the Departmental proceedings simultaneously, and in doing so the Honble Apex Court placed reliance upon a large number of its earlier judgments, including Delhi Cloth and General Mills Ltd vs.Kushal Bhan (supra), Tata Oil Mills Co. Ltd. vs. The Workman, AIR 1965 SC 155, Jang Bahadur Singh vs. Baij Nath Tiwary, AIR 1969 SC 30, Kusheshwar Dubey vs. M/s Bharat Coking Coal Ltd. & Ors, Nelson Motis vs. Union of India, 1992 3 SLJ 65 SC, AIR 1992 SC 1991.
13. Also, we find that the Respondents Standing Order No.A-20 (previous S.O. No.125/10) is a well-reasoned piece of subordinate legislation, based upon two very oft-cited and important judgments of the Honble Apex Court, and that that Standing Order is the source order for the action taken by the respondents in continuing ahead with the disciplinary enquiry simultaneously with the criminal case. The applicant before us has not laid a challenge to the source Standing Order No.A-20, and he has only challenged the consequential actions of the Respondents, which he cannot be allowed to do so, as per the law laid down by the Honble Apex Court in Edukanti Kistamma (Dead) v. S. Venkatareddy: (2010) 1 SCC 756.
14. Therefore, drawing sustenance from the very same judgment cited by the learned counsel for the applicant himself, we find that this is not a fit case for this Tribunal to interfere with the continuation of the conduct of the departmental enquiry against the applicant, as it would only amount to trying to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, the OA fails and the same is dismissed. No order as to costs.
15. We reiterate the above order, and the observations of the Honble Apex Court in the cases of State of Rajasthan vs. B.K.Meena (supra), that the disciplinary proceedings are meant not really to punish the guilty, but to keep the administrative machinery unsullied, by getting rid of bad elements. Therefore, while punishment in the form of a sentence in the criminal case may take a long time in coming, the administration cannot be prevented from trying to keep the administrative machinery unsullied by getting rid of bad elements, and for the purpose of deciding whether the departmental proceedings should continue along with the criminal case or not, para-22(i) and 22 (v) of the Honble Apex Courts judgment in the case of M. Paul Anthony (supra) would apply.
16. In the instant case also, we do not find that the applicant can be allowed to pray for the departmental proceedings to be postponed indefinitely for such a period that it may be difficult for the Department to even trace out the nine persons in respect of whom the forged Boarding Cards had been facilitated to be got issued by the applicant, as alleged. Since the issue before the departmental authorities relates to the official misdemeanor of the applicant, and an abuse by him of his official position in having facilitated with the Airlines for the issuance of nine forged Boarding Cards, when he was not even supposed to be present at the Airport, since he was not on duty then, and the case before the criminal court relates to his having taken money for having so facilitated the issuance of such nine alleged forged Boarding Cards under the Prevention of Corruption Act, the two sets of facts under scrutiny in the two proceedings are slightly different.
17. The departmental enquiry in essence relates to the applicant having used his official position in his dealings with the Airlines Officials to bring influence upon them with a corrupt motive, while on the other hand the Criminal Case against him relates in essence to his having indulged in corruption, by being a part of a chain of sequences starting in South India, which resulted in the applicant having shared or taken a bribe from the nine passengers to facilitate their illegal departure from the country, without proper immigration clearance having been obtained from the P.O.E., we do not find that there is much similarity or congruence in between the two proceedings, which may give rise to the applicants defence in the Prevention of Corruption Act Criminal Case being compromised due to the continuation of the department enquiry against him for his official misdemeanor and abuse of official position.
18. In the result, we do not find that the applicant is entitled to seek any relief at this stage, and the OA is, therefore, dismissed, but there shall be no order as to costs.
(V.Ajay Kumar) (Sudhir Kumar) Member (J) Member (A) /kdr/