Calcutta High Court (Appellete Side)
Sri Balai Kumar Sanfui vs The State Of West Bengal & Ors on 25 February, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
WPST 479 of 2013
Sri Balai Kumar Sanfui
-vs.-
The State of West Bengal & Ors.
For the Petitioner : Mr. L. K. Gupta,
Mr. Kollol Bose,
Mr. Bratin Kumar Dey,
Mr. Brajesh Jha,
Md. Bani Israil
For the State : Mr. Bimal Chatterjee, ld. Advocate General
Mr. Joytosh Mazumder
Heard on : 17.02.2014, 18.02.2014
Judgment on : 25.02.2014
Nishita Mhatre, J.:
1. The challenge in this petition is to the order passed by the West Bengal Administrative Tribunal on 9th October, 2013 in O.A. no. 1096 of 2013. The Tribunal has refused to accede to the prayer of the petitioner to stay the departmental proceedings initiated against him till the criminal cases instituted against him are decided. The order of the Commissioner of Police, Kolkata, in this regard has been upheld by the Tribunal.
2. The petitioner was working as Officer-in-Charge of Economic Offence Wing, Enforcement Branch, Kolkata. An FIR was lodged against him on 3rd May, 2013 being FIR no. 2 of 2013 for allegedly demanding bribes for releasing a citizen who was in the lock up. The charge-sheet in this case was submitted to the Sessions Court, Calcutta on 22nd July, 2013 wherein the petitioner has been accused of committing offences under Sections 7/13(2) read with 13(1)(d)(i)(ii) of the Prevention of Corruption Act, 1988 and Section 384 of the IPC.
3. Simultaneously, on 4th May, 2013 another FIR was lodged against the petitioner being FIR no. 3 of 2013 for owning assets which were disproportionate to his known source of income. The charge-sheet has not been submitted to the Criminal Court in this case as yet.
4. Soon thereafter on 16th August, 2013 a charge-sheet was issued to the petitioner by the department. The allegations described in the charge-sheet issued on 16th August, 2013 are the same as those contained in the FIR nos. 2 of 2013 and 3 of 2013.
5. On 2nd September, 2013 the petitioner submitted an application or representation to the Commissioner of Police, Kolkata, for staying the departmental enquiry. The representation was turned down by the Commissioner of Police on 5th September, 2013.
6. Aggrieved by the order, the petitioner filed OA no. 1096 of 2013 before the West Bengal Administrative Tribunal. In his application before the Tribunal he pointed out that the allegations contained in both the FIRs and the charge-sheet issued by the department to him were the same and that he would be gravely prejudiced if the departmental enquiry is permitted to proceed while the criminal trials were pending against him. The Tribunal did not accept the contention of the petitioner by relying on several judgments of the Supreme Court. However, the Tribunal observed that after a comparative analysis of the charge and the complaint in both the criminal cases one the one hand and the charges framed against the delinquent in the departmental enquiry on the other, they appeared to be similar. However, the Tribunal was of the view that since a huge amount had been recovered from the petitioner's residence, the respondents could not be compelled to stop the departmental proceeding as that would be a denial of their rights to take appropriate administrative action in the interest of public service.
7. Mr. L. K. Gupta, learned Counsel for the petitioner has drawn our attention to the allegations contained in both the FIRs and the charge-sheet issued by the Commissioner of Police to the petitioner. He has submitted that a bare perusal of these documents leaves no manner of doubt that the allegations are based on the same set of facts, the allegations are grave and the petitioner is required to face allegations and charges which are both complicated and serious in nature. He, therefore, submitted that in the interest of justice it is necessary to stay the departmental enquiry in order to obviate any prejudice being caused to the petitioner in the criminal trials pending against him. He has placed reliance on several judgments in support of his argument which we will advert to presently.
8. The learned Advocate General appearing for the respondents urged that there is no need to stay the departmental enquiry as the charge is not complicated nor would the defence in the criminal trial be hampered if the departmental enquiry is allowed to proceed. He urged that when the Court considers whether the departmental enquiry should be stayed when similar allegations are to be faced by a delinquent employee before a Criminal Court, a higher standard must be applied in a case such as this where an Inspector in the police force has allegedly demanded a bribe and has acquired assets which are disproportionate to his known source of income. He submitted that when the Court considers whether to stay of departmental enquiry the rigours of law which would be applicable to a police officer seeking a stay of the departmental enquiry would be far higher than in the case of a private employee or a government servant on the administrative side. This is because a police officer is expected to maintain law and order. He submitted that before the Court grants a stay of the departmental enquiry, it must consider whether the delinquent being a police officer would have the propensity to abuse the power vested in him. He pointed out that the Government has lost confidence in the petitioner and, therefore, it would be all the more necessary to deal with him swiftly, departmentally, rather than awaiting the decision of a Criminal Court. He submitted that a person who has the propensity for committing a crime cannot be permitted to remain in service endlessly till the Criminal Courts decide his fate. He then pointed out that the Tribunal has committed no error in its order and that the order was not perverse, requiring it to be interfered with under Article 226 of the Constitution of India.
9. The Supreme Court in the Case of Capt. M. Paul Anthony -Vs.- Bharat Gold Mines Ltd. and Another reported in (1999) 3 SCC 679 took a conspectus of all its earlier decisions including the case of State of Rajasthan -vs.- B. K. Meena & Others reported in (1996) 6 SCC 417 and summarised the conclusions which were deducible from those judgments thus :
"22. (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, the administration may get rid of him at the earliest."
10. In Kendriya Vidyalaya Sangathan & Others -vs.- T. Srinivas reported in (2004) 7 SCC 442 the employee had been arrested by the CBI after a trap was set and was charged for offences punishable under Section 13(1)(d) of the Prevention of Corruption Act, 1988. The departmental proceedings were initiated on the basis of the same charges against the employee. After considering the case of Capt. M. Paul Anthony (supra) and State of Rajasthan -vs.- B. K. Meena (supra) the Supreme Court held that the advisability, desirability or propriety, as the case may be, with respect to the continuation of the departmental enquiry is to be determined taking into consideration the facts and circumstances of the case. It was held that the stay of departmental proceedings cannot be granted as a matter of course.
11. In State of Bank of India & Others -vs.- R. B. Sharma reported in AIR 2004 SC 4144 the Supreme Court held that the purpose of a departmental enquiry and that of a prosecution are distinct and different; while the departmental enquiry is held to maintain discipline in service, the prosecution is initiated to punish for infringement of a public duty. After considering Capt. M. Paul Anthony's case (supra) the Court observed that though an elaborate reasoning is not necessary, a skeletal description of how there is a substantial similarity between the allegations contained in the charge-sheet issued by the department and the criminal prosecution must be set out in the order.
12. Later, in Hindustan Petroleum Corporation Ltd. & Others -vs.- Sarvesh Berry reported in (2005) 10 SCC 471 the Court reiterated its view in the case of Capt. M. Paul Anthony (supra) and State of Rajasthan -vs.- B. K. Meena (supra). The Court observed that it is a well settled position in law that a criminal case and departmental proceeding can progress simultaneously except 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. The Court has to decide taking into account the special features of each case whether the simultaneous continuance of both the proceedings would be proper. The Court further observed that there could be no straitjacket formula for staying the departmental proceedings during the pendency of criminal trial. This is because the criminal trial may be prolonged by dilatory tactics adopted by the delinquent official.
13. Thus considering the aforesaid judgments the principles which emerge are that there can be no straitjacket formula prescribed for staying the departmental proceedings when a criminal case is pending simultaneously against a delinquent employee. This is because the purpose of a departmental enquiry and of a prosecution are different. The departmental enquiry is conducted to maintain discipline in the service and efficiency in public service. A criminal prosecution is launched for an offence of violating the duty that an offender owes to the society for a breach of law or for omission of a public duty. If departmental proceedings and the criminal case are based on identical or similar set of facts and the charge against the delinquent employee in the criminal trial is of a grave nature, involving complicated questions of law and fact and the evidence to be led in both proceedings would be the same, it would be desirable to stay the departmental proceedings till the conclusion of the criminal trial. Whether a charge in the criminal case is grave and whether it raises complicated questions of fact and law depends on the nature of the offence, the nature of the case launched against the employee and on the basis of the evidence and material collected against him during the investigation or as reflected in the charge-sheet. Having regard to the special features of the case, the Court would have to consider the propriety of staying departmental proceedings which cannot be unduly delayed because criminal trials can be prolonged for various reasons. An employer cannot be saddled with a delinquent employee who is being tried in a criminal case, endlessly, considering the nature of the offence that he has allegedly committed. The other aspect which the Supreme Court has considered in the aforesaid judgments is that the standard of the proof required in a criminal case is different from the one required in the departmental proceedings. While in a criminal trial the prosecution has to prove the case against the delinquent beyond reasonable doubt, in a departmental enquiry it is only the preponderance of probabilities against him which must be ascertained.
14. The learned Advocate General has relied on Noida Entrepreneurs Association -vs.- Noida and Others reported in (2007) 10 SCC 385 and Divisional Controller, Karnataka State Road Transport Corporation -vs.- M. G. Vittal Rao reported in (2012) 1 SCC 442. In both these cases the issue before the Apex Court was whether a person who has been dismissed from service is entitled to be reinstated if the prosecution against him has failed and he has been acquitted of the charges for which the departmental enquiry was held. The Court observed that since the standard of proof required in departmental proceedings was not the same as that required to prove a criminal charge, it is not in every case that a delinquent employee is entitled to reinstatement, only because he has been acquitted of the criminal charge against him.
15. All the aforesaid judgments have been considered by the Supreme Court in M/s Stanzen Toyotetsu India P. Ltd. -vs.- Girish V & Ors. in Civil Appeal Nos.
------ of 2014 arising out of S.L.P. (C) Nos. 30371 - 30376 of 2012. The Court in this case observed that though the charges which the respondents were facing in the criminal trial were serious, that could not be the only test for considering whether the departmental enquiry was required to be stayed. The Court was of the view that the First Information Report did not suggest any complication or complexity either on facts or law. However, in the facts of that case, the Court thought it fit to continue the stay granted in favour of the delinquent employees for one year in order to ensure that the criminal trial was completed. The Court, however, gave liberty to the employer to resume the disciplinary proceedings initiated against the delinquent employees if the trial was not completed within a year.
16. In the case of Firoz Ahmed -vs.- Union of India reported in 2014 (1) CHN (CAL) 399 a learned Single Judge of this Court has considered the nature of the charge levelled against the delinquent employee and the prejudice he would be caused if the departmental enquiry was continued during the pendency of the criminal trial. The Court has found that the continuation of a departmental enquiry would cause a real danger to the employee's defence in the criminal trial and, therefore, stayed the departmental proceedings till the conclusion of the criminal trial.
17. On a perusal of the two FIRs lodged against the petitioner and the charge- sheet submitted in the trial Court in one case on the one hand and the charge- sheet issued by the Commissioner of Police to the petitioner in the departmental enquiry we find that the charges are same. They are grave and serious for there can be no doubt that an allegations of bribery against a police officer and of accumulation of assets disproportionate to his known source of income cannot be said to be trivial in nature. The allegations in respect of the first charge-sheet is that the petitioner accepted bribes on three occasions - firstly, an amount of `1,75,000/- from the wife of the complainant on 29th April, 2013 and secondly, `1,00,000/- from the brother-in-law of the complainant on 30th April, 2013. A trap was set for 3rd May, 2013 when `2.25 lacs were found on his person having accepted the amount from the complainant. The charge-sheet issued on 16th August, 2013 by the department details the same set of facts, the same allegations regarding the payment of bribe on three separate occasions. The other FIR details the search conducted in the petitioner's house where currency notes of `48 lacs were seized. It is on the basis of this seizure that the other charge contained in the charge-sheet dated 16th August, 2013 has been framed. The allegation is that the petitioner had committed an offence under Section 13(1)e of the Prevention of Corruption Act, 1988.
18. We are not impressed with the submission of the learned Advocate General that a different standard must be applied when considering whether a departmental enquiry should be stayed when the delinquent employee is a member of the police force and he facing criminal trial. As considered by the Supreme Court, a departmental enquiry can be stayed when having regard to the seriousness and the gravity of the charge, the complicated nature of the charge and the prejudice which could be caused to the delinquent employee for disclosing his defence at the departmental enquiry. We cannot, therefore, accept the submission that because the petitioner, who is admittedly suspended, would have the propensity to abuse his power and thereafter the departmental enquiry should not be stayed. In fact the submission that the Government has lost confidence in the petitioner and, therefore, it is all the more necessary to allow it to continue with the departmental enquiry, does not lend credence to the fairness of the departmental enquiry which would be held. The Government cannot prejudge the entire issue and then decide to hold the departmental enquiry, for it would be mere farce.
19. In our opinion grave prejudice would be caused to the petitioner if the departmental enquiry is allowed to proceed. This is because the petitioner would be compelled to disclose in the enquiry his defence which he would be entitled to raise at the criminal trial. His defence at the criminal trial would be greatly hampered considering the complexity of the charges. Most of the witnesses are to be examined in both the proceedings are the same. If these witnesses are subjected to cross-examination at the departmental enquiry they would be well- prepared for the cross-examination at the criminal trial. In our opinion, it would be both desirable and proper to stay the departmental enquiry considering the facts and circumstances in the present case. The charge-sheet has been submitted in the trial Court in the case regarding bribery. There is no explanation why the charge-sheet in respect of the disproportionate assets has not been submitted before the Criminal Court. Although both the FIRs were lodged consecutively, it is difficult to fathom why the State has not ensured that the second charge-sheet is submitted expeditiously before the Criminal Court. We are conscious of the fact that criminal trials can be prolonged endlessly. However, in the present case, the ends of justice would be met by passing the following order:
(a) The Departmental enquiry which is proceeding against the petitioner shall be stayed for a period of one year.
(b) The charge-sheet in the second case with respect to the disproportionate assets shall be submitted as expeditiously as possible before the Criminal Court.
(c) If the criminal trials are not completed within one year the parties would have the liberty to move this Court for appropriate orders.
20. The impugned order of the Tribunal is set aside with no order to costs.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)