Asi Jai Bhagwan vs U.O.I.
2010 Latest Caselaw 1660 Del

16
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) 11621/2009

%                    Date of Decision: 25.03.2010


       ASI JAI BHAGWAN                                ..... Petitioner
                          Through:       Mr. U. Srivastava, Advocate

                     versus


       U.O.I.                                          ..... Respondent
                          Through:       Mr. J.P. Sharma, Advocate


       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE VIPIN SANGHI


      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                   :      No
      2. To be referred to Reporter or not?                :      Yes
      3. Whether the judgment should be reported
         in the Digest?                                    :      Yes

GITA MITTAL, J.

1. By this writ petition, the petitioner has assailed the order dated

17th August, 2009 passed by the disciplinary authority dismissing the

petitioner's application praying for keeping the disciplinary

proceedings against him in abeyance on the ground that the petitioner

stood implicated in a criminal prosecution. The petitioner also prayed

for a direction to keep in abeyance the departmental enquiry

proceedings till final disposal of his criminal prosecution.

2. The petitioner was appointed on 21st June, 1973 as a constable of

the Railway Protection Force, in which post he was serving on all

relevant dates. It has been submitted in the writ petition that the

petitioner was trapped in a case while he was posted as an Asst. Sub

Inspector with the Railway Protection Force at Nizamuddin Station,

which resulted in the registration of FIR No.44/2007 dated 18th

September, 2007 under Section 7/13 of the Prevention of Corruption

Act against him. The petitioner has contended that his implication was

incorrect and the case against him was fabricated and concocted. It is

an admitted position that the petitioner was placed in judicial custody

on 23rd October, 2007 and was released on bail only on 2nd November,

2007.

3. By a memorandum dated 20th November, 2007, the respondents

served the petitioner with the charge sheet on the basis of misconduct

and absence from duty without due permission and proposed to

conduct an enquiry against the petitioner under Rule 153 of the

Railway Security Rules, 1987. The respondents enclosed the statement

of charges on which the same was proposed as also the details of the

allegations; list of documents and witnesses by whom the charges

were proposed to be proved. The respondents have submitted that

they were compelled to initiate the disciplinary proceedings against

the petitioner.

4. In view of the challenge raised by the petitioner, it becomes

necessary to examine the charges on which the enquiry was proposed

against the petitioner in extenso and the same read as follows:

"1. On 23.10.07, you were posted for duty at RSF Post Nizamuddin in the shift from 08.00 to 20.00 hours and you absented yourself from your duty without the permission of any authority or any officer and appeared for Bail/surrender in the Anti-Corruption Court, Tees Hazari, which tantamount to the disregard and laxity towards your duty.

2. On 18.09.2007, an F.I.R. No.44/2007 under Section 7/13 of Prevention of Corruption Act was registered against you by the Anti-Corruption Branch for taking/demanding bribe and from 23.10.2007 to 02.11.2007, you were sent under the judicial custody. This Act of misconduct on your part maligned the image of the Force."

5. So far as the registration of the case against the petitioner is

concerned, it is an admitted position that on completion of

investigation, the charge sheet as prescribed by Section 173 of the

Criminal Procedure Code stands filed before the concerned court and

the petitioner's prosecution in respect thereof is pending. The

allegation against the petitioner was that he demanded money from

passengers who were travelling without tickets on the train between

New Delhi to Nizamuddin.

6. Aggrieved by the proposal of the respondents to initiate

disciplinary proceedings, the petitioner had earlier filed Writ Petition

(C) No.594/2008 complaining that his defence in the criminal

proceedings would be prejudiced in case the disciplinary enquiry was

to proceed. This writ petition was disposed off by an order dated 22nd

September, 2008 by this court with a direction to the enquiry officer to

examine the application which the petitioner would move seeking stay

of the disciplinary proceedings in the light of the principles laid down

by the apex court in the decisions noted in the said order. The court

had directed that the enquiry officer would give an opportunity of

hearing to the petitioner and that the enquiry would not proceed

further till decision in application of the petitioner is made. The

petitioner was directed to cooperate in the expeditious disposal of the

application.

7. The application made by the petitioner was considered and

rejected by the disciplinary authority with a further direction to the

enquiry officer to continue with the enquiry proceedings. This order of

the disciplinary authority was communicated to the petitioner by way

of a letter dated 28th November, 2008 issued by the Asst. Security

Commissioner/RPF. The petitioner was thereby informed that the

disciplinary authority was of the view that the charge sheet dated 20 th

November, 2007 was issued on the basis of misconduct and negligence

under Rule 153 of the Railway Protection Force Rules, 1987 and on

grounds of violation of Rule 146.2, 146.4 and 146.7 of the RPF Rules,

1987 and that the petitioner's act had brought disrespect to the force

and the petitioner was also found negligent towards assigned duties.

The disciplinary authority was of the view that the charges were not

brought against the petitioner for the criminal/corruption case and

therefore, there was no similarity between the petitioners' prosecution

before the criminal court and the enquiry proceedings were concerned.

8. The petitioner assailed this order of the disciplinary authority by

way of a Writ Petition No.313/2009. This writ petition was accepted by

the court by an order dated 18th May, 2009 and the order dated 28th

November 2008 by the enquiry officer was set aside for the reason that

it did not meet the mandate of the directions contained in the earlier

order dated 22nd September, 2008. A further direction was issued to

the respondents to pass a fresh order in terms of the order dated 22 nd

September, 2008.

9. The enquiry officer thereafter proceeded to examine the

petitioner's application praying for keeping in abeyance its

proceedings. The application has been dismissed by a fresh order

dated 17th August, 2009. Aggrieved thereby, the petitioner has filed

the present writ petition. We have heard learned counsel for both the

sides at length.

10. Learned counsel has contended that in fact, the entire

proceedings against the petitioner are baseless. He has submitted that

so far as the prayers of the petitioner under the present proceedings

are concerned, the same is confined to the petitioner's contention that

the proceedings before the enquiry officer would strongly prejudice the

petitioner's defence in his criminal prosecution.

11. Having regard to the nature of allegations which are subject

matter of the first charge against the petitioner, learned counsel for

the petitioner concedes that he cannot possibly maintain the prayer

made in the writ petition for keeping the enquiry in abeyance and the

petitioner would have no objection if the disciplinary proceedings are

proceeded with so far as the first charge is concerned. We, therefore,

in the present order have examined the merit of the petitioner's prayer

for keeping the disciplinary proceedings in abeyance only with regard

to the second charge.

12. It needs no elaboration that there is no legal bar for criminal

proceedings and a departmental enquiry to go on simultaneously in

respect of identical charges. The question which has to be considered

by the court is the impact of the continuation of the disciplinary

proceedings on the defence of the employee in the criminal case. It

has been repeatedly held that identity of charges, witnesses,

documents against an employee in the two cases may make out a

strong case for keeping the criminal proceedings in abeyance for the

reason that the defence of the employee in the criminal case may be

strongly prejudiced.

13. On this issue we may usefully extract the principles laid down by

the apex court in AIR 1996 SCW 4160; 1996 (7) Scale 363, titled

State of Rajasthan v. Shri B.K. Meena & Ors., wherein at

paragraph 14 and 17, it was held as follows:

"14. It would be evident from the above decision 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 that no hard and fast Rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence 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 cases 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. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. 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 inspite 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 proceedings 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.

"17. There is yet another reason. 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."

14. These very principles have been reiterated by the Supreme Court

in the later pronouncements reported at JT 1999 (2) SC 456, titled

Capt. Paul Antony v. Bharat Gold Mines Ltd. & Anr.; (2005) 10

SCC 471, titled Hindustan Petroleum Corporation Ltd. v.

Sarvesh Berry and JT 2007 (2) SC 620, titled Noida

Entrepreneurs Assn. v. Noida & Ors.

15. In Capt. Paul Antony (supra), the apex court has laid down the

principles which would apply while determining whether the

proceedings in a criminal case and departmental proceedings could

proceed simultaneously. In paragraph 22 of the pronouncement, the

court has culled them out as follows:

"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."

16. In the instant case, it has been contended before us that on 18th

September, 2007 an FIR No.44/2007 was registered against the

petitioner by the Anti Corruption Branch under section 7/13 of the

Prevention of Corruption Act. It is further alleged that as part of

second charge, it is alleged that a case was registered on the

allegation that the petitioner had accepted/demanded bribe, and from

23rd October, 2007 to 2nd November, 2007 and the petitioner was sent

to judicial custody. The respondents have only to examine as to

whether the factum of the petitioner being sent to judicial custody on

the charge of taking/demanding bribe amounts to misconduct which

has maligned the image of the force.

17. Mr. Srivastava, learned counsel for the petitioner has

painstakingly urged that these allegations could be supported by the

respondents only in case the petitioner was convicted of the charges

which have been levelled against him in the criminal case. This

aspect, in our view, would form the basis of the petitioner's defence in

the enquiry which has to be conducted. It is open for the petitioner to

place the aforesaid submissions before the enquiry officer, who would

then consider the same. However, the disciplinary proceedings cannot

be kept in abeyance on the ground that the petitioner's defence to the

second charge is that decision thereon depends on the outcome of the

criminal proceedings.

18. So far as the allegations which constitute the second charge are

concerned, the respondents have alleged that on 18th September,

2007, FIR No. 44/2007 was registered against the petitioner by the Anti

Corruption Branch for taking/demanding bribe and that the petitioner

was sent to judicial custody. The charge does not relate to the

allegations which are the subject matter of the criminal case, but only

to the factum of registration of the case; the petitioner having been

sent to judicial custody, and; about these facts maligning the image of

the force.

19. Having regard to the nature of allegations against the petitioner

in the charge sheet, it has to be held that the approach as well as

objective of the criminal proceedings and the disciplinary proceedings

is clearly distinct and different. The disciplinary proceedings are not at

all concerned with the nature or content of the allegations which are

subject matter of the criminal trial. It is not disputed before us that the

witnesses and the documents which are to be placed before the

enquiry officer for proof of charges in the disciplinary proceedings is

not the same as those to prove the charges before the criminal court.

No element of mens rea is involved in so far as the charge in the

disciplinary proceedings is concerned. In view of the above, the prayer

of the petitioner for keeping the disciplinary proceedings in abeyance

is devoid of any legal merit. The same is certainly not supported by

the principles laid down in the judicial precedents which we have noted

herein above.

20. We, therefore, find no merit in this writ petition and application,

which are hereby dismissed

21. We may note that when the writ petition came up for hearing on

11th September, 2009, an interim order staying the departmental

proceedings was passed. This order has remained operative till date.

In view of the above, the interim order shall stand vacated. The

respondents shall be free to proceed with the disciplinary enquiry.

22. It is made clear that nothing contained herein is an expression of

opinion on the merits of the case.

Dasti to the parties.

GITA MITTAL,J

VIPIN SANGHI, J MARCH 25, 2010 sr