Full Judgment Text
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CASE NO.:
Appeal (civil) 4985 of 2004
PETITIONER:
Kendriya Vidyalaya Sangathan & Ors.
RESPONDENT:
T.Srinivas
DATE OF JUDGMENT: 05/08/2004
BENCH:
N.Santosh Hegde & S.B.Sinha.
JUDGMENT:
J U D G M E N T
(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
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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
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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.