Central Administrative Tribunal - Delhi
Ashok Nagar vs Govt. Of N.C.T. Of Delhi on 1 September, 2015
Central Administrative Tribunal
Principal Bench
OA NO. 3523/2014
Order Reserved on: 06.08.2015
Pronounced on: 01.09.2015
Honble Mr A.K. Bhardwaj, Member (J)
Honble Mr V. N. Gaur, Member (A)
Ashok Nagar
12/17, Saket Block,
Mandawali,
Delhi-110092.
- Applicant
(By Advocate: Sh. Gyanendra Singh)
Vs.
1. Govt. of N.C.T. of Delhi
Through its Chief Secretary,
New Secretariat, IP Estate,
New Delhi.
2. The Chairman-cum-Managing Director,
Delhi State Industrial & Infrastructure
Development Corporation Ltd.,
N/36, Connaught Place,
New Delhi-110001.
- Respondents
(By Advocate: Ms. Eshita Baruah for Mr. Gaurang Kanth)
ORDER
Honble Shri V.N.Gaur, Member (A) The applicant, AG-II of Delhi State Industrial & Infrastructure Development Corporation Ltd. (DSIIDC), has filed this OA with the following prayer:
(i) To quash and set aside the impugned order dated 14.07.2014 vide which the applicant has been asked to appear before the Ld. Enquiry officer on 30.7.2014 and thereafter 7.10.2014, for recording the statement of witnesses, who are same in the criminal case and also the relied upon documents are the same, which are in the criminal case.
(ii) To quash and set aside the memorandum of charge No. DSIIDC/III-39/VC/13/1591 dated 15.05.2014 along with statement of article of charge framed against Sh. Ashok Nagar, AG-II, DSIIDC, statement of imputation of misconduct or misbehaviour in support of the article of charge framed against Sh. Ashok Nagar, AG-II, DSIIDC along with list of documents and list of witnesses.
(iii) Any other relief, which this Honble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicants.
2. The facts of the case in brief are that on 24.09.2013 a team of AATS/Crime Branch, Kotwali, Darya Ganj, Delhi raided DSIIDC Wine shop situated at Karkardooma Community Centre where the applicant was the shop incharge. Following the recovery of fake illicit liquor from the shop, an FIR No.164/2013 under Section 33/38 of Delhi Excise Act, 2009 was filed on 29.05.2013 and the applicant was also arrested. He was later released on bail by the criminal trial court. The Police filed a charge sheet on 10.12.2013 in the criminal court. The respondent no.2 issued a memorandum of charge on 15.05.2014 on the basis of the same allegations as contained in FIR No.164/2013, which was replied to by the applicant through his written statement of defence on 26.05.2014. The disciplinary authority did not accept his contentions and ordered a departmental enquiry by appointing an enquiry officer. The applicant was asked to appear before the enquiry officer on 30.07.2014. According to the applicant he appeared before the enquiry officer and made an oral request to keep the departmental enquiry in abeyance in view of the pending criminal case before the trial court but the request was not accepted. However, the proceedings were adjourned to 07.10.2014. The applicant has further submitted that he approached the disciplinary authority as well as the enquiry officer subsequently also several times to keep the proceedings in abeyance until the outcome of the criminal case, but the same has not been entertained by the respondents.
3. The learned counsel for the applicant submitted that the request of the applicant was covered by the judgment of Honble Supreme Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd., (1990) 3 SCC 679 as the charges and witnesses in the departmental enquiry and the criminal case were the same. If the statement of witnesses in the criminal case was recorded in the disciplinary proceeding before it was recorded by the trial court, the defence of the applicant will be adversely affected which will result in the miscarriage of justice. Even the documents relied upon in the criminal case and the departmental enquiry were more or less the same. It will be, therefore, in the interest of justice to stay the departmental proceeding till the outcome of the criminal case pending against the applicant. Neither in the OA nor during the oral arguments, there was any reference to the second prayer of the applicant in the OA i.e. to quash and set aside the memorandum of charge along with the statement of imputation issued to him vide letter dated 15.05.2014.
4. Learned counsel for the respondents, on the other hand, submitted that there was no law that bars the disciplinary authority from proceeding departmentally against the applicant when a case was pending on the same charges in a criminal court. He further submitted that in view of the involvement in a criminal charge and detention in police custody, the applicant was suspended under Rule 47B of DSIIDC (Staff Service) Rules 1978. The charge sheet was issued to him for contravention of Rule 43 A(i), (iii) (iv) B(i), 44 (i) (iv), (xi) 2 (xv) read with Rule 7 of DSIIDC (Staff Service) Rules 1978. The learned counsel denied that applicant ever made any oral request for keeping the departmental proceedings in abeyance either to the disciplinary authority or to the enquiry officer. According to the learned counsel the witnesses of departmental enquiry and criminal proceedings were different and the purpose for which witnesses were called was also different. In the criminal case, there are 9 witnesses and 17 documents whereas in the departmental proceedings there are 10 witnesses and 10 documents which are relied on. It is also a settled law that a departmental proceeding is intended to ascertain the violation of the relevant service rules while the focus of the criminal case is to determine the infringement of the relevant law. The learned counsel relied on following cases:
(1) Shri Rakesh Kumar vs. UOI (OA No.330/2011) (2) Jang Bahadur Singh vs. Baij Nath Tiwari, AIR 1969 SC 30 (3) State of Rajashtan vs. B.K.Meena, (1996) 6 SCC 417 (4) Ajit Kumar Nag vs. General Manager, Indian Oil Corp., (2005) 7 SCC 764 (5) Chairman-cum-M.D., TNCS Corp., Ltd vs. K.Meerabai, (2006) 2 SCC 255 (6) West Bokaro Colliery (TISCO) Ltd vs. Ram Parvesh Singh, (2008) 3 SCC 729 (7) Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd, (1999) 3 SCC 679 (8) Kendriya Vidyalaya Sangathan and ors. vs. T.Srinivas, 2004 (6) SCALE 467 (9) Noida Enterpreneurs Association vs. Noida, JT 2007 (2) SC 620
5. We have heard the learned counsels and perused the record. The main argument of the applicant is that examining the witnesses in the departmental proceedings will adversely affect his defence in the criminal case as those witnesses are common. The learned counsel has relied on Capt. M.Paul Anthony (supra). In that case the appellant faced departmental action on the charge that gold bearing sand was recovered from his house after a raid by the Police. An FIR was also lodged with the police and the criminal case was registered against the appellant on the basis of the same allegations. He made a representation to the disciplinary authority denying the allegations made against him in the charge sheet and prayed that the departmental proceeding initiated against him may be dropped or may in the alternative be postponed till the conclusion of the criminal proceedings against him on the basis of the FIR. The representation was rejected by the disciplinary authority. A writ petition filed in the Karnataka High Court against the order of the disciplinary authority was disposed of with the direction to the respondents to consider and dispose of the appellants appeal filed against the order of suspension but liberty was given to the respondents to defer the disciplinary proceedings if it was found expedient to do so. The respondents did not defer the departmental proceedings and continued the proceedings which the appellant could not attend on account of his ill health and financial difficulties which compelled him to shift to his hometown in Kerala. Respondents were informed by a number of letters supported by medical certificates about his illness with a request for staying the departmental proceedings and await the result of the criminal case. But the enquiry officer rejected the request and recorded his findings on 10.05.1986 holding the appellant guilty which was accepted by the disciplinary authority on 07.06.1986. On 03.02.1987 the trial court acquitted the appellant with the categorical finding that prosecution had failed to establish the case. The judgment was communicated by the appellant to the respondents on 12.02.1987 with a request that he may be reinstated but the respondents by their letter dated 03.03.1987 rejected the request on the ground that the appellant had already been dismissed from service on completion of the departmental enquiry which was conducted independently of the criminal case. In the judgment of Honble Supreme Court in this case delivered on 30.03.1999 we are concerned with the issue whether the disciplinary authority was under obligation to stay the departmental proceedings and await the result of the criminal case. The Honble Supreme Court framed the issue thus:
12. .. In the instant case, the order of dismissal had already been passed before the decision of the criminal case which ultimately resulted in the acquittal of the appellant. Whether the acquittal coupled with other circumstances, specially ex parte proceedings, of the case, will have the effect of vitiating the departmental proceedings or the order of dismissal passed against the appellant, is the question which is to be considered in this appeal.
6. Before proceeding to examine various pronouncements of the Apex Court on the above proposition the Honble Supreme Court made the following observation in Capt. M.Paul Anthony (supra):
13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
7. After discussing catena of judgments the Honble Court deduced the following conclusions:
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.
8. Finally the Honble Supreme Court recorded its verdict in the following paras:
32. The question whether the appellant was unable to go to Kolar Gold Fields to participate in the inquiry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income.
33. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated.
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand.
35. 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.
36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned single Judge, in so far as it purports to allow the writ petition, is upheld. The learned single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since, 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forth- with on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs. 15,000/-.
9. It can be seen that the Honble Supreme Court allowed the appeal for two reasons:
(i) The criminal cases as also the departmental proceedings were based on identical facts and
(ii) The entire departmental proceedings were conducted ex parte in which the applicant due to his ill health and due to his poor financial condition could not participate.
10. In Jang Bahadur Singh (supra) it was noted that in Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, MANU/SC/0228/1960 and Tata Oil Mills Co. Ltd. vs. The Workmen, MANU/SC/0206/1964 the Court had held that a domestic inquiry by the employer into the charges against a workman was not vitiated because it was held during the pendency of a criminal trial into the same or similar charges. It may be desirable to stay the domestic inquiry pending the final disposal of the criminal case but the injury can not be characterized as mala fide merely because it was held during the pendency of the criminal proceedings. The contention that initiation of disciplinary proceedings during the pendency of criminal proceedings on the same facts amounts to contempt of court was rejected.
11. In B.K.Meena (supra) the Apex Court set aside the order of the Tribunal staying the disciplinary proceedings pending the criminal trial, which was passed after following Kusheshwar Dubey vs. Bharat Coking Coal Limited and ors., MANU/SC/0246/1988. The Apex Court noted that in SA. Venkararaman vs. Union of India, MANU/SC/0133/1954 the petitioner therein was subjected to disciplinary proceedings in the first instance and was dismissed from service on 17.09.1953. On 23.02.1954, the police submitted a charge-sheet against the petitioner therein in a criminal court in respect of the very same charges. The petitioner challenged the initiation of criminal proceedings on the ground that it amounts to putting him in double jeopardy within the meaning of clause (2) of Article 20 of the Constitution of India. A Constitution Bench of the Apex Court rejected the said plea holding that there is no legal objection to the initiation or continuation of criminal proceedings merely because he was punished earlier in disciplinary proceedings. After taking note of Delhi Cloth and General Mills Ltd. (supra), Tata Oil Mills Ltd. (supra) and Jang Bahadur Singh (supra) the Honble Supreme Court observed as follows:
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. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending, consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high official, 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 advise 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.
12. The Court further observed as under:
16. Now, let us examine the facts of the present case. The memo of charges against the respondent was served on him, alongwith the articles of charges, on 13-10-92. On 9-2-93, he submitted a detailed reply/defence statement, running into 90 pages, controverting the allegations levelled against him. The challan against him was filed on 15-5-93 in the criminal court. The respondent promptly applied to the Tribunal and got the disciplinary proceedings stayed. They remain stayed till today. The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames, the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The respondent has already disclosed his defence in his elaborate and detailed statement filed on 9-2-93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise - a speculatory reason. We cannot accept it as valid. Though the respondent was suspended pending enquiry in May, 1990, the order has been revoked in October 1993. The respondent is continuing in office. It is in his interest and in the interest of good administration that the truth or falsity of the charges against him is determined promptly. To wit, if he is not guilty of the charges, his honour should be vindicated early and if he is guilty, he should be dealt with appropriately without any avoidable delay. The criminal Court may decide - whenever it does - whether the respondent is guilty of the offences charged and if so, what sentence should be imposed upon him. The interest of administration, however, cannot brooke any delay in disciplinary proceedings for the reasons indicated hereinabove.
17. 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 but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed. (emphasis supplied)
13. In Ajit Kumar Nag (supra) the Honble Supreme Court expressed the following view on the issue:
11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings _ criminal and departmental _ are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of preponderance of probability. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside. (emphasis supplied)
14. Taking note of various judgments of Honble Supreme Court on the same issue this Tribunal in Rakesh Kumar (supra) took the following view:
30. At this stage, we may note that if the applicant is not guilty of the misconduct in the departmental proceedings and the same gets completed well in advance before the Trial is completed in the criminal case, he would be in better footing to prove her innocence before the Trial Court. At the same time, we note that in case the applicant is found to be guilty of the alleged misconduct in the departmental proceedings on the allegations which have been levelled against him, the respondents cannot keep quiet but to take action to complete the case in a timely manner. Such expeditious decision taken by the Competent Authority should set an example to others not to commit similar nature of misconducts in future. It is apt for us to cite the observations of Honble Apex Court in the case of K.C. Sareen Versus C.B.I., Chandigarh [2001 (6) SCC 584] which are more relevant to the case at hand and the same reads as follows :-
Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity.
31. In view of our above discussion and guided by well settled position in law on the issue, we come to the considered conclusion that the applicant has not made out a case calling for our intervention. We are also of the view that the impugned order dated 10.8.2011 passed by the respondent rejecting the applicants claim to keep the departmental proceedings in abeyance till the completion of criminal trial is upheld as legally sustainable. We, therefore, hold that the departmental proceeding must be continued and expeditiously completed.
15. Thus, we come to a conclusion that Capt. M.Paul Anthony (supra) does not cast an iron clad and unqualified obligation to stop the departmental proceedings if there is a criminal case pending in the trial court on the same charges. The caveat laid down is that the criminal case against the delinquent employee should be of grave nature, involving complicated question of law and facts, in which case it would be desirable to stay the departmental proceedings till the conclusion of criminal case. It has been observed by the Honble Supreme Court, ibid, that whether the nature of a charge in a criminal case is grave or 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. In the present OA it has not been the case of the applicant that complicated questions of fact and law are involved in deciding the criminal case. His argument is confined to the contention that his defence will be prejudiced if the witnesses who were common to the departmental proceedings and criminal case, would forced to reveal his defence in the departmental proceedings, and the prosecution may use it to his disadvantage. This question has been dealt with by Honble Supreme Court in B.K.Meena (supra) and a view was taken that one of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. In the present OA the allegations against the applicant question his integrity and given the perception of all pervasive corruption by the public servants, it would not be considered as desirable to delay the departmental proceedings while awaiting the outcome of the criminal trial. If the applicant 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 according to law. It is not in public interest that persons accused of such misdemeanor should continue in office indefinitely awaiting the result of the criminal proceedings.
16. It is also relevant to note in this context that the purpose of both the departmental proceedings and the criminal trial is to uncover the truth from two different perspectives. The disclosure of defence in either of the proceedings should not affect the defence in the other proceeding. As observed by the Apex Court, the purpose of desirability of staying the departmental proceedings where complicated questions of facts and law are involved, is intended to protect the delinquent from an adverse conclusion in departmental proceedings even when he is acquitted in the criminal trial. However, when there is no involvement of complicated questions of facts and law and the purpose of the departmental proceeding is to determine culpability of the delinquent with reference to the departmental rules, the applicant cannot treat the criminal trial only as a battle of wits and creating surprise for the prosecution as his right.
17. In the background of the facts of the case and the pronouncements of Honble Supreme Court in catena of judgments as discussed above, we do not find any justification for staying the proceedings in the departmental enquiry against the applicant and the OA is accordingly dismissed. No costs.
(V.N. Gaur) (A.K. Bhardwaj) Member (A) Member (J) sd