Kendriya Vidyalaya Sangathan & Ors Vs. T.Srinivas [2004] Insc 427 (5 August
2004)
N.Santosh Hegde &
S.B.Sinha. (Arising out of Slp)No.24698 of 2003) Santosh Hegde,J.
Heard learned counsel for the parties.
Leave granted.
The appellants being aggrieved by the dismissal of their writ petition filed
before the High Court of Judicature, Andhra Pradesh at Hyderabad are in appeal
before us. Basic facts required for the disposal of this appeal are as follows:
The respondent herein while working with the first appellant as Upper
Division Clerk at Visakhapatnam was arrested by the CBI after a trap and was
charged for offence punishable under Section 7 read with Section 13(i)(d) of
Prevention of Corruption Act and a case in this regard is pending trial before
the competent court. During the pendency of the said trial, the appellants
decided to initiate departmental proceedings against the respondent and a
charge memo framing three charges was issued to the respondent. First Article
in the memo of charges referred to the allegations of the respondent receiving
Rs.200/- as bribe in violation of Rule 3(1)(i)(ii) & (iii) of CCS (Conduct)
Rules, 1964. Article II of the said charge memo referred to the conduct of the
appellants in not maintaining absolute integrity devotion to duty and acting in
a way unbecoming of an employee in violation of Rule 3(i) (ii) & (iii) of
the CCS (Conduct) Rules, 1964 and Article III of the said charge memo referred
to the respondent suppressing the fact that he was in police custody on 16th of
September, 2002 which according to the appellants was again a misconduct in
violation of Rule 3(1)(i)(ii) & (iii) of the CCS (Conduct) Rules, 1964.
The respondent herein challenged the said decision of the appellants to hold
a departmental enquiry while a criminal trial on identical facts was pending
against him before a competent court.
This challenge was made before the Central Administrative Tribunal,
Hyderabad Bench at Hyderabad. The tribunal by its order dated 2.7.2003 came to
the conclusion that the first two Articles of charges are identical to the
charge levelled against the petitioner before the special court under the
provisions of the Prevention of Corruption Act and the third Article of charge
though not a subject matter of the trial is an inter-connected charge with
charges 1 and 2, hence it allowed the application of the respondent and
directed the appellant that proceedings pursuant to the charge memo be stayed
till the applicant discloses his defence in the pending criminal trial. It, however
gave permission to the appellant to proceed with the disciplinary proceedings
after the disclosure of the defence by the respondent which in effect would
mean that the disciplinary proceedings will stand stayed almost till the
disposal of the trial before the criminal court.
Being aggrieved by the said order of the tribunal, the appellants herein, as
stated above, preferred a writ petition before the High Court . The High Court
by the impugned order agreed with the tribunal that the disciplinary proceedings
should be stayed till the criminal trial was over and the request of the
appellant, atleast to permit it to proceed with the departmental enquiry in
regard to the charge No.3 which was independent of charges 1 and 2 was rejected
on the ground that the said charge No.3 is inter-connected with the other two
charges. It is against the said order of the High Court confirming the order of
the tribunal, the appellants are before us in this appeal.
Mr.Rakesh K.Khanna, learned counsel appearing for the appellants submitted
that it is now a well settled principle in law that merely because a criminal
trial is pending a departmental enquiry involving the very same charges as is
involved in the criminal proceedings is not barred or can not be initiated,
therefore, the courts below erred in holding otherwise. He also submitted that
atleast in regard to charge No.3 which is not a subject matter of the trial the
department ought to have been permitted to proceed with the departmental
enquiry. In support of his contention, the learned counsel placed reliance on
two judgments of this Court in the case of State of Rajasthan vs.
B.K.Meena & Ors. (1996 (6) SCC 417) and Capt. M.Paul Anthony vs. Bharat
Gold Mines Ltd. & Anr. (1999 (3) SCC 679).
Shri P.S.Narasimha, learned counsel appearing for the respondent contended
that the charges before the criminal court and before the Departmental Enquiry
Committee being identical the appellants could not have initiated a parallel
proceedings which would prejudice the defence of the appellants. He submitted
the facts and the material that would be relied upon in the departmental
enquiry would be the same upon which the prosecuting agency before a criminal
court would also rely upon, hence, the respondent will be compelled to disclose
his defence in advance which would seriously prejudice his case before the
criminal court. The learned counsel also relied upon the very same judgments on
which reliance was placed by the learned counsel for the appellant in support
of his contention, reference to which has been made herein above.
A reading of M.Paul Anthony's case (supra) it is noted that there is
consensus of judicial opinion on the basic principle that proceedings in a
criminal case and departmental proceedings can go on simultaneously, however
this court noticed that certain exceptions have been carved out to the said
basic principle.
In State of Rajasthan vs. B.K.Meena & Ors. (supra), this court held:
"The only ground suggested in the decisions of the Supreme Court as
constituting a valid ground for staying the disciplinary proceedings is that
"the defence of the employee in the criminal case may not be
prejudiced". This ground has, however, been hedged in by providing further
that this may be done in cases of grave nature involving questions of fact and
law. 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, of staying the departmental
enquiry has to be determined in each case taking into consideration all the
facts and circumstances of the case. 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 Supreme Court's decisions." (Emphasis
supplied) From the above, it is clear that the advisability, desirability or
propriety, as the case may be, in regard to a departmental enquiry has to be
determined in each case taking into consideration all facts and circumstances
of the case. This judgment also lays down that the stay of departmental
proceedings cannot be and should not be a matter of course.
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 appellant in service inspite of such
serious charges levelled against him. This Court in the said case of State of Rajasthan
(supra) has further observed that the approach and the objective in the
criminal proceedings and the disciplinary 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.
We think the above ratio of law laid down by this Court applies aptly to the
facts of the present case also. It is also to be noted that in Capt. M.Paul
Anthony case (supra), this court has accepted the principle laid down in
Rajasthan case (supra) 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.
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 atleast charge No.3 by itself could have been permitted to be
decided in the departmental enquiry as contended alternatively by the learned
counsel for the appellant.
For the reasons stated above, this appeal succeeds. The impugned order of
the tribunal and the High Court are set aside.
The appeal is allowed.
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