Calcutta High Court (Appellete Side)
Sri Firoz Ahmed vs Union Of India & Ors on 26 August, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. 15194 (W) of 2013
Sri Firoz Ahmed
vs.
Union of India & ors.
For the petitioner : Mr. Achin Kumar Majumder
Mr. Pratik Majumder
For the respondents : Mr. A. K. Chakraborty
Mr. Saptarshi Roy Heard on : July 8, 2013 Judgment on : August 26, 2013
1) The petitioner is an Inspector of the Railway Protection Force (hereafter the Force), South-Eastern Railway. Based on the allegation that he has committed an offence punishable under Section 120B, Indian Penal Code, read with Sections 7 and 13 of the Prevention of Corruption Act, 1988, he is standing trial before the court of the Special Judge, CBI Cases, Ranchi.
2) The report under Section 173(2), Code of Criminal Procedure (hereafter the Cr.P.C.) filed by the Inspector of Police, CBI, ACB, Ranchi dated April 11, 2011 reveals that a written complaint dated February 15, 2011 was received from one Sri Sankar Prasad Verma (hereafter the complainant). It was alleged therein that the petitioner (he was Inspector RPF Post, South-Eastern Railway, Muri, at that point of time) had demanded an illegal gratification of Rs. 20,000/- from the complainant in lieu of showing favour to his cousin brother, Basant Kumar Kushwaha who was implicated in Case No. RC. 02(A)/11(R). It further appears that a trap was laid upon observance of pre- trap formalities. In course thereof, the petitioner was found to have demanded and accepted the illegal gratification of Rs. 20,000/- from the complainant on February 15, 2011. Annexure II to the police report under Section 173(2) of the Cr.P.C., being the list of witnesses by whom the prosecution wishes to establish the charges levelled against the petitioner, lists the names of 24 (twenty-four) witnesses including, inter alia, the complainant, Trilochan Mishra (independent witness), Priya Ranjan (Inspector of Police, CBI, ACB, Ranchi) and Khursheed Hasan (Assistant Security Ccommissioner, RPF, Ranchi).
3) By an order dated February 15, 2011, the petitioner was placed under suspension with immediate effect. On November 3, 2011, the Senior Divisional Security Commissioner of the Force initiated disciplinary proceedings against the petitioner by issuing a charge-sheet. Annexures I and II to the charge- sheet are the Memorandum of Statement of Charge and the imputations of misconduct under Rule 153 of the Railway Protection Force Rules, 1987 reading as under:
"Charge Annexure - I Sri. F. Ahmed, IPF/Muri is charged for serious misconduct, discreditable conduct and improper practice in that while posted and functioning as Inspector/RPF/Muri on 15.02.2011 he engaged himself in undesirable activity of demanding and accepting illegal gratification of Rs. 20,000/- from Sri Shankar Prasad Verma in criminal conspiracy with his driver by way of abusing his official position as a public servant. He also failed to maintain absolute integrity, maintain devotion to duty and violated the Railway Servants Conduct Rule 1966.
Thus such act on the part of Sri F. Ahmed, IPF/Muri tantamount to serious misconduct, discreditable conduct and improper practice and violated para 3 of Railway Servants Conduct Rule 1966 and Rule 146.4.146.7(iii) of RPF Rules 1987.
Allegation: Annexure - II While he was posted and functioning as Inspector, RPF/Muri, on 15.02.2011 he engaged himself in undesirable activity of demanding and accepting illegal gratification of Rs. 20,000/- from Sri Shankar Prasad Verma S/o Late Murli Manohar Mahato, R/O Vil-Gola Sunditoli with his driver in lieu of showing favour of his cousin brother Basant Kumar Kushwaha implicated in RPF/Post/Muri Case No. 02/2011. His driver Taufiq Alam tainted the bribe money with him on being handed over by him. The same was recovered by the CBI/RNC from the conscious possession of the driver Taufiq Alam in presence of available witnesses. He also failed to maintain absolute integrity, and devotion to duty, which is unbecoming of a member of the force in the disciplined Armed force of Union.
Thus such act on the part of Sri F. Ahmed, IPF/Muri tantamount to serious misconduct, discreditable conduct and improper practice and violated the Railway Servant Conduct Rules 1966 and renders him violation of Rule 146.4, 146.7(iii) of RPF rules 1987 and para -3 of Railway Servant Conduct Rules 66."
4) Immediately after receipt of the charge-sheet, the petitioner by his representation dated November 4, 2011 requested for keeping in abeyance the disciplinary proceedings on the ground that he was standing trial before the criminal court at Ranchi on similar charges and that participation in the departmental enquiry that is likely to follow would result in disclosure of his defence. By an order dated January 24, 2012, the petitioner's prayer was rejected by a non-speaking order. A further representation dated February 2, 2012 followed at the instance of the petitioner, which has not been disposed of.
5) It appears from the departmental charge-sheet that Sri Khursheed Hasan, Sri Priya Ranjan, Sri Trilochan Mishra and the complainant are the 4 (four) listed prosecution witnesses who would depose in the enquiry against the petitioner whereas the documents to be relied on include, inter alia, the complaint of the complainant, the statement of the independent witness Sri Trilochan Mishra, the arrest memo of the petitioner, copy of the personal search memo of the CBI, report of Sri K. Hasan and copy of the charge-sheet filed by the CBI under Section 173(2) of the Cr.P.C.
6) The enquiry having commenced, the petitioner has presented this writ petition seeking, inter alia, mandamus on the respondents not to give effect or further effect to the charge-sheet and for certiorari to quash the same.
7) Mr. Majumder, learned advocate representing the petitioner, contended that the criminal proceedings and the departmental proceedings are based on the same set of facts and evidence and participation in the latter would result in disclosure of his defence; therefore, the respondents acted illegally in not accepting his prayer for keeping the same in abeyance till such time the trial is over.
8) In support of his submission, Mr. Majumder relied on the decisions of the Supreme Court reported in AIR 1999 SC 1416 : Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., and AIR 2004 SC 4144 : State Bank of India v. R.B. Sharma.
9) The writ petition has been opposed by Mr. Chakraborty, learned senior advocate for the respondents. According to him, there is no bar in proceeding against the petitioner simultaneously having regard to the decisions of the Supreme Court reported in AIR 1997 SC 2232 : Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya, (2008) 15 SCC 657 : State Bank of Hyderabad v. P. Kata Rao and (2013) 1 SCC 598 : Inspector General of Police v. S. Samuthiram.
10) I have heard the learned advocates appearing for the parties and perused the authorities that have been cited.
11) Capt. M. Paul Anthony (supra) considered all the previous decisions of the Supreme Court on the point of stay of disciplinary proceedings pending criminal trial based on identical or similar charges including the decision in Mohd. Yousuf Miya (supra) and the law was summarized in the following words :
"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."
12) However, Capt. M. Paul Anthony (supra) did not regard possibility of disclosure of defence in course of the departmental enquiry, thereby prejudicing the delinquent's right at the criminal trial, as a factor justifying stay of the former. Whether participation in the departmental enquiry would result in serious prejudice to the charge-sheeted employee at the criminal trial and is a justifiable ground for stay or not, was considered in Mohd. Yousuf Miya (supra), as is evident from the following passage:
"6. ***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.***"
(emphasis supplied by me)
13) R.B. Sharma (supra) also proceeds to hold in the same line. Relevant paragraphs from the said decision read as follows:
"7. It is fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common.
8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. ....... 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."
(underlining for emphasis by me)
14) The aforesaid decision further provides guidelines as to the approach to be adopted by the High Courts while granting an order of stay of departmental enquiry. I quote below the relevant passages :
"12. A bare perusal of the impugned order of the High Court shows that after noticing the rival submissions, learned single Judge came to an abrupt conclusion that the petitioner in the case before it (the employee) has been able to show substantially that the entire matter in the departmental proceedings and before Criminal Court is the same. No details have been indicated to justify this conclusion. Though elaborate reasoning may not be necessary to be indicated, certainly, the skeletal description of how there is substantial similarity has to be indicated. That has not been done.***
13. Since learned single Judge has not indicated even skeleton basis for his conclusion that matter is substantially the same, it would be appropriate for the High Court to re-hear the matter. Accordingly, the impugned order of the High Court is set aside and the matter is remitted back to the High Court for fresh consideration."
15) It therefore follows from the above that pendency of criminal proceedings is no bar to continue disciplinary proceedings in ordinary circumstances. It is only in exceptional situations when the charges in both the proceedings are founded on the same set of facts and evidence and the nature of charge before the criminal court is grave and serious involving complicated questions of fact and law, or possibility of disclosure of defence is real thereby having the effect of prejudicing the delinquent at the criminal trial, that the Court, which is approached for stay of the disciplinary proceedings, may consider the desirability of granting relief in exercise of sound judicial discretion However, whether the charge in the criminal case is of a grave nature involving complicated questions of fact and law, or the extent of prejudice one is likely to suffer, must necessarily exercise the consideration of the Court depending upon the facts of each case and a skeletal description in relation to the similarity ought to be given.
16) Here, it is noticed that the incident giving rise to the criminal trial and the disciplinary proceedings is one and the same. Some of the important witnesses are common. The accusation is also the same. The point that is to be proved at the criminal trial as well as in the departmental enquiry is whether the petitioner as illegal gratification demanded and accepted Rs. 20,000/- from the complainant. If the charge at the criminal trial is proved, it would amount to an offence against the society, a crime having been committed by the petitioner. At the same time, establishment of the charge in course of the disciplinary proceedings would result in proved misconduct. In both cases, consequences that the relevant law provides would follow.
17) Now, the question that is to be addressed is whether the charge is of grave nature involving complicated questions of fact and law are not. The alleged offences with which the petitioner has been charged are, without doubt, grave in nature. Whether it involves complicated questions of fact and law, however, is a grey area. It is largely dependent on one's perception and it may vary from individual to individual. It may not be safe to hold on the basis of the materials on record, in exercise of writ jurisdiction, that complicated questions are or are not involved. I, therefore, refrain from examining that aspect.
18) Let me now examine the other aspect of prejudice. To drive home the charge in the disciplinary proceedings, the prosecution seeks to examine 4 (four) witnesses who are also listed as witnesses before the criminal court. Question that necessarily arises on facts and in the circumstances is, what is the test to be applied for ascertaining whether the petitioner would be prejudiced if the disciplinary proceedings against him are not stayed. I am of the humble view that the test is this. In the event the petitioner is compelled to participate and produce evidence in his defence in the departmental enquiry to contest the departmental proceedings, his defence in the criminal proceedings which would normally constitute the basis for the line and object of cross-examination of the prosecution witnesses would already be known to such witnesses and it is not unlikely that they would be in a position to fashion or design their statements accordingly to suit the prosecution case. Cross-examination of the witnesses by the accused, which is a very valuable right, would in such situation be reduced to a mere formality and justice rendered a casualty. It is fundamental principle of criminal jurisprudence in our country that an accused in a criminal trial is presumed to be innocent, unless the charge against him is proved beyond reasonable doubt, and that the burden of proving the guilt of the accused is on the prosecution. There can be no doubt that a criminal trial, having regard to the clogs in the system, cannot keep pace with a departmental enquiry which can be expedited within a short time. If the line of defence of the petitioner is disclosed in course of the departmental enquiry, thereby giving the prosecution a distinct advantage in its pursuit to prove the guilt of the petitioner at the criminal trial, it ought not to be countenanced. Based on application of this test for considering the desirability of staying the departmental enquiry, there can be no two opinions that there is a real danger of the petitioner's defence being disclosed. He is certainly entitled to stay of the departmental enquiry. Should the petitioner be acquitted by the criminal court, the respondents would be free to proceed with the departmental enquiry to take the disciplinary proceedings to its logical conclusion. If any authority on the point is required, one may usefully refer to the decisions in P. Kata Rao (supra) and S. Samuthiram (supra) cited by Mr. Chakraborty.
19) The writ petition, accordingly, succeeds in part. There shall be unconditional stay of the departmental enquiry that is pending against the petitioner till the conclusion of the criminal case before the court of the Special Judge, CBI Cases, Ranchi. After such conclusion, the respondents shall be free to act in accordance with law. It is made abundantly clear that in the event it is found that the trial is being protracted due to reasons directly attributable to the petitioner, it shall be open to the respondents to set the ball in motion by resuming the departmental enquiry without obtaining permission from this Court. However, such resumption may be challenged by the petitioner, if so advised, in appropriate proceedings in accordance with law.
20) Parties shall bear their own costs.
Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)