Central Administrative Tribunal - Ahmedabad
Surendra Kumar Meena vs Central Excise And Customs on 27 March, 2023
(CAT/AHMEDABAD BENCH/OA No. 273/2022) 1
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No.273/2022
Dated this the 27th day of March, 2023
Reserved On: 16.03.2023
Pronounced On: 27.03.2023
CORAM :
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER
(JUDICIAL)
HON'BLE MR. DR. A.K.DUBEY, MEMBER (ADMINISTRATIVE)
Surendra kumar Meena
S/o Durgaprasad Meena,
Aged About:51 years,
Working as Superintendent,
Residing at: Gandhipura,
Samshan Road, Diu - 362 520. .......Applicant
(By Advocate: Mr.Joy Mathew)
Vs.
1. Union of India,
Notice to be served through
The Secretary, Ministry of Finance,
Department of Expenditure,
North Block, New Delhi - 110 001.
2. The Chief Commissioner of Customs,
1st Floor, Custom House,
Navrangpura,
Nr. Income Tax Circle,
Ahmedabad - 380 009.
3. The Principal Commissioner,
Customs (Preventive) Commissionerate,
Rajkot Jamnagar Highway,
Besides Jamnagar chamber of Commerce and Industry,
Jamnagar - 361 001. .....Respondents
(By Advocates: Ms.R.R.Patel)
(CAT/AHMEDABAD BENCH/OA No. 273/2022) 2
ORDER
Per: Hon'ble MR. Justice Rameshwar Vyas, Member (J)
1. Instant OA has been preferred by the applicant with prayer to keep in abeyance the disciplinary proceedings initiated against the applicant vide charge memorandum dated 25.05.2021 till completion of the Criminal Case No.ACB 15/2020 instituted under Sections 7 and 13 of the Prevention of Corruption Act, 1988 presently pending before the Special Judge.
2. Brief facts of the case are as under:-
2.1 One Deepakbhai Patel filed a complaint in the month of May, 2014 against the applicant who was at that time working on the post of Superintendent (Preventive) at Service Tax Commissionerate, Ahmedabad in the office of Central Customs Department, alleging demand of illegal gratification of Rs.3,00,000/- by him. On the above complaint, after necessary inquiry, First Information Report No.12/2014 under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act was registered and after investigation, Charge Sheet against the applicant was filed before the Special Judge in the year 2020 in the above offences. After that, the departmental inquiry against the applicant under Rule 14 of the Central Civil Services (CCA) Rules, 1965 on the same charges was proposed to be held, pursuant to which, charge memorandum with statement of articles of charges were issued against the applicant on 25.05.2021. The applicant has prayed to stay the above departmental proceedings until the final decision of the Criminal Case on the following grounds:-
(i) The departmental inquiry is based upon the same set of facts and evidences and witnesses as in the pending criminal case. Charges are the same in the nature in both the proceedings and witnesses and documents being relied upon by the department are also same.
(ii) In case of continuation of the departmental inquiry by the respondent departments, the applicant will be at a loss as he will be constrained to disclose his defence before the presiding officer (CAT/AHMEDABAD BENCH/OA No. 273/2022) 3 in the departmental inquiry which could jeopardize his defence in the criminal case.
(iii) The charges against the applicant are grave and there is possibility that the conduct of disciplinary proceedings would prejudice the accused in the criminal trial. In the present matter, complicated questions of law and facts are involved.
3. As per the reply filed by the respondent, departmental proceedings and criminal case can run simultaneously even if, both are based on the same material. The approach and objective in criminal proceedings and disciplinary proceedings are altogether different and distinct from each other. The charge memorandum issued to the applicant during the pendency of the criminal proceedings is just and legal; departmental inquiry in pursuance thereof cannot be sought to be put in abeyance. Initiation of departmental proceedings against an employee during pendency of criminal case will not cause any injustice to the applicant because nature of both proceedings are different. In criminal proceedings, burden of proof is on prosecution and he has to prove the case beyond reasonable doubt, whereas, in disciplinary proceedings, charges can be proved on theory of preponderance of probability. It is a trap case of demand and acceptance of illegal gratification from the tax payer meriting immediate disciplinary action against erring government servant in public interest. The criminal proceedings in court of law is likely to take due and considerable time to complete. Timely disciplinary action is required to be taken against the applicant in the facts and circumstances of the case. Respondent while opposing the contention of the applicant prays to dismiss the OA.
4. Heard the learned counsel for the parties and perused the material available on record.
5. Learned counsel for the applicant has relied on the following judgments:-
(1) Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan, [(1997) SCC (L&S) 548]; (2) Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal (CAT/AHMEDABAD BENCH/OA No. 273/2022) 4 Rao, [(2012) 1 SCC 442]; (3) Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd., [(1999) 3 SCC 679]; (4) HPCL vs Sarvesh Berry; In [(2004) 8 SCC 200]; (5) State of Rajasthan vs. B.K. Meena, [1996 (6) SCC 417].
Learned counsel for the applicant while relying upon the judgment passed by the Hon'ble Apex Court in the matter of M/s Stanzen Toyotetsu India Pvt. Ltd. vs Girish V & Ors. Civil Appeal No.763/2014 [2014 (3) SCC 636]. He submitted that the charges against the applicant were grave in nature involving complicated questions of law and facts. The continuation of the departmental inquiry would prejudice the applicant in his defence at the trial in the criminal case. The witnesses relied upon in the departmental inquiry have also been cited as prosecution witnesses in the criminal case pending against the applicant. Learned counsel for the applicant further submitted that both proceedings were based on the same set of facts and the evidence in both the proceedings was also common. Learned counsel for the applicant submits that the proceedings in this disciplinary case may be stayed for a limited period of two years. In case, trial in the criminal case would not complete within a period of two years, then the respondent may be at liberty to resume the departmental proceedings. Learned counsel for the applicant further submitted that in both proceedings examination of witnesses are yet to start.
6. On the contrary, learned counsel for respondent relied upon the following judgments:
(i) State of Karnataka & Anr. vs. T. Venkataramanappa , (1996) 6 SCC 455; (2) State of Andhra Pradesh vs K. Allabaksh,(2000) 10 SCC 177; (3) Ajit Kumar Nag vs General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764; (4) State of Rajasthan vs. B.K. Meena & Ors., AIR 1997 SC 13; (5) State Bank of India & Ors. vs R.B. Sharma, AIR 2004 SC 4144; ( 6) Union of India & Ors. vs. Naman Singh Shekhawat;
Civil Appeal No. 140 of 2007 decided on 13.03.2008; (7) Pandiyan Roadways Corpn. Ltd. vs N. Balakrishnan, (2007) 9 SCC 755; (8) State Bank of India & Anr. vs. Bela Bagchi & Ors., AIR 2005 SC 3272; (9) The Binny Ltd. vs. Their Workmen, AIR 1973 SC 1403; (10) Saraswatipur Tea Company Ltd. & Ors., AIR 1982 SC 1062; (11) (CAT/AHMEDABAD BENCH/OA No. 273/2022) 5 Chandulal vs. The Management of M/s. Pan American World Airways Inc., AIR 1985 SC 1128; (12) A.P.SRTC vs Raghuda Shiva Sankar Prasad, AIR 2007 SC 152, respondent has prays to rely upon the OM No.F.No.11012/6/2007-Estt (A-III) dated 21.07.2016.
Learned counsel for the respondents submitted that applicant has failed to show how his defence would be prejudiced in case of continuation of the criminal proceedings. Applicant has also failed to show that the present matter involves complicated questions of facts and law. Disciplinary inquiry should not be delayed, he submitted. Criminal case consumes long time to conclude whereas, in the interest of administration, the disciplinary proceedings are required to be concluded expeditiously. Learned counsel for the respondents further submitted that in the case of M/s Stanzen Toyotetsu vs. Girish V and Ors.,, Hon'ble Apex Court directed to stay the proceedings for one year, keeping in view the fact that the all the three courts below had exercised their discretion in favour of staying the on-going disciplinary proceedings. Therefore this stay order cannot be treated as precedent in all cases where both the departmental inquiry and criminal trial have started simultaneously.
7. Before deciding the issue raised before this Tribunal, it will be proper to discuss the legal position on the point of staying the on-going disciplinary proceedings in case where criminal case has also been pending on the same set of facts.
8. In the case of M/s Stanzen Toyotetsu vs. Girish V and Ors., the Hon'ble Apex Court in para 12, observed as under:-
"It is unnecessary to multiply decisions on the subject for the legal positions as emerging from the above pronouncements and the earlier pronouncements of this Court in a large number of similar cases is well settled that disciplinary proceedings and proceedings in a criminal case can proceed simultaneously in the absence of any legal bar to such simultaneity. It is also evident that while seriousness of the charge leveled against the employee is a consideration, the same is not by itself sufficient unless the case also involves complicated questions of law and fact. Even when the charge is found to be serious and complicated questions of fact and law that arise for consideration, the Court will have to keep in (CAT/AHMEDABAD BENCH/OA No. 273/2022) 6 mind the fact that departmental proceedings cannot be suspended indefinitely or delayed unduly. In Paul Anthony (supra) this Court went a step further to hold that departmental proceeding can be resumed and proceeded even when they may have been stayed earlier in cases where the criminal trial does not make any headway. To the same effect is the decision of this Court in State of Rajasthan v. B.K. Meena 1996 (6) SCC 417, where this Court reiterated that there was no legal bar for both proceedings to go on simultaneously unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. The following passage is in this regard apposite:
"there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, 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 enunciated in that behalf. The only ground suggested in the above questions as constitution 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 fat. Moreover, 'advisability' 'desirability' or 'propriety' as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. 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 weighted and a decision taken keeping in view the various principles laid down in the decisions referred to above. .... Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings and expeditiously concluded. Delay in such cases really works against him."(CAT/AHMEDABAD BENCH/OA No. 273/2022) 7
9. In the case of Divisional Controller KSRTC vs M.G. Vittal Rao Hon'ble Apex Court referred the judgment passed by the Apex Court in the matter of State of Rajasthan vs B K. Meena & Ors. AIR 1997 SC 13, wherein the court observed as under:-
"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."
10. In Circular No.08/07/2018 dated 31.07.2018 by Central Vigilance Commission, it is clarified that the disciplinary authority may withhold departmental proceedings only in exceptional cases wherein, the charge in the criminal trial is of grave nature which involve questions of fact and law. If the charge in the criminal case is of 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. Further, even if, he stayed at one stage, the decision may require re-consideration, if the criminal case gets unduly delayed.
11. Coming to the facts of the present case, it is not in dispute that the incident relates to the year 2014 involving the applicant in a serious charge of demanding and accepting the illegal gratification from the complainant, for which he had been charged under Sections 7 and 13 of the Prevention of Corruption Act, 1988 in the year 2020 only .The charges levelled against the applicant in the criminal case is not only grave in nature but also involves complicated questions of fact and law. As we know that principles of deciding the charges levelled against the person in the departmental and criminal case are totally different. In criminal cases, the accused has the right not to disclose anything which may go against him, whereas in departmental proceedings the same person is under obligation to answer the allegations made against him in the articles of charges. In view of the above different principles applicable in each proceeding, we are of the view that if continuation of departmental proceedings is not (CAT/AHMEDABAD BENCH/OA No. 273/2022) 8 stayed, then the defence disclosed by the applicant in the departmental inquiry may be used against him in the criminal trial which will certainly have adverse effect on his defence in criminal case pending against him. In the present matter, it is not in dispute that after filing of the challan in criminal case, the charge memorandum had been issued against the applicant on the same set of facts upon which he is being prosecuted in criminal case. The evidence to be relied upon in both cases are also the same. Therefore, we are of the opinion that continuation of the departmental proceedings will certainly prejudice the defence of the applicant in the criminal trial pending against him. Therefore, departmental proceedings is liable to be stayed. Simultaneously while staying the departmental proceedings, we cannot ignore the interest of the department. The disciplinary inquiry cannot be kept pending indefinitely, as we know criminal case takes longer time to conclude. Hon'ble Apex Court in the matter of M/s Stanzen Toyotetsu vs. Girish V and Ors., observed that the court examining the question must also keep in mind that criminal trials get prolonged indefinitely specially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on one hand and the competing demand for an expeditious conclusion of the on-going disciplinary proceedings on the other.
12. In the above background of facts and circumstances of the case as also keeping in mind the legal position, we are of the view that in the present case, the applicant has been able to satisfy that in case of continuance of the disciplinary inquiry against the applicant is not stayed, then the applicant shall be prejudiced in his defence in the criminal trial pending against him. The charges against the applicant are also grave in nature involving question of fact and law requiring examination of large number of witnesses at length as also requirement of deciding so many legal issues. Therefore the applicant has made out the case for stay on departmental proceeding. We are also aware that stay cannot be and should not be for indefinite period. Considering the stage of both the proceedings as also expected time to examine the common witness we are (CAT/AHMEDABAD BENCH/OA No. 273/2022) 9 of the opinion that disciplinary inquiry should be stayed for a maximum period of two years and not indefinitely.
In the result, while allowing the OA, respondents are directed not to continue the departmental inquiry initiated against the applicant for a period of two years or till completion of the trial whichever is earlier. Both parties may request the trial court to examine the witnesses who are common in both proceedings expeditiously on priority basis.
(A. K. DUBEY) (RAMESHWAR VYAS) Administrative Member Judicial Member SKV