Bombay High Court
Sharad Manga Tayade vs The State Of Maharashtra And ... on 5 October, 2016
Bench: R.M. Borde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 9509 OF 2016
Sharad s/o Manga Tayade
age 58 years, occ. retired
r/o Mangalam Cooperative society
Plot No. 1 and 2,
near Bramhagiri Society,
Jail Road,
Nashik .. PETITIONER
VERSUS
1. The State of Maharashtra
Through its Secretary
P.W.D. Department, Mantralaya,
Mumbai.
2. The Superintending Engineer,
Public Works Circle
Nanded
3. D.A. Wankhede }
The Regional Divisional } Deleted vide order dt.
Inquiry Officer, 2nd Floor, } 05.10.2016
Central Administrative Building, }
Aurangabad. } .. RESPONDENTS
Mr. A.N. Kakade, advocate for petitioner.
Mr. S.S. Dande, AGP for the State.
=====
CORAM : R.M. BORDE &
K.K. SONAWANE, JJ.
DATE : 5th OCTOBER, 2016.
ORAL JUDGMENT : ( PER R. M. BORDE, J. )
1. Rule. Rule made returnable forthwith.
2. Heard finally with the consent of learned counsel for the respective
parties.
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3. Leave to delete name of respondent no. 3.
4. Petitioner is facing prosecution for commission of offence under
section 7, 13(1)(d) r/w section 13(2) of Prevention of Corruption Act, 1988,
in Special Case No. 7/15 before the Special Court, Nanded. Petitioner was
working as Executive Engineer in Public Works Department, Zilla Parishad,
Nanded and has retired on attaining age of super annuation on 31.05.2015.
Zilla Parishad has initiated departmental enquiry against petitioner and
charge-sheet has already been served. Petitioner tendered reply to the
charges and the departmental proceeding is at the stage of recording of
evidence of witnesses to be presented on behalf of the department.
Petitioner claims that since the trial in special case has not yet commenced
and that he has not disclosed his defence, continuance of departmental
proceeding is likely to cause prejudice to him since he may have to disclose
his defence in the departmental proceeding. Petitioner contends that he
may face prejudice in special case if departmental proceedings are permitted
to continue. It is desirable to direct stay to the departmental proceeding
until completion of the trial in special case pending before the Special
Court, Nanded.
5. There is no hard and fast rule in respect of issuance of directions for
stay of departmental proceeding during continuance of the criminal trial. In
the matter of A.P. SRTC V. Mohd. Yousuf Miya reported in (1997) 2 SCC 699,
the Supreme Court has declared that the purpose underlying departmental
proceedings is distinctly different from the purpose behind prosecution of
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offenders for commission of offenes by them. While criminal prosecution for
an offence is launched for violation of a duty that the offender owes to the
society, departmental enquiry is aimed at maintaining discipline and
efficiency in service. The difference in the standard of proof and the
application of the rules of evidence to one and inapplicability to the other
was also explained and highlighted only to explain that conceptually the two
operate in different spheres and are intended to serve distinctly different
purposes. In the matter of Stanzen Toyotetsu India Private Limited Vs.
Girish V. and others reported in (2014) 3 SCC 636, the Supreme Court has
observed thus :
10. The relatively recent decision of this court
in Karnataka SRTC v. M.G. Vittal Rao, is a timely
reminder of the principles that are applicable in
such situation ssuccinctly summed up in the
following words :
"(i) There is no legal bar for both the
proceedings to go on simultaneously.
(ii) 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.
(iii) 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.
(iv) 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
common."
11. We may also refer to the decision of this
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Court in Capt. M. Paul anthony V. Bharat Gold
Mines Ltd., where this Court reviewed the case law
on the subject to identify the following broad
principles for application in the facts and
circumstances of a given case : (SCC p. 691, para 22)
"(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
(iii)
proceedings till the conclusion of the criminal case.
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, 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 t the earliest."
12. In Hindustan Petroleum Corpn. Ltd. v.
Sarvesh Berry the respondent was charged with
possessing assets disproportionate to his known
sources of income. The question was whether
disciplinary proceedings should remain stayed
pending a criminal charge being examined by the
competent criminal court. Allowing the appeal of the
employer Corporation this Court held :
(SCC p. 475, para 8)
"8....... So, a crime is an act of commission in
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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 wuld,
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 a grave nature involving complicated
questions of fact and law.... 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." (emphasis supplied)
15. To the same effect is the decision of this
Court in State of Rajasthan v. B.K. Meena, 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 mater of course.
The following passage is in this regard apposite :
(B.K. Meena case, SCC pp. 422-23, paras 14-15)
"14. ......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 fats 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
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disciplinary proceedings is that 'the defence of the
employee in the criminal case may not be
prejudiced'. This grouind 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.... 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.....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." (emphasis supplied.)
In the matter of Babulal Verma Vs. Union of India and another
reported in 2008 ALL M.R. 556, the Division Bench of this court has
observed that there is no uniform principle that wherever a departmental
enquiry and the criminal trial is based on somewhat similar facts, the
departmental enquiry should essentially be stayed till conclusion of the
criminal trial. Mere similarity of facts per se is not a ground for staying any
of the two proceedings. In the case before the Court, the petitioner therein
was served with the charge-sheet in December 2002 in respect of article of
charges relating to the period of 1999. Despite objection to the
departmental proceedings it had reached at a mature stage and was about
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to conclude. In the circumstances, the Court deemed it appropriate not to
stay the departmental proceedings. The Court has, however, observed that
whenever prejudice is likely to be caused in the criminal proceeding and
looking to the seriousness of charges, appropriate direction can be issued to
stay the departmental proceedings. In the instant matter, as has been
recorded above, evidence has not yet been recorded in the departmental
proceeding and the criminal trial is also at the stage of framing of charges.
In the circumstances, the ends of justice would meet by directing criminal
Court to complete the trial of the Special Case expeditiously. We, therefore,
direct the Special Judge, Nanded, to conclude Special Case No. 7/15 as
expeditiously as possible, preferably within a period of six months from
today. We are issuing such direction since the petitioner is a retired
employee and is facing criminal charges as well as departmental
proceedings. Departmental proceedings initiated by respondents shall
stand stayed till decision in Special Case No. 7/2015. Rule is accordingly
made absolute. No costs.
( K. K. SONAWANE ) ( R. M. BORDE )
JUDGE JUDGE
dyb
