Rajasthan High Court

Munnu Lal Maurya S/O Late Shri ... vs Food Corporation Of India on 25 April, 2022

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR
               S.B. Civil Writ Petition No. 14042/2021
Vinod Kumar Kashyap S/o Sh Karan Singh Kahyap, R/o B-Narayan
Gate, Dheemar Mohalla, Bharatpur, Rajasthan.
                                                                  ----Petitioner
                                    Versus
1.     Food Corporation Of India, Through General Manager, Regional
       Office, Nehru Place, Tonk Road, Jaipur.
2.     Executive Director (Nz), Food Corporation Of India, Zonal
       Office (N), Noida (Up)
3.     Divisional Manager, Food Corporation Of India, Divisional
       Office, Alwar.
                                                                ----Respondents

Connected With S.B. Civil Writ Petition No. 11894/2021 Munnu Lal Maurya S/o Late Shri Paltu Prasad Morya, Aged About 34 Years, R/o Plot No. 40, Vinoba Vihar, Near Trimwati Apartment, Modal Town-C, Malviya Nagar, Jaipur.

----Petitioner Versus

1. Food Corporation Of India, Through General Manager, Regional Office, Nehru Place, Tonk Road, Jaipur.

2. Executive Director (Nz), Food Corporation Of India, Zonal Office (N), Noida (Up)

3. Divisional Manager, Food Corporation Of India, Divisional Office, Alwar.

----Respondents

For Petitioner(s) : Mr. Pallav Choudhary, Adv. For Respondent(s) : Mr. R.N. Mathur, Sr. Counsel assisted by Mr. Sovit Jhajharia, Adv.

Mr. Om Prakash Sheoran, Adv.

HON'BLE MR. JUSTICE INDERJEET SINGH Reportable Order 25/04/2022

1. Since common questions of law are involved in both the writ

petitions, hence with consent of the parties both the writ petitions

have been heard together and are being decided by the present

common order. The prayer made in both the writ petitions being

identical reads as under:-

"It is, therefore, humbly prayed to your lordships may graciously be pleased to

(2 of 12) [CW-14042/2021]

accept and allow this writ petition, call for the entire record pertaining to the present matter and

i) by issuing an appropriate writ, order or direction, the impugned memorandum of charge dated 11.8.2021 issued by the respondents may kindly be quashed and set aside

ii) by issuing an appropriate writ, order or direction the respondents may kindly be restrained from initiating any departmental proceeding against the petitioner on the basis of same set of facts of criminal case registered against the petitioner

iii) Any other relief, order or direction, which this Hon'ble High Court may deem fit and proper, be also passed in favour of the petitioner."

2. Brief facts of the case are that the petitioner-Vinod Kumar

Kashyap (CWP-14042/2021) and petitioner Munna Lal Maurya

(CWP-11894/2021), both were working as AG-I(D) and Manager

(QC) respectively at Bharatpur in Food Corporation of India

(hereinafter to be referred as FCI), at the relevant point of time. A

complaint was made by the complainant-Aditya Agarwal to the

Anti Corruption Department (hereinafter to be referred as ACD) to

the effect that he is having a power of attorney in his name given

by his maternal grandfather to look after Shri Mahaveer Trading

Company which has been assigned the work of handling and

transportation of Roopwas Anaj Mandi, Alwar by the FCI. It was

further alleged by him that in discharge of the work assigned, he

took the wheat bags from Roopwas Anaj Mandi, Alwar and

deposited the same in the go-down of FCI and when he asked

about issuance of the receipt of deposit from the then Depot

Manager namely Vinod Kashyap, he demanded bribe of Rs.1 Lac

from the complainant. On the basis of the complaint made by the

complainant Aditya Agarwal, the trap proceedings were conducted

by the officials of ACD, during which it was found that the bribe of

(3 of 12) [CW-14042/2021]

Rs.1 Lac was admittedly demanded & taken by the petitioner-

Vinod Kumar Kashyap from the complainant and out of the said

amount, Rs.20000/- were taken by the another petitioner Munna

Lal from Vinod Kumar Kashyap and both the petitioners were

caught red-handed by the officials of ACD and thus an FIR

No.219/2021 was registered by the ACD for the offences under

sections 7 & 7A of the Prevention of Corruption (Amended) Act,

2018 (hereinafter to be referred as the Act, 2018) as well as

under section 120-B of IPC. As the petitioners were caught red-

handed taking bribe as alleged in the FIR No.219/2021,

considering that to be a misconduct, while contemplating the

disciplinary proceedings against the petitioners, both of them were

placed under suspension vide order dated 24.06.2021 by the

competent authority of FCI, exercising power conferred under

Regulation 66 sub-clause I(A) of FCI (Staff) Regulations, 1971

(hereinafter to be referred as the Regulations, 1971) and their

headquarter was kept at FCI, DO, Jaipur. Thereafter, both the

petitioners were served with the memorandum of charge dated

11.08.2021. Hence, these writ petitions have been filed by the

petitioners for quashing of the memorandum of charge dated

11.08.2021 as well as for restraining the respondents from

initiating the departmental proceedings against the petitioners on

the ground that on the same set of facts a criminal case has been

registered against them, in which the trial is going on.

3. Counsel for the petitioners submitted that the allegation

against the petitioners is of taking bribe on account of which the

FIR has been registered against them under the Act, 2018 as well

as under I.P.C. and they have been placed under suspension vide

order dated 24.06.2021 and a memorandum of charge dated

(4 of 12) [CW-14042/2021]

11.08.2021 has been served upon them. Counsel further submits

that the memorandum of charge as well as the FIR both are based

on the same set of facts, therefore, the memorandum of charge

issued by the respondents be quashed and the departmental

proceedings be stayed till final conclusion of trial in the aforesaid

criminal case. Counsel further submits that the criminal case was

instituted in June, 2021 and so far as the pendency of trial is

concerned, the petitioners are not at fault and lastly prayed for

allowing the writ petition.

4. In support of the contentions, counsel relied upon the

judgment passed by the Coordinate Bench of this court at Principal

Seat, Jodhpur in the matter of Bhagirath Ram Vs. State of

Rajasthan & Ors. (S.B. Civil Writ Petition No.2682/2021-

decided on 13.09.2021) and also the judgment passed by the

Division Bench of this Court at Principal Seat, Jodhpur in the

matter of Devendra Kumar Mehta Vs. Union of India & Anr.

(D.B. Civil Writ Petition No.17314/2019-decided on

12.01.2022).

5. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of M/s. Stanzen Toyotetsu

India P. Ltd. Vs. Girish V & Ors. reported in 2014 AIR (SC

989) where in para 16 it has been held as under:-

"16. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three Courts below have exercised their discretion in favour of staying the on-going disciplinary proceedings, we do not consider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the Court dealing with the criminal charges against the respondents to conclude the proceedings as expeditiously as possible but in any case within a period

(5 of 12) [CW-14042/2021]

of one year from the date of this order. We hope and trust that the Trial Court will take effective steps to ensure that the witnesses are served, appear and are examined. The Court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to co-operate with the trial Court for an early completion of the proceedings. We say so because experience has shown that trials often linger on for a long time on account of non-availability of the defense lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and concluded by the Inquiry Officer concerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order."

6. Mr. R.N. Mathur, learned Senior Counsel appearing on behalf

of the respondents opposed the writ petitions and submitted that

the petitioners were caught red handed by the officials of ACD

taking bribe, for which a criminal case was registered against the

petitioners under Sections 7 & 7A of the Act, 2018 and under

section 120-B of I.P.C. as well as departmental proceedings were

initiated against the petitioners for the misconduct as defined

under Regulation 32-A (1) & 32-A(2) of the Regulations, 1971. He

further submits that although the suspension order was issued by

the department on 11.08.2021 but during pendency of the

criminal case, their suspension has been revoked by the

respondents. He further submits that the petitioners were caught

red handed by the officials of ACD demanding and taking bribe

and also caused loss to the reputation of the Corporation and their

(6 of 12) [CW-14042/2021]

such act falls within the definition of grave misconduct as defined

under the Regulations, 1971 and he made reference of the

provisions of Regulations-32-A (1) & 32-A(2) which reads as

under:-

"32-A Misconduct:

Without prejudice to the generality of the term Misconduct" the following acts of omission and commission shall be treated as misconduct:

(1) Theft, fraud or dishonesty in connection with the business of property of the Corporation or of the property of another person within the premises of the Corporation.

(2) Taking or giving bribes or any illegal gratification."

7. In support of the contentions, counsel relied upon the

judgment passed by the Hon'ble Supreme Court in the matter of

State of Rajasthan Vs. B.K. Meena & Ors. reported in (1996)

6 SCC 417 where in paras 11, 17 & 19 it has been held as

under:-

"11. We are of the opinion that the order of the Tribunal is unsustainable both in law and on the facts of the case. In S.A. Venkataraman v. Union of India the petitioner therein was subjected to disciplinary proceedings in the first instance and was dismissed from service on 17th September, 1953. On 23rd February, 1954, the police submitted a charge-sheet against the petitioner therein in a criminal court in respect of the very same charges. The petitioner challenged the initiation of criminal proceedings on the ground that it amounts to putting him in double jeopardy within the meaning of Clause (2) of Article 20 of the Constitution of India. A Constitution Bench of this Court rejected the said plea holding that there is no legal rejected the said plea holding that there is no legal objection to the initiation or continuation of criminal proceedings merely because he was punished earlier in disciplinary proceedings. It is thus clear- and the proposition is not disputed by Mr. K. Madhava Reddy, learned counsel for the respondent - that in law there is no bar to,

(7 of 12) [CW-14042/2021]

or prohibition against, initiating simultaneous criminal proceedings and disciplinary proceedings. Indeed not only the said two proceedings, but if found necessary, even a civil suit can also proceed simultaneously. Mr. Madhava Reddy, however, submits that as held by this Court in certain later decisions, it would not be desirable or appropriate to proceed simultaneously with the criminal proceedings as well as disciplinary proceedings.

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 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 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.

19. For the above reasons, it must be held that the Tribunal was in error in staying the disciplinary proceedings pending the criminal proceedings against the respondent. The appeal is accordingly allowed with costs. The order of the Tribunal is set aside. The disciplinary proceedings against the respondent shall go on expeditiously without waiting for the result of the criminal proceedings. The costs of the appellant are estimated at Rs. 5,000/-."

8. He further relied upon the judgment passed by the Hon'ble

Supreme Court in the matter of Capt. M. Paul Anthony Vs.

(8 of 12) [CW-14042/2021]

Bharat Gold Mines Ltd. & Anr. reported in (1999) 3 SCC 679

where in para 22 it has been held as under:-

"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."

9. He also relied upon the judgment passed by the Hon'ble

Supreme Court in the matter of Lalit Popli Vs. Canara Bank &

Ors. reported in (2003) 3 SCC 583 where in para 16 it has been

held as under:-

(9 of 12) [CW-14042/2021]

"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him; whereas in criminal proceedings the question is whether the offences registered against him 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 are conceptually different. [See State of Rajasthan v. B.K. Meena.] In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct."

10. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Kendriya Vidyalaya

Sangathan & Ors. Vs. T. Srinivas reported in (2004) 7 SCC

442 where in para Nos. 11, 13 & 14 it has been held as under:-

"11. In the instant case, from the order of the tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, reading of the two impugned orders indicates that both the tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the respondent in service inspite of such serious charges levelled against him. This Court in the said case of State of Rajasthan has further observed that the approach and the objective in the criminal proceedings and the disciplinary

(10 of 12) [CW-14042/2021]

proceedings is altogether distinct and different. It held that 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 are established and, if established, what sentence should be imposed upon him. The court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan the facts which seems to be almost similar to the facts of this case held that the tribunal fell in error in staying the disciplinary proceedings.

13. As stated above, in the case in hand, both the tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases.

14. We are of the opinion that both the tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into second question whether at least charge 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned counsel for the appellant."

11. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of Union of India & Ors.

Vs. Sitaram Mishra & Anr., reported in (2019) 20 SCC 588,

where in paras 4, 14 & 15 it has been held as under:-

"4. The first respondent was also tried of an offence under Section 304 of the Indian

(11 of 12) [CW-14042/2021]

Penal Code 1860("IPC"). He was acquitted by the Judicial Magistrate, First Class, Agartala, Tripura West on 5-1-2002.

14. The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in Capt M Paul Anthony v. Bharat Gold Mines Ltd2. The High Court adverted to the following principle of law laid down in the above judgment: (SCC p. 687, para 13)

"13...While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

15. It is undoubtedly correct that the charge in the criminal trial arose from the death of a co-employee in the course of the incident resulting from the firing of a bullet which took place from the weapon which was assigned to the first respondent as a member of the Force. But the charge of misconduct is on the ground of the negligence of the first respondent in handling his weapon and his failure to comply with the departmental instructions in regard to the manner in which the weapon should be handled. Consequently, the acquittal in the criminal case was not a ground for setting aside the penalty which was imposed in the course of the disciplinary enquiry. Hence, having regard to the parameters that govern the exercise of judicial review in disciplinary matters, we are of the view that the judgment of the Division Bench of the High Court is unsustainable."

12. Heard counsel for the parties and perused the record.

(12 of 12) [CW-14042/2021]

13. These writ petitions filed by the petitioners deserve to be

dismissed for the reasons; firstly, the criminal case was lodged

against the petitioners as they were caught red-handed taking

bribe whereas in the departmental proceedings, the charges

against the petitioners are not only of taking bribe but are also of

misconduct & causing loss to the reputation of the corporation as

defined under the Regulations, 1971; secondly, the departmental

proceedings and proceedings in a criminal case can proceed

simultaneously as there is no bar in their being conducted

simultaneously, though separately, as has been held by the