Jharkhand High Court

Pratap Ranjan vs Chairman Cum Managing Director & ... on 4 October, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No.6339 of 2023
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Pratap Ranjan, S/o Yugeshwar Marar Deen, aged about 35 years, R/o P.R. Kunj, Near Devi Mandap Raod, Hehal, P.O. Ratu, P.S. Mandar, District Ranchi, present posted and residing at Kuju Area, P.O. & P.S. Ramgarh, District Ramgarh, Jharkhand. ... Petitioner Versus

1. Chairman Cum Managing Director & Disciplinary Authoriy, Central Coalfields Limited (CCL), Darbhanga House, Kutchery Road, P.O.- GPO, P.S. Kotwali, District Ranchi, Jharkhand.

2. Central Coalfields Limited (CCL), through its Chairman, Central Coalfields Limited (CCL) Darbhanga House, Kutchery Road, P.O. -GPO, P.S. Kotwali, District Ranchi, Jharkhand.

.......Respondents

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        CORAM      : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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        For the Petitioner       : Mr. Shresth Gautam, Adv.

For the Respondents: Mr. Amit Kr. Das, Adv.

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CAV ON:20.08.2024 Pronounced On:-04/10/2024

Heard learned counsel for the parties.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing the

departmental proceeding which has been initiated

against this petitioner vide memorandum dated

27.05.2023 (Annexure-3), issued by the respondent

no.1; whereby the respondent company proposes to hold

an enquiry against this petitioner under Rule 30.0 of the

Coal India Executives Conduct, Discipline and Appeal

Rules 2021.

3. Brief facts of the case as it appears from the

averments made in this writ application is that

petitioner joined CCL in the year 2013. On 30.09.2019,

CBI registered an FIR bearing case no. RC 5(A)/2019- R

based on the complaint of the Chief Vigilance Officer,

CMPFO (Coal Mines Provident Fund Organization),

Dhanbad alleging fraudulent withdrawal of provident

fund of 38 ex-employees during the period 2015-18

amounting to Rs.1.70 Crores (approximately).

Thereafter, on 18.09.2020 the disciplinary authority

issued a memorandum bearing no. Ref No.

CCL/VIG/RDA-06/20/2021/903 for initiation of

disciplinary proceedings against the Petitioner herein

and the Petitioner was found guilty vide Ref No.

CCL/VIG/RDA-06/20/2021/1631 and was awarded the

punishment of "Reduction to one stage lower in time

scale for a period of six months without cumulative

effect."

On 27.05.2023, once again the Respondent

No. 1 issued a memorandum on identical facts which

was duly replied by the Petitioner and the respondent

No.1 issued an order dated 06.09.2023 rejecting the

reply of the Petitioner and decided to proceed and

enquire into the charges against the petitioner. Hence,

the present petition has been filed.

4. Mr. Shrestha Gautam, learned counsel for the

petitioner has assailed the initiation of the departmental

proceeding on two grounds.

          (i)    For    the     same      cause      of   action,     the

department      has     already       initiated       a    full-fledged

proceeding and thereafter a punishment has been

imposed upon this petitioner vide order of punishment

dated 3.12.2021 (Annexure-2) whereby penalty of

deduction to one stage lower in time scale for a period of

Six months without cumulative effect was passed. The

petitioner did not challenge the aforesaid order of

punishment and it has attained finality. Accordingly, the

fresh initiation of departmental proceeding for the same

cause of action is barred by law. In this regard he

referred the judgment passed in the case of Lt.

Governor, Delhi v. H.C. Narinder Singh reported in

(2004) 13 SCC 342. For brevity para-4 of the said order

is quoted herein below:-

"4. Reading of the show-cause notice suggests as if it is in continuation of the departmental proceedings. Lack of devotion to duty is mentioned as the reason for the proposed action which was the subject-matter of the earlier proceedings as well. The second proposed action based on the same cause of action proposing to deny promotion or reversion is contemplated under the impugned show-cause notice. Second penalty based on the same cause of action would amount to double jeopardy. The Tribunal was,

therefore, right in law in annulling such an action. We are not expressing any opinion on the ambit or scope of any rule."

(ii) The next limb of argument is that if the court

does not propose to quash the departmental proceeding,

then at least since the cause of action and the charges in

the departmental proceeding and that in the criminal

proceedings are same and similar; the departmental

proceeding may be stayed because it will be adversely

affected the criminal proceeding. In this regard learned

counsel relied upon the judgment passed in the case of

Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry,

reported in (2005) 10 SCC 471 wherein at para-8 it has

been stated as under:-

"8. The purposes of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So, crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act,

1872 (in short "the Evidence Act"). Converse is the case of departmental enquiry. The enquiry in departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."

Relying upon the aforesaid judgment passed

by the Hon'ble Apex Court and also by drawing attention

to the charges in both the proceeding, learned counsel

submits that if the proceeding is not quashed then at

least the same should be stayed till conclusion of

criminal trial.

5. Mr. A. K. Das, learned counsel for the respondent

submits that the charges in both the proceedings are not

at all same and similar. He draws attention of this Court

towards the charge in the earlier proceeding and also the

charge made in the instant proceeding and submits that

earlier proceeding was with respect to procedural lapses

in dealing with old cases of settlement of coal mines

provident fund to the dependent of retired/deceased

employee of CCL, wherein disciplinary action was taken

against the officials including the petitioner who were

found responsible for such procedural lapses.

However, the charges against the petitioner in

the Memorandum of charge dated 27.05.23 is for

accepting illegal gratification of Rs.22000/- for

processing bogus CMPF claim under a conspiracy which

mainly attracts misconduct under Rule 5.0 i.e. taking or

giving bribe of any illegal gratification which was not the

charge in the earlier proceeding. Accordingly, it is not a

case of double jeopardy as being claimed by the

petitioner and since in the preliminary enquiry the

petitioner failed to satisfy the respondents, it was

decided to initiate departmental proceeding.

6. Mr. Das further submits that there cannot be

any stay of the departmental proceeding for indefinite

time. It is true that if the criminal case and departmental

proceeding are of same and similar nature and the

criminal proceeding is on the verge of conclusion; then

certainly departmental proceeding could be stayed

awaiting the final result of criminal case but in the

instant case there is no likelihood of early conclusion of

trial. As such in the interest of justice, the petitioner may

be directed to participate in the departmental

proceeding.

6. Having heard learned counsel for the parties

and after going through the documents available on

record and the averments made in the respective

affidavits, it appears from bare perusal of the charges

against this petitioner in both the memorandum, it is

crystal clear that they are distinguished and on different

set of facts.

The charges against the petitioner in

memorandum of charge dated 18.09.2020 was with

respect to procedural lapses i.e. irregularity in

certification and processing of CMPF final refund claim

and not exercising due diligence in verifying the

genuiness of the claimants and the documents

submitted by them which mainly attracted misconduct

under Rule 5.0(i), 5.0(v), 5.0(9) of Coal India Executives'

Conduct, Discipline and Appeal Rules, 2021; whereas the

charges against the petitioner in Memorandum of charge

dated 27.5.2023 is for accepting illegal gratification of

Rs.22000/- for processing bogus CMPF settlement claim

under a conspiracy which mainly attracts misconduct

under Rule 5.0(2) i.e. taking or giving bribe or any illegal

gratification; thus, by no stretch of imagination it can be

said that the current memorandum dated 27.05.2023 is

same and similar with that of the earlier charge dated

18.09.2020. The current memorandum which has been

issued to the petitioner is for a very serious and grave

misconduct of the acceptance bribe for which

prosecution sanction has also been issued. Thus in no

case it can be said to be a case of double jeopardy and

hence the said limb of arguments of the petitioner is not

acceptable to this Court.

7. So far as second limb of arguments with

regard to stay of departmental proceeding till the

conclusion of the criminal proceeding is concerned; it is

now a settled principle that a departmental proceeding is

not barred during pendency of criminal trial. As a matter

of fact, there is no legal bar to conduct the disciplinary

proceeding and criminal trial simultaneously; however in

no straight jacket formula it can be said and it has been

laid down by the Hon'ble Apex Court that the Court has

to keep in mind the broad approach to be adopted in

such matter on a case to case basis.

One of the formulae for staying the disciplinary

proceeding is that if the defence of the employee in

criminal case will be prejudice. In this regard reference

may be made to the case of SBI v. Neelam Nag reported

in (2016) 9 SCC 491 wherein the Hon'ble Apex Court

has held in para-13, 14, 15, and 18 which are quoted

herein below:-

"13. We have heard the learned counsel for the parties at some length. The only question that arises for consideration is no more res integra. It is well settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. The contour of the approach to be adopted by the Court has been delineated in a series of decisions.

14. This Court in Karnataka SRTC v. M.G. Vittal Rao [Karnataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171] has summed up the same in the following words: (SCC pp. 449-50, paras 16-17)

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

(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 or 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. (emphasis supplied)

15. The recent decision relied on by the appellant in Stanzen [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] , has adverted to the relevant decisions [Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, (2005) 10 SCC 471 : 2005 SCC (Cri) 1605; Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810; A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699 :

1997 SCC (L&S) 548 and State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455] including M.G. Vittal Rao [Karnataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171] . After adverting to those decisions, in para 16, this Court opined as under: (Stanzen case [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] , SCC p. 643) "16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, 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 their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the

competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."

(emphasis supplied) 18 [Ed.: Paras 17 and 18 corrected vide Order dated 9-11- 2016.] . In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against Respondent 1 for an indefinite period; and in larger public interest, the order as passed in Stanzen case [Stanzen Toyotetsu India (P) Ltd. v. Girish V., (2014) 3 SCC 636 : (2014) 1 SCC (L&S) 641] be followed even in the fact situation of the present case, to balance the equities.

8. The petitioner has failed to demonstrate that

how the criminal trial will be prejudiced by continuance

of departmental proceeding. It is true that the basis of

proceeding is the FIR registered by the CBI being RC

case No. 5(A) 2019 R which was based on complaint of

the Chief (Vigilance) Officer CMPFO Dhanbad, but the

criminal trial is against 38 ex-employees during the

period from 2015-18 for defalcation of Rs.1.70 crores in

which one of the accused is this petitioner. There is

nothing on record to suggest that who are the

prosecution witnesses in the criminal trial and as to

whether the witnesses in both these proceeding are same