Central Administrative Tribunal - Delhi
N.M. Sehrawat vs Union Of India on 9 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3011/2011 Order reserved on 21.03.2012 Order pronounced on 09.05.2012 Honble Mr. G.George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) N.M. Sehrawat r/o 227-A, Pocket I, Mayur Vihar, Phase-I, Delhi. -Applicant (By Advocate: Dr. Sumant Bhardwaj) Versus 1. Union of India Through Secretary, Ministry of Personnel Public Grievances & Pensions, DOPT North Block, New Delhi-2. 2. Central Bureau of Investigation Through, Enquiry Officer Mr. Desh Deepak Addl. Superintendent of Police, CBI/EOU-VII/EO-III Region, 5th Floor, Block No.3, Lodi Road, New Delhi-110003. -Respondents (By Advocate: Shri Krishan Kumar) O R D E R
Per Mr. Sudhir Kumar:
The applicant, of this OA, is before us seeking the quashing of Office Order No.6333 dated 11.8.2011/12.8.2011 issued by the Enquiry Officer in the departmental enquiry proceedings against him. Through the impugned order, it was stated by the Enquiry Officer as follows:-
No. 6333 Deptt. Enquiry/10/EO-III/7315/ND dated 11/12.08.2011 Proceedings dated 11.08.2011 against N.M. Sherawat, Inspector (U/S), CBI/EOU-IV/N.Delhi.
I. Whereas the Departmental Proceedings against N.M. Sherawat has been fixed on this day i.e. 11.08.2011 for further enabling the C.O. to submit the list of defence documents and defence witnesses if any but he did not attend the enquiry on this date also. Earlier this opportunity was given to him on 3.08.2011 and 5.08.2011 but again he did not attend the enquiry. The charged officer N.M. Sherawat, was also informed vide proceedings dated 5.08.2011 that after the proceedings dated 11.08.2011, regular enquiry will commence on day today basis.
II. Accordingly, initially the regular enquiry is fixed on day today basis for four days i.e. on 17.08.2011, 17.08.2011, 18.08.2011 and 19.08.2011. The enquiry fixed for 16.08.2011 will commence at 2 P.M. and the enquiry fixed for 17.08.2011 to 19.08.2011 will commence at 11 A.M. daily in the office of Enquiry Officer for prosecution evidence Notices to the following prosecution witnesses have been issued to depose their evidence in the enquiry on the given date and time as per below mentioned schedule...
2. Without presenting himself before the Enquiry Officer in the departmental enquiry during the examination of prosecution witnesses fixed on 16.8.2011, 17.8.2011, 18.8.2011 and on 19.8.2011, the applicant presented this OA on 17.8.2011, and re-filed it on 18.8.2011, and the re-filed OA was accepted by the Registry on 19.8.2011, and fixed for hearing on 23.8.2011. During the hearing on 23.8.2011, the Bench that day stayed the impugned order of the Enquiry Officer for one week and thereafter, on 30.8.2011 the Interim Relief was continued till 20.10.2011. When the case came up for hearing on 20.10.2011, no orders were passed regarding continuation of interim relief, and the same position prevailed on 01.12.2011 and 24.1.2012 and 20.3.2012, till the case came to be argued on 21.3.2012 and reserved for orders. The only prayer by the applicant in this OA is to quash the Enquiry Officers Office Order No. 6333 Deptt. Enquiry/10/EO-III/7315/ND dated 11/12.08.2011, and the interim prayer was to keep the departmental enquiry in abeyance, which abeyance has apparently happened automatically, because of the interim order passed by this Tribunal, though the IR was not continued beyond 20.10.2011.
3. While working as Inspector of Police in EOU-VIII/EO-III Branch of CBI, New Delhi, the applicant was arrested by the CBI itself in a corruption case on 24.4.2006, and was placed under suspension under the appropriate Rules. This action was taken on the basis of the four FIRs lodged in the Court of Special Judge, (CBI), Delhi, under Section 173 CrPC on 24.04.2006 through Annexure A-1 (pages 12 to 59 of this OA). The issue of framing of charges in the four cases CC NO.45,46,47&48/2011 before the Special Judge-03, CBI, New Delhi, was decided by the learned Special Judge on 11.5.2011, through his order produced at pages 60 to 83 of the OA. The learned Special Judge had considered all the four cases separately and decided to frame charges against the applicant under Sections 8 &9 and Section 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 against the applicant in CC No.45/2011. Similar charges were decided to be framed by him against the applicant in CC No.46/2011 also. He had discharged the applicant in CC No.47/2011, and in respect of CC No.48/2011, the learned Special Judge found that the evidence gathered by the prosecution during investigation, and filed with the Charge Sheet, even though it had remained un-rebutted or un-controverted, but even if it is taken at their face value, it would not lead to ultimate conviction of the accused persons. He hastened to add that the conduct or misconduct on the part of the present applicant could be an act of moral turpitude inviting disciplinary action, but it was difficult for him to hold that it could take the shape of an offence defined under the Prevention of Corruption Act and the IPC. As a result, the learned Special Judge had discharged the applicant herein in that fourth case. Accordingly, criminal charges were framed against the applicant, and the applicant pleaded not guilty, and claimed Trial in the two cases in which charges had been framed against him by the learned Special Judge. Much before this8 the respondents had already issued a notice to the applicant through A-2 dated 14.12.2009, proposing to hold a disciplinary enquiry against him relating to offences flowing out of the administrative lapses concerning the events covered in the four FIRs filed against him.
4. The applicant had earlier filed another OA No.3033/2010 before this Tribunal, seeking enhancement of subsistence allowance during suspension, which came to be decided and allowed by a single Member Bench of this Tribunal on 18.1.2011, ordering the respondents to pay his subsistence allowance as per rules.
5. The contention of the applicant in the present OA before us is that he cannot be proceeded against in both the criminal case as well as in the departmental enquiry, based upon the same set of facts.
6. In their reply written statement, the respondents had taken a plea that the departmental proceedings has no nexus with the criminal case. In so far as the plea of the applicant in regard to the suspension not having been revoked, while in other similar/parallel cases of other employees suspension had been revoked, it was submitted that the Competent Authority had considered the case with due application of mind, and there cannot be any equality when the case of the applicant is not comparable to the other employees cases where suspension has been revoked. It was further submitted that in pursuance of the orders of this Tribunal in the applicants earlier OA No.3033/2010 enhanced subsistence allowance along with arrears have already been allowed to the applicant. It was further submitted that once a delinquent government official does not cooperate in the conduct of the departmental enquiry, the Enquiry Officer is left with no alternative under law except to go ahead with the enquiry ex-parte against the delinquent. It was clarified that while the applicant is facing trial in the Criminal Court for criminal offences under the Prevention of Corruption Act, the present departmental enquiry is only for his misconduct under the Rule-8 of the Delhi Special Police Establishment (Subordinate Ranks) Discipline and Appeal Rules, 1961, and the applicant is supposed to cooperate in the departmental enquiry, and that the Disciplinary Authority had all rights to frame the charges framed against him. In the result, it was submitted that the applicant is not entitled to any relief in this OA, and the application deserves to be dismissed in limine with heavy costs.
7. Heard. During the course of the arguments, the learned counsel for the applicant laboriously tried to point out that the list of witnesses in the departmental enquiry and the documents sought to be produced in the departmental enquiry overlap with those in the criminal cases pending against him. The learned counsel for the applicant stated that through an internal Circular dated 16.02.2010, and previous internal Circular dated 19.11.1990, the respondent/CBI itself had prescribed that if the charge sheet is filed in the criminal case on the same facts and allegations, the departmental penalty proceedings may not be initiated, or, if initiated, may be kept in abeyance.
8. It is seen that while Circular dated 19.11.1990 is a general Circular, the internal Note dated 16.02.2010 relied upon by the learned counsel for the applicant relates to a particular disciplinary enquiry proceedings for major penalty against another official, Sh. D.K. Srivasatava, Dy. Legal Adviser, CBI. In both these cases emphasis had been laid upon the same set of facts and allegations being involved in both the prosecution through the criminal case as well as the simultaneous departmental action initiated. It was stated that any contradictions which may emerge during disciplinary enquiry may benefit the accused in the criminal case, and, therefore, it had been suggested that it would be appropriate to expedite the criminal case, and the disciplinary enquiry can be stayed till the examination of the material witnesses in the criminal case is over.
9. The learned counsel for the applicant vehemently argued that the charge as framed in the present disciplinary enquiry, through Annexure A-2 dated 14.12.2009, also completely overlapped the facts as appreciated by the learned Special Judge while taking cognizance of the involvement of the applicant herein in two criminal cases out of the four filed against him, as, he said, was clear from the order of the learned Special Judge dated 11.5.2011. In support of his contentions the learned counsel for the applicant had relied upon the judgment dated 28.4.2010 of this Principal Bench in OA NO.2666/2009 Dilip Kumar Thakur Vs. Central Bureau of Investigation through the Director & Ors., in which, after appreciating the facts constituting the evidence and allegations in the disciplinary proceedings, the Bench had ordered that it will be in the fitness of things to stay the disciplinary proceedings till common prosecution witnesses in both the proceedings are examined and cross examined by the applicant in the criminal trial, and that, thereafter, it shall be open for the respondents to resume the departmental enquiry proceedings, and let the law take its own course.
10. On the other hand, learned counsel for the respondents cited the judgment delivered by the Honble Apex Court in State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya AISLJ (IX)-2011 (3) 127 and the orders of the Honble Delhi High Court dated 23.08.2004 in n Writ Petition (Civil) No.565/2004, 593/2004 and 2236/2004 in Jainder Singh Tomar and Others Vs. Municipal Corporation of Delhi and Ors. as well as the CBI internal Circular No.3A/2007 dated 16.7.2007. The Honble Apex Court had in paragraph-9 of the judgment cited (supra) held as follows:-
9. The fact that the criminal Court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. There is mere so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal Court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the Disciplinary Authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal Court has acquitted him.
11. In case of Jainder Singh Tomar (supra) the Honble High Court of Delhi has held as follows:-
10. I have heard counsel for the parties and noted the facts, as above and the legal principles, as enunciated in Capt. M.Paul Anthonys case. The incident, as noted earlier, is of 20.10.2000. Pursuant to the directions given by the learned Additional District Judge for summoning of the bribe givers, the criminal trial is likely to take much more time. For maintaining probity and discipline and for administrative efficiency, it is desirable that any employee against whom proceedings for misconduct are to be initiated, the same is done at the earliest. In case the charges are not well founded then the employees honour should be vindicated at the earliest, rather than remaining in cloud till the criminal trial is over. Moreover, it is well settled that there is no bar on both proceedings to go on simultaneously. The advisability of staying the disciplinary proceedings has been confined to cases, where identical facts are involved and the charges against the delinquent employees are of a grave nature, involving complicated questions of law and facts. In the instant cases, there are no complicated questions of fact or law involved. Therefore, simple cases of demanding and receiving illegal gratification. Moreover, the criminal trial is likely to be delayed for the reasons noted earlier. In these circumstances, there is no ground made out for stay of the departmental proceedings. Reference may also be usefully made to a decision of a learned Single Judge of this Court in Tarlok Singh Vs. MCD (W.P.(C ) No.4926/2003), decided on 8.4.2004, where he took judicial notice of the fact that criminal prosecutions under the Prevent of Corruption Act on account of large number of cases have an average span of 7-8 years of trial in Delhi and in the said circumstances, he declined to stay the departmental enquiry. I am in agreement with the above approach. These are also cases, registered under the Prevention of Corruption Act. The criminal trial has hardly commenced in right earnest.
12. It was also stated that the detailed Circular dated 16.7.2007 had been issued after distilling the findings of the Honble Apex Court in many cases related to simultaneous progress being allowed for both the criminal case and the departmental proceedings.
13. We have given our anxious consideration to the facts of this case. Through our interim orders dated 23.08.2011, the disciplinary proceedings had been stayed, and since the interim order has never been modified thereafter, the departmental enquiry against the applicant is at a stand still as on today. The stage of the progress in the criminal case pending against the applicant in the Court of the learned Special Judge, CBI, has also not been brought on record by either of the parties. Therefore, we have a situation where charges have been framed against the applicant in a criminal case after an appreciation of the evidence gathered against him in regard to the criminal offence under the Prevention of Corruption Act, but in regard to his misconduct as a Government employee, the departmental proceedings had been stayed due to Interim Orders of this Tribunal.
14. There is ample case law on this subject, and in a catena of judgments, the Honble Apex Court has held that there is no bar on the criminal case and the departmental enquiry proceedings to go on simultaneously if both are not based upon exactly the same set of facts, and the applicant is not forced to disclose his defence in the criminal case during the course of the departmental enquiry. The Apex Court judgments have also emphasized upon the fact that while the criminal case relates to the criminal aspect of an offence, the departmental enquiry relates to the civil aspect of misconduct of the employee concerned in relation to that offence, and also that the standard of proof in a departmental enquiry of preponderance of probabilities is not the same as in the case of rigorous standard of proof, beyond reasonable doubt, which has to be applied before the criminal Court in the criminal case.
15. Further, in a departmental enquiry, the Presenting Officer produces his witnesses and record, whom the applicant can cross-examine and verify the documents, and if the delinquent Government official produces his own witnesses, they can be cross-examined by the Presenting Officer. However, both the examination-in-chief, and the cross examination of the witnesses produced by the Presenting Officer as well as the Defence Witnesses produced by the delinquent official or his Defence Assistant, would only be required in their deposition (both in Examination in-Chief as well as the cross examination of witnesses) to stick only to the misconduct aspect, and the civil liability of the delinquent Government official under the CCS (Conduct) Rules. It is never the case that the criminal liability of an act of a delinquent government official is examined in a departmental enquiry through the Examination-in-Chief or cross examination of witnesses from either side.
16. It is in this context that perhaps the departmental authorities have to be more worried about contradictions emerging out of the depositions of the Prosecution Witnesses and Defence Witnesses in the departmental enquiry, and affecting the fate of the criminal case adversely, rather than the delinquent official getting worried about any such contradictions arising in a departmental enquiry affecting his case in the Criminal Court, as such contradictions can only benefit his case in the criminal Court, and not harm him. This aspect has been clearly borne out by the internal Advice dated 16.2.2010 in the case of the disciplinary proceedings for major penalty against the said Shri D.K. Srivastava, which was produced by the learned counsel for the applicant himself, in which an apprehension was expressed that any such contradictions whatsoever which may emerge may benefit the accused/delinquent, and, therefore, a cautious suggestion had been made for the Competent Authority/Disciplinary Authority to consider staying the disciplinary proceedings in that case till the examination of material witnesses in the concerned Criminal Court was over. This aspect of the delinquent possibly benefiting from a quicker conclusion of the disciplinary enquiry against him was not considered by the Honble Apex Court when it laid down the five findings at the end of the judgment in the case of Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. & Another JT 1999 (2) SC 456.
17. In the instant case no complicated questions of law and facts are involved, and it appears that the instant case is covered by the conclusion in Para-22 (v) of the judgment of the Honble Apex Court in Capt. M.Paul Anthony (supra), which had laid down the law of the land stated as follows:-
22(i)Not reproduced here
(ii) Not reproduced here
(iii) Not reproduced here
(iv) Not reproduced here
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
18. The Honble Apex Court had in the case of Union of India and Another Vs. Ashok Kacker 1995 supp (1) SCC 180 also laid down the law that Courts and Tribunals should be loathe to interfere with the process of conduct and conclusion of disciplinary enquiry, and ought not to stay the enquiries unless there are compelling reasons to do so. The Honble Apex Court had frowned upon the Courts and Tribunals staying the very conduct of the disciplinary enquiry itself by observing as follows:-
4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondent rushed to the Central Administrative Tribunal merely on the information that a charge-sheet to this effect was to be issued to him. The Tribunal entertained the respondents application at that premature stage and quashed the charge-sheet issued during the pendency of the matter before the Tribunal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are not urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him.
19. The Honble Apex Court has also frowned upon that the Courts and Tribunals going ahead sometime to quash the Memo and Articles of Charges itself in a disciplinary enquiry, while it is a fact that the result and conclusion of the disciplinary enquiry would always be amenable to judicial review, and any injustice to the delinquent official can be set right by the Courts in judicial review. There is nothing to prevent departmental enquiry proceedings to be started and pursued even when criminal proceedings on the same charges are pending (Jang Bahadur Singh vs. Baij Nath Tiwari:AIR 1969 SC 30; Anand Narain Shukla vs. State of MP: AIR 1979 SC 1923; Superintendent (Tech.I) Central Excise IDD vs. Pratap Rai AIR 1978 SC 1244; Union of India vs. Patnaik, M.B.: AIR 1981 SC 858), so long as the criminal proceedings have not ended in acquittal (Delhi Cloth and General Mills vs. Kushal Bhan: AIR 1960 SC 806), and there is no violation of natural justice even on the ground that evidence is common to both the proceedings (Delhi Cloth and General Mills (supra)).
20. In the result, in the facts and circumstances of the case, the relief sought for by the applicant, in this OA, does not deserve to be allowed, and the OA is, therefore, rejected, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.