Shri Raj Kumar Sharma vs Union Of India And Another
2010 Latest Caselaw 2866 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C)2761/2002

%                                           Date of decision: 1st June, 2010

SHRI RAJ KUMAR SHARMA                             ..... Petitioner
                 Through: Mr. G.D. Gupta, Sr. Advocate with Ms.
                          Vivya Nagpal, Advocate.

                                       Versus

UNION OF INDIA AND ANOTHER                    ..... Respondents
                  Through: Mr. Sanjoy Ghose and Mr. Anuj
                           Aggarwal, Advocates for R-2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    YES

2.       To be referred to the reporter or not?             YES

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

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition seeks quashing of the chargesheet

dated 28th February, 2002 served on him and of the departmental inquiry

instituted against him for the reason of it being based on the same facts on

which he is being prosecuted for offence under the Prevention of Corruption

Act, 1988. The senior counsel for the petitioner contends that the list of

documents and list of witnesses appended to the chargsheet is identical to the

list of witnesses and list of documents in the criminal prosecution. It is

further contended that if the departmental proceedings are permitted to

proceed, the petitioner would be compelled to disclose his defence in the

criminal prosecution and which would prejudice the petitioner in the criminal

prosecution. It is further contended that the offence with which the petitioner

has been charged is grave and complicated questions of facts and law are

involved. It is further contended that the chargesheet in the departmental

proceedings is verbatim as the charge in the criminal prosecution. On enquiry

it is informed that 15 witnesses of the prosecution have already been

examined in the criminal prosecution. Though certain arguments on the

merits were also raised but the same are not relevant at this stage since the

quashing of the chargesheet/departmental proceeding is sought only on the

ground aforesaid.

2. The writ petition was dismissed in limine on 2nd May, 2002. The

petitioner preferred Writ Appeal 443/2002. Vide interim order dated 24th

May, 2002 in the said writ appeal, the cross examination by the petitioner of

the witnesses in the departmental inquiry (and which cross examination

would have disclosed the defence in the criminal prosecution of the

petitioner) was stayed. Though neither party placed the order allowing the

Writ Appeal on record, but the file of the Writ Appeal was sent for. The Writ

Appeal was allowed on 14th January, 2004 only for the reason that the writ

petition was dismissed in limine on the premise that as a general principle of

law both criminal prosecution and departmental proceedings could go on

simultaneously, without examining whether in the facts of the present case

the said course was justified or not. The writ petition was thus remanded for

decision on merits. The Division Bench while so remanding the writ petition

further ordered that the departmental proceedings shall remain stayed till the

matter is taken up by the writ court. This court vide order dated 23 rd

February, 2004 which continues to be in force, stayed the departmental

proceedings. Resultantly, the departmental proceedings which commenced

in the year 2002 have not been proceeded with in the last eight years.

3. The petitioner is under suspension. Finding from the order sheet an

attempt by the petitioner to delay, this court on 19th May, 2010 enquired from

the counsels whether the petitioner was being paid subsistence allowance.

The counsel for the respondent no.2 National Textile Corporation Limited

(NTC) on 24th May, 2010 informed that the petitioner is being paid

subsistence allowance during the period of suspension and from 2002 till

April, 2010 a sum of Rs.17,48,864/- has been paid to the petitioner towards

subsistence allowance. It is further informed that a sum of approximately

Rs.22,000/- per month is now being paid to the petitioner towards subsistence

allowance. This court in the circumstances called upon the senior counsel for

the petitioner to also address on as to why, even if the writ petition were to be

allowed and the petitioner found entitled to stay of departmental proceedings

during the pendency of criminal proceedings, should not be held disentitled

from any further subsistence allowance.

4. The senior counsel for the petitioner relies on:

1. Kusheshwar Dubey Vs. M/s Bharat Coking Coal Ltd (1988) 4 SCC 319 staying the disciplinary proceedings because the criminal action and disciplinary proceedings were found to be grounded upon the same set of facts.

2. Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd.

1999 (2) SCALE 363 laying down that 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. It was further held that it will depend upon the nature of the offence and 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 chargesheet.

5. The senior counsel for the petitioner contends that in the present case

the petitioner is alleged to have disproportionate assets in the form of FDRs

in the joint names of his wife, mother-in-law and father-in-law. It is

contended that under the income tax laws the FDRs are deemed to be of the

first name holder. It is urged that the petitioner in the departmental

proceedings would be unnecessarily required to disclose the source of funds

of the said FDRs which belong to his father-in-law/ mother-in-law and which

would cause prejudice to him in the criminal prosecution. Reference is also

made to DSP, Chennai Vs. K. Inbasagaran (2006) 1 SCC 420 where the

Supreme Court held the accused in a prevention of corruption case to have

satisfactorily established that the monies and assets recovered belonged to his

wife and which she has amassed from the business run by her separately. It is

contended that in the present case also, the wife of the petitioner is working

and his father-in-law and mother-in-law have independent sources of

income.

6. Per contra the counsel for the respondent no.2 NTC contends that the

matter is now no longer res integra in view of the judgment in Hindustan

Petroleum Corporation Ltd. Vs. Sarvesh Berry 2005 LAB. I.C. 1624 (SC)

laying down that in cases involving Section 13 (1)(e) of the Prevention of

Corruption Act, the onus is on the accused to prove that the assets found were

not disproportionate to the known sources of income and hence the question

of disclosure of any defence in the departmental proceedings does not arise; it

was held that even in the criminal case, the accused has to prove the source of

acquisition and satisfactorily account for the same. The counsel for the

respondent no.2 NTC thus urges that the sole ground on which the petitioner

seeks stay/quashing of the departmental proceedings has been negated by the

Supreme Court in the said judgment. Reliance is also placed on -

i. G. Chandrasekhar Vs. Chairman, Madras Port Trust (1990) II LLJ 5 which is not found relevant.

ii. Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya AIR 1997 SC 2232 laying down that there is no bar to proceeding simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.

iii. Capt. M. Paul Anthony (supra)

iv. The Division Bench judgment in G. Chandrasekharan Vs. The Chairman, Madras Port Trust 1990 II LLJ 337 laying down that the gravamen of the charges in the disciplinary proceedings pertain to violation of the Conduct Rules which are not charges in so far as the criminal case is concerned.

It is further contended that as per the Conduct Rules of the

respondent no.2 NTC the assets of the wife of the employee are also to be

disclosed. It is further argued that the petitioner has already taken a stand

with respect to the charges against him and the question of his suffering

any prejudice if the departmental proceedings are to continue does not

arise. It is the contention of the respondent no.2 NTC that all the relevant

information is in the knowledge of the petitioner and it is for the petitioner

to explain the assets with respect whereto he has been charged.

7. The senior counsel for the petitioner in rejoinder contended that the

petitioner is willing for the departmental proceedings to continue provided

that the final order is stayed. The senior counsel for the petitioner after the

conclusion of hearing also mentioned the matter to point out that the order of

suspension in the present case is only for the reason of the petitioner having

remained imprisoned for over 48 hours and not pending the departmental

proceedings. The counsel for the respondent no.2 NTC however contended

that since the same does not form part of the pleas of the petitioner, he is

unable to respond thereto and it is quite possible that subsequently the order

of suspension was continued pending the departmental proceedings. The

senior counsel for the petitioner also offered that the petitioner be taken back

into work but which was not acceptable to the respondent no.2 NTC

considering the charge against the petitioner.

8. The Supreme Court in Lalit Popli v. Canara Bank (2003) 3 SCC 583

held that in departmental proceedings, the technical rules of evidence and

doctrine of "proof beyond doubt" has no application and mere preponderance

of probabilities and some material on record are sufficient to arrive at the

conclusion whether or not the delinquent has committed misconduct.

Similarly, in Maharashtra State Board of Secondary and Higher Secondary

Education Vs. K.S. Gandhi 1991 (2) SCC 716 it was held that strict rules of

the Evidence Act and the standard of proof envisaged in a criminal

prosecution do not apply to departmental proceedings or a domestic tribunal.

Recently in Southern Railway Officers Assn. Vs. Union of India (2009) 9

SCC 24 it was held that order of dismissal can be passed even if the

delinquent official has been acquitted of the criminal charge. It was further

held that acquittal in a criminal case by itself cannot be a ground for

interfering with an order of punishment imposed by the disciplinary

authority. Way back in State of Andhra Pradesh. v. Chitra Venkata

Rao (1975) 2 SCC 557 the practice of viewing the departmental inquiry as

akin to a criminal prosecution was deprecated.

9. The Supreme Court in State of Rajasthan v. B.K. Meena (1996) 6

SCC 417 reiterated that the principles of natural justice do not require that the

employer should wait for the decision of the criminal court before taking

disciplinary action against the employee and held that it is not in the interest

of administration (in that case of the State) that persons accused of serious

misdemeanor should be continued in office indefinitely and for long periods

awaiting the result of criminal proceedings. Such a situation was held to be

serving the interest of the guilty and the dishonest only. To the same effect is

Noida Entrepreneurs Assn. v. Noida AIR 2007 SC 1161. It was held that

the purpose of criminal prosecution and departmental inquiry are different.

Disciplinary proceedings were held to be with the purpose of maintaining

discipline and efficiency in service and it was further held that it is expedient

that the disciplinary proceedings are conducted and completed as

expeditiously as possible.

10. In view of the aforesaid law it was put to the senior counsel for the

petitioner, as to why the post which the petitioner was occupying should be

kept vacant by the respondent no.2 NTC, as it would necessarily be required

to do awaiting the disciplinary proceedings. The senior counsel states that

the respondent no.2 NTC is free to fill up the said post on an ad hoc basis.

However, this court is not satisfied with the aforesaid answer. Ad hoc filling

up of the post is not a satisfactory answer and is liable to lead to further

disputes.

11. The Division Bench had set aside the order of dismissal of the writ

petition in limine only for the reason of the grounds urged having not been

considered on merits. The grounds urged are only two i..e. of the petitioner

being required to disclose his defence and of the matter involving

complicated questions of law and fact. As far as the first of the aforesaid

grounds is concerned, the same is now no longer available in view of the

judgment in Sarvesh Berry (supra). Since the onus in the criminal

prosecution also is on the petitioner, the question of the petitioner suffering

any prejudice by disclosure of defence in the disciplinary proceedings does

not arise. As far as the second reason aforesaid is concerned, in view of the

legal position aforesaid of the standard of proof and evidence in the two

proceedings being different, this court is of the considered opinion that no

case for keeping the departmental proceedings stayed is made out. Merely

averring that complicated questions of law and fact are involved is not

sufficient. Every criminal prosecution and every departmental proceeding

entails questions of law and facts. The petitioner is required to show the

complication in proving the same before two fora. Capt. M. Paul Anthony

was not a case where simultaneous proceedings of domestic inquiry and

criminal prosecution were in question; the ex parte order of dismissal in that

case had already been passed before the decision of the criminal case

resulting in acquittal. The Supreme Court also noticed the general principle

that the two proceedings can go on simultaneously. Exception is only when

facts are "not simple" or the court feels it "appropriate" to stay the

departmental proceedings. The petitioner in the present case is unable to

satisfy as to what complexity is involved in the facts and as to why it is

appropriate to stay the departmental proceedings further. While weighing the

equities, it is found that if the departmental proceedings are deferred any

further, the witnesses required to be examined by respondent no.2 NTC

therein may also disappear or may not be then available.

12. The subject matter of criminal prosecution and departmental

proceeding is also not found to be same. While the charge in criminal

prosecution is of acquisition of assets in own name and in the name of family

members, disproportionate to known sources of income and obtaining

premature payment of FDRs while originals thereof were in custody of CBI,

the charge in departmental proceedings is of acquisition of immovable

property, car, FDRs without prior knowledge of / intimation to Competent

Authority, as required under the Rules and thereby failing to maintain

absolute integrity, devotion and manner becoming of a public servant,

amounting to violation of Rules. The enquiry in the two proceedings would

be different.

13. The contention of the senior counsel that the suspension was because

of imprisonment and not because of the pending departmental proceedings is

not correct. The respondent no.2 NTC in its counter affidavit has stated that

though initially the petitioner was suspended for the reason of having been

imprisoned for more than 48 hours but subsequently it was decided to

continue the suspension; obviously for the reason of initiation of the

departmental proceedings.

14. This court therefore does not find any merit in this petition. The

conduct of the petitioner, as would also be borne out from the order sheet of

31st March, 2009, to keep this petition pending is found to be intended to

avail benefits of the substantial subsistence/suspension allowance being

received by him without working for the respondent no.2 NTC. The

petitioner has availed of substantial benefits of over 17 lacs in this way under

interim order in this writ petition. The Supreme Court in Abhimanyoo Ram

Vs. State of U.P. MANU/SC/8524/2008 and also recently in Ramesh

Chandra Sankla Vs. Vikram Cement AIR 2009 SC 713 had held that the

courts at the time of final disposal should balance equities arising from the

interim orders granted in the petition. But for the interim orders obtained by

the petitioner, the departmental proceedings may have concluded by now and

if resulted in a finding against the petitioner, would have meant no further

obligation on the respondent no.2 NTC to pay subsistence allowance to the

petitioner. In the circumstances while dismissing the writ petition, it is

directed that notwithstanding anything to the contrary contained in the rules

the respondent no.2 NTC shall not be liable to pay subsistence allowance to

the petitioner during the pendency of the departmental proceedings provided

the same are concluded within one year from today unless the delay is again

attributable to the petitioner. Though the petition is found to be

misconceived, however no order as to costs.

RAJIV SAHAI ENDLAW (JUDGE)

1st June, 2010 M