Madhya Pradesh High Court
Aditya Narayan Garg vs Managing Director on 6 June, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.A. No.1214/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
ON THE 6th OF JUNE, 2024
WRIT APPEAL No. 1214 of 2024
BETWEEN:-
ADITYA NARAYAN GARG S/O SHRI C.L. GARG,
AGED ABOUT 60 YEARS, OCCUPATION-
ASSISTANT GRADE III R/O AKASH GANGA
NAGAR, BHATERI SATNA, DISTRICT SATNA
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI BIBEK TRIPATHI - ADVOCATE)
AND
1. MANAGING DIRECTOR, MADHYA PRADESH
PURVA KCHHETRA VIDYUT VITRAN CO.
LTD. RAMPUR JABALPUR (MADHYA
PRADESH)
2. CHIEF ENGINEER, MADHYA PRADESH
PURVA KCHHETRA VIDYUT VITRAN CO.
LTD. REWA DIVISION REWA (MADHYA
PRADESH)
3. SUPERINTENDING ENGINEER (OPERA AND
MAINT.) MADHYA PRADESH PURVA
KCHHETRA VIDYUT VITRAN CO. LTD.
SATNA (MADHYA PRADESH)
4. EXECUTIVE ENGINEER (OPERA AND
MAINT.) MADHYA PRADESH PURVA
KCHHETRA VIDYUT VITRAN CO. LTD.
NAGOD SATNA (MADHYA PRADESH)
5. MR. GHANSHYAM SEN S/O SHRI BAIJNATH
SEN, AGED ABOUT 62 YEARS, ARVIND
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 06-Jun-24
1:21:07 PM
2 W.A. No.1214/2024
NAGAR, GAHARA NALA, DISTRICT SATNA
(MADHYA PRADESH)
6. SMT. NEELU SEN W/O SHRI ASHENDRA SEN,
AGED ABOUT 32 YEARS, OCCUPATION:
HOUSEHOLD LADY R/O BEHIND P.K.
SCHOOL, GALI NO. 2, REWA (MADHYA
PRADESH)
.....RESPONDENTS
............................................................................................................................................
This appeal coming on for admission this day, Justice Gurpal Singh
Ahluwalia passed the following:
JUDGMENT
This intra court Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005 has been filed against order dated 15/04/2024 passed in W.P. No.2396/2024.
2. The facts of present case lies in a narrow compass. One Ghanshyam Prasad Sen was placed under suspension. He filed a Writ Petition which was disposed of with a direction to the Appellate Authority to decide the Appeal. However, the undisputed facts are that the appellant, who was working as Clerk and in-charge Section Officer, prepared an order of revocation of suspension on his own and under his seal and signatures.
3. It is submitted by counsel for the appellant that the appellant is being departmentally proceeded for his act and his simultaneous prosecution under criminal law would amount to double jeopardy. It is further submitted that Ghanshyam Prasad Sen has also filed W.A. No.1025/2024 and notices have been issued.
4. Considered the submissions made by counsel for the appellant.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 3 W.A. No.1214/20245. In the present Appeal, undisputed facts are that by mis- interpreting the order passed by this Court on 23/09/2023 in W.P. No.23904/2023, appellant issued an order of revocation of suspension on his own and under his seal and signatures. This fact is also admitted by the appellant in the memo of Appeal also. The only contention of counsel for the appellant is that criminal prosecution of the appellant would amount to double jeopardy and accordingly, relied upon Article 20(2) of Constitution of India and under Section 300 of Cr.P.C.
6. Heard learned counsel for the appellant.
7. So far as the notices issued in Writ Appeal filed by other aggrieved person is concerned, the same will not have any effect on this case because in the present case, appellant who was holding the substantive post of Clerk and had issued the order of revocation of order of suspension on his own and under his own signatures and seal. The Appeal against the order of suspension was already pending and this Court had directed for disposal of said Appeal. Appellant was not in any manner authorized to issue the order of revocation of suspension. Furthermore, the defence taken by the respondents before the Writ Court that since Ghanshyam Prasad Sen was due for retirement, therefore the order of revocation of suspension was passed but the Hon'ble Single Judge found that there were two working days prior to the retirement of Ghanshyam Prasad Sen and therefore, there was no need to issue an order of revocation of suspension. Even otherwise, once the appellant had no authority whatsoever to issue an order of revocation of suspension, then whatever was done by him was illegal. Article 20(2) of Constitution of India and Section 300 of Cr.P.C. would not apply in the present case.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 4 W.A. No.1214/20248. It is not the case of the appellant that he has already been prosecuted and punished for the similar offence. His only contention is that since he is being proceeded in a departmental enquiry, therefore he should not be criminally prosecuted.
9. The aforesaid submission is not covered by the doctrine of double jeopardy.
10. The Supreme Court in the case of Avinash Sadashiv Bhosale (Dead) Through LRs Vs. Union of India and others reported in (2012) 13 SCC 142 has held as under:-
"54. This Court recently reiterated the legal principle that departmental proceedings can be conducted simultaneously to the criminal trial in Karnataka SRTC v. M.G. Vittal Rao [(2012) 1 SCC 442 :
(2012) 1 SCC (L&S) 171] . In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows:
54.1. There is no legal bar for both proceedings to go on simultaneously.
54.2. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law. 54.3. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
54.4. Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 5 W.A. No.1214/2024 common.
54.5. In our opinion, the principles culled out by this Court would be a complete answer to all the submissions made by Mr Jain."
11. The Supreme Court in the case of Stanzen Toyotetsu India Private Limited Vs. Girish V. and others reported in (2014) 3 SCC 636 has held as under:-
"16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially 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 the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."
12. The Supreme Court in the case of State Bank of India and Others Vs. Neelam Nag and another reported in (2016) 9 SCC 491 has held as under:-
"13. We have heard the learned counsel for the parties at some length. The only question that arises for Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 6 W.A. No.1214/2024 consideration is no more res integra. It is well settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. The contour of the approach to be adopted by the Court has been delineated in a series of decisions."
13. The Supreme Court in the case of Shashi Bhushan Prasad v. CISF, reported in (2019) 7 SCC 797 has held as under :
"17. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal court has been examined by a three-Judge Bench of this Court in A.P. SRTC v. Mohd. Yousuf Miya. The relevant paragraph is as under: (SCC pp. 704-05, para 8) "8. ... The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a 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 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 (sic duty), as distinguished from mere Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 7 W.A. No.1214/2024 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 Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
(emphasis supplied)
18. The exposition has been further affirmed by a three-
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 8 W.A. No.1214/2024Judge Bench of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. This Court held as under: (SCC p. 776, para 11) "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. 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 the 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 the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the 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 a 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". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 9 W.A. No.1214/202419. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that 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 an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. 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. Even 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 whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of "preponderance of probability". Acquittal by the court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment1 in detail and needs no interference by this Court.
20. The judgment in M. Paul Anthony case on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under: (SCC p. 691) "22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 10 W.A. No.1214/2024
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
14. The Supreme Court in the case of Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya, reported in (1997) 2 SCC 699 has held as under :
"8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a 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 public duty. The departmental enquiry is to maintain discipline Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 11 W.A. No.1214/2024 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 (sic 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 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 or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 12 W.A. No.1214/2024 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."
15. The Supreme Court in the case of Kusheshwar Dubey v. Bharat Coking Coal Ltd., (1988) 4 SCC 319 has held as under :
"6. In the Delhi Cloth & General Mills case it was pointed out by this Court: (SCR p. 230) "It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee v. Newsman's Printing Works this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
In Tata Oil Mills case Gajendragadkar, C.J., spoke for a three-Judge Bench thus: (SCR p. 562) "There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in Delhi Cloth and General Mills Ltd. v. Kushal Bhan it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 13 W.A. No.1214/2024 employer, should stay the domestic enquiry pending the final disposal of the criminal case."
In Jang Bahadur case this Court said: (SCR p.137) "The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers."
7. The view expressed in the three cases of this Court seem to support the position that 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, straitjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 14 W.A. No.1214/2024 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."
16. The Supreme Court in the case of Kendriya Vidyalaya Sangathan and others v. T. Srinivas, reported in (2004) 7 SCC 442 has held that while staying the departmental proceedings, the Court must take into consideration the seriousness of charges alleged against the employee. Where the charge is in relation to acceptance of illegal gratification by employee and desirability of continuing the delinquent officer in service in spite of such charges against him, the stay of disciplinary proceedings till the conclusion of criminal trial was unsustainable and accordingly has held as under:
"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course.
11. In the instant case, from the order of the Tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, a reading of the two impugned orders indicates that both the Tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the respondent in service in spite of such serious charges levelled against him. This Court in the said case of State of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 15 W.A. No.1214/2024 Rajasthan [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that in the disciplinary proceedings the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The Court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] the facts which seem to be almost similar to the facts of this case, held that the Tribunal fell in error in staying the disciplinary proceedings.
12. We think the above ratio of law laid down by this Court applies aptly to the facts of the present case also. It is also to be noted that in Capt. M. Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] this Court has accepted the principle laid down in Rajasthan case [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] .
13. As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the abovecited cases.
14. We are of the opinion that both the Tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 16 W.A. No.1214/2024 in this background it is not necessary for us to go into the second question whether at least Charge 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned counsel for the appellant."
17. The Supreme Court in the case of CAPT. M. Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in (1999) 3 SCC 679 has held as under:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 17 W.A. No.1214/2024 early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
18. The Supreme Court in the case of State of Rajasthan v. B.K. Meena and others, reported in (1996) 6 SCC 417 has held as under:
"12. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan [(1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 LLJ 520] it was held that the principles of natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action against the employee. At the same time, the Court observed: "We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced." In Tata Oil Mills Co. Ltd. v. Workmen [(1964) 7 SCR 555 : AIR 1965 SC 155 : (1964) 2 LLJ 113] it was observed, following D.C.M. [(1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 LLJ 520] that "it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. But to say that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 18 W.A. No.1214/2024 in such an enquiry is either bad in law or mala fide."
(emphasis supplied)
13. In Jang Bahadur Singh v. Baij Nath Tiwari [(1969) 1 SCR 134 : AIR 1969 SC 30 : (1969) 1 LLJ 567] the contention that initiation of disciplinary proceedings during the pendency of criminal proceedings on the same facts amounts to contempt of court was rejected. After considering the ratio of these three decisions, this Court held in Kusheshwar Dubey [(1988) 4 SCC 319 : 1988 SCC (L&S) 950 :
AIR 1988 SC 2118] : (SCC p. 323, paras 7 and 8) "The view expressed in the three cases of this Court seem to support the position that 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, strait-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.
In the instant case, the criminal action and the disciplinary proceedings are grounded upon the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 19 W.A. No.1214/2024 same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court's order of injunction which had been affirmed in appeal."
14. 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 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, it is emphasised, 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 into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. [(1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 LLJ 520] and Tata Oil Mills [(1964) 7 SCR 555 : AIR 1965 SC 155 : (1964) 2 LLJ 113] 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 holding high public offices are involved. They get Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 20 W.A. No.1214/2024 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 misdemeanour is enquired into 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 misdemeanour 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 emphasise 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 the various principles laid down in the decisions referred to above.
15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 06-Jun-24 1:21:07 PM 21 W.A. No.1214/2024 some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him."
(underline supplied)
19. Thus, it is clear that on similar allegations, the criminal proceedings as well as departmental proceedings can go on simultaneously.
20. As no error could be pointed out by counsel for the appellant, accordingly, Appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) (PRAMOD KUMAR AGRAWAL)
V. JUDGE V. JUDGE
S.M.
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 06-Jun-24
1:21:07 PM