Ramesh Chand Meena S/O Suganlal ... vs The Inspector General And Chief ...
2021 Latest Caselaw 4009 Guj

             C/SCA/22834/2019                            JUDGMENT




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                 R/SPECIALCIVILAPPLICATIONNO. 22834of 2019

                                  With
        CIVILAPPLICATION(FORVACATINGINTERIMRELIEF) NO. 1 of 2020
               In R/SPECIALCIVILAPPLICATIONNO. 22834of 2019

FORAPPROVALANDSIGNATURE:


HONOURABLEMS. JUSTICESONIAGOKANI

and
HONOURABLEMS. JUSTICEGITAGOPI

==========================================================

1   Whether Reporters of Local Papers may be allowed
    to see the judgment ?

2   To be referred to the Reporter or not ?

3   Whether their Lordships wish to see the fair copy
    of the judgment ?

4   Whether this case involves a substantial question
    of law as to the interpretation of the Constitution
    of India or any order made thereunder ?

==========================================================
               RAMESHCHANDMEENAS/O SUGANLALMEENA
                             Versus
        THEINSPECTORGENERALANDCHIEFSECURITYCOMMISSIONER
==========================================================
Appearance:
PRITHUPARIMAL(9025)for the Petitioner(s)No. 1
MS ARCHANAU AMIN(2462)for the Respondent(s)No. 1,2
==========================================================

 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE GITA GOPI

                                Date: 10/03/2021




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             C/SCA/22834/2019                                      JUDGMENT



                           ORALJUDGMENT

(PER: HONOURABLEMS. JUSTICESONIAGOKANI)

1. The petitioner is a constable of, Railway

Protection Force (RPF) and is presently posted at

Vadodara. This petition is preferred under

Article 226 of the Constitution of India seeking

the quashement of the charge memorandum dated

27.11.2019, bearing No.DAR/153/06/2019 issued by

the respondent no.2 and all consequential

proceedings arising therefrom.

2. The facts bereft of details leading to this

petition are as follows:

2.1 On 06.11.2018, an FIR being FIR No.15/2018

came to be registered with A.C.B. Police Station,

Surat City for the offences punishable under

Sections 7A and 12 of the Prevention of

Corruption Act, 1988 against the present

petitioner. It is alleged therein that he had

demanded Rs.6,000/­ on 05.11.2018 from the

complainant by way of bribe. The complainant's

friend was found to be carrying out the business

C/SCA/22834/2019 JUDGMENT

of selling liquor, so as not to complain

officially, this bribe was demanded by the

petitioner. It is also the allegation on the part

of the complainant that the total amount of

demand was of Rs.10,000/­ out which the amount of

Rs.4,000/­, had already been paid to him as he

did not have the remaining amount of Rs.6,000/­,

he had ensured to pay the same on a later date. A

trap was organized on 05.11.2018, where he was

caught red­handed and therefore an FIR to that

effect came to be lodged.

2.2 After due investigation, the charge­sheet

have been issued on 01.01.2019 and the trial is

pending before the Special Judge in Special Case

(A.C.B.) No.01/2019 before the Surat Court.

2.3 The petitioner had been arrested on

05.11.2019 and was sent to the judicial custody.

On 11.01.2019, his application for grant of

regular bail was preferred being Criminal Misc.

Application No.139 of 2019, and learned Special

C/SCA/22834/2019 JUDGMENT

Judge, A.C.B., Surat enlarged him on regular bail

in connection with the said F.I.R.

2.4 It is alleged that the place of offence was

Kosad Railway Station, situated within District

Surat, for the purpose of taking any actions, the

jurisdiction is of the respondent no.2, the

Senior Divisional Secretary, Railway Protection

Force, Western Railway, Vadodara. It is alleged

that on illegal exercise of powers under Rule 161

of the Railway Protection Force Rules, 1988 vide

Divisional Order No.15/2018, the petitioner has

been dismissed from the services with immediate

effect on 30.11.2018.

2.5 The petitioner preferred an Appeal on

05.02.2019 before the Deputy Inspector General,

Railway Protection Force, Western Railway, Church

Gate, Mumbai. Since, there were no actions on the

part of the respondent authorities, the

petitioner was constrained to preferred Special

Civil Application No.17706 of 2019. On

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16.10.2019, the Court issued notice for final

disposal and placed the matter for hearing on

20.11.2019.

2.6 On 06.11.2018, on account of issuance of

the notice by this Court, the appellate authority

being Deputy Inspector General, Railway

Protection Force, quashed and set aside the

Divisional Order No.15/2018 and reinstated the

petitioner into service. However, on 07.11.2019,

the respondent no.2 - Divisional Security

Commissioner, passed an order placing the

petitioner under suspension till further order.

Because of the order of the appellate authority,

Special Civil Application No.17706 of 2019 was

disposed of as having become infractuous.

2.7 During the pendency of the suspension, on

27.11.2019, the petitioner was issued the charge

Memorandum being DAR/153/06/2019. It is the say

of the petitioner that the special charges have

been levelled against him in the FIR, registered

against the petitioner arising from the alleged

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incident dated 05.11.2019, hence, subsequent

arrest has been made pursuant to the said FIR.

Two charges are not sustainable under the law;

since one of them is to the effect that his

arrest has brought discredit to the Railway

Protection Force.

2.8 The petitioner preferred a representation on

02.12.2019 to the respondent no.2 - Divisional

Security Commissioner, praying to revoke the

departmental proceedings against the petitioner

as also to stop the same. The said prayer has

been declined vide order dated 13.12.2019. The

request on the part of the petitioner to stop the

proceedings pending the criminal prosecution

against the petitioner, has not been acceded to.

2.9 The petitioner, therefore, is aggrieved

by the action of the respondent authorities is

before this Court seeking following reliefs:

A. The Hon'ble Court be pleased to admit and allow the Special Civil Application.

            C/SCA/22834/2019                                JUDGMENT



           B.       This Hon'ble Court be pleased to issue
           a writ of mandamus and/or any other

appropriate writ/order/direction, to quash and set-aside the impugned memorandum bearing no.DAR/153/06/2019 dated 26.11.2019.

C. Pending admission, hearing and till final disposal of the present petitioner this Hon'ble Court be pleased to stay all further operation and implementation pursuant tot he charge memorandum bearing no.DAR/153/06/2019.

D. this Hon'ble Court be pleased to grant any other and further relief in the facts and circumstances of the present case and in the interest of justice."

3. According to the petitioner, the registration

of an FIR, pursuant to which the petitioner has

been arrested and sent to the judicial custody,

would not constitute any misconduct on the part

of the petitioner and that ground is not

sustainable for the charges to be levlled against

him departmentally. The criminal case is grave in

nature and involves complicated question of facts

C/SCA/22834/2019 JUDGMENT

and law, therefore, it is desirable to stay the

departmental proceedings in conclusion of the

trial. It is further his case that the facts

involved are identical in both in criminal trial

as well as the departmental proceedings, and

therefore, during the pendency of the criminal

trial the departmental proceedings were not

proceeded with.

4. On issuance of the notice affidavit­in­reply

has been filed by the respondent­Senior

Divisional Security Commissioner, R.P.F.

According, to the respondent, the petitioner has

been caught by the personnel of A.C.B., Surat,

taking illegal gratification from the friend of

the complainant and this was the bribe given for

not lodging the criminal complaint for the

illegal business of Sabirbhai.

4.1 The factual details given by the petitioner

are not being disputed, so far as the chronology

of details up to quashing and setting aside the

C/SCA/22834/2019 JUDGMENT

order of dismissal and issuance of the memorandum

of charges on 27.01.2019. It is also not in

dispute that on 07.11.2019, the petitioner had

been suspended and thereafter, the departmental

proceedings against him had been contemplated and

therefore, following the rules, the charges have

been framed. It is the say of the respondent that

under Rule 153 of R.P.F. Rules 1987, the three

charges have been framed (i) despite being a

railway servant, he has violated Rule 3.1 (III) of

the Railway Servant (conduct) Rules, 1966 by his

indecent improper illegal act; (ii) he violated

the Rule 146.4 for exhibiting untrustworthy

conduct; and (iii) in daily diary entries, he did

not put signatures on 03.11.2018 and 05.11.2018.

4.2 While handing and taking over the charge due

to negligence and slackness, he thereby violated

Rule 146.2 (1) of the R.P.F.Rules. It is also

admitted that his representation came on

02.12.2019, however, the department since is of

the opinion that the departmental inquiry can be

C/SCA/22834/2019 JUDGMENT

initiated simultaneously with the criminal

proceedings and as the charges framed in the

departmental proceedings are different from the

charges in the criminal proceedings, they both

can be simultaneously proceeded. The purpose of

both departmental inquiry and criminal

prosecution are distinct and separate. The

inquiry in the departmental proceedings concerns

the breach of duty of the delinquent and to punish

the person for his misconduct where the standard of

proof also would materially differ. Reliance

is also placed on some of the decisions of this

Court and also of the Apex Court to urge that

stay of proceedings when both the criminal

proceeding as well as departmental proceedings

are pending should not be a matter of course.

Accordingly, the department has urged to allow it

to continue the departmental proceedings.

5. At the time of issuance of notice, the Court

had permitted the petitioner to seek an

adjournment in the departmental proceedings, till

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now, the proceedings have not been started again

and the stay has continued and time and again,

his request is allowed in the departmental

proceedings.

6. An application came to be moved seeking

vacation of interim relief noticing that the

matter is of the year 2019. With the request of

learned advocates on both the sides, we have

taken up the matter to be heard finally and more

particularly, the main matter being Special Civil

Application No.22834 of 2019.

7. Learned advocate, Mr.Prithu Parimal appearing

for the petitioner has emphatically urged before

this Court that there will be a serious prejudice

to the right of the petitioner of disclosure of

his defence, once the departmental inquiry is

permitted to be conducted pending the criminal

trial. According to him, not only both the

proceedings cannot be permitted to proceed

simultaneously, the nature of the charges in the

memorandum of charge is also unsustainable. He

C/SCA/22834/2019 JUDGMENT

has further urged that it is a settled position

of law that departmental proceeding cannot be

permitted to be proceeded with, if the disclosure

of the defence in departmental proceeding is

going to seriously prejudice the employee in the

criminal proceedings. According to him, the

office memorandum dated 01.08.2007 issued by the

Department of Personal and Training Ministry of

Personnel, Public Grievances and Pensions,

Government of India also states that if there is

a criminal case of a grave nature which involves

the complicated questions of facts and law,

departmental proceedings be desirably be stayed.

It is further his emphasis that the charge

memorandum which is impugned in this matter also

provide that the filing a registration of FIR and

arrest pursuant to the same has given discredit

to the department. This cannot amount to the

misconduct and this charge is unsustainable. The

main charge as laid against the petitioner in the

charge memorandum is looked at, according to the

learned advocate, it is a mere allegation and

C/SCA/22834/2019 JUDGMENT

cannot amount to the misconduct presently and

hence also, his request is to be acceded to. He

has heavily relied on the various decisions on

this point and particularly the decision rendered

in Special Civil Application No.10811 of 2019 and

allied matters on 06.01.2020. This according to

him is not further challenged and questioned by

the department, but, in the very matter, the

Court has analyzed the chronology of events and

also Rules 146.1, 146.2 and 146.4 where the

charge memo did not disclose any other facts

other than the involvement in the criminal case

which are yet to be proved in the court of law

for invoking the charge of neglect of duty or

discredited conduct and therefore, it is urged

that the said action of the department needs to

be held unsustainable.

8. We have heard the learned advocate,

Ms.Archana Amin appearing as a standing Counsel

for the respondent authority. She has argued

along the line of the reply tendered before this

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Court. She has emphatically urged that the

charges framed in the departmental proceedings

are different than the charges in the criminal

proceedings and the standard of proof also would

materially differ, wherein in the criminal

proceedings it is the proof beyond reasonable

doubt whereas in departmental proceedings, the

preponderance of probabilities, shall need to be

regarded. And therefore, continuing the

departmental proceedings, would not in any manner

prejudice the petitioner. According to her, the

petitioner is having the charge of indulging into

corrupt activities. Therefore, the charge framed

against the petitioner in the departmental

proceedings is of neglect of his duty

discreditable conduct and violation of Rule 3.1

(3). The relevant extract of Rule 146.2(1) and

146.4 of the R.P.F. Rules also according to her,

are to be pressed into service. She has further

argued that the legal position is quite clear

that simultaneous conduct of departmental

proceedings and the criminal proceedings would be

C/SCA/22834/2019 JUDGMENT

permissible. There is in fact no legal bar,

unless there are very complicated questions of

law and facts, which are missing here.

8.1       She has chosen to rely on the decision

of     this     Court         rendered           in    Special            Civil

Application No.6270 of 2011 where relying on the

judgment of the Apex Court the Court thus held

that the departmental proceedings cannot be

delayed indefinitely awaiting the outcome of the

criminal case. She has also placed the reliance

on the decision where Special Civil Application

No.20521 of 2016 is a clearly held that nature of

evidence in criminal trial is entirely different

from the departmental proceedings. The only

aspect needs to be regarded is as to whether the

departmental inquiry would seriously prejudice

the delinquent in his defence at the trial in a

criminal case and this being a question of fact,

the same shall need to be regarded in each case

depending on the facts and the law. She has also

relied on the decision of the Apex Court rendered

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in case of M/s. Stanzer Toyotetsu India Pvt.

Ltd., Versus Girish V. & Ors., reported in 2004

(3) SCC 636.

9. Having thus heard the learned advocates on

both the sides, the query was raised by this

Court as to whether the decision of the Division

Bench rendered in Special Civil Application

No.10811 of 2019 and allied matters has been

challenged before the Apex Court. Rule 139.2 of

the R.P.F. Rules permits modification in the

order of suspension there is no specific reason

as to why this order has been revoked. It is

possibly, according to Ms.Amin on account of

completion of 180 days and non­review of the

decision of suspension; however, without entering

into that realm presently, the only question that

begs attention of this Court is as to whether the

departmental proceedings could be permitted to be

proceeded along with the criminal proceedings

which are pending before the Surat Court.

            C/SCA/22834/2019                                           JUDGMENT



10. This        Court          in     Special            Civil           Application

No.6270 of 2011 was considering the matter of

member of Railway Protection Force, who was

discharging his duty as Inspector. A trap was

laid against him for demanding bribe from the

complainant on the basis of a preliminary

complaint, the FIR was lodged and it was alleged

that area of railway is granted for parking and

when the demand of bribe was not paid he got his

contract cancelled. In this premises, the

chargesheet was issued, which contained identical

allegations as those levelled in the criminal

proceedings. And the department further alleged

that his conduct violated Rule 3.1 (i)(ii)and

(iii) of the Railway Service Conduct Rules, 1966

and that he had acted in a manner prejudicial to

the discipline and his conduct has discredited

the reputation of the Force as he acted for his

personal gain and his conduct was unbecoming of a

railway servant.

11. The proceedings since were parallel, it was

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alleged that they may prejudice his defence in

criminal proceedings and in this background the

Court relied on the decisions rendered by the

Apex Court rendered in case of Kusheshwar Dubey

vs. M/s. Bharat Coking Coal Ltd. and ors.,

reported in (1988) 4 SCC 319, and of State of

Rajasthan vs. B.K.Meena and ors., reported in

(1996) 6 SCC 417, Depot Manager, A.P.State Road

Transport Corporation vs. Mohd. Yousuf Miya and

ors. reported in (1997) 2 SCC 699 and Capt.

M.Paul Anthony vs. Bharat Gold Mines Ltd. and

another, reported in (1999) 3 SCC page 679 to

eventually hold that the departmental proceedings

cannot be delayed indefinitely, awaiting outcome

of the criminal case which as is experienced may

take a considerable time to complete. By the

time, the Court concludes the trial, much period

may have progressed and the petitioner's service

needs continuity or he draws pay without

rendering any work. Criminal proceedings insulate

the society from crime and criminals and

C/SCA/22834/2019 JUDGMENT

departmental proceedings render a shield to the

institution in its pursuits of maintaining

discipline and institutional values. The petition

was not entertained by this Court. Relevant

discussion in this matter needs to be profitably

reproduced.

"6. The incident involved is one. Obviously therefore, the allegations which formed the foundation of the departmental proceedings and the criminal case would be same. We, therefore, proceed on such basis. However, in order to stay the departmental proceedings pending criminal trial, this itself would not be sufficient. The nature of allegations, the complexity of the law and facts involved and the time likely to be consumed in the criminal case are some of the

relevant factors which need to be examined. The prime consideration being

whether by allowing the department to proceed further, would the employee who is also an accused in a criminal case be prejudiced in his defense in such criminal case.

7. Such issues have come up before the Supreme Court on number of occasions. In case of Kusheshwar Dubey vs. M/s. Bharat Coking Coal Ltd. and ors. reported in (1988) 4 SCC 319 the Court observed as under:

"7. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken. yet, there may be cases where it would be appropriate to defer disciplinary

C/SCA/22834/2019 JUDGMENT

proceedings awaiting disposal of the criminal case In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual­situation. For the disposal of the present case, we do not think it necessary to say, anything more, particularly when we do not intend to lay down any general guideline."

8. In case of State of Rajasthan vs. B.K.Meena and ors. reported in (1996) 6 SCC 417 the Supreme Court observed 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 disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case ad that no hard and fat rules can enunciated

C/SCA/22834/2019 JUDGMENT

in that behalf. The only ground suggested in the above questions as constitution 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 wellknown that they drag on endlessly where high officials or persons holding high public offices 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

C/SCA/22834/2019 JUDGMENT

that the undesirable elements are thrown out and any charge of misdemeanor 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 misdemeanor 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.

15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not

C/SCA/22834/2019 JUDGMENT

detract from the desirability of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him."

9. In case of Depot Manager, A.P.State Road Transport Corporation vs. Mohd. Yousuf Miya and ors. reported in (1997) 2 SCC 699 referring to its decision in case of State of Rajasthan vs. B.K.Meena (supra), the Apex Court observed that:

8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in 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

C/SCA/22834/2019 JUDGMENT

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, 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 offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously

C/SCA/22834/2019 JUDGMENT

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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."

10.In case of Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another reported in (1999) 3 SCC page 679 the Supreme Court culled out following principles:

"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

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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.

1. These decisions have been later on referred to and relied upon in number of judgements of the Supreme Court. It is not necessary to refer to all of them in this judgement.

2. Coming to the facts of the case, simple allegations against the petitioner are that he demanded bribe from the complainant who had a contract for parking on railway property. A trap was laid where he was caught accepting bribe. The departmental proceedings cannot be delayed indefinitely awaiting outcome of the criminal case which often times, as we are all aware, likely to take considerable time to complete.

3. In the present case, additional feature is that, as informed to us by the counsel for the petitioner, even the trial has progressed and the petitioner would enter his defense before the trial court shortly. Proceeding further with the

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departmental inquiry, therefore, no way would prejudice the petitioner in his defense in the criminal case. Considering such facts, petition is dismissed. Rule is discharged. Interim relief stands vacated."

12. In Special Civil Application No.2052 of 2016,

the Criminal complaint was filed against the

petitioner for the offences punishable under the

Prevention of Corruption Act, more particularly

under Sections 7, 8, 12 13 (10(d)) 1, 2, 3 and

13(2) of the Prevention of Corruption Act, he

came to be arrested and was released later on, on

regular bail. In the interregnum, the

departmental proceedings were initiated against

him where the allegations, according to him, were

identical as were levelled in the criminal

proceedings. It was alleged that his conduct

violated Rule 3(1) (I) (ii) (iii) of the Railway

Service Conduct Rules, 1966 and he acted in a

manner prejudicial to the discipline and his

conduct discredited the reputation of the Force.

12.1      The Court also regarded the treatment to






              C/SCA/22834/2019                                       JUDGMENT



the       very    issue          adjudicated                in     Special           Civil

Application No.6270 of 2011 and the petition was

not entertained and was dismissed.

13. Before the Apex Court, in case of M/s.

Stanzer Toyotetsu India Pvt. Ltd., Versus Girish

V. & Ors., reported in 2004 (3) SCC 636 the

question was whether the High Court as also the

other Courts were right in holding that the

disciplinary proceedings initiated by the company

against its employees to remain stayed pending

conclusion of the criminal case instituted

against the respondents in respect of the very

same incident.

13.1         The            appellant                  company              in           the

manufacture             of        automobile                parts        while           the

respondent workman engaged by the appellant in

connection with the said business. They were

governed by the Standing Orders certified

Industrial Employees (Standing Orders) Act, 1946.

According to the appellant, the                                  respondents with






            C/SCA/22834/2019                                       JUDGMENT

the help of other Trade Union functionaries stage

managed an accident making it appear that one of

the employees had slipped and fallen in the press

area and this incident was used as an excluse by

the respondents to rush to the place of alleged

fall only to create a ruckus and although the

person did not sustain any injury he was sent to

the hospital in ambulance and the respondents

stopped the production activity and started

abusing their superiors, damaged property of the

company and even assaulted senior managerial

personnels. These acts of indiscipline created an

atmosphere of fear and tension in the factory and

brought the production activities to a grinding

halt.

13.2       FIR was also lodged under sections 143,

147,      323,           324,         356,           427,          504,            506,

114 read with Section 149 I.P.C and charge­sheet

was led. The competent authority had placed the

respondents under suspension and issued the

charge­sheet. A disciplinary inquiry was

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initiated and one witness also was examined in

one of the inquiries. Since the disciplinary

inquiry and the criminal case both were pending,

the respondents preferred a suit seeking

permanent injunction against the appellant and

the Inquiry Officers restraining them from

proceeding with the inquiry pending conclusion of

the criminal case and in this background, the

disciplinary inquiry had been stayed by the Court

by virtue of the order of the Principal Senior

Civil Judge and when challenged before the High

Court, it confirmed the same and correctness of

the said judgment and order had been assailed

before the Apex Court which determined in the

above backdrop whether the courts were justifyied

in staying the on­going disciplinary proceedings

pending conclusion of the trial in the criminal

case registered and filed against the

respondents. The court answered that there is no

legal bar to the continuance of the disciplinary

proceedings against the employees based on an

incident which is also the subject matter of

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criminal case against such employees.

13.3 It also reiterated that It would also

depend upon the nature of the charges in the

criminal case filed against the employees and

whether the case involves complicated questions

of law and fact. The possibility of prejudice to

the employees accused in the criminal case on

account of the parallel disciplinary inquiry

going ahead is another dimension which will have

to be addressed while permitting or staying such

disciplinary inquiry proceedings.

14. The Apex Court, therefore, said that

there can not be any strait­jacket formula for

application in all cases the decisions of the

Court where the broad approach had been adopted

leaving it to the concerned Courts to take an

appropriate view in peculiar facts and

circumstances of each case and there cannot be

any short cut or piecemeal solution to this. The

Apex Court also held that the purpose for

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underlying departmental proceedings is distinctly

different from the purpose behind prosecution of

offenders for commission of offences by them. The

criminal prosecution, according to the Apex

Court, is lodged for violation of a duty that

the offender owes to the society, whereas the

departmental inquiry is aimed at maintaining

discipline and efficiency in service. The

difference also is in the standard of proof and

the application of the rules of evidence to one

and inapplicability to the other and thus, there

two operate in different spheres and are intended

to serve distinctly different purposes. Relevant

findings and observations of the Apex Court in

case of M/s. Stanzer Toyotetsu India Pvt. Ltd.

(supra) requires reproduction at this stage:

"The relatively recent decision of this Court in Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao (2012) 1 SCC 442, is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:

"(i) There is no legal bar for both proceedings to go on simultaneously.

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(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.

(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."

10. We may also refer to the decision of this Court in Capt. M Paul Anthony v. Bharat Gold Mines Ltd, (1999) 3 SCC 679 where this Court reviewed the case law on the subject to identify the following broad principles for application in the facts and circumstances of a given case:

"(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

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to stay the departmental proceedings till the conclusion of the criminal case.

(iii) 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.

(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 honor may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

11. In HPCL v. Sarvesh Berry (2005) 10 SCC 471 the respondent was charged with possessing assets disproportionate to his known sources of income. The question was whether disciplinary proceedings should remain stayed pending a criminal charge being examined by the competent criminal Court. Allowing the appeal of the employer­corporation this Court held:

A crime is an act of commission in violation of law or of omission of

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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 a grave nature involving complicated questions of fact and law.. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense 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. (emphasis supplied).

12. It is unnecessary to multiply decisions on the subject for the legal position as emerging from the above pronouncements and the earlier pronouncements of this Court in a large number of similar cases is well settled that disciplinary proceedings and proceedings in a criminal case can proceed simultaneously in the absence of any legal bar to such simultaneity. It is also evident that while seriousness of the charge leveled against the employees is a consideration, the same is not by itself sufficient unless the case also involves complicated questions of law and fact. Even when the charge is found to be serious and complicated questions of fact and law that arise for consideration, the Court will have to keep in mind the fact that departmental proceedings cannot be suspended indefinitely or delayed unduly. In Paul Anthony (supra) this Court went a step further to hold that departmental proceedings can be resumed and proceeded even when they

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may have been stayed earlier in cases where the criminal trial does not make any headway. To the same effect is the decision of this Court in State of Rajasthan v. B.K.Meena 1996(6) SCC 417, where this Court reiterated that there was no legal bar for both proceedings to go on simultaneously unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. The following passage is in this regard apposite:

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, 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 enunciated in that behalf. The only ground suggested in the above questions as constitution 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. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed

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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. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him. (emphasis supplied)

15. The Court after considering that there

was no legal bar to the holding of the

disciplinary proceedings and the criminal trial

simultaneously where stay of disciplinary

proceedings may be an advisable course in cases

where the criminal charge against the employee is

grave and continuance of the disciplinary

proceedings is likely to prejudice the defense

before the criminal Court, also held while

looking at the peculiar facts in the matter on

hand, that the parameters of the question of law

and facts being complicated was not satisfied.

The FIR also did not suggest any complication or

complexity either on facts or law to necessiate

halt of the disciplinary proceedings.

          C/SCA/22834/2019                                       JUDGMENT




15.1     The        Court          further          has    held         that         the

criminal proceedings did not proceed for a long

time despite the direction issued by the High

Court, nearly 15 months had rolled by. It also

further held that Disciplinary proceedings cannot

remain stayed for an indefinitely long period.

Such inordinate delay is neither in the interest

of the company nor the respondents who are under

suspension and surviving on subsistence

allowance. The number of accused were also large

before the Apex Court. On account of the three

Courts below having exercised their discretion in

favour of the on going disciplinary proceedings,

the Apex Court directed the trial Court to take

effective steps to examine the rest of the

witnesses and conclude the trial immediately;

however, it further directed that the trial has

not been completed within the period of one year

from the date of this order, despite the steps

taken by the trial Court, the disciplinary

proceedings initiated should be resumed and

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concluded.

16. So far as Special Civil Application No.10811

of 2019 and allied matters are concerned, we

notice that the challenge in the group of

petition was to the issuance of the charge­sheet

to the petitioner in respect of the incident

alleged to have occurred on 01.07.2011, which had

resulted into lodging of complaint on the very

day and arrest of the petitioners before this

Court on different dates. The petitioners were

released on bail and thereafter, reinstated on

02.03.2012 and they were serving at different

stations and they all were working as constables

and head constables in Railway Protection Force

when incident of theft of railway property said

to have occurred on 01.07.2011. They were all

shown as accused in the complaint which resulted

into initiation of Criminal Case No.1980 of 2012

pending before the Judicial Magistrate, First

Class, Railway Court, Godhra. They were all

suspended on 02.03.2012 by the competent

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authority. They approached the Court for

expeditious disposal of the trial, where certain

directions were issued by the Court. However,

after a long time in the year 2019, the

petitioners were visited with the charge memos of

imposing of major punishment which indicate that

the petitioners tarnished the image of Railway

Protection Force and committed a misconduct under

Rule 146.2(i), 146.4 and sub­Rule 3.1 (i), (ii),

(iii) of the Railway Services (Conduct) Rules,

1966. These charge memos were triggered off on

account of the alleged incident of offence which

was pending as the criminal case before the

competent court. They, therefore, approached this

Court under Article 226 of the Constitution of

India and the Court after considering the

chronology of events, more particularly, because

of the delay of nearly nine years where the

departmental charge memo had been issued against

them, allowed the petitions and the charge memos

in the present form were not held sustainable and

were accordingly quashed and set aside by holding

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that this would not affect the criminal

proceedings nor would it affect the respondents'

liberty under the law to reframe the charges

based upon the appropriate material without

prejudice to the petitioners' rights to challenge

the same.

17. The legal position as has emerged from the

aforementioned pronouncements of this Court and

of the Apex Court being well settled, it can be

said that there is no absolute bar to the

departmental proceedings and the proceedings

under the criminal law to be simultaneously

proceeded with. What is required to be considered

by the Court is as to whether there is an

involvement of complicated questions of law and

fact and whether permitting the departmental

proceedings would in any manner seriously

prejudice the right of the employee and his

defence in the criminal trial. The Court cannot

be also oblivious of the findings and

observations in various decisions including in

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the decision of M/s. Stanzer Toyotetsu India Pvt.

Ltd.(supra) where the Apex Court had also

disapproved the long stay of the disciplinary

proceedings for an indefinitely period by

specifically holding that inordinate delay is

neither in the interest of the employer nor the

employee. Since in a matter of allegation against

the employer may not be wanting to continue such

person with serious allegations of corruption,

whereas the employee may have to survive on

subsistence allowance. There could be no

certainty of completion of the trial of criminal

proceedings under the anti corruption law which

can linger on for a long time, on account of non­

availability of the witnesses, the defence lawyer

for the cross examination or on account of

various adjournments that might be sought by the

either side.

18. So far as the present case on hand is

concerned, this is essentially premised on the

departmental proceedings and the criminal case on

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hand having been based on identical and similar

set of facts so also on the basis that the

delinquent employee is facing grave nature of

charges which involve complicated question of law

and therefore, it is desirable to stay the

departmental proceedings till conclusion of the

criminal case. Yet another ground raised is of

the memorandum of charges being unsustainable

inasmuch as it has been laid down because of the

filing of the registration of FIR and his arrest,

which does not amount any misconduct.

19. We notice that the criminal trial pending

against the present petitioner as well as the

departmental proceedings initiated are having as

the base essentially the FIR lodged against him.

We notice that the ratio laid down in Special

Civil Application No.6270 of 2011 has also been

relied on in Special Civil Application No.20521

of 2016. The facts in both the matters were

almost identical and so are they in the present

case, where the two Division Benches on identical

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set of facts had permitted the departmental

proceedings to be continued on the ground that

the same cannot prejudice the petitioner as there

are no complicated question of facts and law, we

have no reason to differ from the ratio in those

two decisions and hold otherwise than already

done and, accordingly, we hold this aspect

against the petitioner.

19.1    There          is        no   delay             in    issuance           of       the

memorandum          of          the   charges            as     the      FIR        is      of

06.11.2018 and without issuance of any charges

straightway initially, the petitioner was

dismissed from the service. The appellate

authority by virtue of the order dated 06.11.2019

had set aside the order passed on 13.11.2018

dismissing the petitioner from service with

immediate effect. While setting aside this order

of dismissal, it had also held that this would

act without prejudice to the departmental inquiry

as may be contemplated and order of suspension

was passed on 07.11.2019 and memorandum of

charges had been issued on 27.11.2019.

                  C/SCA/22834/2019                                  JUDGMENT



20. In           absence            of    any      complicated       question             of

facts and law and in absence of anything having been shown to this Court as to how the defence of the petitioner is likely to be affected if the departmental proceedings are permitted to be proceeded with. We see no reason to stay the proceedings, we also notice further that ACB Case No.1 of 2019 has not proceeded as yet, the charges have also not been framed by the court concerned.

21. Resultantly, this petition fails and dismissed. The trial court concerned is directed to expedite the proceedings of ACB Case No.1 of 2019 and complete the same within a period of four months from the date of receipt of a copy of this order. Parties shall cooperate.

22. In view of the order passed in main matter, Civil Application is also accordingly dismissed.

(SONIAGOKANI, J.)

(GITAGOPI, J.) M.M.MIRZA