Jainder Singh Tomar vs Municipal Corporation Of Delhi ...
2004 Latest Caselaw 783 Del

JUDGMENT

Manmohan Sarin, J.

1. By this common judgment, I would be deciding the above three writ petitions as same question of law and almost similar questions of fact arise.

2. Petitioners in the writ petitions are seeking stay of the departmental proceedings initiated against them during the pendency of the criminal cases registered against them.

3. Let us notice the individual facts in the three writ petitions to the extent they are relevant:

(i) Jainder Singh Tomar, petitioner in WP(C) 565/2004 had joined the MCD on daily wages in 1980. He was regularized in the post of Mali w.e.f. 1.4.1988. In January, 2000, petitioner was deputed to the Toll Tax Department of MCD.

(ii) Rajinder Prasad Yadav, petitioner in W.P.(C).593/2004 had similarly joined the MCD in May, 1989 on daily wages and was regularized in the post of Mali w.e.f. 1.4.1995. He was also deputed to Toll Tax Department in January, 2000.

(iii)A criminal case has been registered against both the petitioners vide FIR No.64/2000 dated 20.12.2000 under Section 13(1)(d) of Prevention of Corruption Act, 1988 read with Section 120B IPC at Anti Corruption Branch. As per the charge sheet, on 20.12.2000, both the petitioners were detailed on Toll Tax duty at Kapashere Border. They allegedly permitted the entry of the vehicles from the border of other states without receiving full amount of toll tax. It is urged that less money than the prescribed toll tax was collected without issuing any receipt. A raid was organized. Petitioner Rajinder Prasad Yadav and other employee was sitting at Booth No.1 respectively. It is alleged that money so collected by the petitioners was kept with the Tea Vendor near the toll tax booth.

(iv)Based on the above allegations and after investigations, offences under Section 13(1)(d) of Prevention of Corruption Act, 1988 read with Section 120B IPC have been registered against both the petitioners. The incidence is of 20.12.2000. Charge sheet has been supplied to the petitioners and the matter had been adjourned from time to time and the case was last fixed for 31st July, 2004 for framing of charges.

(v)It appears that Addl. Sessions Judge took the view that action had been taken against bribe takers but no action had been taken only against bribe givers. Accordingly, he directed that action be taken against bribe givers in accordance with law.

Therefore summoning of bribe givers would take further time and as a result, criminal trial is likely to be delayed in both the cases. Respondent-Corporation commenced departmental proceedings on 23.9.2003, issued memo to the petitioners along with statements of charges, statement of allegations, list of documents and list of witnesses through Vigilance Department to proceed with departmental action against the petitioners.

4. Ved Prakash, petitioner in W.P(C).No.2236/2004 joined MCD as a beldar on 1.4.1989 on permanent basis. He was also posted at Rajokri toll tax booth, TTC. For a similar incidence, FIR No.63/2000 dated 20.10.2000 under Section 7/13 read with Section 13(1)(d) of Prevention of Corruption Act, 1988 was registered against him. He was arrested and placed under suspension vide Office Order No.1469/SIO(P)Vig/2001/2052 dated 30.4.2001. The charge sheet for offences under the Prevention of Corruption Act, 1988 as filed on 12.8.2002 and petitioner had appeared before the trial court. The case had been fixed for framing of charges on 9.3.2004 On 25.9.2003, petitioner was served with Memo No.122/2002/CPC/Vig/DA.III/447 along with statement of charges and list of witnesses. Petitioner duly filed his reply thereto, professing innocence. Petitioner had also appeared before the Enquiry Officer and the enquiry proceedings are pending.

5. Petitioner filed the present writ petition, claiming that there was complete identity of facts and substratum of the challan filed in the designated Court viz-a-viz substratum of the statement of allegations in support of the charges. He claimed that witnesses were common in the criminal trial as well as domestic enquiry. Show cause notice was issued on 20.2.2004 and disciplinary proceedings against the petitioner were stayed. Right to file rejoinder was closed on 3.8.2004 The matter was directed to be listed for disposal along with W.P.(C).Nos.565/04 and 513/2004, which were part heard. None appeared for the petitioner on 4.8.2004 and the matter was adjourned for 10.8.2004 None appeared for the petitioner again on 10.8.2004, when counsel for the respondent was heard and the record was perused and judgment was reserved.

6. Let me notice the submissions of the learned counsel for the petitioners. It is urged that the continuance of departmental enquiry would prejudice petitioners' criminal trial under Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 120 IPC. The substratum of the charges in the criminal trial as also the statement of charges in the departmental enquiry are the same. The respective incidents and the facts are the same. Most of the prime witnesses stated in the criminal trial are also the witnesses in the Departmental enquiry. The charges of misconduct in the Departmental enquiry emanate from the same set of facts.

Learned counsel, therefore, submits that in case petitioners are made to disclose their defense in the departmental enquiry, it would irreparably prejudice the petitioners in their criminal trial.

7. Learned counsel next submitted that the charges were grave in nature and complicated questions of facts are involved. Hence departmental enquiry was liable to be stayed. Reliance is placed by the petitioners on a decision by a Division Bench of the Central Administrative Tribunal in S.I.Om Prakash Vs.Govt. of National Capital Territory of Delhi and Anr. (O.A.No.2705/2003). The Tribunal came to the conclusion that the decision in the criminal proceedings was going to reflect on the departmental proceedings and that the charges were of a grave nature. The Tribunal then stayed the departmental proceedings for nine months, giving liberty to the petitioner that in the event criminal trial was not completed, departmental proceedings could be revived. Counsel for the petitioners, therefore, submits that the departmental enquiry should be deferred pending the criminal trial.

8. Legal position is now fairly settled. The principles, as enunciated in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Anr. Reported at are reproduced for facility of reference:-

"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."

9. Mr.Vinay Sabharwal and Ms.R.Veena on behalf of the respondents submit that the criminal trial had already been delayed. It was an incident of 20.10.2000. In the first two petitions, namely, W.P.(C).Nos.565/2004 and 593/2004, the learned Additional District Judge has been pleased to give directions to summon the bribe givers. The criminal trial was likely to be delayed. In these circumstances, it would not be administratively expedient to defer and delay the departmental enquiry. It is submitted that no complicated questions of fact or law were involved. It was a simple case of the petitioners while being posted at toll tax booth, allowing vehicles to pass by without toll tax or collecting less tax and receiving illegal gratification therefore.

10. I have heard counsel for the parties and noted the facts, as above and the legal principles, as enunciated in Capt. M. Paul Anthony's 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 employee's 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.4 26/2003), decided on 8.4.2004, where he took judicial notice of the fact that criminal prosecutions under the Prevention 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.

The writ petitions are, accordingly, dismissed. The stay against the departmental enquiry is vacated.