Sunil Kumar vs Indian Oil Corporation Ltd.
2009 Latest Caselaw 3017 Del

*             HIGH COURT OF DELHI: NEW DELHI

             Judgment reserved on: July 29, 2009
           Judgment delivered on: August 06, 2009

+                    W.P. (C) No. 7468 of 2009

       Sunil Kumar                      ...  Petitioner
                Through: Ms. Asha Jain Madan, Mr. Mukesh
                         Jain & Mr. Yogesh Sharma,
                         Advocates.

                               versus

       Indian Oil Corporation Ltd.         ... Respondent
                  Through: Mr. Jagat Arora & Mr. Rajat Arora,
                            Advocates.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?

2.     To be referred to Reporter or not?

3.     Whether the judgment should be reported
       in the Digest?

SUNIL GAUR, J.

*

1. Petitioner- Sunil Kumar is a Senior Manager with the

respondent- Indian Oil Corporation Ltd. (hereinafter referred

to as the „respondent- Corporation‟). On 29th September,

2005, petitioner had allegedly demanded bribe of Rupees

Two lacs from Jaswinder Singh, proprietor of M/s Surjeet Oil

Carriers to allow him to load the petroleum products. A trap

was laid at the office of the respondent-Corporation at

W.P. (C) No. 7468 of 2009 Page 1 Ambala Centre and a criminal case under Section 7 of the

Prevention of Corruption Act, 1988, was registered against

the petitioner, which is pending trial before the Special

Judge, CBI, at Ambala, in Haryana. Respondent had initiated

departmental enquiry against the petitioner, which is said to

be pertaining to the aforesaid incident of 24th September,

2005. It is a matter of record that regular departmental

enquiry was initiated against the petitioner in pursuance to

Memo, of 13th September, 2008, Annexure - P-8, and this

was done despite report of 26th September, 2003, Annexure-

P-3 of the Deputy General Manager of respondent-

Corporation, which purportedly gave a clean chit to the

petitioner by observing that the most probable cause for

arranging a CBI raid by M/s Surjit Oil Carrier appears to be,

to settle score with STM, Ambala, i.e. the petitioner.

2. According to the petitioner, the departmental enquiry

against him is being adjourned from time to time and on 23rd

January, 2009, the petitioner could not appear before the

Enquiry Officer and his request for adjournment was rejected

by the Enquiry Officer, who proceeded to examine the

witness of the department ex parte. As per enquiry

proceedings of 18th February, 2009, Annexure P-15,

department‟s witness (PW-1) had to be cross-examined by

W.P. (C) No. 7468 of 2009 Page 2 the Defending Officer of the petitioner on 2nd and 3rd March,

2009.

3. The relief sought in this petition is of stay of the

departmental proceedings till the conclusion of the criminal

case pending against the petitioner. What petitioner claims,

is that both these proceedings are based on identical set of

facts and evidence and these two proceedings involve

complicated questions of law and fact. Criminal case against

the petitioner is said to be of a grave nature. It is asserted by

the petitioner that the continuance of departmental

proceedings ex parte in haste, is causing great prejudice to

the petitioner. Reliance has been placed on the decisions

reported in (1999) 3 SCC 679; (2005) 10 SCC 471; JT 2007

(2) SC 620 and (2008) 1 SCC 650 to contend that it is unfair

and against the principles of natural justice to compel the

petitioner to disclose his defence in the departmental

proceedings, as it would not be in the interest of the

petitioner in the criminal case, which is of a grave nature.

4. Respondent in their counter affidavit, has taken stand

that they had awaited for a reasonable period for the

conclusion of the criminal trial and thereafter only, petitioner

has been charge-sheeted on 6th February, 2008, in the

W.P. (C) No. 7468 of 2009 Page 3 departmental proceedings. It is pointed out that the

petitioner is also facing a criminal prosecution at Leh.

Respondent relies upon Clause -10.6 of "Special Chapter on

Vigilance Management in Public Sector Enterprises and the

Role and Function of the CVC" to highlight that simultaneous

conduct of departmental proceedings and criminal

prosecution should be resorted to, especially if the

prosecution case is not likely to be adversely effected by the

simultaneous conduct of departmental proceedings.

5. The stand of the respondent is that almost three years

are over since initiation of the criminal proceedings against

the petitioner, but the criminal trial is still at initial stage. It is

pointed out that out of nineteen witnesses in the criminal

case, so far two witnesses, i.e. complainant and the shadow

witness, have been examined and the criminal proceedings

are likely to take considerable time, and, therefore,

departmental proceedings should not be unnecessarily

delayed. It is asserted by the respondent that no prejudice is

being caused to the petitioner as the first witness in the

departmental proceedings is yet to be cross-examined on

behalf of the petitioner. On behalf of the respondent,

reliance has been placed upon decisions reported in AIR

2005 SC 1406 and AIR 2008 SC 553 to contend that

W.P. (C) No. 7468 of 2009 Page 4 departmental enquiry and criminal trial can go on

simultaneously, as a departmental enquiry would not

seriously prejudice the delinquent in his defence at trial.

6. In the rejoinder, petitioner has reiterated the stand

taken in the writ petition.

7. Both the sides have been heard at length and the

material on record as well as the case law cited, has been

perused.

8. The question as to whether departmental proceedings

and the criminal case proceedings based on similar set of

facts should be allowed to continue simultaneously, is no

longer res integra. The standard of proof required in

departmental proceedings is not the same as required to

prove a criminal charge. The test is whether departmental

enquiry would seriously prejudice the delinquent in his

defence in criminal trial. However, where there is a delay in

disposal of the criminal case, departmental proceedings

ought to continue to facilitate early conclusion of the

proceedings.

9. In the case of "NOIDA Entrepreneur Association vs.

NOIDA and others" JT 2007 (2) SC 620, the clinching

W.P. (C) No. 7468 of 2009 Page 5 observations made by the Apex Court on the issue in hand

are as under:-

"The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in 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 would, 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 grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the 'Evidence Act') converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules of law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. 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."

W.P. (C) No. 7468 of 2009 Page 6

10. In the light of the aforesaid, there can be no straight

jacket formula as to in which case the departmental

proceedings are to be stayed. The departmental proceedings

need not be stayed during the pendency of the criminal

case, save and except for cogent reasons. A valid ground for

staying the disciplinary proceedings is "that the defence of

the employee in the criminal case may not be prejudiced".

Petitioner has already disclosed his defence in the criminal

case by cross-examining the complainant of that case and it

is not shown by the petitioner as to how the disclosure of his

defence in the departmental proceedings would be of any

consequence in the criminal case now.

11. Apex Court in its recent decision in the case of "Indian

Overseas Bank, Anna Salai vs. P. Ganesan" AIR 2008 SC

553 has deliberated upon this aspect, in the following

words:-

"Furthermore, it was obligatory on the part of the High Court to arrive at a finding that the non stayed of disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law".

12. To my mind, no complicated question of law is involved

in the criminal trial or in the departmental proceedings. In

the case of "NOIDA Entrepreneurs Association" (Supra), Apex

Court has gone to the extent of declaring that the standard W.P. (C) No. 7468 of 2009 Page 7 of proof required in departmental proceedings is not the

same, as required to prove a criminal charge and even if

there is an acquittal in the criminal case in the criminal

proceedings, the same does not bar departmental

proceedings. In this case, the Apex Court had directed the

State- Government to continue with the departmental

proceedings.

13. In a situation like the present one, the petitioner should

in all fairness come forward to avail of the opportunity to get

his honour vindicated in the departmental proceedings and

not to get the departmental proceedings stalled by relying

upon the pendency of the criminal proceedings, more so

when it is uncertain when the criminal proceedings would

ultimately conclude. A delinquent cannot be permitted to,

on the one hand, prolong criminal case and at the same time

contend that departmental proceedings should be stayed on

the ground that the criminal case is pending.

14. Without going into this aspect any further, this Court

finds that no prejudice would be caused to the petitioner if

the departmental proceedings and the criminal trial

proceedings are allowed to continue simultaneously. It is so

said because the material witnesses in the criminal trial, i.e.

the complainant and the shadow witnesses have been

W.P. (C) No. 7468 of 2009 Page 8 already examined and the first witness in the departmental

proceedings is yet to be cross-examined by the petitioner.

15. What has been highlighted in this petition, by the

petitioner, is that he had requested the Enquiry Officer in the

departmental proceedings to defer the departmental

proceedings till the cross-examination of the complainant

and the evidence of two shadow witnesses, is completed in

the criminal trial. It is not in dispute that the cross-

examination of the complainant in the criminal trial has been

completed and one of the shadow witnesses, i.e. from Food

Corporation of India, has been already examined. Perhaps

the other shadow witness from Food Corporation of India

remains to be examined in the criminal trial. If it is so, then

the Enquiry Officer, in the departmental proceedings, ought

to defer the departmental proceedings for a period of twelve

weeks or so, to enable the petitioner to cross-examine the

second shadow witness. However, it is made clear that in

case both the shadow witnesses have been examined in the

criminal trial, then, there is no reason to defer the

departmental proceedings against the petitioner.

16. To aforesaid limited extent, the prayer for deferment of

the departmental proceedings against the petitioner is

W.P. (C) No. 7468 of 2009 Page 9 accepted. Since the criminal trial against the petitioner is

taking place beyond the territorial jurisdiction of this Court,

therefore, no time bound direction can be given to the

criminal Court to expedite the criminal trial against the

petitioner. Anyhow, it is expected that the criminal Court

would make all the endeavors to expedite the conclusion of

the criminal trial against the petitioner.

17. This petition stands disposed of in the terms, as

aforesaid.

18. No costs.

SUNIL GAUR, J.

August 06, 2009
rs




W.P. (C) No. 7468 of 2009                                Page 10