K. Ganesh vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1022 Del

JUDGMENT

Mukundakam Sharma, J.

1. As the facts giving rise to the present two writ petitions arc similar and the issues arising for our consideration are identical, we propose to dispose of both these writ petitions by this common judgment and order.

WP(C) 1792/2002:

2. The petitioner herein was posted and working in the accounts section of the respondents/CISF at North Zone Headquarters, New Delhi. The scope of his duties included, inter alia, preparing bills, making payments mainly of CEA, Tuition Fee, TA, DA and LTC claims. During the course of discharging his duties the petitioner was found to have claimed a sum of Rs. 36,775/- in excess and illegally from the Government fund through various bills which he was not entitled to claim. Another sum of Rs. 500/- was adjusted by him against one Inspector M.D. Manjihi. On the aforesaid account a criminal case was registered on 1.2.1999 for the offences of cheat, fraud, forgery and misappropriation, falsification of account, intentional wrongful gain to himself and wrongful loss to the Government. A first information report being FIR No. 68/99 was registered in the police station Malviya Nagar under Sections 120B/420/467/478/471 IPC. In the said criminal case, even the charge-sheet could not be framed till the hearing of the writ petition although the said FIR was registered on 1.2.1999.

3. On the ground that there has been embezzlement, failure to maintain absolute-integrity, misconduct and dereliction of duty etc., the petitioner was also issued a charge memo dated 14.1.2001 initiating a departmental enquiry against the petitioner. The aforesaid charge memo was issued to the petitioner on 14.1.2001. The petitioner requested for providing him with English version of the charge memo, which was handed over to the petitioner on 18.9.2001. The petitioner by his letter dated 26.9.2001 sought for certain documents, which according to him were essential for submitting his defense statement. He also sought for certain clarifications, which were listed in the said letters, in order to enable him to submit the defense reply. In terms of the request of the petitioner certain documents were furnished to the petitioner by letter dated 22.10.2001 and the same were received by the petitioner. After the aforesaid documents were received, the petitioner requested to provide him with further documents by his letter dated 24.11.2001 wherein the petitioner also intimated that he would submit his defense reply to the articles of charges within ten days. On 15.1.2002, the petitioner filed a detailed representation wherein he had given certain explanations on the basis of the charge memo, which was supplied to him. In the aforesaid explanation, the petitioner has recorded certain defects. He had also analysed the articles of charges and statement of imputation of misconduct, in the said representation and indicated certain technical flaws, which according to him are there in the articles of charges and statement of imputation of misconduct. The petitioner requested that the disciplinary proceedings be dropped due to the aforesaid defects/technical flaws and that in the event of not accepting the aforesaid prayer of the petitioner the disciplinary proceeding should be stayed till finalisation of criminal proceedings in the Court of law. Thereafter, the present petition was filed by the petitioner under Article 226 of the Constitution of India praying for a direction to the respondents to stay the proceedings in the departmental enquiry till the final decision of the criminal case, which was registered against the petitioner.

4. In this petition the petitioner while working as Constable with CISF at North Zone Headquarters, New Delhi from August, 1995 to June, 1998 was deployed in the Accounts Section of the respondents. He was working under the supervision of SI K. Ganesh and ASI/ CIk R.S. Tokas. Incidentally, SI K. Ganesh is the petitioner in W.P. (C) No. 1792/2002. During the course of his duties, the petitioner herein was found to have wrongly claimed leave encashment by making wrong entries in the bills. It was also found by the respondents that although the petitioner had not made entries in the PBR but had written 'Entered in PBR' and that he also prepared bills wherein excess leave encashment was claimed in respect of five individuals out of which two had already been posted our from. North Zone Head quarters and hence no payment was due to them. It was alleged that the aforesaid acts were done by the petitioner herein with full knowledge and connivance of SI K. Ganesh and ASI/CIK R.S. Tokas. As against the petitioner also the aforesaid FIR No. 68/99 was registered in the Malviya Nagar Police Station under Sections 120B/420/467/478/471, IPC for committing the offences of cheating, fraud, forgery and misappropriation, conspiracy etc. A charge memo was also issued to the petitioner on 14.1.2001 initiating the departmental proceedings against the petitioner. At the request of the petitioner English version of the charge memo was given to him on in the aforesaid departmental proceeding. The petitioner has already submitted his statement of defense, which is annexed with this writ petition at page 42. Subsequently, the petitioner filed the present writ petition in this Court praying for a direction to the respondents to stay the departmental proceeding initiated against him till final decision is rendered in the aforesaid criminal case registered against him in which charge is yet to be framed.

5. Both the petitioners were represented by Mr. M.K. Bhardwaj, Advocate, who had drawn our attention to Circular No. 14/2001 dated 14.9.2001 issued by the respondents. Relying on the said circular and the decision of the Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines, JT 1992(2) (SC) 456, Counsel appearing for the petitioner submitted that in case the departmental enquiry is continued, the defense of the petitioner would be prejudicially affected as he would be bound to disclose his defense in the disciplinary proceedings. It was also submitted by him that the criminal case as also the disciplinary proceedings are based on same set of facts and, therefore, evidence in both the cases would be common and, therefore, if the departmental proceedings are not stayed the petitioners would be required to disclose their defense prematurely, which would prejudicially affect their interest and cause.

6. Counsel appearing for the respondents, however, refuted the aforesaid allegations and submitted that the departmental proceedings and the criminal trial in the present two cases could go on simultaneously in view of the fact that the case against the petitioners is mainly based on the documentary evidence and that the said cases do not involved complicated questions of law or fact. It was submitted that since proof would be based mainly on documentary evidence, no prejudice could be claimed on account of simultaneous progress of departmental and criminal proceedings. It was also submitted that although the FIR was registered on 1.2.1999, till date no charge is framed against the accused and that on the last date of hearing in the aforesaid two cases, the petitioners were absent, as a result of which the Metropolitan Magistrate, New Delhi had to issue warrants against the petitioners to ensure their presence. It was also submitted that since the charge is yet to be framed and the evidence is yet to be led even after expiry of five and a half years from the date of registration of the FIR, there would definitely be delay in completion of the criminal proceedings and, therefore, the departmental proceedings should not be stayed and instead be conducted expeditiously so as to effectuate efficiency in public administration. In support of his contention the Counsel relied upon the decisions of the Supreme Court in State of Rajasthan v. B.K. Meena, and also the case of Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Mian, as also the case of Captain M. Paul Anthony v. Bharat Coal Mines, (supra).

7. We have carefully considered the aforesaid submissions of the Counsel appearing for the parties in the light of the records placed before us. The respondents have issued a circular on 19.4.2001 laying down certain guidelines concerning the issue of simultaneous continuation of the departmental enquiry during the pendency of the criminal trial. It is indicated in the aforesaid circular that the departmental enquiry could be started/continued during the pendency of the criminal trial without awaiting the outcome of the judicial trial as there is no bar on their being conducted simultaneously though separately. It is also mentioned in the said circular that parallel proceedings of the two cases could be held for the reasons stated in the said circular. It was also mentioned therein that a departmental proceeding could be stayed by the Court when they are grounded upon the same set of facts as in the criminal cases, as held by the Supreme Court in the case of Kusheshwar Dubey v. Bharat Cooking Coal Ltd., . Reference was also made in the said circular to the decision of the Supreme Court in Tata Oil Mills Ltd. v. Workmen and Delhi Cloth and General Mills Ltd. v. Kushal Bhan as also in the case of Captain M. Paul Anthony (supra) that it would be appropriate to stay the domestic enquiry where the charge against a workman in the criminal trial is of a grave character because in such a case it would be unfair to compel the workman to disclose the defense which he might like to take before the criminal Court. Reference was also made to the decision in State of Rajasthan v. B.K. Meena (supra) wherein it was held that there is hardly any need for the Courts to interfere by way of stay in case the delinquent had already disclosed his defense in the statement of defense submitted in reply to the charge memo. Having referred to the aforesaid decisions, the respondents in the said circular have finally stated that it could be deduced that the two proceedings, criminal and departmental, could be taken together against a Government servant, but yet if the two proceedings are based on the same set of facts, there is a possibility of the departmental proceedings being stayed on the ground of premature disclosure of the defense of the charged officer. It was also laid down therein that in case a Government servant has proved himself to be unworthy of the post held by him, the department should not wait for conclusion of the criminal proceedings and that, in fact, it would be expedient and desirable that the charges are framed in such a way that they appear slightly distinct and different from the ones framed in the criminal trial.

8. We may also, at this stage, appropriately refer to the decision of the Supreme Court in the State of Rajasthan v. B.K. Meena (supra). In Para 14 of the said judgment, it was held as under:

"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 no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions for staying the disciplinary proceedings is "that the defense 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 case 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.... One of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. So far the 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 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...."

8. In Paragraph 16 of the said judgment, it was observed thus :

"16.... The respondent has already disclosed his defense in his elaborate and detailed statement filed on 9.2.1993. There is no question of his being compelled to disclose his defense in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore...."

9. In Para 17 of the said judgment it was further held by the Supreme Court in the following manner :

"17. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. 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 under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.".

10. Since strong reliance was placed by both the Counsel for the parties in the case of Captain M. Paul Anthony (supra), we are tempted to extract the conclusions deduced by the Supreme Court, which are recorded in Para 22 of the said decision, and which are 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 cases 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 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 and 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."
 

11. In the light of the aforesaid settled position of law by the Supreme Court and also by the respondents themselves in the circular issued, it would be appropriate for us to examine the facts and materials of these two cases against the backdrop of the aforesaid settled position of law as also the position indicated in the circular issued by the respondents. In both the cases the first information report was registered in the year 1999. However, no charge could be framed in the aforesaid cases registered till the hearing of both the writ petitions. The aforesaid criminal case registered on the basis of FIR No. 68/1999 is now posted on 22.12.2004 for framing of charge before the Metropolitan Magistrate. On the last date fixed for framing of charges, the accused/petitioners were absent, as a result of which warrant had to be issued against the accused/petitioners. The charge memos have been issued to the petitioners as far back as on 14.1.2001.

12. As against the aforesaid charge memo, the petitioner in W.P. (C) No. 1789/2002 has already submitted his statement of defense. We have perused the said statement of defense annexed with the writ petition at page 42. A perusal of the same would indicate that the entire defense, on the basis of which the petitioner is going to contest the departmental proceedings, is disclosed in the aforesaid reply filed.

13. So far the petitioner in W.P. (C) No. 1792/2002 is concerned, he has filed a detailed representation wherein his defense has also been disclosed on the basis of which the petitioner has prayed for dropping the departmental proceedings altogether. Certain technical flaws in the charges have been set out by the petitioner in his representation and has requested for dropping the entire proceeding in view of the aforesaid flaws pointed out by him in the departmental proceedings.

14. Since the petitioners have already disclosed their defense by filing the statement of defense and reply to the memo of charges in W.P. (C) 1789/2002 and also a detailed representation disclosing his defense in W.P. (C) 1792/2002, in our considered opinion the ratio of the decision in B. K. Meena's case (supra) is squarely applicable to the facts of the present two cases. It has been held in the said decision in Para 16 that where the delinquent has already disclosed his defense by elaborating a detailed statement, the departmental enquiry need not be stayed till conclusion of the criminal trial in such cases. In Depot Manager, Andhra Pradesh Road Transport Corporation v. Mohd. Yousuf Miya (supra) and also the aforementioned cases, it has been held by the Supreme Court that there would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case. Similar view has also been taken by the Supreme Court in the case of B.K. Meena (supra), wherein it was held that so far as the criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved and that they get bogged down on one or the other ground. It was further held that they hardly ever reach a prompt conclusion and that is the reality in spite of repeated advice and admonitions from Courts. In that context the Supreme Court held that 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 settled position of law in respect of simultaneous continuation of departmental proceedings and criminal proceedings is that both the proceedings could proceed simultaneously as there is no bar on their being conducted simultaneously though separately.

15. Considering the entire facts of the two cases and the fact that in W.P. (C) 1789/2002, entire defense is disclosed by the petitioner in the departmental proceeding and also the fact that in the other writ petition being W.P. (C) 1792/2002, the petitioner having filed a detailed reply, giving details of his defense and pointing out certain technical flaws pointed out by him in the articles of charges, we are of the considered opinion that in the present two cases there could be continuation of both the proceedings simultaneously as there would be no scope for any prejudice being caused to the petitioners as their defense has been disclosed in the civil proceedings, which would necessarily be their defense also in the criminal case. As they have disclosed their defense prior to coming to this Court, there is no justification in staying the departmental proceedings any further.

16. We are also of the considered opinion that the criminal case is already unduly delayed and it appears that the said criminal proceeding is going to be dragged on as even charges are yet to be framed in the criminal case. The charge memo was issued in 2001. The same itself is unduly delayed as three years have already expired from the date of initiation of the same. If the departmental proceeding is ordered to be stayed further, the disciplinary proceeding would be unduly delayed. Besides, in the disciplinary proceedings, the question to be decided is as to whether the delinquent 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 are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.

17. In that view of the matter and considering the entire facts of the two cases, we are of the considered opinion that the defense of the petitioners in both the aforesaid writ petitions is not going to be prejudiced as the said defense is already disclosed in the departmental proceedings. Therefore, we order accordingly that both the proceedings initiated against the petitioners could go on simultaneously.

In terms of the aforesaid conclusion arrived at by us, we find no merit in these petitions and the same are dismissed. The interim order stands vacated.