Central Administrative Tribunal - Delhi
Shri Rakesh Kumar vs The Union Of India Through on 12 April, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.3307/2011 Order reserved on : 30.03.2012 Order pronounced on: 12.04.2012 Honble Mr.Justice S.C. Sharma, Acting Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri Rakesh Kumar, S/o Shri O.P. Gupta, (IFS : 1972), R/o C-II/42, Safdarjung Development Area, New Delhi. Applicant (By advocate : Shri Mukul Sharma) Versus The Union of India Through The Foreign Secretary/ Secretary to the Ministry of External Affairs, South Block, Central Secretariat, New Delhi-110001. Respondent (By Advocate : Mrs. Priyanka Bhardwaj) ORDER Dr. Ramesh Chandra Panda, Member (A) :
Shri Rakesh Kumar, the applicant in the OA, is an Indian Foreign Service (IFS) Officer of 1972 batch. The instant OA is the 3rd round of litigation of the applicant mainly on his grievance against the parallel departmental inquiry initiated in the Charge Memorandum dated 01.04.2008 (Annexure-A1) and seeking the same to be kept in abeyance till the completion of the trial of the applicant in the Criminal Court on the Charge Sheet number 12/2007 dated 24.12.2007 filed by the Central Bureau of Investigation (CBI in short) to prosecute him for the offences under Section 120 B of IPC read with Section 420, 468 and 471 of the IPC and under Section 13(2) with Sub Section 13(1) (d) of the Prevention of Corruption Act, 1988 (POC Act), as both are based on same sets of facts, allegations, documents and witnesses.
2. His first visit to the Tribunal was in the OA No.1876/2008 which was decided on 22.12.2009. The Tribunal in the said OA considered the facts that the criminal investigation against him was pending and FIR was already lodged which set the law in motion. The impugned order dated 02.07.2008 was found to be unreasoned and non-speaking and the case was remanded back to the Disciplinary Authority for fresh decision on his representation in accordance with law after giving an opportunity of hearing to the applicant. It was inter alia directed not to take any action in the disciplinary case till the decision was taken on his representation. Vide an order dated 9.3.2010, the applicant was informed that his representation dated 13.5.2008 had been rejected. The respondents said order was based on the DOP&T OM No.11012/6/2007-Estt.A dated 1.8.2007. Feeling aggrieved, he challenged the said order in the OA No.2393/2010.
3. The second round of litigation started with the filing of the said OA No.2393/2010. The Tribunal decided the OA vide order dated 02.11.2010 wherein, while referring to the rejection order of the Competent Authority and setting aside the same, the Tribunal passed following directions :-
This cannot be considered to be a speaking order. It was expected that the Respondent would make an analysis of the facts of the case and the questions of law involved and then come to a conclusion that the disciplinary proceedings and the criminal trial could proceed simultaneously. We have seen that the facts in both the disciplinary enquiry as well as criminal trial are identical and have to be proved through the same witnesses and the documents. The order of the Respondent is perfunctory and there has been no application of mind in as much as there has been no analysis on the lines of the guidelines laid down by the Honourable Supreme Court in the above cited case.
5. In the light of the above observations the OA succeeds partly. The impugned order dated 09.03.2010 is quashed and set aside, with direction to the Respondent to reconsider the issue in the light of our observations above and pass a speaking order giving logical reasons for rejecting the representation of the Applicant to defer the disciplinary enquiry till the trial in the criminal case is over. This direction would be followed within eight weeks of the receipt of a certified copy of this order. No costs.
4. Pursuant to the above directions, the applicants representations were considered in their proper perspective and vide order dated 10.8.2011 his representation to keep the departmental proceedings in abeyance till the finalization of criminal trial was rejected. Assailing the said order, the applicant has instituted the instant OA under Section 19 of the Administrative Tribunal Act, 1985 with the following prayers :-
1. The applicant prays that in the interest of justice, and without prejudice to his right to pray for quashing of the above and Inquiry against him through appropriate proceedings, the Order Q/Vig/843/34/2007, Govt. of India, Ministry of External Affairs (Vigilance Unit) dated 10.08.2011, annexed herewith as Annexure-A be set aside or quashed and the Inquiry under the CCS (CCA) Rules, 1965 proposed against the applicant vide Memorandum no.Q/Vig/843/24/2007, Ministry of External Affairs (Vigilance Unit) Dated April 01, 2008, annexed herewith as Annexure A 4 be kept in abeyance, till the completion of the trial of the applicant by the Criminal Court on the Charge Sheet no.12 of 2007, dated 24.12.2007, annexed herewith as Annexure A-2 & 3 filed by the Central Bureau of Investigation to prosecute him for offences u/s 120 B IPC read with S. 420, 468 and 471 of the Indian Penal Code and u/s 13(2) read with sub-section 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences under the said Act;
2. The applicant further prays that the Annexure A-5 being the Order dated 02.07.2008, appointing the Presenting Officer and the Inquiry Officer be also quashed or set aside;
3. The applicant further prays that any other relief or order deserved by the applicant in the interest of justice may also be granted to or allowed in his favour.
5. Despite the notice issued and served on the respondents on 14.9.2011, when the case came up on 10.10.2011, no one appeared on behalf of the respondents, and considering the averments made in the application, the departmental enquiry was stayed. The above interim order has been continuing since then.
6. Before we dwell on the applicants relief(s) sought for, it is apt to state the factual matrix of the case. From the pleading, it would reveal that while he was working as Director General (DG in short), Indian Council for Cultural Relations (ICCR in short), New Delhi during the period from 19.8.2003 to 12.9.2005 on deputation from the Ministry of External Affairs (MEA), it was alleged that in March, 2005 Shri Shiv Kumar Sharma and Shri Hargulab Singh met him in his office and discussed about the empanelment of a Bhangra Group in the name of Shri Hargulab Singh. On 27.4.2005 Shri Shiv Kumar Sharma and two others met the applicant and paid him Rs.1,00,000/- for the empanelment of Punjab Folk Dance Group namely Mahek Punjab Di. As per the applicants instructions, they prepared a fake photo album, back dated press advertisement in local Punjab Weekly Manpreet Bulletin and fake certificates of various organizations in the name of the Group Mehak Punjab Di. They submitted all those to the applicant in May, 2005 and he consented for 3 persons of the Group to leave abroad. It is alleged that Shri Shiv Kumar Sharma asked Shri Hargulab Singh will collect the air fair from the genuine artists and Rs. 7.5 lakh each from the persons who will be left abroad. By end of July 2005, both of them met the applicant to expedite the empanelment of the group. In 2005, the empanelment Advisory Committee and Expert Sub-Committee were not existing as the tenure of these Committees had expired. However, the applicant promised Shri Shiv Kumar Sharma and Hargulab Singh that the said Group would be sent abroad before his repatriation from ICCR. In the meantime, Shri M.S. Grover, the then DDG (P) ICCR informed the applicant that there was no need for fresh empanelment as in some cases the empanelled artists had not been sponsored for performance abroad even after 10 years of their empanelment. The applicant was insistent to initiate the empanelment process. Accordingly, the Programme Officer AVR Section, ICCR submitted a proposal to extend the tenure of the Expert Sub-Committee for a period of one year, which was forwarded to the applicant by DDG (P) to get approval of the President of ICCR. However, the applicant did not take any decision but on his oral instruction the Expert Sub Committee for traditional Folk Dance, Music and Puppetry met on 2nd and 3rd August, 2005 at ICCR. Mehek Punjab Di proposal was assigned asterisk (*) treating the case as important. Shri M.S. Grover chaired the meeting. The applicant exercised undue influence on Shri Sunil Bhalla, the then Programme Officer, AVR and Ms. Kehashan Tyagi to ensure the empanelment of Mehak Punjab Di group, though its performance was not upto the mark. Shri M.S. Grover, the then DDG (P) and Chairman of the Expert Sub Committee submitted the minutes and the note dated 24.8.2005 which was replaced with another note dated 25.8.2005 of Shri R.M. Aggarwal. On 25.08.2005, the applicant approved the empanelment list on the note of Shri R.M. Aggarwal without getting the approval of the President, ICCR and violated the precedent followed by the ICCR. It is alleged that the applicant availed the hospitality of Shri Hargulab Singh and Shri Shiv Kumar Sharma at Ludhiana, and the visit though was private but was on the pretext of watching the performance of Mehek Punjab Di, created the same as official. On 1.9.2005, Mrs. Kehkarshan Tyagi, after collecting the empanelment letter of the Group on the direction of the applicant, and the applicant reached Ludhiana, where she personally delivered the said letter to Shri Hargulab Singh though officially, the said letter was dispatched on 9.9.2005, which was undelivered on 19.9.2005 to ICCR. It is further alleged that on 1.9.2005 the applicant, in exchange for the selection of the said Group, and availing the hospitality of Shri Hargulab Singh and Shri Shiv Kumar Sharma, sexually exploited Ms. Anju in Hotel Classic Retreat, Ludhiana. On 02.09.2005 they saw the performance of the Group and the applicant informed Ms. Kehkashan Tyagi that only those persons selected by Shri Shiv Kumar Sharma would be sent abroad. In the meantime, as the Balwinder Kaur @ Bawa was not selected as part of the Group selected by Shri Sharma, she threatened to produce two artists Ms. Anju and Ms.Neetu before the police who were sexually exploited by the applicant. Shri Sharma after discussion with the applicant included son and daughter-in-law of Balvinder Kaur in the Group on monetary consideration. On 4.9.2005, Shri Sharma after collection of amount, passports and partially filled application forms of the Group Members alleged to have carried Rs.25 lakhs for delivery to the applicant. Shri Sharma visited ICCR office on 5.9.2005 where partly filled applications were completed by Shri Sharma and Ms. Tyagi. A fake passport in the name of Satnam Singh was issued in favour of Sukhdeep Singh. On the directions of the applicant, Ms. Kehkashan Tyagi created a false requirement of the performance of Mehak Punjab Di in Germany on 14th and 15th September, 2005 by prevailing upon the officials of Indian Embassy at Berlin, Germany. It is alleged that there was no such requirement from the Indian Embassy for the purpose of said Group for the year 2005-2006. However, it is the applicant who took initiative to send a 15 Member Group of incompetent, inexperienced and untrained Punjabi folk dancer to Germany on the sponsorship of Government for the personal gains of the applicant and others. On 5.09.2005, the applicant sent a wrong information on the said group led by Shri Hargulab Singh to the Joint Secretary, Europe-I Division of MEA requesting to accord political clearance for their visit from 10th to 20th September, 2005 to Germany and other neighboring countries whereas the said group as per the ICCR was to visit only Germany. The applicants influence prevailed to include Shri Shiv Kumar Sharma whereas he was neither an artist nor an official of ICCR. To that effect a message was sent by Ms. Kehkeshan Tyagi to Indian Embassy at Berlin for payment of DA to the Group and hotel accommodation for Shri Shiv Kumar Sharma. The said Group left for Germany on 12.09.2005 on the day the applicant relinquished the charge of the post of DG,ICCR on his transfer to MEA. It is alleged that on arrival at Berlin, Shri Randeep Singh S/o Shri Hargulab Singh was taken away from the Airport by Palwinder Singh brother of Hargulab Singh and other members gave a short performance of about 20 minutes on 14.09.2005 at Indian Embassy, Berlin in which Shri Randeep Singh could not participate. On 15.09.2005, one more performance was given at the Museum in which neither Hargulab Singh nor his son Randeep Singh turned up as they have already defected from the group. In the night of 15th and morning of 16th September, 2005, 7 more members of the Group also defected. The remaining 6 members of the Group were sent back on 16.09.2005 and reached India on 17.09.2005. Shri Hargulab Singh reported at the Indian Embassy of Berlian which also sent back to India on 3.01.2006. The whereabouts of the remaining 8 members were not known. In view of the above facts of allegations against the applicant, he was charge sheeted vide Memorandum dated 1.04.2008 with 8 Articles of Charges. Simultaneously, FIR was lodged against the applicant and other accused on the basis of a complaint given by Shri Satyendra Pandey, the then Inspector, CBI SCR-I, New Delhi. In the said FIR, the applicant also figured along with six persons. The CBI conducted the detailed investigation and filed the final report under Section 173 Cr.PC before the Special Judge (CBI cases) vide its charge sheet No.12/2007 dated 24.12.2007 charging the five accused including the applicant and Ms. Tyagi was not charge sheeted in the said allegation filed before the Trial Court. Feeling aggrieved by the disciplinary action initiated against the applicant, he submitted a representation to the Disciplinary Authority to keep the departmental disciplinary proceedings in abeyance vide his letter dated 13.05.2008. The competent authority declined to stay the disciplinary proceedings vide the Memorandum dated 2.07.2008. The applicant submitted further representation on 14.07.2008 which was also declined by the competent authority on 6.08.2008. Feeling aggrieved by such rejection of his representation, the applicant moved the OA No.1876/2008 seeking inter alia a direction to keep the departmental enquiry proposed against him in abeyance till the completion of his trial by the criminal court. The OA was disposed of on 22.12.2009 directing the Disciplinary Authority to pass a reasoned and speaking order. Pursuant to the said direction, the Disciplinary Authority passed an order dated 9.03.2010 rejecting the applicants claim. He again approached the Tribunal in the OA No.2393/2010 in which the order of the respondents was considered to be a non reasoned order and accordingly the case was remanded back to the competent authority to pass a speaking and reasoned order. Consequently, the impugned order dated 10.08.2011 has been passed. Being aggrieved, and assailing the said order, the applicant has approached the Tribunal in the instant OA.
7. Shri Mukul Sharma, learned counsel for the applicant submits that the impugned order dated 10.8.2011 is non-reasoned order and is not as per the directions issued by the Tribunal on 2.11.2010 in OA No.2393/2010. It was contended 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 and facts. In case the applicant discloses evidence in support of her case in the disciplinary proceeding to prove his innocence or counter the allegations levelled against him, prior to his defence evidence in the criminal case, irreparable loss would be resulted. Shri Sharma placed his reliance on the judgment of Honble Supreme Court in the cases of (i) NOIDA Entrepreneurs Association Versus NOIDA & Ors. [2007-10-SCC-385], (ii) Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd and Anr. (JT-1999-2-SC 456), (iii) Uttaranchal Road Transport Corpn. Versus Mansaram Nainwal [2006-6-SCSC-366], (iv) Hindustan Petroleum Corporation Ltd. And Others Versus Sarvesh Berry [2005-10-SCC-471], (v) State Bank of India Versus R.B. Sharma [2004-7-SCC-27] and (vi) Depot Manager, A.P. State Road Transport Corporation Versus Mohd. Yousuf Mian and Ors. [1997-2-SCC-699] to submit that if the departmental proceeding 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 respondent 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. He, therefore, urges that OA should be allowed with the directions to the Respondent not to proceed with the departmental proceeding till the criminal trial is completed.
8. Per contra, Smt. Priyanka Bhardwaj, learned counsel appearing on behalf of respondent 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 CBI in the criminal case before the Trial Court. She, further submits that the criminal proceeding has been initiated vide FIR dated 27.2.2006 and the CBI has filed challan on 24.12.2007. The Trial Court is shortly framing charges. She referred to the impugned order to state that the same had dealt the points raised by the applicant and the Competent Authority concluded that there were no complexity of facts and in law in both departmental and criminal proceedings. It was submitted that criminal trial would take lot more time to come to the conclusion. She also contended that in the case of NOIDA Entrepreneurs Association case (supra), 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 the Tribunal or by the Honble High Court shall not be passed as a matter of course. She 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. She submits that there is no bar on concurrent departmental and judicial proceedings as held by Honble Supreme Court in Jang Bahadur Singh Versus Baij Nath Tiwari [AIR-1969-SC-30] and S.A. Venkataraman Versus Union of India [AIR-1954-SC-375]. She, further submits that documents relied on and the witnesses to be examined in both departmental and criminal proceedings may be same but the nature, standard and the extent of evidence in the criminal case is different from the departmental case. She placed her reliance on the judgment of Honble Apex Court in Bokaro Colliery (TISCO Ltd.) Versus Ram Parvesh Singh [2008-3-SCC-729]. Therefore, she submits that the OA should be dismissed and the departmental proceedings should be continued against the applicant.
9. We heard the above rival contentions, and with the assistance of the counsels we 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? An associated question is whether the impugned order dated 10.8.2011 is legally sustainable?
10. 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 catena of important judgments.
11. 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.
12. 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.
13. 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 :
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.
14. 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 take the extracts of 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.
15. The Honourable Supreme Court in the case of NOIDA Entrepreneur Association Versus NOIDA and the others [JT 2001 (2) SC 620] held 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.
16. In State Bank of India & Ors. versus R.B. Sharma, [AIR 2004 SC 4144], the Hon'ble Supreme Court reiterated observing that both proceedings can be held simultaneously. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of the Hon'ble Apex Court in Depot Manager, Andhra Pradesh State Road Transport Corporation v.ersus Mohd Yousuf Miya & Ors., AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as complicated questions of fact and law are involved in that case. However, the departmental proceeding should be initiated provided the department intended to adduce any evidence which could prove the charges against the delinquent officer. The Hon'ble Apex Court observed in R.B. Sharma's case (supra) as under:-
"The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of 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 a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service."
17. It is trite 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 is 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 support where the ratio deci dendi was laid. 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.
18. In Ajit Kumar Nag versus General Manager (PJ), Indian Oil Corpn. Ltd., Haldia [2005 -7- SCC- 764] Honourable Apex Court considered the issue of validity of conducting departmental proceeding when the criminal case was pending against the official and held as follows :
"11. ..... In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings _ criminal and departmental _ are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. ...."
19. A similar view has been reiterated by Hon'ble Supreme Court in Senior Superintendent of Post Offices versus A. Gopalan, {AIR 1999 SC 1514}; Kendriya Vidyalaya Sangathan & Ors. versus T. Srinivas, (AIR 2004 SC 4127); Krishnakali Tea Estate versus Akhil Bhartiya Chah Mazdoor Sangh & Anr., [(2004) 8 SCC 200]; Commissioner of Police Delhi versus Narendra Singh, {AIR 2006 SC 1800}; South Bengal State Transport Corporation versus Span Kumar Mitra & Ors., [(2006) 2 SCC 584]; and Punjab Water Supply & Sewerage Board versus Ram Sajivan,[(2007) 9 SCC 86]. In Union of India and Ors. versus Naman Singh Shekhawat, [(2008) 4 SCC 1], the Apex Court held that departmental proceeding can be initiated after acquittal by the Criminal Court.
20. Further in Chairman-Cum-M.D., T.N.C.S. Corpn. Ltd. versuss K. Meerabai [2006 -2-SCC-255]Honourable Apex Court held on following terms:
32. The scope of disciplinary proceedings and the scope of criminal proceedings in a Court of Criminal law are quite distinct, exclusive and independent of each other. The prosecution proceedings launched against the respondent herein were in respect of offences punishable under Sections 409 and 477-A I.P.C., whereas the Departmental Proceedings as initiated against her were in respect of the charges of misappropriation and other fraudulent practices such as deliberate omission to bring into accounts the stock received showing bogus issues in the records, falsification of accounts, submission of defective accounts, tampering of records, manipulation of accounts and records etc. Thus, the respondent herein was proceeded against for quite different charges and on different sets of facts before the Court of Chief Judicial Magistrate, on the one hand, and before the Departmental Enquiry on the other.
21. In November 2011, the Hon'ble Apex Court considered the entire gamut of parallel enquiry in Divisional Controller KSRTC Versus M.G. Vittal Rao [2011 -13-Scale-33] and after scanning its earlier judgments held as follows:
"19. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry."
22. 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 27.02.2006 and the chargesheet i.e. challan has been filed before the Trial Court on 24.12.2007 by the Inspector of Police, CBI, SCR-I, New Delhi. During the hearing, we were informed that the Trial Court would be framing charges shortly. From the date of registration of FIR (27.2.2006) more than 6 years have elapsed in the criminal case against the applicant. From December, 2007 to date i.e. from the date of filing of charge by the Investigating Agency (CBI), it has taken more than 4 years to frame charge by the Trial Court. We are not expressing any opinion on the time taken by the Trial court to frame charges against the applicant. However, we note that normally the criminal case would take some more time to frame charges, examine witnesses and conclude the proceedings..
23. Apparently, the applicant has approached the Tribunal in the present and earlier two OAs at the interlocutory stage i.e. after he has been charged and Memorandum issued to him on 01.04.2008. Interference of the Tribunal at this stage is rather limited viz mainly on the ground of charges have been framed by the incompetent authority and delay in framing charges had prejudiced the delinquent officer. Those are not the grounds on which the applicant has challenged the Memorandum dated 01.04.2008. His main plea to stall the inquiry to proceed is anchored on the ground that the parallel departmental disciplinary proceeding should be kept in abeyance till the criminal proceeding in the Trial court is finalized. Rejection of his representation to stay the disciplinary proceedings has been the principal challenge in the present OA.
24. We have perused (i) the final report dated 24.12.2007 filed by CBI under Section 173 of CrPC before the Special Judge (CBI cases), New Delhi, and (ii) the Memorandum dated 01.4.2008 wherein charges have been framed against him. A careful study of both, we are of the views 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. In the 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 B read with 420 , 468, 471 of IPC and Section 13(2) read with 13(1) (d) of the 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 the departmental proceedings whereas the magnitude and standard of evidence is required to prove the prosecution case to convince the Trial Court beyond reasonable doubt.
25. The criminal case against the Applicant is on his alleged violation of the law of the land by commission of alleged offences punishable under IPC and POC Act, but the departmental proceeding has been initiated against the applicant for alleged misconduct under Rule 14 of CCS (CCA) Rules, 1965 for his act exhibiting lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant. 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.
26. The impugned order has analysed eight charges framed against the applicant in the following manner :-
6.(i) So far as Article I is concerned, the same may be verified by examining the relevant orders passed by the delinquent officers while dealing the application submitted by cultural group Mehak Punjab Di.
(ii) So far Article II is concerned, the truth can be found out again by examining the orders passed by the delinquent while dealing with the case of the said group.
(iii) So far as article III is concerned, the same can also be examined by recalling for the relevant records made basis to send the aforesaid cultural group to Germany on Government expenses.
(iv) So far as Article IV is concerned, it is again related to misuse of power and influencing he members of the sub-committee. The truth of the said allegations could be ascertained after verifying the relevant notings and orders in the file approved by such committees which were not in existence in ICCR as their tenure had already expired. The issue of tenure can be ascertained very easily by calling for the relevant file and examining the custodial of the said file.
(v) So far as Article V is concerned, the same isrelated to the tampering with the official file containing minutes of the Experts Sub-Committee. The said allegation can again be verified by calling for the relevant official file containing the minutes of the Experts Sub-Committee.
(vi) As far as Article No.VI, VII and VIII are concerned the same again are related to the violation of procedure, conveying incorrect information to the higher authorities and availing hospitality on the pretext of watching the performance of Mehak Punjab di and related to the sexual exploitation of a lady artist. The said allegations can also be examined by calling for the relevant records and recording the statement of the Artist.
27. Further, as the CVC has withdrawn nomination of Shri B.S. Negi, CDI as Inquiry Authority (IA) whose appointment was opposed by the applicant, Shri Rajesh Yadav CDI has been appointed as new IA. He also oopsed the appointment of Shri Manoj Pangarkar as the Presenting officer. In the place of Shri Pangarkar (who has been transferred), Shri S.S. Kishore has been appointed as the Presenting Officer. Thus, the applicant should have no grievance against the new IA and Presenting Officer.
28. In respect of the applicants main ground that same sets of documents and witnesses available on the same incident being the basis of both disciplinary and criminal proceedings he would be prejudiced in the criminal trial if he disclosed his defence in the disciplinary enquiry and therefore, he pleaded to keep in abeyance the disciplinary enquiry. The respondent did not examine the complicated questions of law and facts of the criminal case and the impugned order suffers from the non-application of mind. We may refer to two pertinent paragraphs of the order dated 10.08.2011 :-
4. Whereas a glance at the charge sheet would suggest that the allegations contained therein are regarding irregularities committed by Shri Rakesh Kumar, IFS, while functioning as Director General, ICCR, the said irregularities are related to the official functioning and the correctness of the said irregularities can be ascertained by the Inquiry Officer (IO) after perusing the evidence annexed to the charge sheet. Although, along with the charge sheet two lists of the number of witnesses and documents have been annexed , but is it not mandatory for the IO to examine all he witnesses as in the departmental inquiry the standard of proof is on eof the preponderance of probabilities. As perusal of the allegations as mentioned in the Articles of charge and reproduced herein below makes it clear that there is no complicated question of fact and law involved.
7. So far as the charges in criminal case are concerned, these are regarding cheating, forgery and accepting bribe and the same are required to be proved by the prosecution beyond reasonable doubts. As stated above, in the departmental proceedings, the standard of proof is one of preponderace of probability and the kind of allegations made basis to issue the charge memo makes it clear that there are no complicated questions of fact and law involved in the same. Even the delinquent has also failed to substantiate his claim that complicated question of law and fact are involved in his case. Once the delinquent was given an opportunity to submit his representation to substantiate that the IO cannot proceed in the departmental proceedings as the complicated questions of facts and law are involved in his case, he should have responded with material to prove his claim. The Honble Supreme Court has also held in the case of West Bokaro Colliery (Tisco Ltd.) versus Ram Parvesh Singh (2008) 3 SCC 729 that since standard of proof required in criminal case are beyond reasonable doubt and what is required in departmental inquiry is only of finding the guilt on the basis of preponderance of probability, there is no bar in continuing both simultaneously. The above analysis and findings address the issues raised by the applicant. By no stretch of imagination the impugned order can be termed as unreasoned order. The plea advanced in this regard by the applicant is rejected.
29. At this stage, we may refer to the impugned order passed by the respondent on his representations dated 13.5.2008, 14.7.2008 and 21.7.2008 vide order dated 10.8.2011. Pursuant to the direction of this Tribunal in OA No.2393/2010 dated 02.11.2010, the applicant was requested vide letter dated 8.12.2010 to justify how his case was complex in nature and how his defence in the criminal case before the Trial Court would be prejudiced if he was confronted with identical documents and witnesses in departmental and criminal proceedings, but he did not acknowledge and did not respond to the said letter. Thus, the respondent passed order in rejecting his representation.
30. At this stage, we may note 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, he 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 him, 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 commit similar nature of misconducts 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.
31. 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 are also of the view that the impugned order dated 10.8.2011 passed by the respondent rejecting the applicants claim to keep the departmental proceedings in abeyance till the completion of criminal trial is upheld as legally sustainable. We, therefore, hold that the departmental proceeding must be continued and expeditiously completed.
32. Resultantly, the OA being devoid of merits is dismissed and the interim order passed on 10.10.2011 is vacated, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda ) ( S.C. Sharma )
Member (A) Acting Chairman
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