Om Prakash Prasad vs Central Coalfields Limited Through Its ... on 12 August, 2016

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Jharkhand High Court

Om Prakash Prasad vs Central Coalfields Limited Through Its ... on 12 August, 2016

Case/Opprasad/2015/11295-300, in terms with the Conduct, Discipline and Appeal Rules, 1978 of Coal India Limited, which governs the petitioner. Along with the said memorandum, the petitioner was also served with the statement of articles of charges and the statement of imputation of misconduct.

5. The petitioner on receipt of the said departmental charge- sheet approach the authority and prayed to stay the 3 departmental proceeding on the ground, that the continuance of the same, will prejudice the case of the petitioner before the Criminal Court. The petitioner, thus has prayed, by filing this writ application, to direct the respondents not to proceed with the departmental proceeding which arises, on the same set of facts.

6. A counter affidavit has been filed by the C.C.L. stating therein that, there is no hard and fast rule in respect of continuance of departmental proceedings, during pendency of the criminal case. It has been stated that the petitioner was apprehended by the C.B.I., red-handed, in trap laid down by C.B.I, and the Criminal case proceeded as charge-sheet has already been filed and the charge has been framed. The substance of the complaint, has been retreated by the C.C.L. in their counter-affidavit.

7. Learned counsel for the petitioner submits that on the facts of the case, the departmental proceedings needs to be stayed till final disposal of the criminal case. He submits that since the charge in the departmental proceedings is identical to the charge framed in the Criminal case, the departmental proceedings ought not to have been continued. He submits that the petitioner will have to disclose his defence in the departmental proceeding which will prejudice his case before this Special Judge, C.B.I. He further submits that the main document which is being relied upon, in the departmental proceeding, is the charge-sheet filed by the C.B.I. in the criminal case and that being so, the departmental proceeding 4 cannot be allowed to continue rather should await till a decision is arrived at in the criminal case. He further submits that the witnesses are common in the criminal case and the departmental proceeding which also suggests that in the interest of justice, the departmental proceeding has to be stayed. It has been argued that the charges under the Prevention of Corruption Act, is serious one. A slightest slippage would lead to serious consequences and the petitioner should be protected against all the prejudice including the prejudice caused by discloser of evidences. He submits that if the departmental proceeding is allowed to continue, his entire defence will have to be opened, which will have direct adverse bearing upon the criminal case. His contention is that till the stage of his examination, under Section 313 of the Cr. P.C., he has a right to maintain silence, but if the departmental proceeding continuous, he will be deprived of the precious right of silence. Counsel for the petitioner further argues that it is well settled principle now that a departmental proceeding can be stayed pending a criminal case. He relied upon the following decisions:

(i) (2014) 3 SCC 636 in the case of Stanzen Toyotetsu India (P) Ltd. v Girish V. & Ors.

(ii) (1999) 3 SCC 679 in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another.

Referring to these judgments, he submits that since the criminal case and the departmental proceeding is exactly on the same facts, and the witnesses being same, the departmental proceeding is liable to be stayed.

8. Learned counsel for the C.C.L. opposes the prayer made by the petitioner. He submits that there is no bar in continuation of the criminal case and the departmental proceeding simultaneously. He submits that both the criminal trial and the departmental proceeding stands on a different footing. He submits that in the criminal case, guilt has to be proved beyond a reasonable doubt, but the departmental proceeding is guided by the theory of "preponderance of probability". He submits that the finding of the criminal trial may not have any binding effect on the departmental proceeding. It has been submitted that in the cases involving offences under the Prevention of Corruption Act, there would be no question on discloser of defence in a departmental proceeding and therefore, there is no question of staying the departmental proceeding during the pendency of the criminal case. The question of stay of departmental proceeding during the criminal trial, would arise only in cases involving complex question of fact and law. He claims that in the instant case the petitioner is charged for demanding illegal gratification for the purpose of performance of his official duties, and he was apprehended red handed, in the trap laid by the C.B.I., thus, neither the facts nor the law is complicated. He further submits that there is no likelihood in conclusion of the criminal trial in near future thus, it is not proper to stay the departmental proceeding.

9. Counsel for the C.C.L also relying upon the following decisions;

(i) (2005) 10 SCC 471 in the case of Hindustan Petroleum Corporation Ltd, & Ors Vs. Sarvesh Berry

(ii) (2014) 3 SCC 636 in the case of Stanzen Toyotetsu India (P) Ltd. v Girish V. & Ors.

(iii) (2007) 10 SCC 385 in the case of Noida Entrepreneurs Association Vs. Noida & Ors.

10. Learned counsel for the petitioner in reply submits that the judgment of the Supreme Court relied upon by the Central Coalfields Limited, is cannot be applied in the facts of this case, as the instant case is of a trap and cannot be equated with the facts of the case which the C.C.L. relies upon.

11. From the arguments of the parties, the following fact emerges:-

The petitioner was an employee of Central Coalfields Limited, who was caught red handed after being trapped by the C.B.I. for demanding illegal gratification. A criminal case was instituted at the instance of the C.B.I. being R.C. 09 (A)/2014-R. Charge-sheet was submitted being Charge-Sheet No. 14/2014, under Sections 7 and Section 13 (2) read with 13(1) (d) of the Prevention of Corruption Act, 1988. The charge was framed by the Special Judge, C.B.I, on 02.12.2014. A departmental proceeding was also initiated against the petitioner. A memorandum of charge was issued to the petitioner on 10.06.2015. Along with the memorandum, statement of article of charges framed against the petitioner and the statement of imputation of misconduct in support to article of charges framed against the petitioner, was also served. The list of documents annexed with the departmental charge-sheet suggests that one of such 7 documents which is heavily relied upon by the department is the Charge-sheet No. 14 of 2014 filed by the C.B.I. in the criminal case. There are five witnesses in the departmental proceeding out of which one is the complainant in the criminal case and the others are the Inspector of Police, C.B.I.

12. I have gone through the records of the case and perused the departmental charge-sheet and the charge-sheet filed by the C.B.I, in the criminal case. The Special Judge, C.B.I had framed charge on 02.12.2014.

13. After going through the documents, I find that the allegation made in the criminal case and the memorandum of charge in the departmental proceeding are same and similar. It has not been disputed by the learned counsel for the C.C.L. that the two charges leveled against the petitioner i.e. in the criminal proceeding and, charge in the departmental proceeding are similar.

14. Now, on this background, it has to be decided, whether on the admitted facts, continuation of the departmental proceeding is bad, and the same is liable to be stayed till conclusion of the criminal case. The petitioner has relied upon a decision the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another, as reported in (1999) 3 SCC 679, especially at paragraph no. 22. The Hon'ble Supreme Court in para 22 of the said judgment has held as under;

"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 8 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."

15. Further reliance has been placed on judgment reported in (2014) 3 SCC 636, Stanzen Toyotetsu India (P) Ltd. v Girish V. & Ors, wherein after considering various judgments, Hon'ble Supreme Court has held that there is no legal bar for both the proceedings to go on simultaneously. The only valid ground for claiming stay of the departmental proceeding is 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 question of facts and law. The Hon'ble Supreme Court in the case of Stanzen Toyotetsu India (P) Ltd. v Girish V. & Ors (supra), as reported in (2014) 3 SCC 636, especially at paragraph no.16, has held 9 as under;

"16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."

16. In the said case, the Hon'ble Supreme Court, has not completely stayed the departmental proceeding till pendency of the criminal trial rather direct the criminal Court to conclude the trial preferably within one year, but however ordered, that in case, the trial is not completed within a period of one year, despite the step which the trial Court has been directed to take, the disciplinary proceeding initiated against the respondent shall be resumed and concluded by the enquiry officer concerned. Thus, the departmental proceeding was stayed only for a period of one year.

17. The Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd, & Ors Vs. Sarvesh Berry, as reported in (2005) 10 SCC 471, in paragraph no. 8, has held that the purpose of departmental enquiry and the criminal case are two different and distinct aspects. The criminal prosecution 10 is launched for an offence for violation of a duty, the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. Ultimately, the Hon'ble Court has held that what is required to be seen is whether the departmental enquiry would seriously prejudice that the delinquent in his defence at the trial in criminal case. The Hon'ble Supreme Court held that it is always question of facts, to be considered in each case pending, on its own facts and circumstances. For better appreciation it is necessary to quote paragraph 8 of the said judgment, which reads as under;

"8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender 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 a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, 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 provisions of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or 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. Under these circumstances, what is required to 11 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."

18. In the case of Kendriya Vidyalaya Sangathan & Ors Vs. T.Srinivas as reported in (2004) 7 SCC 442 an employee while working as a clerk, was arrested by C.B.I. red-handed after a trap was laid, and thereafter, was charged for offence punishable under Section 7 r/w Section 13 (1)(d) of the Prevention and Corruption Act, 1988. During pendency of the said criminal case, a departmental proceeding was initiated against the said employee. The Central Administrative Tribunal stayed the disciplinary proceeding till disposal of the criminal trial. The order of Central Administrative Tribunal was upheld by the Hon'ble High Court. In an appeal, before the Hon'ble Supreme Court, the order granting stay of the departmental proceeding was set aside. Paragraphs 10 and 11 of the said judgment reads as under:

"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course.

11. In the instant case, from the order of the Tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, a reading of the two impugned orders indicates that both the Tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the respondent in service in spite 12 of such serious charges levelled against him. This Court in he said case of State of Rajasthan has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that 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 are established and, if established, what sentence should be imposed upon him. The Court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of 1 State of Rajasthan the facts which seem to be almost similar to the facts of this case, held that the Tribunal fell in error in staying the disciplinary proceedings."

19. The petitioner, tried to distinguish the case of Hindustan Petrolium Corporation Limited (Supra) referred to by the counsel for the C.C.L., on the ground that the facts of the instant case is different, as the instant case deals with trap and in the case of Hindustan Corporation Limited (supra), there was disproportionate assets. This Court feels the principal has been laid down in the case at paragraph no. 8 of the said judgment.

20. Further, from the judgments referred by the parties I find that there is no hard and fast rule to stay departmental proceeding, on initiation or during pendency, of the criminal proceeding. In fact the arguments of the petitioner that in the case of trap there is a complicated question of facts and law, and thus the departmental proceeding has to be stayed, in the interest of justice also cannot be accepted. As referred earlier, facts of the case in hand is more or less similar to the facts, dealt with by the Hon'ble Supreme Court in the case of 13 Kendriya Vidyalaya Sangathan & Ors Vs. T. Srinivas (supra), as referred to above.

21. This instant case arose a trap, where the delinquent has been caught red-handed. The facts are not complicated which warrants stay of the departmental proceeding. As it is well settled that the nature of evidence to prove guilt in departmental proceeding is different than that of the criminal trial. To bring home the charges in the criminal case one has to prove the same beyond all reasonable doubt, but so far as in the departmental proceeding, on the basis of preponderance of probability a delinquent can be punished. Notwithstanding the fact that the charges leveled against the petitioner, both in the criminal proceedings and departmental proceeding are same and similar, but by committing such offence, the petitioner failed to maintain absolute integrity, and by allegedly committing the said offence, the petitioner, had some what, failed to maintain integrity, devotion to his duty and also acted in a manner which is the prejudiced of the image of the company. Such act and omission on part of the petitioner contravenes the provision of Conduct, Discipline and Appeal rules of the company which amounts to misconduct.

22. In view of what has been held above, I am of the view that continuance of the departmental proceeding cannot be stayed merely because a criminal case of similar nature is pending against the petitioner.

23. In the facts and circumstances of this case, especially relying upon the judgment delivered by the Hon'ble Supreme 14 Court in the case of Kendriya Vidyalaya Sangathan & Ors Vs. T.Srinivas (supra), whose facts is similar to that of the case in hand, I do not find it proper to stay the departmental proceeding till disposal of the criminal case.

24. The petitioner has raised a point that he may be allowed to take help of legal practitioner in the departmental proceeding. This prayer also cannot be allowed on the simple ground that this court was informed by the counsel for the respondent that "Presenting Officer" who has been appointed by the C.C.L. is also not a legal practitioner, though he is a student of law. Since the Presenting Officer is not a legal practitioner nor he possess a degree in law, the petitioner cannot be allowed to be represented through a legal practitioner or a person who is a law graduate.

25. Thus, in view what has been held above, I find no merit in this writ application the same is dismissed.

(Ananda Sen, J.) Jharkhand High Court, Ranchi Dated the 12 . 08 . 2016, NAFR/Amar

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