Central Administrative Tribunal - Bangalore
Rajnish Kumar Saroh vs Cgst on 4 August, 2023
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OA.No.170/00189/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00189/2022
DATED THIS THE 04TH DAY OF AUGUST, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Rajnish Kumar Saroh,
S/o Sri Umed Singh Saroh,
Aged 42 years, working as
Superintendent of Central Tax,
East Division-5, East Commissionerate,
Bengaluru, (Now under Suspension),
Residing at SM Maple Apartments,
Flat No. 402, 9th A Cross,
Shivananda Nagar Road,
Jagadish Nagar, Bengaluru 560 075 .... Applicant
(By Shri A.R. Holla, Advocate)
Vs.
1. Union of India,
By Secretary, Ministry of Finance,
Department of Revenue,
North Block, New Delhi 110 001
2. The Principal Chief Commissioner of Central Tax,
Bangalore Zone, C.R. Building,
Queen's Road, Bengaluru 560 001
3. Principal Commissioner of Central Tax, GST,
Bengaluru East,
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OA.No.170/00189/2022/CAT/BANGALORE
Traffic and Transit Management Centre,
BMTC Bus Stand,
HAL Airport Road,
Dommluru, Bengaluru 560 071 ...Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i) To quash the Order C. No. VIG/DE/36/2020-VIG dated 23.03.2022, issued by the Respondent No. 3, Annexure-A5,
(ii) direct the respondents to keep in abeyance the proceedings in pursuance of the Order VIG/DE/36/2020-
VIG dated 23.11.2021, issued by the Respondent No. 3, Annexure-A3, till the conclusion of the criminal proceedings in Special Case 688 of 2021 before the Sessions Court for CBI Cases, Bangalore, Annexure-A1 and
(iii) Grant such other relief deemed fit, having regard to the facts and circumstances of the case."
2. Briefly stated the facts as narrated by the applicant are that he has been working as Superintendent of Central Tax, East Division-5, East Commissionerate, Bengaluru. He was detained in 3 OA.No.170/00189/2022/CAT/BANGALORE custody on 15.10.2018 for a period exceeding 48 hours in respect of a criminal offence, therefore, he has been placed under suspension in terms of Rule 10 (2) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS (CCA) Rules, 1965) by an order dated 17.10.2018. The suspension has been continued on periodic reviews till 11.06.2022. He has been paid subsistence allowance initially at 50% of salary, which has been enhanced to 75% from 23.03.2020. The CBI, ACB, Bangalore had registered a case in RC 7(A)/2019-BLR against the applicant and others under Section 120-B read with Section 420 of IPC and 7 & 13 (2) read with 13 (1) (d) of Prevention of Corruption Act, 1988 on 04.05.2019. After completion of the investigation, a final report has been submitted under Section 173 of Criminal Procedure Code on 30.12.2020 before the jurisdictional Court, Bengaluru. The case has been adjudicated in CC No. DRI 61 of 2018 before the Special Court of Economic Offences at Bengaluru and the proceedings are pending, wherein the applicant has been arrayed as Accused No. 2.
3. The applicant has been proceeded with disciplinary action under Rule 14 of the CCS (CCA) Rules, 1965 by issuing Charge Memorandum dated 23.11.2021 alleging that the applicant 4 OA.No.170/00189/2022/CAT/BANGALORE has abetted and involved in gold smuggling activities with private persons obtaining pecuniary benefits from them. Pursuant to this, the applicant submitted representation to Respondent No. 3 on 21.02.2022, bringing to his notice that the charge framed against him in the criminal proceeding and that in the disciplinary proceeding is based on the same facts. As the main witnesses and documents in these proceedings are common, the applicant stated that he will be prejudiced in criminal proceeding as the disclosure of the evidence in the disciplinary proceeding will cause prejudice to him in the criminal proceeding. Accordingly, the applicant made a request to the Respondent No. 3 to keep the disciplinary proceeding in abeyance till the criminal proceeding is concluded but the same has been rejected vide order dated 23.03.2022. Hence, this OA.
4. Learned counsel Shri A.R. Holla representing the applicant submitted that the facts involved in the criminal proceeding being the same as that of the disciplinary proceeding initiated against the applicant and the important witnesses are common in both these proceedings, it is just and necessary to defer the departmental proceeding till the conclusion of the criminal 5 OA.No.170/00189/2022/CAT/BANGALORE proceedings. There is no justification to hold the disciplinary inquiry and the criminal proceedings simultaneously. In support of his contentions, learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Apex Court in C.A. No. 1906/1999 dated 30.03.1999 in the case of Captain M. Paul Anthony vs Bhatrat Gold Mines Ltd. & Anr. Accordingly, seeks for the reliefs claimed.
5. Learned counsel Shri Vishnu Bhat representing the respondents submitted that the Directorate of Revenue Intelligence (DRI) during the investigation of the criminal case found that the applicant while working in GST office had misused by his official position by knowingly and intentionally abetting and indulging in smuggling gold in paste form on 13/14.10.2018 in large quantities through the Kempegowda International Airport, Bengaluru; that he had entered into a conspiracy with private persons to smuggle gold; that he had also facilitated in the past during the period from July, 2018 to October, 2018, smuggling of gold in paste form and that he had received consideration in cash and kind for the said involvement, thus, it was found that he had mis-conducted himself in violation of Rule 3 of CCS (Conduct) Rules, 1964. Accordingly, 6 OA.No.170/00189/2022/CAT/BANGALORE the Articles of Charges were framed against the applicant. The applicant was suspended with effect from the date of his arrest i.e. 15.10.2018 vide suspension order dated 17.10.2018 and the period of suspension has since been extended after periodic review from time to time by the competent authority.
6. CBI Anti-Corruption Bureau (ACB), Bengaluru registered a case against the applicant under the Prevention of Corruption Act, 1988 read with relevant provisions of IPC and conducted investigation. CBI has filed a charge sheet under Section 19 (1) (c) of the Prevention of Corruption Act, 1988 against the applicant before the jurisdictional Court which is on trial. The DRI has filed a charge sheet against the applicant, amongst others, under Customs Act, 1962 before the Special Court for Economic Offences.
7. No specific grounds or cause has been made by the applicant except stating that premature disclosure of his evidence in the disciplinary proceedings would cause prejudice to him in the criminal proceedings. The charges levelled against the applicant in Regular Departmental Action (RDA) relate to the offence of a misconduct of a government servant in terms of CCS (Conduct) 7 OA.No.170/00189/2022/CAT/BANGALORE Rules, 1964, whereas the charges against the applicant in the criminal case relate to the criminal misconduct and offence in smuggling of gold and abetting of criminal conspiracy which involve the applicant herein. The standard of proof required in the disciplinary proceedings is much lesser since it rests on 'preponderance of probability'. Keeping in view the factual aspects vis-a-vis the law declared by the Hon'ble Apex Court, the Respondent No. 3 had taken a considered view that the larger public interest of good governance and probity dictated that the proceedings initiated against the applicant in disciplinary matter should be allowed to be completed expeditiously and in the time frame prescribed in the relevant guidelines issued by CVC and DoPT. Accordingly, the request made by the applicant to withhold the ongoing disciplinary proceedings initiated against him was rightly not acceded to, by the Respondent No. 3. Accordingly, seeks for dismissal of the application.
8. We have given our thoughtful consideration to the arguments advanced by the learned counsel appearing for the parties and perused the material on record.
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9. The sole point that arises for our consideration is, in the facts and circumstances of the case, whether the order passed by the Respondent No. 3 in rejecting the request of the applicant to withhold the regular departmental proceedings pending conclusion of the criminal case is justifiable?
10. The applicant has been issued with a Charge Memorandum dated 23.11.2021 under Rule 14 of CCA (CCA) Rules 1965. Articles of Charge framed against the applicant reads thus:
"ARTICLE-I:
Shri Rajnish Kumar Saroh (hereinafter referred as Shri Rajnish Kumar Saroh'), while working as a public servant in the capacity of Superintendent of Central Tax, Bengaluru East GST Commissionerate, Bengaluru had committed an official mis-conduct, in as much as
(i) The said Shri Rajnish Kumar Saroh had misused his official position, by knowingly and intentionally abetting and indulging in the acts of facilitation of smuggling of 'Gold in paste form' on 13/14.10.2018 in large quantities through Kempegowda International Airport (KIA), Bengaluru, by entering into a conspiracy with private persons namely Shri N.T. Jamsheer and others on 13/14.10.2018;
(ii) The said Shri Rajnish Kumar Saroh had also facilitated smuggling of gold in paste form through KIA, Bengaluru by private persons/passengers in the 9 OA.No.170/00189/2022/CAT/BANGALORE past (During the period July 2018 to October 2018) for which he was receiving illegal gratification both in the form of cash and kind, once the passengers carrying the Gold in paste form were facilitated/cleared out of the KIA.
(iii) The said Shri Rajnish Kumar Saroh was in possession of an amount of Rs. 4,98,155/- (Rupees Four lakhs ninety eight thousand one hundred and fifty five only) which was found during the course of search operations conducted by the officers of Directorate of Revenue Intelligence (DRI), Bengaluru at his residence on 14.10.2018, which the investigations revealed was the remuneration received by him towards the facilitation and clearance of passengers carrying Gold in paste form, in the past;
(iv) The said Shri Rajnish Kumar Saroh, in exchange of the facilitation and help rendered by him for the smuggling of Gold in paste form through KIA, Bengaluru has obtained cash benefits which were transferred into the accounts of his relatives/friends on his instructions given to the private persons involved in the smuggling of Gold in paste form through KIA, Bengaluru;
(v) The said Shri Rajnish Kumar Saroh had obtained tickets which were booked in his name and in the name of his family members by the private persons/smugglers in exchange to the facilitation and clearance of passengers smuggling Gold in paste from the KIA; and
(vi) The said Shri Rajnish Kumar Saroh was not withdrawing amounts from his salary account for meeting his household expenses, was in possession of 10 OA.No.170/00189/2022/CAT/BANGALORE the said cash and was receiving certain amounts which were not shown as other income in the tax returns, raising serious suspicion about his integrity.
For his involvement in the said acts, Shri Rajnish Kumar Saroh was penalized under Section 112 of the Customs Act, 1962 by the Department. By involving in the aforesaid acts, it appears that Shri Rajnish Kumar Saroh, Superintendent of Central Tax, has committed gross misconduct, in as much as, he has failed to maintain absolute integrity; had failed to maintain high ethical standards and honesty; had placed himself under pecuniary/financial obligation to private individuals who indulged in smuggling activities which influenced him in the performance of his official duties; had misused his position as a civil servant in order to facilitate the passengers carrying the Gold in paste form through KIA in connivance with private persons, in order to derive financial and material benefits for himself and his family and friends; had failed to refrain from doing anything which is contrary to the law, rules, regulations and established practices; had failed to perform and discharge his duties with the highest degree of professionalism and dedication; had involved in the act of facilitating smuggling of Gold in paste form, and had also acted in a manner which was unbecoming of a Government servant, thus violating Rules 3 (1)(i), 3 (1)(vi), 3 (1)(xiv), 3 (1)(xv), 3 (1)(xviii), 3 (1)(xxi) and 3 (1)(iii) of the CCS (Conduct) Rules, 1964.
ARTICLE-II It appears that Shri Rajnish Kumar Saroh, as a public servant in the capacity of Superintendent of Central Tax, had committed an official misconduct in as much as,
(i) The said Shri Rajnish Kumar Saroh, availed the services of another Government Servant, namely Shri 11 OA.No.170/00189/2022/CAT/BANGALORE Shiv Kumar Meena (hereinafter referred to as Shri Meena'), Inspector, who was working in the KIA, Bengaluru during the material time, in carrying out the smuggling of Gold in paste form through KGIA, Bengaluru during the period 07/2018 to 10/2018.
(ii) The said Shri Rajnish Kumar Saroh, not only obtained pecuniary benefits from the private persons involved in smuggling of Gold in paste form through KIA, Bengaluru but had also made payments from the amounts received by him to Shri Meena as illegal gratification, whereby he misused his official capacity to influence a departmental officer who is junior in rank to indulge in such unlawful activities. By the above said acts, it appears that Shri Rajnish Kumar Saroh had failed to maintain absolute integrity; had failed to maintain high ethical standard and honesty; had placed himself under financial obligations to private persons involved in smuggling of Gold in paste form and has misused his position by enticing an officer who was junior in rank i.e. Shri Meena, the then Inspector of Customs into the activity of smuggling of Gold in paste form through KIA, Bengaluru to derive financial and material benefits, thus involving in acts which were unbecoming of a Government servant violating Rule 3 (1)(i), 3 (1)(vi), 3 (1)(xiv) and 3 (1) (iii) of the CCS (Conduct) Rules, 1964."
11. CBI also registered a criminal case and filed a charge sheet before the jurisdictional Court and the same is pending. The charge sheet filed in the said criminal case had inter alia alleged that the CO had entered in to criminal conspiracy with other 12 OA.No.170/00189/2022/CAT/BANGALORE persons to smuggle gold through the international airport at Benglauru to obtain illegal gratification for himself and relatives and had committed offences punishable under Section 120 B read with Section 420 of the Indian Penal Code and under Sections 7 & 8 of the Prevention of Corruption Act, 1988.
12. It is well-settled that the object of the disciplinary proceedings is to ascertain whether the officer concerned is suitable to be retained in service. On the other hand, the object of the criminal prosecution is to find out whether ingredients of the offence as defined in the penal statute have been made.
13. In Captain M. Paul Anthony, supra, the Hon'ble Apex Court deduced the broad legal principles. It is apt to refer to paragraph no. 22, which reads thus.
"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 13 OA.No.170/00189/2022/CAT/BANGALORE 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."
14. In Depot Manager, A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya & Ors reported in (1997) 2 SCC 699, the Hon'ble Apex Court held thus:
"....The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of a duty the offender 14 OA.No.170/00189/2022/CAT/BANGALORE owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct.15
OA.No.170/00189/2022/CAT/BANGALORE The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
15. This exposition has been further confirmed by the Hon'ble Apex Court in Ajit Kumar Nag vs G.M. (P.J.) Indian Oil Corporation. Ltd. Haldia & Ors. in Civil Appeal No. 4544 of 2005, DD 19.09.2005. The Hon'ble Apex Court has observed thus:
"....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'."16
OA.No.170/00189/2022/CAT/BANGALORE
16. In Stanzen Toyotetsu India Private Limited vs Girish V and others 2014 (3) SCC 636, the Hon'ble Apex Court held as under in paragraph 10 to 16:
"10. The relatively recent decision of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442, is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:
"(i) There is no legal bar for both 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 and 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."
11. We may also refer to the decision of this Court in Capt. M Paul Anthony v. Bharat Gold Mines Ltd, (1999) 3 SCC 679 where this Court reviewed the case law on the subject to identify the following broad principles for application in the facts and circumstances of a given case:
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OA.No.170/00189/2022/CAT/BANGALORE "(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 honor may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
12. In Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry (2005) 10 SCC 471 the respondent was charged with possessing assets disproportionate to his known sources of income. The question was whether disciplinary proceedings 18 OA.No.170/00189/2022/CAT/BANGALORE should remain stayed pending a criminal charge being examined by the competent criminal Court. Allowing the appeal of the employer-corporation this Court held:
"8. ...So, a crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law..... Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances." (emphasis supplied)
13. It is unnecessary to multiply decisions on the subject for the legal position as emerging from the above pronouncements and the earlier pronouncements of this Court in a large number of similar cases is well settled that disciplinary proceedings and proceedings in a criminal case can proceed simultaneously in the absence of any legal bar to such simultaneity. It is also evident that while seriousness of the charge leveled against the employees is a consideration, the same is not by itself sufficient unless the case also involves complicated questions of law and fact. Even when the charge is found to be serious and complicated questions of fact and law that arise for 19 OA.No.170/00189/2022/CAT/BANGALORE consideration, the Court will have to keep in mind the fact that departmental proceedings cannot be suspended indefinitely or delayed unduly.
14. In Paul Anthony (supra) this Court went a step further to hold that departmental proceedings can be resumed and proceeded even when they may have been stayed earlier in cases where the criminal trial does not make any headway.
15. To the same effect is the decision of this Court in State of Rajasthan v. B.K.Meena 1996 (6) SCC 417, where this Court reiterated that there was no legal bar for both proceedings to go on simultaneously unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. The following passage is in this regard apposite:
"14. .....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 emphasized, 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 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 20 OA.No.170/00189/2022/CAT/BANGALORE 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..... While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize 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. ... 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." (emphasis supplied)
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 defense 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 on-going disciplinary proceedings on the other. An early conclusion of the 21 OA.No.170/00189/2022/CAT/BANGALORE disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."
17. In Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal Rao (2012) 1 SCC 442, the Hon'ble Apex Court has held thus:
"11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of Article 311 (2) (b) [sic Article 311 (2) second proviso (a)] of the Constitution of India, 1950, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied."
The Hon'ble Apex Court after considering the catena of judgments holding the field observed as under:
"24. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy.22
OA.No.170/00189/2022/CAT/BANGALORE The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry."
18. The same view is reiterated by the Hon'ble Apex Court in State Bank of India & Ors. vs. Neelam Nag & Anr. (2016) 9 SCC 491 wherein it has been held that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously.
19. From the aforesaid rulings, it is clear that there is no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal case is of grave nature and involve complicated questions of fact and law.
20. Respondent No. 3 has analysed the request of the applicant in extenso having regard to the judicial pronouncements made by the Hon'ble Apex Court from time to time. It has been recorded that CBI has sought to prove the criminal case with the evidences deposed by 69 witnesses whereas the RDA has listed only 7 of such witnesses who are also the investigating officers of the customs case investigated by DRI. The charges levelled in RDA 23 OA.No.170/00189/2022/CAT/BANGALORE and criminal case are in reality sought to be established on distinctive evidences presented in each case. The charges framed against the applicant are not based on a single event. It is contested based on a series of incidents and evidences connected to each other, as such, no complicated question of law or fact is involved in the charges sought to be proved against the applicant in the criminal case pending and which may have further bearing on the facts to be proved in the proceedings under RDA. This conclusion is supported by the material available on record. The misconduct alleged against the applicant being serious and grave and there appears to be a strong prima facie case, respondent proceeded to conclude the disciplinary proceedings in accordance with law, without deferring the matter awaiting the pending criminal matter. We find no irregularity or illegality in the order impugned. Accordingly, the same is confirmed.
21. For the reasons aforesaid, OA lacks merit. Accordingly, stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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