Andhra HC (Pre-Telangana)
Kota Joji vs The Railway Protection Force (Rpf), ... on 19 November, 2015
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.19637 of 2015
19-11-2015
Kota Joji Petitioner
The Railway Protection Force (RPF), Rep. by its Sr. Div. Security Commissioner
(SCR), Vijayawada, Krishna district; and 2 others Respondents
Counsel for the Petitioner:Sri S.R. Sanku
Counsel for Respondents :Smt. Pushpinder Kaur,
Standing Counsel.
<Gist:
>Head Note:
? Cases referred:
1.1969 (1) S.C.R. 134
2.AIR 1960 SC 806(1)
3.(1996) 6 SCC 417
HONBLE SRI JUSTICE R.KANTHA RAO
Writ Petition No.19637 of 2015
Order:
The petitioner, Inspector in respondent No.1-
Railway Protection Force (RPF), was trapped by the
Central Bureau of Investigation (CBI) on 15-02-2015 and
a case was booked against him on the ground that he
demanded and accepted the bribe from a hawker for
allowing him to sell eatables in the trains unauthorisedly.
In this connection, the CBI, Visakhapatnam registered
a case against the petitioner in R.C.No.1(A)/15 under
Section 7 of the Prevention of Corruption Act, 1988.
He was arrested on 15-02-2015 and was released on bail
on 10-3-2015. He was placed under suspension
by the Department with effect from 18-02-2015.
The 1st respondent-RPF issued a charge-sheet dated
25-6-2015 against the petitioner under Rule 153 of the
Railway Protection Force Rules, 1987 (the RPF Rules, for
short) framing Articles of Charge viz., (1) He demanded
an amount of Rs.6,000/- as illegal gratification from
Chitekala Gopi to allow him to continue unauthorised
hawking (of selling of boiled palli) in trains, (2) By making
such demand, he misused his official position for his
personal gain which constitutes serious misconduct
which is unbecoming of a Railway servant and that he
also failed to maintain integrity and tarnished the image
of the Force in the eyes of public.
2. It is submitted by the petitioner that the charges
in the criminal case and in the disciplinary proceedings
are identical emanating from the very same incident, the
1st respondent is hurriedly proceeding with the
departmental enquiry without waiting the outcome of the
criminal proceedings, even though the departmental
proceedings must await the outcome of the criminal
proceedings as mandated by the RPF Rules. According to
the petitioner, the departmental proceedings must
proceed only after passing of the orders of conviction by
the trial court, otherwise his defence in the criminal case
in relation to a grave charge gets prejudiced.
The grievance of the petitioner is that ignoring the
procedure contemplated under the RPF Rules, the
department is proceeding with the departmental enquiry.
Therefore, he filed the present writ petition under
Article 226 of the Constitution of India for a mandamus
declaring the initiation of departmental proceedings
pending criminal case as illegal, violative of Rule 162 of
the RPF Rules and to consequently set aside the
departmental proceedings. He sought an interim prayer
to stay all further proceedings in the departmental
enquiry till the outcome of the criminal case.
3. The 1st respondent-RPF filed counter affidavit
contending, inter alia, as follows:
(a) The charge-sheet issued to the petitioner in the
departmental proceedings and in criminal case is distinct
and different. The contention of the petitioner that the
departmental proceedings and criminal case cannot go
parallel is misconceived since the petitioner has been
issued a charge-sheet by the Department under Rule 153
of the RPF Rules for his misconduct being the member of
the Railway Protection Force (RPF). The charges were
framed by the 1st respondent-Disciplinary Authority
basing on the report received from the CBI,
Visakhapatnam along with the letter dated 16-4-2015.
The petitioner is charged for serious misconduct of
unbecoming of a Railway servant, failure to maintain
integrity, misusing his official position for personal
gain and for tarnishing the image of the Force.
The contention of the petitioner that as per Rule 162 of
the RPF Rules, the respondents could not have initiated
departmental proceedings while criminal proceedings are
pending is incorrect and is the result of misinterpretation
of the Rule.
(b) According to the respondents, Rule 162 of the
RPF Rules postulates that where an enrolled member of
the Force is convicted or acquitted can be taken only
after the criminal case has reached its logical end and
the person so involved has been either convicted or
acquitted, for the concerned authority to record and pass
an appropriate order on that. However, the Rule does not
bar the Disciplinary Authority from initiating
departmental action against the enrolled members of the
Force when they are facing criminal charges which are
identical to the charges levelled in the departmental
proceedings.
(c) Contending as above, the respondents sought to
dismiss the writ petition.
4. I have heard Sri S.R. Sanku, learned counsel
appearing for the petitioner and Smt. Pushpinder Kaur,
learned Standing Counsel for RPF-respondents 1 to 3.
5. The short question requires determination in the
present case is that when a criminal case is pending
against an employee in respect of the charges identical to
those in the departmental enquiry, whether the
departmental enquiry shall wait till the outcome of the
criminal case.
6. Quite often misconduct under the disciplinary
rules of an employee may also amount to a criminal
offence in respect of which, the employee can as well be
tried for the criminal offence. The contention that the
disciplinary proceedings should wait the outcome of the
result of the criminal case is based on the ground that
if the employee discloses his defence in the departmental
proceedings, it would cause prejudice to him in the
criminal trial. The same is the argument advanced in the
present case on behalf of the petitioner.
7. In this context, it is to be borne in mind in the
first place that there is no prohibition or bar for initiating
criminal proceedings and departmental proceedings
simultaneously. However, in some of the judgments, the
apex Court has laid down that if the case is of grave
nature or involves questions of fact or law which are not
simple, it would be advisable to the employer to await the
decision of the trial court in the criminal case so that the
defence of the employee in the criminal case may not be
prejudiced. Therefore, the real question to be determined
in the instant case is as to whether it would be proper to
defer the disciplinary proceedings till the disposal of the
criminal case by the trial court. As there is no specific
bar for initiating criminal proceedings as well as the
departmental enquiry simultaneously, the Court has to
examine the facts and circumstances of each case
whenever an employee seeks an order granting stay of
the departmental proceedings. In Janq Bahadur Singh
v. Baij Nath Tiwari , the apex Court observed that it is
neither possible nor advisable to evolve a hard and fast,
strait-jacket formula valid for all cases and of general
application without regard to the particularities of the
individual situation.
8. Rule 162 of the RPF Rules only deals with the
procedure to be followed in case of conviction by
a criminal court. The Rule does not contain any bar as
to initiation of and continuance of departmental enquiry
while the criminal charges are pending against
a delinquent employee. Moreover, the Rule also enables
the department to initiate departmental proceedings after
an objective consideration of all the facts and
circumstances where the accused was discharged or
acquitted on benefit of doubt. Nothing in the RPF Rules
contains a bar against initiation of departmental
proceedings and their continuance whenever there is
a criminal case pending against the petitioner in respect
of the very same charges.
9. Even though the respondents contended in the
present case that the charges in the criminal case and
the departmental enquiry are entirely different, the said
contention cannot be accepted because both the charges
are in respect of the very same misconduct of demanding
illegal gratification and accepting the same from
a hawker for allowing him to sell the eatables (boiled
groundnuts) unauthorisedly in the trains.
10. Reliance is placed by the learned counsel
appearing for the petitioner on Delhi Cloth and General
Mills Ltd. v. Kushal Bhan , wherein the Supreme Court
held as follows:
3. It is true that very often employers stay enquiries
pending the decision of the criminal trial courts and
that is fair; but we cannot say that principles of
natural justice require that an employer must wait for
the decision at least of the criminal trial court before
taking action against an employee. In Shri Bimal
Kanta Mukherjee v. Messrs. Newsmans Printing
Works, 1956 Lab AC 188, this was the view taken by
the Labour Appellate Tribunal. We may, however, add
that if the case is of a grave nature of involves
questions of fact or law, which are not simple, it would
be advisable for the employer to await the decision of
the trial court, so that the defence of the employee in
the criminal case may not be prejudiced. The present,
however, is a case of a very simple nature and so the
employer cannot be blamed for the course adopted by
him. In the circumstances, there was in our opinion
no failure of natural justice in this case and if the
respondent did not choose to take part in the enquiry
no fault can be found with that enquiry.
(emphasis supplied)
Thus, even the judgment relied on by the learned
counsel appearing for the petitioner in Kushal Bhan
(2 supra) does not lay down any abstract principle that
the departmental enquiry should wait the outcome of the
criminal case.
11. Further, in STATE OF RAJASTHAN v.
SHRI B.K. MEENA , the Supreme Court relying on the
judgment referred to by the learned counsel appearing for
the petitioner in Kushal Bhan (2 supra) and several other
earlier judgments of the Supreme Court, expounded the
law on the subject in the following terms:
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 rule can be enunciated in that behalf.
That the defence of the employee in the criminal case
may not be prejudiced means that not only the
charges must be grave but that the case must involve
complicated questions of law and fact.
The ground indicated in D.C.M. and Tata Oil Mills is
also not invariable rule. It is only a factor which will
go into the scales while judging the advisability or
desirability of staying the disciplinary proceedings.
One of the contending consideration 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 involved. They get bogged down on one or the
other ground. They hardly ever reach a prompt
conclusion. That is the reality inspite 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 proceedings are concluded
expeditiously. It must be remembered that interests of
administration demand that the undesirable elements
are thrown out and any charge of misdemeanour is
enquired into promptly. The disciplinary proceedings
are meant not really to punish the guilty but to keep
the administrative machinery unsullied by getting rid
of bad elements. The interest of the 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.
Therefore, for exercising judicial discretion to stay
the departmental enquiry till the pronouncement of the
judgment of the criminal case by the trial court, the
Court must not only be satisfied as to the fact that the
charges are grave in nature but also be of the opinion
that the case involves complicated questions of law and
fact.
12. Another important factor which also is to be
kept in mind is that the standard of proof required in
a criminal case is altogether different from that of the
standard of proof in a departmental enquiry. In the
former it is proof beyond reasonable doubt and in the
latter it is the preponderance of probability. In certain
cases, even though the delinquent employee is acquitted
by the criminal case by giving him the benefit of doubt or
for want of sufficient evidence, the department can still
initiate departmental proceedings against him upon
thorough examination of the facts and circumstances of
the case.
13. In the instant case, the imputation against the
petitioner is that he demanded illegal gratification of
Rs.6,000/- from a hawker and accepted the same for the
purpose of allowing him to sell the boiled groundnuts in
the trains unauthorisedly. Merely because the charge is
under Section 7 of the Prevention of Corruption Act,
it cannot be said that it is grave in nature. In the
considered view of this Court, the charge is very simple.
The criminal case pending against the petitioner does not
involve any complicated questions of law and fact.
Considerable length of time would be taken by the trial
court to render its verdict in the criminal case. Having
regard to the facts and circumstances of the case and
also the nature of the charges, this Court is of the
considered view that the staying of departmental
proceedings till the judgment of the trial court in the
criminal case against the petitioner is quite unwarranted.
It would be neither in the interests of the department nor
in the interests of the petitioner himself. Therefore, this
Court is not inclined to grant the prayer in the present
writ petition.
14. For the foregoing reasons, the writ petition is
dismissed. The miscellaneous petitions, if any, pending
in this writ petition shall stand closed. No costs.
___________________
R.KANTHA RAO, J.
19th November, 2015.