Jharkhand High Court
Ashok Kumar Nonia vs Bharat Coking Coal Limited Through Its ... on 8 August, 2017
Equivalent citations: 2018 (1) AJR 420, (2017) 4 JLJR 609, (2018) 2 JCR 182 (JHA), (2018) 1 JCR 128 (JHA)
Author: D.N. Patel
Bench: D.N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 109 of 2017
With
I.A. No. 5156 of 2017
Ashok Kumar Nonia, son of Late Shiv Nandan Beldar, Qr. No. MII/8, Officers
Colony, P.O. Munidih, P.S. Potki, District Dhanbad ... Appellant
Versus
1.Bharat Coking Coal Limited through its ChairmancumManaging Director, having its office at Koyala Bhawan, P.O. & P.S. Saraidhela, District Dhanbad
2. The General Manager, CCWO, Saraidhela, P.O. & P.S. Saraidhela, District Dhanbad
3. Project Officer, Manidih Coal Washery, BCCL, Munidih, P.O. & P.S. Munidih, District Dhanbad ... Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant : Mr. Manoj Kumar Sinha, Advocate For the Respondents : Mr. Anoop Kumar Mehta, Advocate 04/ Dated: 8 August, 2017 th Oral Order Per D.N. Patel, A.C.J.:
I.A. No. 5156 of 2017
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 22 days in preferring this Letters Patent Appeal.
2. Having heard learned counsels for both the sides and looking to the reasons stated in this interlocutory application especially in paragraphs 4, 5 and 6, there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 22 days in preferring this Letters Patent Appeal.
3. Accordingly, I.A. No. 5156 of 2017 is allowed and disposed of.L.P.A. No. 109 of 2017
1. This Letters Patent Appeal has been preferred by the original petitioner.
Being aggrieved and feeling dissatisfied by the judgment and order delivered by the learned Single Judge in W.P. (S) No. 6539 of 2016 dated 10th January, 2017, present Letters Patent Appeal has been preferred. The writ petition preferred by this appellant was dismissed and the order of initiation of departmental 2 proceeding against this appellant has been held as a valid because of the misconduct of illegal gratification. Chargesheet has also been submitted by the Central Bureau of Investigation (C.B.I.) on 7th November, 2014 under Prevention of Corruption Act.
2. Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that this appellant (original petitioner) was caught red handed while demanding and accepting illegal gratification of Rs.500/ by the C.B.I. officers. Later on, chargesheet was filed by the C.B.I. under Prevention of Corruption Act and departmental proceedings were also initiated against this appellant as the conduct of this appellant was not befitting to his post.
3. After issuance of chargesheet, departmental proceeding was also initiated. Witnesses have been examined and in the departmental proceedings, Inquiry Officer has given the report, wherein, it has been held that the charges levelled against this appellant has been proved. Departmental proceeding initiated against the appellant has already been concluded.
4. Learned counsel appearing for the appellant has mainly submitted that for the same charges, criminal case and departmental proceeding cannot go together. This contention is not accepted by this Court mainly for the reason that departmental proceeding is for different purpose, whereas, criminal charge is under the Prevention of Corruption Act. The standard of proof is also different. Moreover, departmental proceeding was initiated for the reason that the conduct of this appellant (original petitioner)employee is not befitting to his post. It affects the image of the respondentManagement in the eye of public at large.
5. It has been held by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., reported in (1999) 3 SCC 679 in 3 paragraphs 13, 22 and 35, which read as under:
"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.
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 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 4 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.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
(emphasis supplied)
6. It has been held by the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan v. T. Srinivas, reported in (2004) 7 SCC 442 in paragraphs 10 and 14, which read 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.
14. We are of the opinion that both the Tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into the second question whether at least Charge 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned counsel for the appellant."
(emphasis supplied)
7. It has been held by the Hon'ble Supreme Court in the case of Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, reported in (2005) 10 SCC 471 in paragraphs 7 and 8, which read as under:
5 "7. It is a fairly wellsettled position in law that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the court has to decide, taking into account the special features of the case, whether simultaneous continuance of both would be proper.
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 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."
(emphasis supplied)
8. It has been held by the Hon'ble Supreme Court in the case of NOIDA Entrepreneurs Assn. v. NOIDA, reported in (2007) 10 SCC 385 in paragraphs 13 and 16, which read as under:
6 "13. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
16. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings.
That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue."
(emphasis supplied)
9. It has been held by the Hon'ble Supreme Court in the case of Indian Overseas Bank v. P. Ganesan, reported in (2008) 1 SCC 650 in paragraphs 23 and 24, which read as under:
"23. The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analysing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the nonstay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subjectmatter of allegations in a criminal case, the departmental proceedings should not have been stayed."
(emphasis supplied) 7 In view of the aforesaid decisions and looking to the facts and circumstances of the case, it appears that criminal charges levelled against this appellantdelinquent and the departmental proceedings are different and, hence, both the proceedings can always go together. In view of the aforesaid decisions, there is no bar in their being conducted departmental proceeding and proceeding in a criminal case, simultaneously. On the contrary in such type of cases, criminal action should have been initiated by the respondents. Moreover, during the departmental proceeding, adequate opportunity of being heard has been given to this appellant. The Inquiry Officer's report is based on evidences on record and the departmental proceeding initiated against this appellant has already been concluded.
10. Looking to the aforesaid facts and circumstances of the case, it appears that this appellant was caught red handed by the C.B.I. officers when he was demanding and accepting illegal gratification of Rs.500/ for preparing/processing arrears of pay bills. This is a grave misconduct, committed by this appellant. No error has been committed by the learned Single Judge while dismissing the writ petition preferred by this appellant. The respondents are also permitted to take departmental action against this appellant, if not taken so far. There is no substance in this Letters Patent Appeal and, hence, the same is, hereby, dismissed.
(D.N. Patel, A.C.J.)
(Ratnaker Bhengra, J.)
Ajay/ A.F.R.