Union Of India (Uoi) And Ors. vs G.S. Shukla
2002 Latest Caselaw 1183 Bom

JUDGMENT

Ranjana Desai, J.

1. Rule returnable forthwith. Respondent waives service. By consent of the parties the petition is taken up for final hearing.

2. This petition challenges the legality and validity of order dated 27-2-2002 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application No. 747 of 2001.

3. The respondent is working as a Train Ticket Examiner at Bhusawal in the Central Railway. A major penalty chargesheet dated 20-11 -2000/2-11 -2000 was issued against the respondent. The Articles of charge read as under :

"Mr. G. S. Shukla, TTE on duty on board 1015 On Kushinagar Express starting from Lokmanya Tilak Terminus, Mumbai on 12-11-1999 committed gross misconduct inasmuch as he was found in possession of excess cash to the tune of Rs. 1050/-. He also obstructed C.B.I, official while performing official duty which led to registration of CR No. 39/99 at Igatpuri Railway Station.

The aforesaid act of Mr. G. S. Shukla, show that he did not maintain absolute integrity and acted in a manner which is unbecoming of a government servant and thereby contravened the Railway service (conduct) Rules, 1966 and other circulars issued by Competent Authority from time to time."

4. Prior to this a chargesheet was filed against the respondent in the court of Judicial Magistrate First Class (Railways) Manmad on 4-10-2001 stating as under:

"That on 13-11-1999 between 01/45 to 3/20 a.m. in bogey No. S/11 of Kushinagar Express between Igatpuri to Nashik Road Rly. Stn. You assaults and use criminal force to the complainant being public servant in the execution of his duty as such public servant, and intentionally insults and thereby give provocation to the complainant intending or knowing it to be likely that such provocation will cause him to break the public peace and thereby."

5. The respondent filed an application in the Central Administrative Tribunal being Original Application No. 747 of 2001 praying that a direction be issued to the Central Railways not to conduct the departmental enquiry till the decision of the criminal proceedings. The basic contentions of the respondent were that the chargesheet in the criminal court and in the departmental enquiry is one and the same; that witnesses which are to be examined in the criminal case as well as the departmental proceedings are also the same; that respondent will be forced to disclose his evidence if the departmental enquiry is allowed to be conducted before conclusion of criminal proceedings and that will cause prejudice to him.

6. The Tribunal after hearing both sides held that though there is no bar to proceed with the departmental enquiry when the criminal case is pending in the instant case the charge which the respondent has to face in the departmental enquiry is the same as the charge which he has to face in the criminal court. The Tribunal, therefore, observed that the departmental proceedings need to be stayed pending the criminal proceedings. The Tribunal referred to the judgment of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., and observed that in that case it is held that if the finalisation of the criminal case is unduly delayed and not on account of any fault on the part of the respondent then there would be scope to review the stay of the departmental proceedings. In view of this, the Tribunal stayed the departmental proceedings initiated against the respondent for a period of two years or till the judgment in the criminal case filed in the Court of J.M.F.C. (Railways) Manmad

is delivered, whichever is earlier. Being aggrieved by the said judgment and order the petitioners have approached this Court.

7. We have heard at some length Mr. Suresh Kumar, the learned counsel appearing for the petitioners and Mr. Thorat, the learned counsel appearing for the respondent. We have been taken through the impugned judgment and order.

8. Mr. Suresh Kumar contended that the Tribunal misdirected itself in observing that in the case on hand the departmental proceedings need to be stayed. He submitted that the law on this point is well settled by the Supreme Court in State of Rajasthan v. B. K. Meena and Ors., 1996 (6) SCC 17 and, the Tribunal ought to have followed the ratio of the said case. He submitted that it was wrong on the part of the Tribunal to stay the departmental proceedings because it cannot be said that the accusation against the respondent in the criminal case and in the departmental proceedings are identical. He, submitted that, therefore, the impugned order deserves to be set aside.

9. Mr. Thorat on the other hand drew our attention to Paul Anthony's case (supra) and contended that though in Meena's case (supra) the Supreme Court has said that the departmental proceedings and proceedings in a criminal case can proceed simultaneously, it has further clarified that if the departmental proceedings and the criminal case are based on identical 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. The learned counsel contended that the case on hand falls in this category of cases carved out by the Supreme Court in Paul Anthony's case (supra) and, therefore, the impugned order does not merit any interference.

10. We are not impressed by Mr. Thorat's submissions. In B. K. Meena's case (supra) the respondent was a member of the Indian Administrative Service belonging to Rajasthan cadre. A First Information Report was lodged against him for alleged misappropriation of public funds to the tune of Rs. 1.05 crores. Departmental proceedings were initiated against the respondent. The respondent submitted his written statement. Chargesheet was filed in the Court of the Chief Judicial Magistrate, Jaipur against him for the offence of misappropriation of public funds. The respondent approached the Central Administrative Tribunal for stay of the disciplinary proceedings. The Tribunal found that the chargesheet in the criminal case and the memo of charges in the disciplinary proceedings are based upon same facts and allegations. The Tribunal, therefore, stayed the disciplinary proceedings pending the criminal proceedings. The State of Rajasthan approached the Supreme Court. After taking a resume of the relevant case law on the point the Supreme Court observed that the disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements and hence they should not be unduly delayed. We may quote the relevant observations of the Supreme Court:

"One of the contending consideration 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

bogged down on one or the other ground. They hardly even reach a prompt conclusion that is the reality in spite of repeated advise 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 interest of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into properly. 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 period 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 decision referred to above".

11. In Paul Anthony's case the same question fell for consideration of the Supreme Court. The appellant therein was appointed as the security officer in respondent 1 Bharat Gold Mines Ltd. a Government undertaking. In the raid conducted by the Superintendent of Police at his house gold was recovered. A criminal case was registered against him and he was placed under suspension on 3-6-1985. On 4-6-1985 a chargesheet was issued proposing a regular departmental inquiry with regard to the recovery of gold from his house. The appellant did not participate in the departmental proceedings. The proceedings were concluded. The appellant was found guilty and was dismissed from service. Thereafter he was acquitted in criminal case. His prayer for reinstatement was i. rejected. He challenged the validity of dismissal. When the matter reached the Supreme Court, the Supreme Court after referring to the relevant judgments again restated the law on the point. Following are the relevant observations of the Supreme Court.

"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 conclusions 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 chargesheet.  
 

 iv)     The factors mentioned at (i) 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, administration may get rid of him at the earliest."  
 

12. Similar question was considered by Division Bench of this Court in Shivaji Mahadu Pagar v. Sarvangin Vikas Mandal and Anr., 2000 (4) Mh.LJ. 307 to which one of us (A. P. Shah, J.) was a party. After considering the judgments of the Supreme Court in B. K. Meena's case and Paul Anthony's case the Division Bench observed that the departmental proceeding is adopted for the purpose of dealing with a case of misconduct under the Rules and Regulations governing the service of the employer. On the other hand, a criminal prosecution is a proceeding for the purpose of dealing with a violation of the penal law of the land. The standard of proof in a criminal trial is of proof beyond reasonable doubt. In a departmental proceeding, the charge of misconduct has to be established on a preponderance of probabilities. The applicable rules of substantive law, of evidence and of procedure which govern departmental proceedings, are distinct from those which govern criminal prosecutions."

13. The judgments of the Supreme Court in B, K. Meena's case and Paul Anthony's case and of this Court in Shivaji Pagar's case make it clear that departmental proceedings and proceedings in the criminal case can proceed simultaneously and merely because a criminal case is pending the departmental proceedings are not to be stayed as a rule. Departmental proceedings have to be concluded as expeditiously as possible because their purpose is to keep persons with questionable background out of the administration so as to protect it. It is well known that criminal cases take a long time to reach conclusion. Unless prejudice is imminent on account of presence of identical facts and complicated questions of law and facts in both the proceedings and on account of grave nature of the charge, departmental proceedings cannot be stayed on the speculative

reason that the disclosure of defence will prejudice the delinquent, because that will be harmful to the administration. But in this connection no hard and fast rules can be laid down and each case will have to be decided against the backdrop of its peculiar facts and circumstances. Departmental proceedings and criminal case operate in distinct fields. The purpose of criminal case is to punish a person for the offence he has committed. The purpose of departmental proceedings is to clear out undesirable elements from the administration so as to prevent vices like corruption from percolating in its layers. There is a vast difference in the nature and conduct of these two proceedings. It is only in exceptional cases where departmental proceedings and criminal case are based on identical facts and the charge in the criminal case is of a grave nature which involves complicated questions of law and fact that departmental proceedings may have to be stayed till the conclusion of the trial. We must remind ourselves of the observations of the Supreme Court in Paul Anthony's case that though departmental proceedings and criminal case can proceed simultaneously and it is necessary to see whether on the basis of the evidence collected it can be said that the charge is grave involving complicated questions of law and fact these factors cannot be considered in isolation to stay the departmental proceedings, but regard must be had to the fact that the departmental proceedings cannot be unduly delayed and if the criminal case is unduly delayed, the departmental proceedings, even if they are stayed must be resumed.

14. In the case on hand it cannot be said that the charge in the criminal case is of a grave nature which involves complicated questions of law and fact. The respondent was working as Train Ticket Examiner during November 1999. On 13th November, 1991 a surprise check was conducted by CBI on board Kushinagar Express and, during the course of surprise check it was found that the respondent was manning coach S/11, He took out money from shirt pocket and threw it out of the train. Due to strong wind money got scattered near the seats. The money was collected and calculated. The amount was Rs. 1050/-. The respondent abused the members of the surprise team. He obstructed the CBI officials while they were performing their official duty. He behaved in uncontrolled and unbecoming manner and created commotion. The facts are simple. Similarity of facts, assuming it is there, will not by itself be sufficient because in most cases similarity may exist. What is important is that the present case does not involve any complicated questions of law and facts. Therefore, we are of the opinion that the Tribunal erred in staying the departmental enquiry.

15. The Tribunal has stayed the departmental proceedings initiated against the respondent for a period of two years or till the judgment in the criminal case filed against him is delivered, whichever is earlier. It is observed that, if the criminal case is unduly delayed and not on account of any fault on the part of the respondent then, there would be scope to review the stay of the departmental proceedings. First of all, as observed by us in the preceding paragraph, this is not a case where departmental proceedings deserve to be stayed. Besides, looking to the pendency of the criminal cases in the courts, early disposal of the criminal case pending against the respondent appears to be a myth. In the facts of this case therefore, in our opinion, the impugned order deserves to be set aside.

16. Hence the following Order:--

"Petition is allowed. Order dated 27-2-2002 passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai in original Application No. 747 of 2001 is set aside. Petition is disposed of."