Orissa High Court
Ajit Kumar Das vs Union Of India And Others on 25 April, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.4036 of 2017
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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Ajit Kumar Das ...... Petitioner.
- Versus-
Union of India and Others ...... Opposite Parties.
Counsel for Petitioner : M/s. Devashis Panda, D. Das and G.
Mohanty.
Counsel for Opp.Parties : Central Government Counsel.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 13.04.2017 ; Date of judgment : 25.04.2017
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S. N. Prasad, J.This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order dtd.9th February, 2017 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.835 of 2016 is under challenge whereby and where under the prayer of the petitioner to stay the disciplinary proceeding in course of pendency of criminal case before the CBI Court, has been refused to be granted.
2. The brief facts of the case in hand is that the father of the petitioner, namely, Bishnu Charan Das was an employee in the Railways and was serving as 2 a Train Ticket Inspector, being posted at Khurda Road division of East Coast Railway, while in service he died on 19.5.2003 leaving behind him his widow Swarnalata and the present petitioner as his legal heirs.
The petitioner being the legal heir, has made application for appointment on compassionate ground and was appointed as Helper in East Coast Railways after following due procedure of selection vide order dtd.05.07.2005.
While the petitioner was working, an F.I.R. was instituted by the authorities of the East Coast Railways against the petitioner before the CBI, Bhubaneswar for getting the appointment by suppressing the material fact declaring himself as son of Late Bishnu Charan Das. The authorities have initiated a departmental proceeding against him under the provision of Railway Servant (Discipline and Appeal) Rules, 1968. The petitioner has made representation before the authorities to stay the further proceeding of the disciplinary proceeding in course of pendency of the criminal case, when his grievance was not acceded to, he has approached the Tribunal for stay of the departmental proceeding mainly on the ground that if the departmental proceeding will not be stayed the entire defence which he will take in the criminal case will be disclosed at this juncture and as such he will be prejudiced in the criminal case. But the Tribunal has rejected the contention of the petitioner and allowed the departmental proceeding to continue which is under challenge in this writ petition.
3. Learned counsel appearing for the East Coast Railways has vehemently opposed the submission of the petitioner by submitting that there is no bar in simultaneous proceeding of the departmental proceeding as well as the 3 criminal proceeding which has already been settled by the Hon'ble Apex Court in catena of decisions.
He further submits that since the departmental proceeding and the criminal proceeding concern to different fields, as such there is no embargo in continuing with the departmental proceeding as well as the criminal proceeding, the Tribunal, after taking into consideration this aspect of the matter, has rejected the plea of the petitioner while dismissing the original application, hence there is no infirmity in the order.
4. We have heard the learned counsels for the parties and perused the documents available on record including the order passed by the learned Central Administrative Tribunal.
We, before proceeding with the facts of the instant case, have though it proper to deal with the settle proposition in the matter of simultaneous continuation of departmental proceeding vis-à-vis criminal proceeding.
The Hon'ble Apex Court has dealt with this issue so many times, i.e. in the case of Andhra Pradesh State Road Transport Corporation Vrs. Md. Yousuf Miya, reported in 1997(2) SCC 699 wherein Hon'ble Apex Court has been pleased to make difference between the purpose of departmental enquiry and criminal trial while holding therein it has been laid down that purposes of departmental enquiry and the prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of duty, the offender owes to the society or for breach of which law has provided that the 4 offender shall make satisfaction to the public so crime is an act of commission in violation of law or omission of public duty.
The departmental enquiry is to maintain discipline in 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 guideline as inflexible rules in which the departmental proceeding 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 the departmental proceeding and trial of a criminal case unless the charge in a criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public as distinguished from mere private right punishable under criminal law, when trial for criminal offence is conducted it should be in accordance with the proof of offence as per the evidence defined under the provisions of the evidence act. Converse in the case of departmental enquiry in a departmental proceeding relates to conduct of breach of duty of the delinquent officer who punish him for his misconduct defined under the relevant statute / rule or law that strict standard of rule or applicability of Evidence Act stands excluded in a settled legal position.
The enquiry in the departmental proceeding relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be 5 conducted expeditiously so as to effectual 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 proceeding.
In the former, prosecution is to prove its case beyond reasonable doubt under touch stone of human conduct. The stand of proof in the departmental proceeding is not the same as in the criminal trial. The evidence is also on different stand point of Evidence Act. The evidence required in the departmental enquiry is not regulated on the facts under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent employee 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 other judgment rendered by Hon'ble Apex court in the case of State of Rajasthan Vrs. B. K. Meena, reported in 1996 6 SCC 417 the same view has been reiterated by the Hon'ble Apex court.
In the case of judgment rendered in the case of M. Paul Anthony Vrs. Bharat Gold Mines Ltd. reported in (1999) the Hon'ble Apex court while dealing with the situation of simultaneous continuation of departmental proceeding vis-à-vis criminal proceeding, has arrived at following conclusions"
(i) Departmental proceeding as well as proceeding in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately, 6
(ii) If the departmental proceeding and the criminal case are based on identical and similar set of facts and the charges in the criminal case against the delinquent employee involves complicated question of law and fact, it would be desirable to stay the departmental proceeding till conclusion of the criminal case.
(iii) Whether the nature of the charge in a criminal case is grave and whether complicated question of facts and law involved in that case will depend upon the nature of offence, the nature of a case launched against the delinquent employee on the basis of evidence and the material facts against him during investigation or as reflected in the charge.
(iv) The factors mentioned at (i) and (iii) above cannot be considered in isolation to stay the departmental proceeding but due regard has to be given to the facts that the departmental proceeding cannot be unduly delayed.
(v) If the criminal case does not proceed or disposal is unduly delay, the departmental proceeding, even if there is stay on account of pendency of the criminal case, can be resumed and proceed with so as to conclude them at an early date, so that the employee if found not guilty his honour may be protected and in case he is found guilty, the administration may get rid of him at an earliest.
In the case of Stanzen Toyotetsu India (P) Ltd. Vrs. Girish and Others, reported in (2014) 3 SCC 636, their lordships of Hon'ble Apex Court, while dealing with the situation of continuation of simultaneous proceeding both in departmental as well as criminal proceeding, has been pleased to hold by taking 7 note of all the earlier judgments rendered by it, holding at paragraph 16 therein which reads as follows:-
"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."
We, after going into the judgment rendered in the case of Stanzen Toyotetsu India (P) Ltd. Vrs. Girish and Others (supra), have found that in that case the employee was proceeded criminally for the offences U/s.143, 147, 323, 324, 356, 427, 504, 506, 114 read with Sec.149 of Indian Penal Code.
It is evident from all the judgments referred herein above that there is no bar in simultaneous continuation of departmental proceeding as well as criminal proceeding and each and every case has to be adjudged on the related facts of the case.
5. The given fact of the instant case is that a criminal case was instituted against the petitioner by instituting an F.I.R. for the offence U/s.120-B, 420, 468, 471 of the I.P.C. read with Sec.13(2)(1(e) of the Prevention of Corruption Act, 1988 in which cognizance has been taken by the competent court having criminal jurisdiction. Subsequently, a departmental proceeding has also been 8 instituted by serving memorandum of charge on 10.5.2016 in exercise of power conferred under Railway Servant (Discipline and Appeal) Rules, 1968.
In the backdrop of these aspect, submission has been made by the petitioner that since on the same set of fact criminal case is going on as such the departmental proceeding needs to be stayed otherwise he will be prejudiced in the criminal trial.
6. We, in order to examine with respect to the fact that as to whether the departmental proceeding is fit to be stayed in the given facts or not, have considered the ratio laid down by Hon'ble Apex Court in the case of M. Paul Anthony Vrs. Bharat Gold Mines Ltd. (supra) wherein the ratio has been laid down at paragraph 22(ii) and (iii) wherein it has been laid down that if the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge against the delinquent employee is of grave nature which involves complicated question of law, it is desirable to stay the departmental proceeding till conclusion of the criminal case and as to whether the nature of a charge is grave and whether complicated question of fact and law are involved in that case, will depend upon the nature of the offence the nature of case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
We have examined the fact of this case in the light of the proposition laid down by Hon'ble Apex Court as discussed above and are of the considered view that the petitioner has failed to make out a case to come within the 9 parameter of the ratio laid down in the case of M. Paul Anthony Vrs. Bharat Gold Mines Ltd. (supra) warranting the stay of the departmental proceeding.
So far as the case in hand which pertains to misrepresentation / suppression of material facts based upon the evidence which discloses that the petitioner has got an appointment on compassionate ground, hence it does not involve complicated question of fact, as such we are not in agreement with the submission advanced on behalf of learned counsel for the petitioner that if the departmental proceeding will be allowed to continue, he will be prejudiced in the criminal trial, reason being that both depend upon two different stand to prove the charges, in the criminal case the Evidence Act is strictly applicable while in the departmental proceeding it is on the preponderance of probability, the punishment is to be imposed.
7. We, after taking into consideration this aspect of the matter and the factual aspect, are of the considered view that the Tribunal has not erred in passing the order, accordingly we are not inclined to interfere with it.
In the result the writ petition fails and it is dismissed.
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S.N.Prasad, J.
Sanju Panda, I agree.
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Sanju Panda, J.
Orissa High Court, Cuttack,
Dated the 25th April, 2017/mkp