Central Administrative Tribunal - Delhi
Krishan Lal Yadav vs Lt. Governor, Govt. Of Nct Of Delhi And ... on 11 July, 2001
JUDGMENT
Lakshmi Swaminathan, Vice Chairman (J.)
1. The applicant is aggrieved by the order passed by the respondents dated 15.5.2001 by which it has been ordered that a regular Departmental inquiry is to be conducted against the applicant on certain charges. He has prayed that the impugned order should be stayed during the pendency of investigation and trial in case FIR No. 299/2001 under Sections 377/384 TPC in the interest of justice.
2. The brief relevant facts of the case are that the applicant is a Head Constable in Delhi Police. On 23.4.2001, one Shri Arvind Singh Chauhan made a report against the applicant, alleging that he had subjected him to sodomy and abstracted money from him. On the basis of this complaint, FIR No. 299/2001 dated 23.4.2001 was registered against the applicant with PS Sarswati Vihar, Delhi. The applicant has stated that he is joining investigation in the above noted case.
3. The main contention of Shri P.K. Arya, learned Counsel, is that the summary of allegations issued to the applicant along with the list of documents on 21.5.2001 are the same as the allegations in the FIR, English translation of which has been filed at Page 19 of the paper book. He has, therefore, very vehemently submitted that if a regular Departmental inquiry, as ordered to be initiated against the applicant by the impugned order, is continued, it will prejudice his defence in the criminal case. He has relied on the judgment of the Supreme Court in Kusheshwar Dubey v. Bharat Cooking Coal Ltd. and Ors., AIR 1988 SC 2118, copy placed on record. He has submitted that in paragraph 8 of this judgment, the Court has observed that the criminal action and the disciplinary proceedings are grounded upon the same set of facts and it was opined that the disciplinary proceedings should have been stayed. He has submitted that the investigation in the criminal case against him is already under process and, therefore, falls within the term "criminal action" which is based on the same set of facts as in the proposed disciplinary proceedings, referred to in the order dated 15.5.2001. The learned Counsel has submitted that the further proceedings should be stayed in terms of the Apex Court judgment in Kusheshwar Dubey's case (supra) as well as on the principles of natural justice. He has also referred to a D.O. letter which, he states has been issued by the respondents dated 31.8.1999 to the same effect that when a disciplinary proceeding is instituted against an employee during the pendency of a criminal action/case, the departmental proceedings should be stayed as otherwise it may cause prejudice to the employee in the criminal case. This, he submits, has been based on the later judgment of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines, JT 1999(2) SC 456=1999(3) SLJ 152 (SC). He has, therefore, submitted that the claim of the applicant may be allowed to stay the further proceedings in the Departmental inquiry initiated against him till the investigation and trial in case FIR No. 299/2001 is completed.
4. Notice on OA was issued vide Tribunal's order dated 30.5.2001. In this order, it was stated, inter alia, that while no stay is being granted at this stage against continuation of the Departmental proceedings, the same will be subject to the outcome of the O.A. Learned Counsel for the respondents had submitted that as the issues raised in this case are essentially legal in nature, the case be heard finally. He has made his submissions on behalf of the respondents opposing the prayer of the applicant. Learned Counsel has submitted that even according to the applicant's own averments made in paragraph 5(g) of the O.A., the similarity of the facts in the summary of allegations and in the FIR are with regard to the facts and circumstances which are under investigation by the police. He has, therefore, submitted that this is not a case where any criminal case is pending against the applicant in which Departmental proceedings have also been initiated. He has relied on two judgments of the Tribunal, namely. Harihara Hati v. Union of India and Ors. with connected case, 1992 (21) ATC 578 Para 1 - (Cuttuck Bench) and GyenenderSingh v. Govt. of NCT of Delhi and Ors., OA 1208/2001 - (Principal Bench) copies placed on record. He has also relied on the judgment of the Supreme Court in State of Rajasthan v. B.K. Meena and Ors., 1996(6) SCC 417=1997(1) SLJ 86 (SC) and has submitted that no-where the Supreme Court has held that the stay of disciplinary proceedings should be a matter of course but it depends on the relevant factors which have to be taken into account while taking decision in the matter. He has, in particular, emphasised that the judgments of the Tribunal relied upon by him clearly show that at the stage of investigations, a case cannot be said to be pending and, therefore, the claim of the applicant to stay the Departmental proceedings at this stage is not tenable. He has submitted that the O.A. is premature as also observed by the Tribunal in Gyenender Singh 's case (supra). During the hearing, learned Counsel for the applicant has also confirmed that till date no criminal charge has been served on the applicant and the matter is only under investigation by police under FIR No. 299/2001. Shri Ajesh Luthra, learned Counsel for the respondents, has also submitted that till date 5 out of 6 Prosecution Witnesses given in the list of witnesses annexed to the summary of allegations have already been examined and extensively cross-examined by the applicant and only one more witness is to be examined. He has, therefore, submitted that nothing much remains, excepting examination of this witness as well as the defence witness and in any case no criminal case is pending against the applicant. Shri Arya, learned Counsel, on the other hand, has submitted that the evidence of Dr. K.L. Sharma who had examined the complainant is very important, particularly having regard to the statements made in the summary of allegations that the victim of sodomy alleged to have been committed by the applicant was himself medically examined and the medical report confirmed that the complainant was used to homosexual acts.
5. We have carefully considered the pleadings and the submissions made by the learned Counsel.
6. In the judgment of the Supreme Court in B.K. Meena 's case (supra), reference has also been made to the other relevant judgments on the subject, including Kusheshwar Dubey's case (supra). The Supreme Court has held as follows:
"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 not be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case.... One of the contending considerations is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. 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 proceed ings 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 pro ceedings are meant not really to punish the guilty but to keep the administra tive machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. 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."
(Emphasis added)
7. Taking into account the nature of the charges levelled against the applicant in the Departmental proceedings, and the decision of the Supreme Court in B.K. Meena's case (supra), we have also to keep in view the interest of administration and good Government that persons accused of serious misdemeanour should not be continued indefinitely awaiting the results of criminal proceedings which are often delayed. Therefore, the stay of the proceedings in the present case and that too only when an investigation by the police in the FIR lodged against the applicant is being done appears to be unwarranted.
8. Learned Counsel for the applicant has very strenuously argued that at the present time due to pressure from the Supreme Court and High Courts, Trial Courts are dealing with criminal cases expeditiously and in the present case it may not take more than two years for a decision in the matter. While we hope that it may be so, it is relevant to note that from the averments of the applicant himself, that no charges have been framed or issued to the applicant so far in the criminal case and only investigations by the police are being conducted in respect of the matter in case FIR No. 299/2001 under Sections 377/384 IPC. In the meantime, the respondents have also decided to proceed against the applicant on the summary of allegations issued to him on 21.5.2001 by initiating Departmental proceedings against him. As pointed out by Shri Ajesh Luthra, learned Counsel for the respondents, 5 out of 6 listed prosecution witnesses have already been examined and cross-examined in detail by the applicant. Even in a case where departmental proceedings and a criminal case are pending against an employee, the Apex Court has clearly held that there is no legal bar to go on with both the proceedings simultaneously, although the question of desirability, advisability or appropriateness to proceed with the disciplinary proceedings when a criminal case is pending on identical charges will be a matter to be carefully looked into for taking an appropriate decision. In the present case, as correctly pointed out by the learned Counsel for the respondents, the applicant has not yet been charged in the criminal court. In the facts and circumstances of the case, we respectfully agree with the reasoning and judgments of the co-ordinate Benches of the Tribunal, in Harihara Hati's case and Gyenender Singh 's case (supra) that in the circumstances of the case, it cannot be held that a criminal case is pending against the applicant. Therefore, this ground taken by the applicant's Counsel for stay of the disciplinary proceedings is not tenable.
9. Learned Counsel for the applicant has also contended that the aforesaid judgments of the Tribunal relied upon by the respondents have not considered the relevant judgments of the Supreme Court. We are unable to agree with this contention as the law laid down by the Supreme Court on the subject, has indeed been kept in view by the Tribunal, as is evident, for example, in Paragraph 4 of Harihara Hati's case (supra). In that case, it has been stated.
"..... it has been ruled by the Hon'ble Supreme Court that there is no legal bar for simultaneous proceeding of a disciplinary action by the department and a criminal case but if the two cases are grounded on the same set of facts, in appropriate cases, an order of stay of the departmental action may be passed. We, for the present, would assume that the FIR and the memorandum of charge contain the self same allegations of facts but that would be of no avail to the applicants. In order to apply that dictum of the Hon'ble Supreme Court, it is necessary that the criminal case must be pending; from the averments made in paragraph 4(R) of the application, it would be clear that no charge- sheet had been submitted by the police at least till the date of filing of the applications and no information has been given to this Tribunal as to if in fact any charge-sheet has been placed by the police in the criminal court competent to take cognizance of the offences alleged to have been committed. At the stage of investigation, a case cannot be said to be pending, a criminal case pends only from the date the competent Magistrate takes cognizance of the offence or the offences. Therefore, in the circumstances of the instant case it cannot be said that a criminal case is pending against the applicants. Therefore, this ground in support of the prayer for stay of disciplinary proceedings is not tenable."
(Emphasis added)
10. The conclusions arrived at by the Tribunal in the aforesaid case are fully applicable to the facts in the present case. Therefore, even assuming that the allegations in the Departmental proceedings against the applicant and in the FIR are similar or identical, since admittedly the case against the applicant is only at the investigation stage and no criminal charge or case is pending against him in the competent Criminal Court, the claim of the applicant to stay the disciplinary proceedings is not tenable and has to be rejected. Learned Counsel for the applicant had also contended that as the expression "criminal action" has been used in paragraph 8 in Kusheshwar Dubey's case (supra), it will also include investigation. This argument cannot be accepted when in paragaph 7 of the same order reference has been made, for example, to a "pending criminal case".
11. Another plea taken by the learned Counsel for the applicant is that prejudice will be caused to him if he is forced to disclose his defence in the Departmental proceedings. It is relevant to note that during the hearing it was not denied by him that the applicant has participated in the Departmental proceedings where five of the prosecution witnesses have already been examined and he has extensively cross examined them so far. In the facts and circumstances of the case, the contention of the applicant's Counsel that prejudice will be caused to him if the stay is not granted in the Departmental proceedings at this stage also fails and is rejected. We have also considered the other submissions made by the learned Counsel for the applicant but do not find any merit in the same.
12. In the result, for the reasons given above, the O.A. fails and is dismissed. No order as to costs.