Central Administrative Tribunal - Delhi
Ms. Ruma Das vs Kendriya Vidalaya Sangathan on 4 April, 2011
Central Administrative Tribunal Principal Bench OA No.3306/2010 New Delhi, this the 4th day of April, 2011 Honble Mrs. Meera Chhibber, Member (J) Honble Dr.Ramesh Chandra Panda, Member (A) Ms. Ruma Das, W/o Sh. Sushanta Kumar Das, Age: 53 years, R/o ?-6, 2nd Floor, Rajouri Garden, New Delhi (Working as Vice Principal, 2nd Shift, KV No.3, Delhi Cantt.). Applicant (By Advocate : Shri R.V. Sinha with Shri K.M. Singh) Versus 1. Kendriya Vidalaya Sangathan, Through the Commissioner, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. 2. The Joint Commissioner (Admn.), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi. Respondents (By Advocate : Shri U.N. Singh) ORDER
Dr. Ramesh Chandra Panda, Member (A) This is the 3rd round of litigation raised by the Applicant mainly on the grievances of the Applicant that parallel departmental inquiry initiated due to Charge Memorandum dated 13.8.2007 (Annexure-A1) should be stayed till the completion of the criminal proceedings which has been registered against her on the same set of allegations. Her first visit to the Tribunal was in the OA No.568/2008 which was decided on 5.2.2009. The Tribunal in the said OA considered the facts that the criminal investigation against her was pending and FIR was lodged against her a year back which set the law in motion and the charge-sheet was not laid. In such circumstances, the question arose whether the criminal case involved complicated questions of law and fact which would come to light only after the investigation was completed and charge-sheet was filed. It was further, observed that the Tribunal would not be in a position to appreciate the contentions raised by the counsel for Applicant. The Tribunal observed that when the Honble Supreme court went t0o the extent of saying that when the criminal case did not proceed or its disposal was being unduly delayed, departmental proceeding, even if were stayed on account of the pendency of the criminal case should be resumed. Having taken into the consideration the contentions raised by the counsel for the Respondents who stated that more than 2 = years had elapsed since FIR was registered and charge-sheet was not then laid and assuming for argument sake that stay was granted, the proceedings should also be resumed. Having heard both the parties the Tribunal then decided that it was not the stage when the Tribunal should appreciate whether the Applicant had made out a case for grant of stay of the departmental proceedings and accordingly, the OA was dismissed as premature.
2. The second round of litigation started with the filing of OA No.966/2010 which was withdrawn by the Applicant with the liberty to take all the points raised therein before the Disciplinary Authority and accordingly, the liberty was granted to the Applicant while dismissing the Application as withdrawn. In this background, the Applicant submitted her representation dated 07.04.2010 (Annexure-A8) to the Respondents who on consideration of the same did not agree to keep in abeyance the departmental proceeding. Therefore, the request for deferment of the departmental inquiry proceedings initiated against the Applicant was not acceded to vide letter dated 13.4.2010 (Annexure-A Colly). She was also requested to cooperate with the inquiry proceeding in the letter dated 5.8.2010. Feeling aggrieved by the said orders of the Respondents dated 5.8.2010 and 13.4.2010 (Annexure-A Colly), the Applicant is before the Tribunal again in the present OA praying to :-
(a) declare the action of the respondents in proceeding against the applicant in the departmental enquiry vide Memorandum F.No.5-10/07-KVS(Vig) dated 13.8.2007 (Annexure-A-1 Impugned) which is on the same set of allegations in the charge sheet u/s 173 Cr. PC filed in the Court of Special Judge, Tis Hazari Court, Delhi in FIR No. RC DAI 2006-A-0024 dated 29.6.2006 as illegal and arbitrary.
direct the respondents to stay/defer the aforesaid disciplinary proceedings against the applicant vide Memorandum F.No.5-10/07-KVS(Vig) dated 13.8.2007 (Annexure-A-1 Impugned) till conclusion of the criminal prosecution in the aforesaid FIR and/or at least till conclusion of the adducing of evidences in the criminal trial in the said FIR;
Order cost of the proceedings against the respondents and in favour of the Applicant.
May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.
3. Brief factual matrix of the Applicants case would reveal that while the Applicant was working as Vice Principal and Incharge Principal of Kendriya Vidyalaya at Sector-22, Rohini, Delhi, during the period 2003-04 was entrusted the responsibility of construction of 12 temporary class rooms along with toilet for newly opened Kendriya Vidyalaya. It is alleged that she failed to follow the norms of purchase and construction for procuring the raw material and labour rate contract involving an estimated cost of `37,00,000/-. Another set of allegation was that the Applicant during the said period failed to follow the norms of purchase so much so that she got the quotations for supply of materials and labour contract from the firms which were inter related and even did not have legal existence. Besides, she was charged with the allegation of excess payment to the contractor and supplier causing heavy financial losses to the Kendriya Vidyalaya. She also failed to discharge her responsibility , as she did not constitute a proper Supervision Committee to supervise the procurement of raw material for construction of class rooms. The substandard material used by contractors resulted in extensive damage of newly constructed building within a short span of time. Further, the bills raised by the construction agencies were not verified either by members of Purchase Committee or by the Supervision Committee under her charge. However, the inspection report dated 22.3.2006 revealed that the building was structurally unsafe and beyond repair. Another article of charge was that she failed to follow the normal prescribed purchase procedure and did not invite sealed quotations from the reputed firms dealing in particular class of goods but invited quotation from general order suppliers or commission agents who act as intermediators. On the above set of charges, the Applicant was served a charge memo dated 13.08.2007. It is stated that she was also proceeded against on the same set of allegations in a criminal case where FIR was filed and the charge-sheet Under Section 173 Cr.P.C. was filed in the Court of Special Judge, Tis Hazari Court, Delhi in FIR No.RC DAI 2006-A-0024 dated 29.6.2006. It is, therefore, alleged by the Applicant that she would be prejudiced in her defence in the criminal trial if all the grounds are indicated by her in the Departmental Inquiry. Therefore, she sought the intervention of this Tribunal to issue directions to the Respondents to defer the said Departmental Disciplinary Proceedings till the criminal trial or atleast till the stage of adducing evidences are complete therein.
4. Shri R.V.Sinha, learned counsel for the Applicant submitted that the Applicant would be prejudiced if the Departmental Inquiry would be continued while the criminal trial was pending in the Trial Court. His contention is that on the same sets of charges, same sets of documents, same witnesses and on the same sets of facts, both the criminal and departmental proceedings are going on which involve in the complicated questions of law. In case the Applicant discloses evidence in support of her case in the disciplinary proceedings to prove her innocence or counter the allegations levelled against her, prior to her defence evidence in the criminal case, the Trial proceedings would result irreparable loss, and hardship against her. Shri Sinha placed his reliance on the judgment of Honble Supreme Court in the case of Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd and Anr. (JT-1999-2-SC 456) to submit that if the departmental proceedings and the criminal case having been based on identical and similar set of facts and 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 proceeding till the conclusion of the criminal case. It is urged that it is not the case of the Respondents that the criminal case is lingering on for a long period and no reason can be attributed to the Applicant if there is any delay. One more ground is raised to submit that Assistant Commissioner, KVS who is the Chairman of the concerned Kendriya Vidyalaya, has not been proceeded against in criminal and departmental proceedigns. Shri Sinha also relied on the judgment of Honble Apex Court in the case of Kusheshwar Dubey Versus Bharat Coking Coal Ltd. reported in 1998(4) SCC 319. He, therefore, pleads that OA should be allowed with the directions to the Respondents not to proceed with the Departmental Proceeding till the criminal Trial is completed.
5. On the other hand, Shri U.N. Singh, learned counsel appearing on behalf of Respondents submits that the allegations against the Applicant might be same but the set of charges framed against the Applicant in the Departmental Proceedings are different from those which have been filed by the Investigating Authorities in the criminal case before the Trial Court. He, further submits that the criminal proceeding has been initiated in 2006 and would take lot more time to come to the conclusion. It is also contended that in the case of Kendriya Vidyalaya Sangathan & Others Versus T. Srinivas [(2004) 7 SCC 442], the Honble Supreme Court has held that initiation of Departmental Inquiry during pendency of Criminal Trial involving identical facts and charges, the stay of Departmental Proceedings by this Tribunal or by the Honble High Court shall not be passed as matter of course. He submits that the advisability, desirability or propriety, as the case may be, in regard to a Departmental Inquiry must be determining factors, taking into consideration all the facts and circumstances of the case. If there was a distinction between the Departmental Proceeding and criminal proceedings, the Tribunal would not be in a position to grant stay of the Departmental Proceedings. He, further submits that documents relied on and the witnesses to be examined in both departmental and criminal proceedings may be same but the nature and the extent of evidence in the criminal case is different from the departmental case. Therefore, he submits that the OA should be dismissed and the Departmental Proceedings should be continued against the Applicant.
6. We heard the above rival contentions, and with the assistance of the counsels very carefully perused the pleadings and the judgments relied upon by the parties. The question arising in the case and coming up for our consideration and determination is in narrow compass viz : whether the parallel department inquiry against the Applicant while criminal case is pending against him is fit case to be stayed or kept in abeyance till the criminal case is completed?
7. Now we may refer various judgments on the issue of parallel departmental inquiry. The Honble Supreme Court has developed the law relating to the above issue We would like to go through the important judgments. It is trite in law that in case of moral turpitude or corruption by a Government servant, the parallel departmental enquiry can take place as standard of proof in both the proceedings being distinct and different. The decisions of the Apex Court in State Punjab & Others Vs. Prem Sarup, [(2008) 12 SCC 522] and in Union of India Vs. Narender Singh, [(2006) 4 SCC 265] come to our view to note that it is open for the employer to initiate disciplinary proceedings despite he has been acquitted on similar charges. It is apt to appreciate that a criminal case takes longer period to complete, waiting for years to reach the final decision, but the departmental enquiry can be sooner.
8. The Honble Supreme Court in Delhi Cloth and General Mills Ltd. Versus Kushal Bhan, [AIR 1960 SC 806] considered an issue regarding stay of the enquiry pending trial and observed that the principles of natural justice would not require that an employer must wait for the decision of the Criminal Trial Court before taking disciplinary action against an employee. If a case is of a grave nature, involving questions of fact and law, which are not simple, it would be advisable for the employer to await the decision of the Criminal Trial Court. However, it was also observed that no hard and fast straight jacket formula could be evolved.
9. In Kusheshwar Dubey versus Bharat Coking Coal Ltd. [AIR 1988 SC 2118] Honourable Supreme Court considered its earlier judgments taking into account for and against the initiation and continuance of the parallel departmental enquiry. We would refer to both stands briefly. One set of judgments stipulate that the disciplinary action can be stayed till the criminal case was over and the relied upon decisions of Honourable Supreme Court are (1) Delhi Cloth and General Mills Ltd. versus Kushal Bhan, (AIR 1960 SC 806) and (2) Tata Oil Mills Co. Ltd. versus Its Workmen,(AIR 1965 SC 155). There are decisions of different High Courts also in support of this legal stand. All these decisions indicated that fair play required the postponing of the disciplinary action till the criminal trial reaches conclusion. We also note that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken one by way of the disciplinary proceeding and the other in the criminal court. Such decisions have been taken by the Honourable Apex Court in Jang Bahadur Singh Versus Baij Nath Tiwari (AIR 1969 SC 30). Honourable Supreme Court observed as follows:-
.while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.
10. In State of Rajasthan Versus B.K. Meena, [(1996) 6 SCC 417], the Honble Apex Court laid down the guidelines to the extent that it is the interest of the administration and good governance, in a simultaneous proceedings to conclude the disciplinary proceedings but where the charge is grave, involving complicated questions of law and facts, it is advisable not to indefinitely stay the proceedings, for which facts and circumstances of each case would be the determining factor. In the matter of parallel departmental enquiry the entire case law was reviewed by the Honble Supreme Court in B.K. Meenas case, [ supra] wherein following ratio was laid down :
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 situation, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings 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. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, advisability, desirability or propriety, as the case may be has to be determined in each case taking in to consideration all the facts and circumstances of the case. The ground indicated in D.C.M., AIR 1960 SC 806 and Tata Oil Mills, AIR 1965 SC 155 is also not an 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 considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite 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 undesirable elements are thrown out and any charge of misdemeanor is inquired in to 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. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e, for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. 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 of the various principles laid down in the decisions referred to above.
11. Honble Apex Court taking note of its above judgment in B.K. Meenas case (supra) laid down 5 conclusions in the case of M. Paul Anthony Versus Bharat Gold Mines Ltd. [1999-3-SCC679]. We are the relevant parts of the judgment viz in paragraphs 20, 21 and 35 :-
20. This decision has gone two steps further to the earlier decisions by providing ;
1. The advisability, desirability or propriety of staying the departmental proceedings go in to the scales while judging the advisability or desirability of staying the disciplinary proceedings merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.
2. One of the contending considerations would be that the disciplinary enquiry cannot and should not be delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings..
21. In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corpn. V. Mohd. Yousuf Miyan, (1997) 2 SCC 699 : AIR 1997 SC 2232, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of the grave nature involving complicated questions of fact and law. . . .
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.
12. The Honourable Supreme Court in the case of NOIDA Entrepreneur Association Versus NOIDA and the others [JT 2001 (2) SC 620] clearly stipulated that the standard of proof and nature of evidence in the departmental inquiry is not the same as in criminal case. The ratio laid by the Honble Apex Court are as follows :-
The purpose of departmental enquiry and of prosecutionis two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offended 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 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 a 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 of 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.
13. Guided by the above settled position in law, we may examine the facts of the case. It is noticed that the FIR was registered on 29.6.2006 and the chargesheet has been filed before the Trial Court on 30.09.2008 by the Inspector of Police, CBI, ACB, New Delhi. During the hearing, we were informed that the Trial Court would be framing charges shortly. From June, 2006 to date, it has taken more than 4 years and from the date of filing of charge by the Investigating Agency (CBI), it has been more than 2 years to frame formal charge by the Trial Court. We are not expressing any opinion on the time taken by the Trial court. However, we note that normally the criminal case would take more time.
14. The criminal case against the Applicant is on her alleged violation of the law of the land by Commission of alleged offence punishable under IPC and POC. But the departmental proceeding has been initiated against the Applicant for alleged misconduct under Rule 14 of CCS (CCA) Rules, 1965 to maintain discipline in the organization. We, therefore, find no reasons as to why the departmental proceeding should not be continued. On the other hand, we feel that the departmental proceeding should not only be continued but also expeditiously completed.
15. We find from the pleadings that there are no complicated questions of law or fact involved in the present case. It is a very simple case of Applicants involvement in alleged criminal offence causing financial loss to Kendriry Vidyalaya in the criminal case. In departmental proceedings, the charges are different which are under the CCS (CCA) Rules. In the criminal case, alleged offences of criminal nature under Section 120 and 420 of IPC and Section 13(2) and 13(1) (d) of Prevention of Corruption Act. The levels of evidence required in the proceedings between the Departmental and Criminal Proceedings are different. The preponderance of probability is sufficient, as per the guiding principle in case of Departmental Proceedings whereas the magnitude of evidence is required to prove the prosecution case to convince the Trial Court beyond reasonable doubt.
16. It is noted that if the Applicant is not guilty of the misconduct in the departmental proceedings and the same gets completed well in advance before the Trial is completed in the criminal case, she would be in better footing to prove her innocence before the Trial Court. At the same time, we note that in case the Applicant is found to be guilty of the alleged misconduct in the Departmental Proceedings on the allegations which have been levelled against her, the Respondents cannot keep quiet but to take action to complete the case in a timely manner. Such expeditious decision taken by the Competent Authority should set an example to others not to go into the similar nature of misconduct in future. It is apt for us to cite the observations of Honble Apex Court in the case of K.C. Sareen Versus C.B.I., Chandigarh [2001 (6) SCC 584] which are more relevant to the case at hand and the same reads as follows :-
Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity.
17. In view of our above discussion and guided by well settled position in law on the issue, we come to the considered conclusion that the Applicant has not made out a case calling for our intervention. We, therefore, find that the orders passed by the Respondents dated 13.08.2007 rejecting the Applicants claim for stay of the Departmental Proceedings till the completion of criminal trial is upheld as legally sustainable. We, therefore, hold that the departmental proceeding must be continued and expeditiously completed.
18. Resultantly, the OA being devoid of merits is dismissed leaving the parties to bear their respective costs.
( Dr. Ramesh Chandra Panda ) ( Mrs. Meera Chhibber )
Member (A) Member (J)
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