Vinod Kumar vs Govt. Of Nct Of Delhi And Ors.
2002 Latest Caselaw 658 Del

JUDGMENT

S.B. Sinha, C.J.

1. How long a departmental proceeding should remain stayed pending judgment in a criminal trial is the question involved in these writ petitions, which arise out of judgments and orders dated 18.03.1998 and 28.07.1998 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as, 'the Tribunal') in the original applications Nos. 3209 of 1992 and 2887 of 1996.

2. The fact of the matter is being noticed from CWP No. 4116 of 1998. The petitioner was a constable working with Delhi Police.

3. The following charge sheet was issued against him by the Additional Commissioner of Police, North-East District, Delhi:-

"It is alleged that Constable Vinod Kumar, No. 931/NE posted to Distt. Lines absented himself from duty vide D.D. No. 23 dated 12.7.91. Meanwhile an information was received from S.S.P. Ghaziabad (U.P.) that Const. Vinod Kumar, No. 931/NE has been arrested along with 4 other persons namely Rishi Pal, Dharambir, Lokendar and Vinod Kumar in case FIR No. 280 Crime No. 353, dated 12.7.91 under Section 399/402-IPC & 25/54/59 Arms Act, P.S. Kavi Nagar while they were planning to loot a Maruti Van and a Milk Van carrying cash from Delhi. A knife was also recovered from the possession of Constable Vinod Kumar, No. 931/NE.

The above act on the part of Const. Vinod Kumar, No. 931/NE amounts to grave misconduct, lack of integrity which renders him liable for departmental action under Section 21 of Delhi Police Act, 1978."

4. The contention of the petitioner is that since a criminal proceeding had also been started on the same allegation, unless the departmental proceedings are stayed, the petitioners shall be prejudiced, as they will have to disclose their defense. However, according to the respondents, the allegations in the criminal case and the departmental proceedings are not identical.

5. The learned Tribunal inter alia observed that having regard to the fact that nearly 6 years have passed, it is difficult to hold that the applicant was yet to disclose defense in the criminal case. The learned Tribunal further having regard to the decision of the Apex Court in State of Rajasthan v. B.K. Meena and Ors. observed that there is no legal bar for simultaneous criminal proceedings and departmental proceedings on the same set f facts. It was further held:-

"10. We also find ourselves in agreement with the learned counsel for the respondents that the allegations in the disciplinary enquiry are not exactly the same as those in the criminal case. As is evident from the opening words of the summary of allegations, extracted above, the main charge against the applicant is that he had absented himself from duty on 12.7.91, though it is further mentioned that in the meanwhile an information was received from S.S.P. Ghaziabad that the applicant had participated in the commission of a crime."

6. Mr. Shyam Babu, the learned counsel appearing on behalf of the petitioners, took us through the charges against the petitioner in the departmental proceedings as also in the criminal proceedings and submitted that from a perusal thereof, it would appear that the charges are substantially the same. The learned counsel, however, would contend that if the departmental proceeding is initiated against the petitioners on any charge(s) other than those involved in the criminal proceedings, his client has no objection to appear before the Inquiry Officer. The learned counsel would contend that the learned Tribunal wrongly applied the ratio laid down by the Apex Court in B.K. Meena's case (Supra) inasmuch therein the defense had already been disclosed.

7. The learned counsel submitted that in the aforementioned situation, the departmental proceedings should be directed to be stayed. Strong reliance in this connection has been placed on Kusheshwar Dubey v. Bharat Coking Coal Ltd. and Ors. and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. (1999) 3 SC 679.

8. The learned counsel would also contend that the respondents themselves have issued a circular on 21.08.1999 wherein they themselves recommended stay of the departmental proceedings and thus they being bound thereby, the impugned judgments of the Tribunal cannot be sustained.

9. The charges against the petitioners in the criminal case are filed in two different cases as follows:-

"(i) It is submitted that on 12.7.91 the accused were arrested at 14.15 p.m. from House No. C-268, Shastri Nagar, when they were planning to loot the cash of Milk Van, which uses to bring cash from Delhi, with the help of a looted Maruti Van. After their arrest, the investigations were initiated and offence of the accused is found punishable under Section 399/402 I.P.C. Therefore, challen is prepared against the accused and submitted before Court for trial of accused.

(ii) It is submitted that today on dated 12.7.91 at about 14.15 p.m. from House No. C-268, Shastri Nagar Vinod Kumar along with a knife has been arrested. Investigations were conducted in the mater and after investigations the accused is found guilty of offence punishable under Section 25/4A Act. Therefore, the challan is prepared against the accused and submitted before Court for trial of accused."

10. On comparison of the charges pending in the criminal proceedings and the departmental proceedings, it would appear that the charges pending before the departmental proceedings are not exactly the same insofar one more charge had been added therein, namely, he had absented from duty on 12.07.1991.

11. The case at hand clearly goes to show how sometimes a delinquent officer achieves his object of delaying the departmental proceedings on some pretext or the other. It is not in dispute that the petitioner's representation for stay of departmental proceedings although made on 01.07.1992, no order thereupon had been passed by the Disciplinary Authority. Without waiting for the order of the disciplinary authority, he moved the Tribunal in the year 1992, which was disposed of on 18.03.1998. The petitioner thereafter filed writ petition on 19.08.1998 and obtained an order of stay, which is still continuing.

12. As indicated hereinbefore, a bare perusal of the charges levelled against the petitioners both in the departmental proceedings as also in the criminal case would go to show that in the departmental proceedings, the petitioners are facing one extra charge.

13. Under the common law or even under the Delhi Police Act, 1978 or the Delhi Police (Punishment & Appeal) Rules, 1980 simultaneous departmental proceedings and the criminal proceedings are not prohibited.

14. In Capt. M. Paul Anthony's case (Supra), the Apex Court upon taking into consideration various decisions including Bharat Coking Coal Ltd.'s case (Supra) held:-

"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 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."

15. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan , the Apex Court held that simultaneous proceedings of the departmental proceedings and the criminal case do not offend the principles of natural justice. However, in a case of grave nature or involving complicated questions of fact and law, it was held to be advisable for the employer to await the decision of the trial court, so tat the defense of the employee in the criminal case may not be prejudice. The said decision was followed by the Apex Court in Tata Oil Mills Co. Ltd. v. The Workmens , wherein the same the principles were reiterated.

16. In Nelson Motis v. Union of India and Anr. , however, the Apex Court clearly held that the nature and scope of a criminal case are very different from those of the departmental proceedings and an order of acquittal, therefore, cannot conclude the departmental proceedings. It was held:-

"5. So far as the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceedings and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject-matter of the criminal case."

17. In B.K. Meena's case (Supra), although therein the delinquent officer disclosed his defense, it was clearly held:-

"14. ... 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 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 proceeding 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."

18. The aforesaid dictum was followed in Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya, etc. .

19. In the instant case, the offence was committed and the departmental proceedings started in the year 1991. The criminal case despite stay of the departmental proceedings has not yet been concluded.

20. As noticed hereinbefore, in B.K. Meena's case (Supra), the Apex Court has clearly laid down that the departmental proceedings should not be stayed for a long time. As indicated hereinbefore, despite expiry of a long period of 11 years, the criminal proceedings have not been concluded. The petitioners herein are being proceeded against on a grave charge. Having regard to the charges against the petitioner even on their acquittal in the criminal case, they may not be found fit for continuing in the police services, if the same are proved. Furthermore, the learned Tribunal has arrived at a finding of fact to the effect that the charges are not similar and, in any event, it is unlikely that the petitioners have not disclosed their defense.

21. It is true that after the decision of Capt. M. Paul Anthony's case (Supra), the aforesaid circular dated 21.08.1999 has been issued, but the said circular will have a prospective effect. Furthermore, in the instant case, the petitioners ought to have awaited decision of the employer when an application was filed by them for stay of the departmental proceedings. As the same has not been done, we are of the opinion that the Tribunal ought not to have entertained the application inasmuch as the charges could not have been quashed only on the ground that a criminal case have also been instituted.

22. This Court while exercising the jurisdiction of judicial review, in our opinion, cannot interfere with the discretion of the Tribunal, unless it is found to be wholly irrational or arbitrary.

23. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned judgment. These writ petitions are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.