Central Administrative Tribunal - Delhi
Sh. Dhir Singh vs Commissioner Of Police on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2990/2010 NEW DELHI THIS THE 9th DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Sh. Dhir Singh, S/o Late Shri Inchha Singh, R/o Q. No. 7 DCP East Office Complex Vishwas Nagar, Delhi. 2. Sh. Parvez Alam, S/o Sh. Riyasat Ali, R/o Mohalla Aalkalam Town Kirana, Distt. Muzafar Nagar, UP 3. Sh. Ravinder S/o Sh. Ramesh Chand R/o Vill. Shekhupur Post Kandenla Distt. Muzafar Nagar U.P. 4. Sh. Rajbir Singh S/o Sh. Kishan Chand R/o Vill. Badrala Post Tigaon Distt. Faridabad, Haryana. Applicants. (By Advocate Shri Ajesh Luthra) VERSUS 1. Commissioner of Police, PHQ, MSO Building, IP Estate, New Delhi. 2. Addl. DCP (South East Distt) office at P.S. Sarita Vihar, Delhi. 3. Addl. C.P. (South East Distt.) PHQ, MSO Building, IP Estate, New Delhi. 4. The Enquiry Officer Office of Addl. C.P. (South East Distt) PHQ, MSO Building, IP Estate, New Delhi. (By Advocate Shri Amit Anand) ORDER
Mr. G. George Paracken:
The challenge in this O.A. is against the Annexure A-1 order dated 15.03.2010 issued by the disciplinary authority, namely, the Addl. Dy. Commissioner of Police, South-East District, New Delhi, to proceed departmentally under the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980 ( `1980 Rules for short) against the applicants. The allegations against them are that on 26.04.2010, one Sh. Mohd Zakir S/o Sh Zamir Ahmed R/o 84/1, Ground Floor, Village Khizrabad, New Delhi submitted a complaint to ACP/NFC alleging therein that on 20.04.2010 at about 5.30 PM when he was present in his office i.e. M/s Mak Travels at premises No 84/1, Khirabad, the applicants and one public man, namely, Sadakat entered his office and stated that the said Zakir committed cheating with that Sadakat and asked him to either come to the police station with them or to pay Rs.5,00,000/- as bribe. Finally, they extorted Rs.1,50,000/- from him which had been arranged by the complainant in the following manner:
Rs.50,000/- from his ATM in two installments i.e. Rs.25,000/- each at 19.05 PM and 19.06 PM Transaction Slip duly attested by Bank Authorities is available with the enquiry report.
Rs.75,000/- from his landlord namely Sh. Surender Kumar.
Rs.25,000/- from his friend Mr. Tanzim.
2. Thereafter, the ACP, New Friends Colony conducted a fact finding enquiry by recording the statements of all the witnesses. He submitted his Annexure A-7 report dated 28.04.2010 concluding therein that all those four constables conspired together to extort money from complainant taking the plea that complainant had cheated Sadakat. Accordingly, a case FIR No 111/10, dated 28.04.2010 u/s 384/34 IPC PS New Friends Colony has been registered against them. For the aforesaid alleged misconduct, they have also placed him under suspension, vide DD No.31 dated 26.04.2010 PS NFC read with Office Order No 7704-20/HAP/SED (P-1) dated 30.04.2010, pending departmental enquiry.
3. Thereafter, vide Annexure A-6 Memo dated nil, the applicants were served with written Summary of Allegations holding that the malpractices in which they have indulged themselves amounted to gross misconduct and dereliction in the discharge of their official duty and render them liable for departmental action under the provisions of the 1980 Rules and Section 21 of the Delhi Police Act, 1978. Again vide Annexure A-1 order dated 13.05.2010, the disciplinary authority appointed the enquiry officer to hold the proceedings on a day to day basis. The applicants made individual representations (Annexure A-8 dated 16.08.2010) against the aforesaid decision of the disciplinary authority stating that the initiation of a parallel DE while criminal case is pending at any stage is in violation of provisions of Rules 11 and 12 of the 1980 Rules. Therein, specific provisions to deal with the case of subordinates of Delhi Police who are facing criminal trial have been given. According to those rules, there are no provisions to conduct a regular DE parallel to the criminal case/trial in any manner. Further, SO No. 125/2008 has no power to supersede the provisions of 1980 Rules. Moreover, in sub-para (ii) of Para 10 of the said SO, it has been provided that 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. However, the disciplinary authority vide Annexure A-2 order dated 19.08.2010 informed the applicants that Para 10 was incorporated in SO 125/2008 after considering the judgment of the Apex Court in Capt M. Paul Anthony Vs. Bharat Gold Mines Limited (AIR 1999 SC 1416) wherein five parameters have been fixed. The disciplinary authority has further observed that in the case of Kendriya Vidyalaya Sangathan & Ors. Vs. T. Srinivas (AIR 2004 SC 4127), the Apex Court held that there should be no stay of parallel departmental enquiry because of the consideration of the seriousness of charges which pertain to acceptance of illegal gratification and the desirability of retaining the employee in service in spite of such serious charges levelled against him even though criminal trial is pending on the same misconduct.
4. The applicants have challenged the aforesaid orders of the disciplinary authority and para 10 of SO 125/2008 on the ground that the respondents are prevented from holding any departmental enquiry against them during the pendency of the criminal case in view of the provisions contained in Rule 15 (2) of the 1980 Rules which is as under:
15. Preliminary enquiries.
(2) In cases in which a preliminary enquiry discloses the commission of a cognizable offence by a police officer of subordinate rank in his official relations with the public, departmental enquiry shall be ordered after obtained prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held.
5. According to the learned counsel for the applicants Shri Ajesh Luthra, if a preliminary enquiry has been conducted and the report discloses commission of cognizable offence, it is for the Additional Commissioner of Police to decide as to whether a criminal case should be registered and investigated or a departmental enquiry should be held in the matter. Once the Additional Commissioner of Police has decided to register a criminal case against the police officer, no departmental enquiry can be held simultaneously. Hence, the impugned order dated 13.05.2010 to hold a departmental enquiry against the applicants under the provisions of the 1980 Rules is illegal and wrong.
6. In this regard, he has relied upon a judgment of the Apex Court in Vijay Singh Vs. Union of India & Ors. (2007 (2) SCC (L&S) 664), the relevant portion of which is as under:
6. A reading of Rule 15(1)&(2) together and the language employed therein clearly discloses that a preliminary enquiry is held only in cases of allegation, which is of weak character and, therefore, a preliminary enquiry is to be held to establish the nature of default and identity of defaulter; to collect the prosecution evidence; to judge quantum of default and to bring relevant documents on record to facilitate a regular departmental enquiry. In cases, where specific information is available, a preliminary enquiry is not necessary and a departmental enquiry may be ordered by the disciplinary authority straightaway. It is because of this reason sub-rule 2 of Rule 15 is couched in such a way as a defence to the delinquent officer. The Additional Commissioner of Police being higher in hierarchy next to DGP, the requirement of his approval is mandatory, so that the delinquent officer is not prejudiced or harassed unnecessarily in a departmental enquiry. Such approval, if any, must also be accorded after due application of mind. It is a case of violation of mandatory provisions of law. Therefore, the appeal must succeed. The appellant was dismissed by an order dated 21.1.1998 preceded by an enquiry. The order of dismissal is set aside. The appellant shall be re-instated forthwith. The orders of the Appellate Authority, the Revisional Authority and the High Court are set aside.
7. Shri Luthra has also relied upon a Full Bench order of this Tribunal in OA 94/2007 decided on 24.04.2008 HC Rohtash Singh Vs. Govt. of NCT of Delhi & Ors. wherein the aforesaid judgment of the Apex Court in Vijay Singh (supra) has been considered and observed that before framing the charge against Vijay Singh, a preliminary enquiry was conducted and thereafter a regular departmental enquiry was held against him and he was dismissed from service. The challenge against the dismissal order in the case was the alleged violation of Rule 15 (2) of the 1980 Rules. It was urged that Rule 15 (2) mandates that in a case in which a preliminary enquiry disclosed the commission of a cognizable offence, the departmental enquiry shall be ordered after obtaining prior approval of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. It was further urged that since the disciplinary authority has exercised its jurisdiction and acted beyond the statutory provisions, therefore, the entire enquiry was vitiated.
8. The learned counsel for the respondents Shri Amit Anand, on the other hand, submitted that in terms of Rule 15 (2) of the 1980 Rules, there is no prohibition in holding a departmental enquiry even after the Additional Commissioner of Police has ordered for registration of a criminal case against a police officer. In this regard, he has relied upon SO 125/2008 issued by the Delhi Police wherein it has been held that in all cases where police officers are facing criminal proceedings especially under POC Act or case where POC, moral turpitude is involved, departmental proceedings can also be initiated simultaneously and should not be kept/held in abeyance due to pendency of such criminal proceedings, even if evidence in both the proceedings may be the same. The learned counsel has also relied upon the another Full Bench decision of this Tribunal in OA 2816/2008 Sukhdev Singh & Anr. Vs. Govt. of NCT of Delhi & Ors., decided on 18.02.2011 in which the provisions contained in Rule 15 (2) of 1980 Rules and the vires of SO No. 125/2008 were considered. Insofar as Rule 15 (2) is concerned, the Full Bench observed that the said provision deals with such preliminary enquiries which may disclose commission of a cognizable offence by a police officer of subordinate rank. The provision is applicable only as regards offence which is cognizable having been committed by a subordinate rank in his official relations with the public. In that case only, prior approval is required of the Additional Commissioner of Police concerned as to whether a criminal case should be registered and investigated or a departmental enquiry should be held. It was also observed by the said Full bench that in the earlier Full Bench in HC Rohtash Singh (supra), it has already been held that the provisions of Rule 15 (2) do not bar simultaneous proceedings. The Full Bench has also analyzed the provisions contained in Rules 11 and 12 of the 1980 Rules and held that Provisions of Rules 11,12 and 15, in our considered view, contain no express or implied bar for holding simultaneous criminal and departmental proceedings. The relevant part of the said judgment is as under:
5. Provisions of rules 11, 12 and 15, in our considered view, contain no express or implied bar for holding simultaneous criminal and departmental proceedings. Having held so, the only problem that still stares everyone is that if the criminal and departmental proceedings are held simultaneously, and if the departmental proceedings may culminate before the verdict is announced in the criminal proceedings, and in case where the subordinate rank is held guilty in departmental proceedings and is acquitted in the criminal case, and it is a case of clean acquittal, and is not on any of the grounds as have been mentioned in rule 12, and, therefore, departmental proceedings may not be permissible, how the situation shall have to be tackled. A subordinate rank can urge for putting the departmental proceedings on hold by saying that such proceedings are not competent, if his acquittal may be clean and none of the grounds may be available for which he can be put to a departmental enquiry, what shall happen to the order of punishment that may have already been passed sequel to the departmental proceedings. It is urged by the learned counsel representing the applicants that there is a possibility of clean acquittal and in such a situation when there may be a bar for departmental proceedings, the same need to be put on hold. We have pondered over the issue and after giving our serious thoughts to the contentions raised by the learned counsel as noted above, find that once there is no bar for holding simultaneous criminal and departmental proceedings, the departmental proceedings cannot be put on hold, even though some solution to this problem has to be found out. What clearly emerges from the provisions contained in rule 11 is that when the acquittal is clean, like it is not on technical grounds etc., no departmental proceedings would be held when the same may not have commenced earlier, but where an order in departmental proceedings may have preceded the judgment of acquittal in the criminal case and in the departmental proceedings the subordinate rank may have been found guilty, the departmental proceedings shall have to be re-visited, as that is how only the provisions of rule 11 can be read harmoniously with the settled law on the issue. Provisions of rule 11 are peculiar to subordinate ranks in Delhi Police governed by the Rules of 1980, but the situation as covered under rule 11 has been a matter of debate and would be covered by judicial precedents. In Capt. M. Paul Anthony v Bharat Gold Mines Ltd. [(1999) 3 SCC 679], where also the question was as to whether departmental proceedings and the proceedings in the criminal case launched on the basis of same set of facts can be continued simultaneously, in para 34 the Supreme Court held as under:
34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to the proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. In G. M. Tank v State of Gujarat & others [(2006) 5 SCC 446], the Supreme Court while taking the entire case law into consideration, including its judgment in Capt. M. Paul Anthony (supra), held that though the finding recorded in a domestic enquiry may have been found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging his dismissal, the same requires to be taken note of. The facts of the case aforesaid reveal that the employee, sequel to a departmental enquiry was found guilty of the charge and vide order dated 21.10.1982 was dismissed from service as punishment. The order of dismissal was confirmed in a writ petition filed by him before the High Court, both by the learned single Judge and the Division Bench. Aggrieved, he filed an appeal. It is during pendency of the proceedings before the High Court, it appears, that he was honourably acquitted in the criminal proceedings vide order dated 30.1.2002, and even though he brought this fact to the notice of the Honble High Court, yet, as mentioned above, his plea did not find favour either with the single Judge or the Division Bench of the High Court. As mentioned above, while taking into consideration the entire case law on the issue, the judicial pronouncement of acquittal of the employee which was honourable, was given precedence over the departmental proceedings. The appeal preferred by the employee in the Supreme Court was allowed. The observation that may be relevant while allowing the appeal, read as follows:
31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.
6. From the discussion as made above, we are of the view that there is no difficulty if the employer may proceed only criminally against an employee. In that case, departmental proceedings may be held or not, the field is absolutely covered under rules 11 and 12 of the Rules of 1980. The difficulty will arise only in case, the order of punishment in departmental proceedings is earlier to the order passed by the criminal court, and that too when the verdict of the criminal court is that of acquittal and the circumstances are such as envisaged in rule 12 that no departmental enquiry can be held. In such a situation, as mentioned above, we are of the view that since a judicial order takes precedence over an order passed in departmental proceedings, it is the judicial verdict which has to be given effect, and, therefore, in that situation the order passed in departmental proceedings shall have to be re-visited and changed, modified or set at naught, as per the judicial verdict. This is the only way that appears to us to reconcile the situation which may arise only in the circumstances as mentioned above. This course to be adopted otherwise also appears to be one which will advance the cause of justice. It may be recalled that as per provisions contained in rule 11 of the Rules of 1980, a subordinate rank on his conviction can be dismissed or removed from service. Of course, as mentioned above, the result of the appeal that he may have filed shall have to be awaited. Once, he is acquitted in a second appeal or revision filed by him, he has to be reinstated, meaning thereby, if the order of his dismissal or removal from service has already been passed, the same has to be set at naught. Once, an order of dismissal or removal passed on conviction of the subordinate rank has to be reviewed on his acquittal later in point of time, we find no reason as to why the same procedure cannot be adopted in a case where the subordinate rank may have been held guilty of the charges framed against him, but later acquitted by the criminal court. We are conscious that as regards the first situation as mentioned above, the rules take care of it, whereas, for the situation in hand, the rules are silent, but since the settled law on the issue is that, rule or no rule, if on clean acquittal the order of punishment passed in departmental proceedings has to be re-visited or set at naught, why this provision cannot be read into the rules.
7. The Delhi Police, after judgment of the Honble Supreme Court in Capt. M. Paul Anthony (supra), issued Standing Order No.125/2008. Para 10 thereof specifically deals with parallel departmental proceedings when court cases are pending. After quoting from the judgment aforesaid and while taking into consideration another judgment of the Supreme Court in Kendriya Vidyalaya Sangathan & others v T. Srinivas [AIR 2004 SC 4127], it has been ordered that in all cases where police officers may be facing criminal proceedings, especially under Prevention of Corruption Act or where moral turpitude is involved, departmental proceedings can also be initiated simultaneously and the same should not be kept/held in abeyance due to pendency of such criminal proceedings, even if evidence in both the proceedings may be the same. The said Standing Order has been passed in consonance with the settled law on the situation. However, as mentioned above, when a subordinate rank may earn a clean acquittal in criminal proceedings, the order, if has already been passed in departmental proceedings inflicting the subordinate with a penalty, shall have to be re-visited.
8. We may mention, before we may part with this order, that an ideal situation would be where the allegations against the subordinate rank are such which may constitute a cognizable offence, he should be criminally tried and the departmental proceedings should await the judicial verdict, but it is well neigh impossible to achieve this ideal situation, in view of the prevailing circumstances in the country. Experience shows that it takes years and years before a criminal trial may culminate into an order of conviction and sentence or acquittal. Cases are not lacking where subordinate ranks in police are facing serious criminal charges, like bribery, dacoity, rape and even murder. When heinous offences may be committed by those who may be in police and can be well said to be organized criminals, even though a few of them, it is always desirable if their delinquency is proved, that they should be shown the exit door as early as possible. Their continuance in police force will demoralize the entire rank and file in the police organization and would also shatter the morale and confidence of public at large. If the verdict in the criminal trial is to be awaited, which, as mentioned above, in a given case, may take even a decade or two, it will totally demoralize the public at large. Further, in our view, if the subordinate rank may be innocent, it is better for him as well that he steers clear of the charges framed against him in the departmental proceedings, and the earlier it is done, the better it will be for him, as otherwise, he would be looked down upon not only by the society, but, in a given case, even by his own family. It may be in an absolutely small percentage of cases where the subordinate rank may be held guilty in departmental proceedings, and yet are honourably acquitted by the criminal court. Such persons can well be taken care of by reinstating them in service by setting at naught the orders passed in departmental proceedings by reinstating them and giving them all that may be due under rules. Corruption is eating into the very vitals of the society. We need not refer to judicial precedents where this aspect has been emphasized, as that would unnecessarily burden the judgment. Such persons who may be a burden to the nation cannot be allowed to continue in service and that too such service as police. There are adequate remedies available for them, in cases, however, they are honourably acquitted, by restoring them their status by reinstating them and giving them all consequential benefits.
9. In view of the discussion made above, we hold that there is no bar, express of implied, in the Rules of 1980 for holding simultaneous criminal and departmental proceedings. However, in case departmental proceedings may culminate into an order of punishment earlier in point of time than that of the verdict in criminal case, and the acquittal is such that departmental proceedings cannot be held for the reasons as mentioned in rule 12, the order of punishment shall be re-visited. The judicial verdict would have precedence over decision in departmental proceedings and the subordinate rank would be restored to his status with consequential reliefs.
10. In view of our findings on the first issue, there would be no need to put on hold the final orders in departmental proceedings awaiting the decision of the criminal court.
11. The questions as referred to the Full Bench are answered as above. Registry shall list this matter for hearing before the Division Bench for any other submissions that may be made by the counsel representing the applicants.
9. The learned counsel for the applicant Shri Luthra has, however, submitted that the Full Bench in HC Rohtash Singhs case (supra) has not come to any conclusion that provisions of Rule 15 (2) do not bar even though it was so stated in Sukhdev Singhs case (supra).
10. We have considered the submissions made by the learned counsel for the parties. The scope of Rule 15 (2) has been considered in detail in the aforesaid two cases of HC Rohtash Singh (supra) and Sukhdev Singh (supra), decided by the Full Bench on 24.04.2008 and 18.02.2011 respectively. SO No. 125/2008 was issued in the light of the judgment of the Apex Court in the case of Capt. M. Paul Anthony Vs Bharat Gold Mines Ltd. (1999 (3) SCC 679) wherein five broad parameters to deal with cases whether departmental proceedings and criminal proceedings on identical set of facts can be continued simultaneously have been laid down. They are as under:
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 honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
11. Later, the Apex Court in Kendriya Vidyalaya Sangathans case (supra), held that there is no bar in conducting parallel departmental and criminal proceedings. The relevant part of the said judgment reads as under:
6. Being aggrieved by the said order of the Tribunal, the appellants herein, as stated above, preferred a writ petition be-fore the High Court. The High Court by the impugned order agreed with the Tribunal that the disciplinary proceedings should be stayed till the criminal trial was over and the request of the appellant, at least to per-mit it to proceed with the departmental en-quiry in regard to the charge No, 3 which was independent of charges 1 and 2 was rejected on the ground that the said charge No. 3 is inter-connected with the other two charges. It is against the said order of the High Court confirming the order of the Tri-bunal, the appellants are before us in this appeal.
7. Mr. Rakesh K. Khanna, learned coun-sel appearing for the appellants submitted that it is now a well settled principle in law that merely because a criminal trial is pend-ing a departmental enquiry involving the very same charges as is involved in the crimi-nal proceedings is not barred or cannot be initiated, therefore, the Courts below erred in holding otherwise. He also submitted that at least in regard to charge No. 3 which is not a subject-matter of the trial the depart-ment ought to have been permitted to proceed with the departmental enquiry. In sup-port of his contention, the learned counsel placed reliance on two judgments of this Court in the case of State of Rajasthan v. B. K. Meena and others (1996 (6) SCC 417) and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another (1999 (3) SCC 679).
8. Shri P. S. Narasimha, learned coun-sel appearing for the respondent contended that the charges before the Criminal Court and before the Departmental Enquiry Committee being identical the appellants could not have initiated a parallel proceedings which would prejudice the defence of the appellants. He submitted the facts and the material that would be relied upon in the departmental enquiry would be the same upon which the prosecuting agency before a Criminal Court would also rely upon, hence, the respondent will be compelled to disclose his defence in advance which would seriously prejudice his case before the Crimi-nal Court. The learned counsel also relied upon the very same judgments on which reliance was placed by the learned counsel for the appellant in support of his conten-tion, reference to which has been made therein above.
9. A reading of M. Paul Anthony's case (supra) it is noted that there is consensus of judicial opinion on the basic principle that proceedings in a crimi-nal case and departmental pro-ceedings can go on simultaneously, however this Court noticed that certain exceptions have been carved out to the said basic prin-ciple.
10. In State of Rajasthan v. B. K. Meena and others (supra), this Court held:
"The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceed-ings 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. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability' 'desirabil-ity.' or propriety, as the case may be of stay-ing the departmental enquiry has to be determined in each case taking into consid-eration all the facts and circumstances of the case. 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 Supreme Court's decisions."
(Emphasis supplied)
11. 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 cir-cumstances of the case. This judgment also lays down that the stay of departmental pro-ceedings cannot be and should not be a matter of course.
12. In the instant case, from the order of the Tribunal as also from the impugned or-der 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, reading of the two im-pugned orders indicates that both the Tri-bunal 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 ille-gal gratification and the desirability of con-tinuing the appellant in service in spite of such serious charges levelled against him. This Court in the said case of State of Rajasthan (supra) has further observed that the approach and the objective in the crimi-nal proceedings and the disciplinary pro-ceedings 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 of-fences 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 State of Rajasthan the facts which seems to be almost similar to the facts of this case held that the Tribunal fell in error in staying the disciplinary pro-ceedings.
13. We think the above ratio of law laid down by this Court applies aptly to the facts of the present case also. It is also to be noted that in Capt. M. Paul Anthony case (supra), this Court has accepted the principle laid down in Rajasthan case (supra).
14. As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultane-ously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases.
15. 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 back-ground it is not necessary for us to go into second question whether at least charge No. 3 by itself could have been permitted to be decided in the departmental enquiry as con-tended alternatively by the learned counsel for the appellant.
16. For the reasons stated above, this appeal succeeds. The impugned order of the Tribunal and the High Court are set aside. The appeal is allowed.
12. In view of the above position of law as settled by the Apex Court and also in view of the findings of the Full Bench of this Tribunal in the cases of HC Rohtash Singh (supra) and Sukhdev Singh (supra) regarding the scope of Rule 15 (2) of the 1980 rules,, we are not prepared to take a different view. It has been clearly held by the Full Bench in the case of Sukhdev Singh (supra) that the provisions of Rule 15 (2) do not bar simultaneous criminal and departmental proceedings against the police officer on the same set of charges within the parameters fixed by the Apex Court in M. Paul Anthonys case (supra) as well as in Kendriya Vidyalaya Sangathans case (supra). Resultantly, this O.A. is dismissed. There shall be no order as to costs.
( Veena Chhotray ) ( G. George Paracken ) Member (A) Member (J) SRD