Allahabad High Court
Sujit Kumar Maurya vs Union Of India And 4 Others on 27 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:74941 Court No. - 34 Reserved A.F.R. Case :- WRIT - A No. - 14181 of 2023 Petitioner :- Sujit Kumar Maurya Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Man Bahadur Singh,Sr. Advocate Counsel for Respondent :- A.S.G.I.,Hari Narayan Singh, Santosh Kumar Mishra Hon'ble J.J. Munir,J.
1. This writ petition has been instituted by the petitioner, an Assistant Grade-II (Technical) employed with the Food Corporation of India, who is facing both a criminal trial and disciplinary proceedings on the same set of facts.
2. The substance of the prosecution, pending before the Special Judge, CBI Court, Lucknow and the departmental inquiry, is that the petitioner, while working as an Assistant Grade-II (Technical) at the Food Corporation of India, CWC Shahganj, demanded illegal gratification to the tune of Rs.10,000/- per truck from one Sher Bahadur Yadav, a nephew of the complainant, Dhaniram Yadav, partner with a certain M/s. Amita Industries, Katehri, Pratappur, Chamurkha, Ambedkar Nagar on 10.01.2023 for passing/ accepting a consignment of Custom Milled Rice (for short, 'CMR'), processed by the firm aforesaid. A written complaint of the demand was addressed to the Central Bureau of Investigation ('CBI' for short), Lucknow by Dhaniram Yadav on 11.01.2023, saying that the petitioner had made a demand of Rs.10,000/- per truck for clearance of CMR, processed by the complainant's firm. On the basis of the complaint, the CBI-Anti-Corruption Bureau ('ACB' for short), Lucknow laid a trap, where the petitioner is said to have been caught red-handed, while accepting illegal gratification to the tune of Rs.1 lakh. Out of the said sum, Rs.50,000/- were recovered from the drawer of the petitioner's office table, whereas the balance of Rs.50,000/- from a gray backpack, carried by Sandeep Kumar, a personal helper of the petitioner. The trap and arrest were done on 12.01.2023. The petitioner was placed under suspension vide order dated 13.01.2023. There is also a case about the petitioner attempting to misguide the CBI, when they went to search his residence by taking the agency to another man's house.
3. Shorn of unnecessary details, the petitioner was arrested by a team of the CBI-ACB, Lucknow on 12.01.2023 in a case of trap, leading to the registration of Crime No. RC0062023A0002 dated 11.01.2023. The First Information Report, that was registered on 11.01.2023, is based on a written complaint, also dated 11.01.2023, received by the Head of Branch, CBI-ACB, Lucknow from Dhaniram Yadav, partner M/s. Amita Industries, Katehri, Pratappur, Chamurkha, Ambedkar Nagar. The short complaint says that the complainant, Dhaniram Yadav is a partner in the firm aforesaid and his firm processes rice for the Government. The firm, after processing rice, delivers it according to the directions of the Government to the Food Corporation of India, Shahganj. The firm receives remuneration for processing rice by the Government.
4. According to the complainant, his nephew, Sher Bahadur Yadav takes care of the entire work of the firm relating to the Food Corporation of India, Shahganj. The complainant's nephew informed him over telephone that on 10.01.2023, Sujit Maurya, the petitioner, Technical Assistant, FCI, Shahganj, when contacted by Sher Bahadur in order to deliver processed rice to Maurya, demanded illegal gratification at the rate of Rs.10,000/- per truck. The complainant said that he does not wish to pay the bribe and requested necessary action. A verification of the complaint was conducted before registration of the FIR on 11.01.2023. The verification was done by one Piyush Verma, Inspector, CBI-ACB, Lucknow. The petitioner says that Verma never inquired into the subject matter of the complaint, that is to say, why the rice processed by the complainant's firm and delivered by his nephew was rejected. No effort was made during verification to find out if the petitioner had, in the past, rejected any consignments from the complainant's firm due to inferior quality of processing, and if the present complaint had been made against the petitioner in order to wreak vengeance.
5. The petitioner's case was that by virtue of his duties as Technical Assistant Grade-II, he was obliged to check the quality of rice being supplied by various rice millers at the Shahganj Depot of the Food Corporation of India. In the past also, the petitioner has rejected consignments of rice supplied by the complainant for substandard quality. After registration of the FIR, pre-trap proceedings were allegedly carried out on 12.01.2023 between 11:30 hours to 13:00 hours at the office of the SSE P-Way, NR, Shahganj. The petitioner has criticized the pre-trap proceedings and the memorandum as sham. The proceedings of the trap are said by the petitioner to be tainted and fabricated, in order to maliciously implicate him by the complainant. The CBI is blamed to have implicated the petitioner in order to add an undeserved feather to their cap.
6. It is averred on behalf of the petitioner that during the trap proceedings conducted on 12.01.2023 and 13.01.2023, according to the prosecution, the petitioner allegedly demanded illegal gratification by a gesture of his hand and not in the course of conversation with the complainant's nephew. It is emphasized that one part of the proceeds of bribe was recovered from a wooden table in the office premises, where 4-5 persons were sitting, besides the petitioner, while the other part of the ill-gotten money, recovered from the backpack of a private person, one Sandeep Kumar, who was working with the FCI, Shahganj as a private peon. It is averred by the petitioner that the money was recovered on the disclosure of Sandeep Kumar, and not the complainant's or the petitioner's. The CBI arrested both the petitioner and Sandeep Kumar under Section 7 of the Prevention of Corruption Act, 1988 (for short, 'the Act of 1988') read with Section 120B of the Indian Penal Code (for short, 'IPC'), during the course of trap proceedings, alleging that both of them had entered into a criminal conspiracy to commit the offence punishable under Section 7 aforesaid.
7. After investigation, the CBI submitted a charge-sheet dated 10.03.2023 against the petitioner alone, under Section 224 of the Penal Code and Section 7 of the Act of 1988 in the Court of the Special Judge, CBI Court No.6, Lucknow on 10.03.2023.
8. The petitioner says that since there was no evidence of demand, acceptance or recovery of the bribe money against the petitioner with the CBI, they coerced Sandeep Kumar to testify against the petitioner, and in consideration, exculpated him during investigation. It has been emphasized that the fact that the CBI had arrested Sandeep Kumar along with the petitioner on 12.01.2023 on charges of conspiracy, but concluded during investigation that the case against Sandeep Kumar could not be substantiated, shows manipulation and mala fides in investigation. In the nature of things, that conclusion could not have been reached, given the fact that there was recovery shown from a backpack on Sandeep Kumar, carrying half of the proceeds of bribe.
9. There is scathing criticism by the petitioner about the CBI's investigation, which he says is founded on pure conjecture. Certain subtle aspects of the incredible nature of the CBI's case against the petitioner have been attempted to be shown. It is said that the Regional General Manager granted sanction to prosecute the petitioner under Section 19 (1)(c) of the Act of 1988 vide order dated 07.03.2023.
10. The Deputy General Manager, Headquarters, FCI, New Delhi, transferred and attached the petitioner to the Divisional Office, Agartala by the impugned order dated 19.01.2023. The transfer/ attachment order dated 19.01.2023 was forwarded to the Divisional Manager, FCI, Regional Office, Ayodhya and served upon the petitioner on 28.02.2023, while he was still in jail, suffering from severe injuries. The petitioner says that he has sustained severe injuries on 12.01.2023, wherein his lower limbs and disk bone were fractured. The petitioner was admitted to the District Hospital, Lucknow, but could not get much relief. He was released on bail in the aforesaid crime by the Lucknow Bench of this Court vide order dated 16.05.2023, passed in Criminal Misc. Bail Application No.5195 of 2023. The petitioner was released from jail in compliance with the bail order on 23.05.2023. The petitioner alleges that upon release, he consulted Dr. S.K. Verma at the Adarsh Hospital, Varanasi, who advised him complete rest. He has placed on record some of his prescriptions and x-ray reports.
11. The petitioner made representations dated 27.06.2023 and 11.07.2023, requesting the Executive Director (Personnel), FCI Headquarters, New Delhi to revoke his transfer order dated 19.01.2023 posting him to the Divisional Office, Agartala, so that he could take care of his injuries and may also appear in the CBI Court, as and when summoned. The CBI Court has taken cognizance of the police report and registered the matter as Sessions Trial No.493 of 2023. Two dates have already been fixed, according to the petitioner, and on each date, he was required to appear in person. Now, the petitioner's case is that the Disciplinary Authority, without considering the fact that the petitioner is undergoing criminal trial before the Special CBI Court on the same set of facts, charges and evidence to be proved by the same witnesses, has initiated disciplinary proceedings against the petitioner, issuing him with a charge-sheet dated 14.06.2023.
12. The petitioner, by a representation dated 11.07.2023, requested the General Manager, FCI, UP, the Disciplinary Authority to suspend the departmental proceedings/ inquiry initiated against him on the same set of facts, charges and evidence, which are up for trial before the Criminal Court at the instance of the CBI. The General Manager by his order dated 11.07.2023 has revoked the petitioner's suspension, but directed that the petitioner would remain posted at Divisional Office, Agartala. The petitioner has submitted a short reply dated 17.07.2023 to the charge-sheet in the departmental proceedings and communicated the same to the General Manager, FCI, UP through email dated 17.07.2023. The General Manager, FCI, UP, the Disciplinary Authority by his order dated 27.07.2023 has appointed Santak Saraf, Deputy General Manager (Genl), FCI, Regional Office, Lucknow as the Inquiry Officer to inquire into the charges framed against the petitioner. By another order of 27.07.2023, the General Manager has appointed Rupesh Kumar Shaw, Assistant General Manager (Genl), FCI, Regional Office, Lucknow as the Presenting Officer on behalf of the Establishment. In furtherance of the orders dated 27.07.2023, the Inquiry Officer has issued notice to the petitioner, requiring his appearance in the preliminary hearing vide notice dated 01.08.2023.
13. The petitioner has made a further representation dated 02.08.2023, informing the Inquiry Officer that he is undergoing treatment and physiotherapy at Varanasi. He has already submitted his request for sanction of medical leave, and, therefore hearing in the departmental inquiry be deferred. There is then a representation dated 08.08.2023 by the petitioner, addressed to the Inquiry Officer, apprising him that he is facing trial under the Act of 1988 on the basis of the charge-sheet submitted by the CBI, which is going on before the Special Judge, CBI, Lucknow. The departmental proceedings, initiated against him on the basis of the departmental charge-sheet dated 14.06.2023, are based on the same set of facts, allegations, evidence and to be proved by the same witnesses as those in the ongoing trial. The petitioner urged in his representation that forcing him to defend in the departmental proceedings would compel him to disclose his defence beforehand, which he would come up with during trial. It was, therefore, requested that the Inquiry Officer may keep the proceedings of inquiry in abeyance pending trial.
14. The petitioner has harped upon the injuries sustained and the consequent difficulty that he would face in attending the trial and the departmental inquiry, both venued at Lucknow, while posted at Agartala. He has also referred to some relieving provisions in the transfer policy and sought quashing of the transfer order dated 19.01.2023 passed by the DGM (ZE), FCI Headquarters, New Delhi. The other prayer, that the petitioner makes, is that the disciplinary proceedings against him be quashed pursuant to the charge-sheet dated 14.06.2023, issued by the General Manager, UP FCI, Lucknow. The last is a direction in the nature of mandamus commanding the respondents to permit the petitioner to function as a Technical Assistant-II in any FCI Depot within the Uttar Pradesh Region, preferably near Lucknow, so as to enable him to attend the ongoing trial in the Court of the Special Judge, CBI.
15. On 06.09.2023, by a detailed order of the said date, this Court while issuing notice of motion to the respondents, stayed disciplinary proceedings initiated against the petitioner on the basis of the charge-sheet dated 14.06.2023. A counter affidavit dated 15.09.2023 was filed on behalf of respondent Nos.2, 3, 4 and 5, to which the petitioner filed a rejoinder dated 17.09.2023. On 10.10.2023, the parties having exchanged affidavits, the petition was admitted to hearing, scheduling it for 26.10.2023 and extending the interim order dated 26.10.2023 till the next date of listing. The matter was heard on 31.10.2023, adjourning it for further hearing to 02.11.2023. On 02.11.2023, hearing concluded and judgment was reserved.
16. Heard Mr. R.K. Ojha, learned Senior Advocate assisted by Mr. Man Bahadur Singh, learned Counsel for the petitioner and Mr. S.K Mishra, learned Counsel appearing on behalf of respondent Nos.2, 3, 4 and 5.
17. Upon hearing learned Counsel for the parties, this Court finds that there are two distinct reliefs that the petitioner seeks by this petition. The first is with regard to his transfer, where he says that he ought to be stationed by the FCI somewhere in Uttar Pradesh, preferably close to Lucknow, after being transferred from Agartala, where he is currently posted. The other relief is about the disciplinary proceedings initiated against him on the basis of the charge-sheet dated 14.06.2023, which he seeks to be quashed.
18. About the first part of the relief, the petitioner has, in the first instance, prayed that his transfer order dated 19.01.2023 passed by the DGM (ZE), FCI Headquarters, New Delhi, transferring him to Agartala from the Regional Office, Ayodhya, be quashed. In order to effectuate this part of the relief, the petitioner has sought a direction to post him somewhere in Uttar Pradesh, preferably close to Lucknow in order to defend himself in the criminal trial and also the departmental proceedings. Now, this part of the relief is quite distinct and different from the other relief, which is about quashing of the disciplinary proceedings, or the manner in which that relief has been re-moulded during hearing by Mr. R.K. Ojha, learned Senior Advocate. There are three distinct matters, on the foot of which, the petitioner has prayed that the impugned order of transfer to Agartala be quashed and a direction issued to post him closer to Lucknow. The first are his health grounds, where he says that he was injured while in custody or during arrest, suffering serious skeletal injuries, including fractures. Those injuries make it difficult for him to move from Agartala every time and defend proceedings, both criminal and departmental, venued at Lucknow. The other is that the fact that since two proceedings, a criminal trial and disciplinary proceedings, both on serious charges, are venued at Lucknow, there is no wisdom in posting the petitioner at Agartala and making him travel, may be twice a month, or more frequently, as Mr. Ojha says, to attend at Lucknow proceedings in Court and before the departmental inquiry. It is a colossal wastage of a public servant's time and a burden on the exchequer, where the respondents themselves would be frequently deprived of his services, when he has to travel all the way from Agartala to Lucknow.
19. The last is that the petitioner has not been proved guilty in any proceedings as yet, but the respondents, in transferring him to the farthest Establishment of theirs in Agartala, have not only presumed his guilt, but also acted with malice in placing the petitioner at a station where he would be handicapped in defending himself in the criminal trial and the departmental proceedings on account of the distance between Lucknow and Agartala.
20. Mr. S.K. Mishra, learned Counsel for the respondents, on the other hand, would submit that the charges against the petitioner are serious, where it is necessary to keep him away from the venue of trial and inquiry, as much as possible, in order to eschew the possibility of the petitioner suborning witnesses or tampering evidence. Quite apart, it is submitted that the decision to transfer or post an employee is essentially in the domain of the employer and an incident of service. The petitioner cannot ask the transfer order to be quashed on grounds of convenience or even violation of the transfer policy, as somewhere attempted to be made out, unless it is in violation of a statutory rule.
21. This Court is of opinion that while a transfer from Uttar Pradesh to Agartala may involve inconvenience to the petitioner, more particularly, when he is facing a criminal trial and departmental proceedings, venued at Lucknow, that by itself is not a ground to quash the transfer order, or else, to issue a command to the respondents to post him closer to the venue of proceedings. Interference with a transfer order by the employer in the exercise of the power of judicial review is well reputed to be available on two grounds, to wit, if the transfer order is in violation of a statute or statutory rule, or if it is mala fide. Admittedly, there is no violation of any statute or statutory rule in transferring the petitioner from Ayodhya to Agartala by means of the impugned order dated 19.01.2023. The submissions to attribute mala fides, that stem from a deliberate animus attributed to the respondents to make it difficult for the petitioner to defend himself in the criminal trial and departmental proceedings, considering the distance involved, is an argument that has a remote causal link. While it may cause inconvenience and some hassle to the petitioner in traversing the distance between Agartala and Lucknow to attend the trial in the disciplinary proceedings, it is difficult to infer, from the resultant inconvenience to the petitioner, a mala fide intention with the respondents in transferring him, given his circumstances.
22. The respondents may have thought that it is necessary to keep the petitioner at bay from the venue of proceedings, where he can indeed influence witnesses. The aforesaid consideration with the respondents may be absolutely baseless and the petitioner may have no such intention or capability. But, if the respondents have thought this way and directed the petitioner's transfer, it is not at all compatible with a case of mala fide exercise of the power. The causal link is weak because the distance between the two stations, given the speed of modern transport, may not necessarily impair the petitioner in defending himself. It is not the petitioner's case that after posting him to Agartala, the respondents do not sanction him leave to attend trial or the disciplinary proceedings at Lucknow. The petitioner is not under suspension, but working and in enjoyment of his full emoluments. The likelihood, therefore, of there being a possible prejudice to the petitioner's defence, merely on account of distance between the venue of inquiry and his posting, makes the connection between the transfer order and the intent to prejudice the petitioner, a remote possibility, even if not one that is absolutely illusory. This Court, therefore, does not find any good reason to grant the petitioner's prayer with regard to a transfer.
23. This takes the Court to the other relief, which we think is the principal one that the petitioner seeks. Though, the petitioner, in claiming the second relief, has asked for quashing of the charge-sheet, giving rise to the disciplinary proceedings, Mr. R.K. Ojha, during his submissions, has very aptly moulded it to one seeking stay of the disciplinary proceedings, pending conclusion of the criminal trial against the petitioner. Mr. Ojha submits that here is a case, where the charge in the criminal trial and that in the disciplinary proceedings, are one and the same, and that is about the petitioner being caught red-handed, accepting a bribe in connection with the performance of his duties. The charge in both the criminal trial and the departmental proceedings is based on the same set of facts and is to be proved by the same evidence, including witnesses. He says, therefore, that forcing the petitioner to face departmental proceedings, which would move at a swifter pace than the criminal trial, would in the nature of things lead to disclosure of the petitioner's defence ahead of the matter going to trial before the Criminal Court. This would prejudice the petitioner in his defence at the trial. He further submits that even otherwise, if the charge in the criminal trial and the disciplinary proceedings is identical, based on the same facts and required to be proved by the same evidence, but essentially one that involves complicated questions of fact and law, principle requires that disciplinary proceedings are to be stayed, awaiting the outcome of the trial.
24. It is urged by the learned Senior Advocate that this is a case, involving complicated questions of fact and law, as it is a matter involving the alleged apprehension of the petitioner in a trap led by the CBI while accepting illegal gratification. The evidence is essentially legal and involves complicated questions of law, besides facts, which are beyond the ken of a departmental forum to judge. In support of his submission, Mr. Ojha has placed reliance upon M. Paul Anthony v. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 and on an authority of the Madhya Pradesh High Court in Harish Chandra Hinunia v. Food Corporation of India through General Manager and others, 2022 SCC OnLine MP 2828.
25. Mr. S.K. Mishra, on the other hand, submits that the petitioner has been caught red-handed by the CBI, accepting bribe and indulging in an act of corruption, bringing a bad name to the Food Corporation of India, whom he serves. The offence, of which he is being prosecuted, involves moral turpitude. He has acted in a manner unbecoming of an employee of the Food Corporation of India. The acts that he has indulged in, quite apart from being an offence under the Act of 1988 and the Penal Code, constitute grave misconduct under Regulations 31, 32 and 32-A of the Food Corporation of India Staff Regulations, 1971. Mr. Mishra submits that it is absolutely permissible in law for criminal proceedings and disciplinary proceedings to go on simultaneously. There is no bar to the simultaneous holding of both proceedings. He submits that the principles enunciated in M. Paul Anthony (supra) also does not prohibit the simultaneous holding of both proceedings. Reliance has been placed by the learned Counsel for the respondents upon the authority in State of Rajasthan v. B.K. Meena and others, (1996) 6 SCC 417. To the same end, reliance is placed upon the decision of the Supreme Court in State Bank of India and others v. Neelam Nag and another, (2016) 9 SCC 491, besides an earlier authority of their Lordships in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao, (2012) 1 SCC 442. Learned Counsel for the respondents has also drawn the attention of the Court to State of Rajasthan and others v. Phool Singh, AIR 2022 SC 4176.
26. Mr. Mishra submits that there is no bar to the simultaneous holding of both proceedings, and also, the Criminal Court and the disciplinary proceedings reaching opposite conclusions, particularly, where acquittal by the Court is based on benefit of doubt. He submits that if the judgment of the Criminal Court, acquitting the petitioner on a doubt, would not forebear the Disciplinary Authority from reaching a contrary conclusion, there is no point in holding back proceedings and permitting evidence to go stale and witnesses, if nothing else, weak in their memory of the events. The last case that Mr. Mishra has called in aid of his submissions is the decision of our Court in Gopal Narain Shukla v. Asst. General Manager, Region-I, S.B.I and others, Neutral Citation No. - 2020:AHC: 37320.
27. Based on all this authority, it is vehemently contended by the learned Counsel for the respondents that this case being one where the petitioner was caught red-handed, accepting a bribe, which is both a heinous crime and a gross service misconduct, both the criminal prosecution trial and the disciplinary proceedings must be permitted to go on simultaneously. It is particularly emphasized that the prosecution launched by the CBI is at a nascent stage and there is every possibility that the trial may take a considerable time to conclude, say 3 to 5 years. Moreover, this is not a case where complicated questions of fact and law are involved. There is, therefore, no impediment for the departmental forum, seized of the disciplinary matter, to go ahead and reach their conclusions. If the employee is not found guilty, his honour would be vindicated and if he is indeed tainted, it is not desirable to retain him.
28. Upon consideration of the submissions advanced by learned Counsel for both parties on this count, we find that it is true that there is no blanket ban or even a readily inferable embargo upon the holding of a criminal trial and disciplinary proceedings, relating to the same matter, if the employer deems just to do so. But, there are circumstances where the holding of disciplinary proceedings may have to be put on hold, awaiting the outcome of a criminal trial. The Supreme Court in M. Paul Anthony, upon which Mr. Ojha has placed heavy reliance, after an extensive survey of authority, has laid down principles, governing the issue of simultaneous holding of departmental inquiry and criminal trial, thus:
"23. In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of "gold-bearing sand". It was on this basis that a criminal case was launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be a "misconduct". On the service of the charge-sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the enquiry officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex parte against him. He was ultimately found guilty of the charges and was dismissed from service."
29. In Harish Chandra Hinunia (supra), which incidentally also related to a case, where the allegation was about the employee being caught red-handed, taking a bribe for the clearance of bills of the complainant and also related to the respondents Establishment, the Food Corporation of India, the question if both the criminal trial and disciplinary proceedings could go on together, regarding a charge that was identical, was considered. After considering the principles laid down in M. Paul Anthony and also decisions of the Madhya Pradesh High Court, where a prayer to stay departmental proceedings on ground that similar charges were pending trial before the Criminal Court were declined, it was held by Atul Sreedharan,J.:
"10. In this case, the charge against the petitioner is under section 120-B read with section 7 of the Prevention of Corruption Act. The offence under section 7 is far more complexed in nature than the offences pointed out in the orders of the co-ordinate Benches, which refused to stay the proceedings of the departmental enquiry during the pendency of the criminal trial. In an offence under section 7 of the Prevention of Corruption Act, first of all, the demand for bribe has to be proved. Secondly, the acceptance of the bribe has to be established. Thirdly, the tape recording of the demand has to be proved in the light of section 65-B of the Evidence Act. Fourthly, the seizure of the article from the accused has also to be established and fifthly, it must be established beyond reasonable doubt that the office occupied by the accused was such that under the power of the said office he was in a position to favour the complainant in the discharge of his official function.
11. One more aspect that has not been gone into is that whether, the proceedings in a criminal trial and the proceedings in a departmental enquiry are based on the same identical charge are to be proved by the same set of witnesses then, if the departmental enquiry is allowed to proceed, there is a chance of the defence of the accused being disclosed in the course of the departmental enquiry which, if it comes to the knowledge of the prosecution in the criminal trial, goes to gravely prejudice the defence of the accused in the criminal trial. This is also an aspect that must be taken into consideration when deciding such an issue.
12. Under the circumstances, as far as Article-1 of the departmental charge-sheet is concerned, the same is identical to the charge in the criminal case against the petitioner. Moreover, the said charge in the departmental enquiry are to be proved by the same set of witnesses who are testifying on behalf of the CBI in the criminal trial against the petitioner.
13. Under the circumstances, the law laid down in Capt. M. Paul Anthony (supra) will squarely apply in the facts and circumstances of this case and, therefore, the department is prohibited from proceedings against the petitioner as far as Article-1 of the departmental charge-sheet is concerned.............."
30. In B.K. Meena (supra), the facts and proceedings in the case, which led to their Lordships' remarks regarding principle, may best be noticed by quoting those from the report of the decision, in the words of their Lordships:
"3. The respondent is a member of the Indian Administrative Service belonging to the Rajasthan cadre. He was working as Additional Collector, Development-cum-Project Director, District Rural Development Agency (DRDA), Jaipur during the year 1989. He was transferred from the said post on 21-10-1989. On 8-12-1989, the successor to the respondent lodged an FIR (No. 346 of 1989) against the respondent in Police Station Bani Park, Jaipur inter alia alleging misappropriation of public funds by the respondent to the tune of Rs 1.05 crores. The Anti-Corruption Department of the State of Rajasthan investigated into the said offence and found that the respondent was involved in the offence and accordingly registered FIR No. 10 of 1990 dated 12-3-1990. On 22-5-1990, the respondent was placed under suspension. The respondent was arrested on 26-3-1990 and remained in custody till 10-8-1990.
4. On 31-3-1992, the State of Rajasthan requested the Government of India for grant of sanction for prosecuting the respondent under the Prevention of Corruption Act, 1988. On 9-9-1992, the Government of India, while not granting the sanction for prosecution, advised the Government of Rajasthan to initiate disciplinary proceedings against the respondent. Accordingly, on 13-10-1992, the State Government issued the memo of charges accompanied by articles of charges. On 9-2-1993, the respondent submitted his written statement (running into 90 pages) in reply to the charges served upon him. At our direction, the learned counsel for the respondent has filed a copy of the said written statement. It purports to be in response to the memo of charges dated 13-10-1992 communicated to him. Though at the end, the respondent reserves his "right to add new points when and if the documents as mentioned above are furnished to me or if the investigating agency furnishes other documents of additional points not disclosed to me till now", the written statement is a detailed rebuttal of the charges framed against the respondent. The respondent, no doubt, says that since all the documents were not furnished to him, he proposes to file a fuller statement after receiving those documents but that does not mean that the respondent has not put forward his case in reply to the charges framed against him. Putting forward his case in reply to memo of charges cannot but mean putting forward his defence.
5. On 13-4-1993, the respondent filed OA No. 212 of 1993 before the Central Administrative Tribunal, Jaipur challenging the various orders passed against him including the memo of charges.
6. On 15-5-1993, charge-sheet was filed in the Court of the Chief Judicial Magistrate, Jaipur, against the respondent and cognizance thereof taken by the learned CJM.
7. At the instance of the respondent, the Central Administrative Tribunal issued an order on 4-8-1993 staying the disciplinary proceedings against the respondent. The State of Rajasthan thereupon reinstated the respondent in service, revoking the order of suspension pending enquiry. The respondent amended his OA requesting that the disciplinary enquiry against him be stayed pending the criminal trial.
8. When the original application came up for final hearing, the only ground urged by the respondent was that the departmental proceedings be not allowed to go on so long as the criminal proceedings are pending against him. It was opposed by the State of Rajasthan stating inter alia that inasmuch as the respondent has filed a detailed written statement of defence on 9-2-1993 (in response to memo of charges framed against him) and because the respondent has disclosed all possible defences in the said written statement, there is no occasion or warrant for staying the disciplinary proceedings.
9. The Tribunal found that the charge-sheet in the criminal case and the memo of charges in the disciplinary proceedings are based upon same facts and allegations. It rejected the State's plea that the respondent having already disclosed his defence, will not be prejudiced in any manner by proceeding with the disciplinary enquiry. The Tribunal observed:
"We cannot say at this stage what will emerge during the enquiry proceedings after examination of the evidence. The applicant may well have to put forward further defence as and when material against him emerges during the enquiry proceedings and disclosure of his defence at that stage could well prejudice his defence in the criminal trial."
31. On these facts, it was held in B.K. Meena:
"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 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 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. The ground indicated in D.C.M. [(1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 LLJ 520] and Tata Oil Mills [(1964) 7 SCR 555 : AIR 1965 SC 155 : (1964) 2 LLJ 113] is also not 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 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. That is the reality in spite 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 undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be 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. 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.
15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him."
32. In Neelam Nag (supra), on which reliance has been placed by the learned Counsel for the respondents, shows it to be a case where the charge of criminal breach of trust and misappropriation, giving rise to service misconduct, was laid against the employee, who at the relevant time was working as an Assistant (Clearing) with the State Bank of India. She favoured one Laxman Parsad Ratre, an employee of the Bhilai Steel Plant, causing loss to the Bank by her acts and omission, in that, that Laxman Parsad Ratre, who maintained an account with the State Bank of India, had issued two cheques in favour of a certain Tanishk Securities, both valued Rs.6,50,000/-, though he did not have sufficient funds. Those cheques were deposited by Tanishk Securities with their Bank for clearance. The bankers of Tanishk Securities despatched those cheques to the State Bank of India, Durg Branch, Bhilai, where the charge-sheeted employee was posted. The charge-sheeted employee, in connivance with the co-accused, despatched those cheques to the State Bank of India, Malviya Nagar Branch, even though Ratre did not hold any account in that Branch. The cheques were returned to the Durg Branch. The charge-sheeted employee deliberately did not return those instruments to the Branch that had forwarded the same. In consequence, the payee's Branch, as per settled banking practice, assumed clearance of the cheques and paid proceeds due on them to Tanishk Securities, by endorsing payment in the name of the State Bank of India. This caused a loss of Rs.13 lakhs to the State Bank of India, which was revealed during reconciliation of accounts of the two Banks.
33. It was on these facts that the petitioner was charge-sheeted and proceeded with departmentally and also reported to the Police. This led to the launching of a criminal prosecution against the charge-sheeted employee before the Court of competent criminal jurisdiction, a Magistrate's Court. The High Court when approached, seeking relief of stay of departmental proceedings on ground that it would lead to prejudice to the charge-sheeted employee in her defence at the criminal trial, besides the terms of Clause 4 of the Memorandum settled between the Bank and their employees, that provided for stay of departmental proceedings on the same set of facts and evidence, where a criminal trial was pending, granted a stay of departmental proceedings, until completion of the trial. This was the order made by the learned Single Judge of the High Court, before whom the writ petition came up. On appeal to the Division Bench, the Division Bench affirmed the Single Judge, but modified the directions of the learned Single Judge in terms that the Magistrate was directed to conclude the trial on a day-to-day basis, which was pending for a long period of time and further granted liberty to the employers to proceed in their disciplinary jurisdiction as soon as the case for the prosecution was closed. In the report of the decision of their Lordships in Neelam Nag, there is an elaborate calendar of the criminal trial, which shows the events in the trial, where up to the stage of framing of charge, some 133 days were spent. One of the issue, therefore, in Neelam Nag was the delay in conclusion of criminal trial and its adverse impact on the clean administration in the employer's Establishment. It was in the context of these facts, very elaborately set forth in the report, that in Neelam Nag, it was observed by the Supreme Court:
"13. We have heard the learned counsel for the parties at some length. The only question that arises for consideration is no more res integra. It is well settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. The contour of the approach to be adopted by the Court has been delineated in a series of decisions.
14. This Court in Karnataka SRTC v. M.G. Vittal Rao [Karnataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171] has summed up the same in the following words: (SCC pp. 449-50, paras 16-17)
(i) There is no legal bar for both the proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.
(emphasis supplied)
15. The recent decision relied on by the appellant in Stanzen [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] , has adverted to the relevant decisions [Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, (2005) 10 SCC 471 : 2005 SCC (Cri) 1605; Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810; A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699 : 1997 SCC (L&S) 548 and State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455] including M.G. Vittal Rao [Karnataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171] . After adverting to those decisions, in para 16, this Court opined as under: (Stanzen case [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] , SCC p. 643) "16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."
(emphasis supplied)
17. Reverting to the facts of the present case, indisputably, the alleged misconduct has been committed as far back as May 2006. The FIR was registered on 5-12-2006 and the charge-sheet was filed in the said criminal case on 6-2-2007. The contents of the charge-sheet are indicative of involvement of Respondent 1 in the alleged offence. Resultantly, the criminal court has framed charges against Respondent 1 as far back as 12-6-2007. The trial of that case, however, has not made any effective progress. Only 3 witnesses have been examined by the prosecution, out of 18 witnesses cited in the charge-sheet filed before the criminal court. Indeed, listing of criminal case on 133 different dates after framing of charges is not solely attributable to Respondent 1. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that at least 26 adjournments are directly attributable to the accused in the criminal case. That is not an insignificant fact. This is in spite of the direction given by the Division Bench on 28-6-2010, to the criminal court concerned to proceed with the trial on day-to-day basis. The progress of the criminal case since then, by no means, can be said to be satisfactory. The fact that the prosecution has named 18 witnesses does not mean that all the witnesses are material witness for substantiating the factum of involvement of Respondent 1 in introducing the co-accused for opening a new bank account, to misplace the clearing instruments relating to various customers or for the payment released to the undeserving customer causing huge financial loss to the Bank. The charge in the criminal case is for the offences under Sections 409 and 34 IPC, one of criminal breach of trust by a public servant.
18. In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against Respondent 1 for an indefinite period; and in larger public interest, the order as passed in Stanzen case [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] be followed even in the fact situation of the present case, to balance the equities.
25. Be that as it may, the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests (at least in cases of involvement of the employees of the public sector banks in offence of breach of trust and embezzlement), the arrangement predicated in Stanzen [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] would meet the ends of justice. For, the disciplinary proceedings instituted against Respondent 1 cannot brook any further delay which is already pending for more than 10 years.
27. Accordingly, we exercise discretion in favour of Respondent 1 of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightaway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against Respondent 1 to be decided expeditiously but not later than one year from the date of this order. The trial court shall take effective steps to ensure that the witnesses are served, appear and are examined on day-to-day basis. In case any adjournment becomes inevitable, it should not be for more than a fortnight, when necessary.
28. We also direct that Respondent 1 shall extend full cooperation to the trial court for an early disposal of the trial, which includes cooperation by the advocate appointed by her.
29. If the trial is not completed within one year from the date of this order, despite the steps which the trial court has been directed to take, the disciplinary proceedings against Respondent 1 shall be resumed by the enquiry officer concerned. The protection given to Respondent 1 of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiry of the period of one year from the date of this order."
34. The next decision particularly canvassed by the learned Counsel for the respondents, to say that the departmental proceedings should not be stayed in the present case pending the outcome of the trial, is the relatively recent decision of the Supreme Court in Phool Singh (supra). In our respectful understanding of the principle in Phool Singh, it was about the principle if acquittal in the criminal case on the same set of charges would entitle the employee to reinstatement, though in departmental proceedings, he had already been adjudged guilty and punished. This is not a decision about the principle relating to stay of departmental proceedings, pending the criminal trial on the same set of facts, charge and evidence, but the way the result of a varying judgment in the Criminal Court would affect contrary conclusions, already reached by the Disciplinary Authority. The two were held to be quite independent of each other, with the standards of proof being different. In that regard, the principles regarding the effect of an honourable acquittal and one based on doubt, on the order made in exercise of disciplinary jurisdiction were also considered. These principles are not relevant to the issue in hand, which is limited to a stay of departmental proceedings pending criminal trial.
35. The solitary charge carried in the charge-sheet relating to departmental proceedings reads:
"That, said Shri Sujit Kumar Maurya, AG-II (T) while working at FCI, CWC Shahganj has demanded an undue advantage i.e. bribe of Rs. 10,000/- per truck from Shri Sher Bahadur Yadav nephew of the complainant Sh. Dhaniram Yadav, Partner, M/S Amita Industries, Katehri, Pratappur, Chamurkha, Ambedkar Nagar, U.P. on dated 10.01.2023 for passing/accepting consignment of CMR Rice processed by his firm. On receipt of a written complaint dated 11.01.2023 addressed to CBI, Lucknow from the complainant Sh. Dhaniram Yadav regarding demand of bribe of Rs. 10,000/- per truck by Shri Sujit Kumar Maurya, AG- II(T) for passing/accepting consignment of CMR Rice processed by his firm, CBI-ACB, Lucknow laid a trap and Shri Sujit Kumar Maurya, AG-II (T) was caught red handed while accepting illegal gratification of Rs. 1,00,000/- (Rs 50,000/- recovered from the wooden table drawer of the office of Shri Sujit Kumar Maurya and remaining Rs. 50,000/- from grey bag pack of Sandeep Kumar (aged about 22 years, private person/personal helper of Shri Sujit Kumar Maurya)) on 12.01.2023 from Shri Sher Bahadur Yadav nephew of the complainant Shri Dhaniram Yadav. Consequently, he was arrested by CBI, ACB, Lucknow on 12.01.23 and he was placed under suspension vide order dated 13.01.2023. During house search of rented accommodation as disclosed by Shri Sujit Kumar Maurya AG-II(T), he misguided the CBI team and tried to get conducted the search of residence of another person but he could not succeed. Thereafter, Shri Sujit Kumar Maurya, AG- II (T) got injured after his failed attempt to escape from the lawful custody of the CBI during the search proceedings.
He is thus, charged for committing gross misconduct of demand & acceptance of bribe by becoming a party to corruption and bringing bad name to FCI in the eye of Public and committing acts which amount to a criminal offence involving moral Turpitude. By doing so he has acted in a manner unbecoming of an employee of the Corporation.
Thus, by committing the above misconducts, he has contravened Regulations 31, 32 & 32 A of FCI (Staff) Regulations, 1971 and made himself liable for disciplinary proceedings."
36. The statement of imputations in support of the solitary charge, which detail the department's case against the petitioner with all particulars, is quoted below:
"Whereas, the said official Shri Sujit Kumar Maurya while working as AG-II (T) at FCI, CWC Shahganj under Divisional Office Ayodhya (Faizabad) during January 2023 did not discharge his duties with due devotion and integrity in as much as he demanded a bribe of Rs.1,00,000/- (for 10 trucks @ Rs. 10,000/- per truck) on 10.01.23 from Shri Sher Bahadur Yadav, nephew of the complainant Shri Dhaniram Yadav for passing/accepting consignment of CMR Rice processed by his firm i.e. Amita Industries, Ambedkar Nagar, UP.
Whereas, on receipt of a written complaint dated 11.01.23 addressed to CBI, ACB, Lucknow from Shri Dhaniram Yadav, S/o- Late Banshram Yadav, Resident of Village- Sammaupur, Post- Sijhauli, PS- Akabarpur, Ambedkar Nagar regarding demand of bribe of Rs. 10,000/- per truck for passing/accepting consignment of CMR Rice processed by his firm, i.e. Amita Industries, Ambedkar Nagar, UP by Shri Sujit Kumar Maurya, AG-II(T), the CBI, ACB, Lucknow laid a trap on 12.01.2023 and Shri Sujit Kumar Maurya AG-II (T) was caught red handed while accepting illegal gratification on 12.01.2023.
Whereas, in reference to the complaint dated 11.01.2023 made by the complainant Shri Dhaniram Yadav to the CBI, ACB, Lucknow, a case RC0062023A0002 dated 11.01.2023 U/s 7 of the Prevention of Corruption Act, 1988 (as amended in 2018) was registered against the accused official Shri Sujit Kumar Maurya, AG- II (T), FCI, CWC Shahganj. A trap was laid by CBI, ACB, Lucknow and Shri Sujit Kumar Maurya, AG-II (T) was caught red handed on 12.01.2023 while accepting Rs. 1,00,000/- (Rupees One Lac) (for 10 trucks @ Rs. 10,000/- per truck) as illegal gratification from Shri Sher Bahadur Yadav (nephew of the complainant Shri Dhaniram Yadav) in presence of two independent witnesses Shri Hridyesh Kumar Bharti, Branch Manager, Baroda UP Bank, Shahganj Branch, Jaunpur (UP) and Shri Shobhanand Anil Kumar, SSE Works, NER, Azamgarh (UP). Out of the tainted bribe amount of 1,00,000/- (Rupees One lakh only), 50,000/- was recovered from the wooden table drawer of the office of accused Sujit Kumar Maurya and remaining 50,000/- was recovered from grey colored bag pack of Sandeep Kumar (aged about 22 years, private person/personal helper of Shri Sujit Kumar Maurya, AG-II (T)) in presence of independent witnesses. In addition to the recovered GC Notes of 50,000/- from the bag pack of said Shri Sandeep Kumar, another amount of 2,50,000/- (5 bundles of 500/-) was also found lying in the said bag pack of Shri Sandeep Kumar. On being asked Sandeep Kumar informed that this amount of 2,50,000/- has also been given to him by Shri Sujit Kumar Maurya, AG-II (T).
Whereas, during house search of rented accommodation as disclosed by Shri Sujit Kumar Maurya AG-II(T) situated at Bardahiya Bazar, Vill- Suris, Shahganj, Janpur, Shri Sujit Kumar Maurya, AG-II(T) misguided the CBI team and tried to get conducted the search of residence of another person but he could not succeed. Shri Vikas Kumar S/o Shri Dinesh Kumar, the owner of the said rented premised denied Shri Sujit Kumar Maurya, AG-II(T) as being his tenant. Moreover, Shri Sujit Kumar Maurya pushed back Shri Vinod Kumar Gupta, PC, CBI, ACB, Lucknow with force and jumped down from the balcony of the premises to escape from the custody of the CBI team and he got injured."
37. Upon his arrest by the CBI in the trap case on 12.01.2023, the petitioner was declared deemed to have been suspended vide order dated 13.01.2023 with effect from 12.01.2023 in terms of paragraph No.66 (1)(c) of the Food Corporation of India (Staff) Regulations, 1971 till further orders. Thus, at the stage that the petitioner was suspended from service, it was no decision of the respondents to place him under suspension in contemplation of disciplinary proceedings or pending disciplinary proceedings. It is was a deemed suspension, because he was arrested in connection with a criminal case and directed to remain suspended till further orders. The decision to initiate departmental proceedings is, therefore, traceable to the issue of the charge-sheet dated 14.06.2023. A reading of the charge and the statement of imputations in support thereof would indicate ex facie that the entire case against the petitioner is built on the edifice of the CBI trap laid on 12.01.2023, when the petitioner is said to have been caught red-handed. The CBI had acted on a written complaint from Dhaniram Yadav, partner of M/s. Amita Industries, Ambedkar Nagar, engaged in the processing of CMR for the Food Corporation of India.
38. It is not a case where the respondents of their own had discovered any dereliction on the petitioner's part, collected some evidence, in something like a preliminary enquiry, and proceeded against him for accepting illegal gratification, in the exercise of their disciplinary jurisdiction. This is a case where the respondents, who are the employers, came to know of the misconduct charged against the petitioner, because he was arrested by the CBI in a trap laid at the instance of a private complainant, the partner of a CMR processing firm. The complainant, who went to the ACB of the CBI, did not report the matter to the respondents earlier. The result was, as already noted, that the entire case in the departmental charge-sheet against the petitioner is built on the investigation done by the CBI, the trap laid by them and the arrest effected. The charge-sheet, that is filed against the petitioner before the Special Judge, CBI Court and the charge-sheet in the disciplinary proceedings, have 12 common witnesses. In fact, the charge-sheet in the trial before the CBI Court has another nine witnesses to add to all those, who are to testify in the departmental enquiry. The facts of the prosecution and the respondents' case in the departmental enquiry are identical and emanate from the same transaction of trap and arrest. The evidence is identical, including witnesses. There is no doubt that the petitioner's defence, including the defence evidence, would also be identical.
39. The most important test to apply, as held in Neelam Nag and M.G. Vittal Rao (supra), that has been considered in Neelam Nag by the Supreme Court, is that the only valid ground for staying disciplinary proceedings pending criminal trial is to ensure that the defence of the employee at the trial is not compromised or prejudiced. This would arise from disclosure of the defence during departmental proceedings if the facts, the charge and evidence in both proceedings are identical or very similar. We have already set out the charge and the statement of imputations in support thereof, on the basis of which, the departmental enquiry is proceeding.
40. A perusal of the CBI charge-sheet reveals the details of pre-trap proceedings, the trap proceedings, search and recovery of currency given in bribe, with the numbers tallying, mentioned in the pre-trap memorandum. The recovery was shown in part from the backpack of Sandeep Kumar and some part from a drawer in the office table of the chamber where the petitioner used to sit. The statement of Sandeep Kumar was relied upon by the CBI to say that the money was handed over to him by the petitioner. The handwashes of the petitioner and Sandeep Kumar as also those of Sher Bahadur were taken, besides the cotton swab wash of the inner lining of Sandeep Kumar's bag. The handwash and the swab when dipped in solution of sodium carbonate, turned pink in colour. The voice recording sample of Sandeep Kumar, recorded on a Micro-SD Card was sent to the Central Forensic Laboratory, New Delhi for expert opinion, which was awaited until filing of the charge-sheet. The admitted sample of Sandeep Kumar's voice could not be taken during the trap operation and was, therefore, recorded at the District Jail with permission of the CBI Court on 24.01.2023. Now, this is the evidence, which is to be considered against the petitioner and proved, whether it is led at the criminal trial or the departmental enquiry.
41. Looking to the nature of the charge and the offence involved, the entire case being one built on the trap laid by the CBI and the arrest carried out by them, the case appears to be one which involves complicated questions of facts and law. The recovery is not from the petitioner's person, but from other places, to which the petitioner has been connected through the mechanism of trap with the entire steps of a voice recorder, bank notes, the numbers of which had already been recorded during pre-trap operation etc. being involved. This involves essentially complex questions of fact and law. It is true that the standards of proof in a departmental enquiry are much lower than those in a criminal trial, and all those strict requirements of proving every step of the trap and recovery may not be necessary in a departmental proceeding as in the trial, but, as we have already remarked, the entire edifice of this case and the charge in the departmental enquiry is based on the CBI's trap, with nothing suspected or discovered by the respondents of their own. They have no other evidence, except whatever the prosecution have to prove at the trial.
42. The nature of a charge under Section 7 of the Act of 1988 may involve complex questions of fact and law and to permit on the same set of facts the test of a case of misconduct in departmental proceedings, would lay bear the entire defence of the petitioner before the matter goes to trial before the Criminal Court. This was precisely the position in Harish Chandra Hinunia, where the Court thought that permitting the departmental proceedings to go on would prejudice the petitioner's defence gravely at the trial. We also think that, that is the case here. Nevertheless, we are also cognizant of the fact that proceedings in Sessions Trial No.493 of 2023, which have commenced in the year 2023, have not shown very promising progress. The trial is still at the stage of framing of charge, with much of the delay coming from a discharge application, that was moved and rejected vide order dated 21.02.2024. This Court is, therefore, of opinion that while the petitioner may be entitled to a stay of proceedings in the pending departmental enquiry, until conclusion of trial or until his statement under Section 313 of the Code of Criminal Procedure, 1973 is recorded, or if he enters defence, the defence evidence is over, at the same time the interest of the respondent Establishment have also to be balanced. This is particularly so as the principle, which permits a stay of departmental proceedings pending trial, is not for reason that findings of the Court would bind the Inquiry Officer or the Disciplinary Authority, but to protect the employee, an accused in the trial from being prejudiced in the matter of his defence. Else, the departmental proceedings and the criminal trial by settled principles are absolutely independent of each other.
43. In the circumstances, this Court is of opinion that to achieve a fair balance between the interest of the petitioner being adequately safeguarded at the trial on one hand, and that of the Establishment to expeditiously determine the guilt or otherwise of the employee on the other, it would be necessary to expedite the proceedings of the criminal trial while staying proceedings of the departmental enquiry against the petitioner until conclusion of the trial or until a certain stage thereof.
44. In the result, this petition succeeds and is allowed in part. The departmental enquiry against the petitioner, on the basis of the charge-sheet dated 14.06.2023 shall remain stayed, until the statement of the petitioner under Section 313 Cr.P.C. in Sessions Trial No.493 of 2023 is recorded, or if he enters defence, till the defence evidence is over. Thereafter, it will be open to the respondents to await the conclusion of the trial or proceed with the enquiry in their discretion. The Special Judge, CBI Court, Court No.6, Lucknow, or whichever Special CBI Court has seisin of the matter, shall expedite the trial and endeavour to conclude it within the period of one year from the date of receipt of a copy of this judgment. The prayer regarding quashing of the transfer order or a direction to post the petitioner in the vicinity of Lucknow is rejected.
45. There shall be no order as to costs.
46. Let a copy of this judgment be communicated to the Special Judge, CBI Court, Court No.6, Lucknow through the learned District and Sessions Judge, Lucknow and the Disciplinary Authority and the Inquiry Officer by the Registrar (Compliance).
Order Date :- 27.04.2024 Anoop (J.J. Munir, J.)