Full Judgment Text
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CASE NO.:
Writ Petition (civil) 150 of 1997
PETITIONER:
NOIDA Entrepreneurs Assn
RESPONDENT:
NOIDA & Ors.
DATE OF JUDGMENT: 15/01/2007
BENCH:
Dr. ARIJIT PASAYAT,C.K. THAKKER & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
With
W.P.(C) NO. 529 OF 1998
Dr. ARIJIT PASAYAT, J.
The present order will dispose of one of the issues
relating to decision of the Uttar Pradesh Government not to
take disciplinary action against Smt. Neera Yadav-respondent
No.7.
A brief reference to certain earlier events and orders
passed by this Court would be necessary.
On consideration of complaints received during the
period 1994-96 the State Government decided to enquire into
the allegations. These allegations related to irregularities in
allotments and conversions of land in New Okhla Industrial
Development Authority (in short ’NOIDA’). Explanation was
asked by Principal Secretary (Heavy Industries) of the
Government of U.P. from Smt. Neera Yadav. On 2.2.1995 the
then Chief Minister of U.P. observed that there was no need for
any action in the matter. In November, 1995, a Memorandum
was submitted by NOIDA Entrepreneurs Association- the
petitioner in the present writ petition, requesting for enquiry
by the Central Bureau of Investigation (in short the ’CBI’)
regarding the alleged irregularities in allotments and
conversions in NOIDA. It appears at different stages Smt.
Neera Yadav submitted her explanations. On 13.12.1996 a
letter was written by the then Director CBI Sri Joginder Singh
regarding information received from sources pertaining to
alleged irregularities in the matter of allotments, conversions
and regularization of plots in NOIDA. Taking into account the
said letter the State Government constituted a Commission
(hereinafter referred to as Justice Murtaza Hussain
Commission). A report was submitted by the said Commission
on 9.12.1997. In the report various details were given. On the
basis of the report, the then Chief Secretary recommended
departmental action in respect of specific findings against
Smt. Neera Yadav and also an enquiry by the Vigilance
department in matters relating to which the Commission had
not given any clear finding. The then Chairman of Board of
Revenue Mr. A.P. Singh was recommended to be the enquiry
officer. The then Chief Minister concurred with the findings of
the then Chief Secretary. In the meantime, the writ petition
had been filed before this Court. By order dated 6.1.1998 this
Court directed the State Government to indicate its stand on
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affidavit in respect of the conclusions of Justice Murtaza
Hussain Commission. On 9.1.1998 the then Chief Minister of
the State approved the findings of the then Chief Secretary
recorded on 27.12.1997 and specifically in relation to the
suggestions for departmental action in accordance with the
rules. On that very date the State of Uttar Pradesh filed an
affidavit before this Court wherein it was stated that keeping
in view the gravity of the irregularities committed, it has
decided to start departmental proceedings against Smt. Neera
Yadav. It was also stated in the affidavit that regarding those
charges about which the Commission had expressed its
inability to give specific recommendations for want of further
investigation, the State Government had decided to get the
matter inquired into by the Vigilance department of the State.
Taking note of all these aspects, this Court by order dated
20.1.1998 directed that the matter should be investigated by
the CBI and if such investigation discloses the commission of
criminal offence the person/persons found responsible should
be prosecuted in a Criminal court. It was specifically noted
that the State Government was proposing to initiate
departmental proceeding against Smt. Neera Yadav. On
18.12.1998 the State Government of Uttar Pradesh filed an
affidavit before this Court stating that the enquiry by the
Vigilance department which was initiated in respect of those
aspects about which Commission had expressed its inability to
give specific recommendation was being dropped on account of
the fact that the CBI was enquiring into the matter. Prior to
that on 26.5.1998 charge sheet had been issued to Smt. Neera
Yadav and an enquiry officer was appointed. Three charges
framed were as follows:
"1. Allotment and conversion of residential
plots in her favour and also in favour of her
two daughters.
2. Allotment/conversion of residential plots
in favour of Anand Kumar/Subash Kumar
within three months of their appointment as
carpenter and junior clerk.
3 Allotment/conversion of the residential
plot to Rajeev Kumar Dy. CEO and increase in
area."
On 25.2.1999 Smt. Neera Yadav filed a representation
stating that in view of the criminal investigation, departmental
proceedings should not proceed. On 1.5.1999 the State of
U.P. filed an affidavit before this Court indicating that
disciplinary action had been initiated against Smt. Neera
Yadav and charge sheet had been issued on her on 26.5.1998.
It was also stated therein that Smt. Neera Yadav had
requested that since the matter was being inquired into by the
CBI, departmental inquiry should be dropped. The State
Government obtained the opinion of its Law department which
found that the departmental inquiry was validly initiated, and
further plea to keep the proceeding in abeyance was taking
note of by referring to para 1.8 of the Vigilance Manual. On
8.7.1999 the Principal Secretary (Law) of the State took a
stand that parallel inquiry should be avoided and that any
action should be taken after completion of the CBI inquiry, on
the basis of its report. On 22.7.1999 the then Chief Minister
noted that when the CBI investigation was in progress, parallel
administrative enquiry was not necessary. On 5.8.1999 the
Government of Uttar Pradesh passed an order keeping the
disciplinary proceedings in abeyance. On 19.1.2001 this Court
passed the order directing the State of Uttar Pradesh to file an
affidavit about present position in relation to departmental
enquiry. In compliance of the said order, on 8.11.2001 the
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State of Uttar Pradesh filed an affidavit stating that it has kept
the disciplinary proceeding in abeyance till the CBI enquiry is
over. On 28.3.2002 CBI submitted its report in sealed cover.
This Court directed the State of U.P. to file an affidavit in
respect of action taken against the officers and directed that
the affidavit should also indicate the stage of disciplinary
proceedings against Smt. Neera Yadav.
Thereafter starts a new twist to the whole matter. On
13.6.2002 the Legal Remembrancer of the State opined that it
would not be appropriate to accord sanction for prosecution or
initiate departmental proceeding for any irregularity. On
24.6.2002 the Advocate General concurred with the said
opinion. On 28.6.2002 the Government of U.P. decided not to
take departmental action/initiate prosecution in relation to
the recommendations in the report of the CBI. The State of
U.P. on 17.9.2002 filed an affidavit before this Court stating
that there was no justification for initiating departmental
enquiry as "after detailed consideration of the report of the CBI
no justification was found for initiating departmental enquiry",
since the departmental enquiry recommended by Justice
Murtaza Hussain’s Commission was based only on those
points. In the light of said facts the allegations were not
legally tenable and the Government has decided to close the
pending departmental enquiry. On 11.1.2005 this Court in
relation to certain issues passed the following order:
"Having regard to the nature of the
proceedings it would be appropriate to appoint
a Commission to go into the various questions
raised in these matters including the issue as
to why the departmental action has been
dropped against several respondents as
pointed out by the Amicus Curiae in his report
filed on 14.12.2004. Mr. K.T.Thomas, retired
judge of this Court is appointed as the sole
member of the Commission."
The Commission framed several issues and noted that
the State Government should not have dropped disciplinary
proceeding against Smt. Neera Yadav in the light of adverse
findings against her in the report of the Judicial Commission
as well as on the report of the CBI. The State of U.P. was
asked to clarify as to under what circumstances the decision
to drop the departmental proceeding was taken. The entire
records relating to the decisions at different stages have been
brought on record and a synopsis has also been filed referring
to various letters/observations/findings at different points of
time.
The order dated 16th September, 2002 is the one the
legality of which is questioned. The entire order needs to be
quoted. The same reads as follows:
"By the notification no. 86/N/96, dated 25
January 97 one man inquiry commission was
constituted. The Commission inquired into the
irregularities committed by Smt. Neera Yadav,
lAS (1971), during her posting as Chief
Executive Officer, Noida in allotment of plots
and properties.
On the basis of the report submitted by
Hon’ble Mr. Justice Murtaza Husain Inquiry
Commission it was decided to initiate
departmental inquiry against Smt. Neera
Yadav and by the order of Appointment Section
-5 No. 930(l)/Two-5-98-22(29)/74 dated
26.5.1998 charge sheet was issued against
Smt. Neera Yadav.
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Smt. Neera Yadav vide her applications dated
16.9.98, 25.2.99 and 3.5.99 requested for
cancellation of departmental inquiry being
initiated against her, on which after due
consideration the departmental inquiry
initiated against Smt. Neera Yadav was stayed
vide Govt. Order No.4209/Two-599-
35(136)/97 dated 5 Aug., 1999 till finalization
of inquiry by the CBI against Smt. Neera
Yadav.
Because in the case under consideration the
report of the CBI was received on 28.3.2002
along with the recommendation, after
examination of which State Govt. did not find
it necessary to take any action on the point of
departmental inquiry against Smt. Neera
Yadav.
It is worth mentioning that the points on
which Departmental Inquiry was initiated
against Smt. Neera Yadav on the basis of the
report of Hon’ble Mr. Murtaza Husain, on the
same point after due consideration of the CBI
inquiry report it was found that the
departmental inquiry was not required
Therefore, in view of the above it was decided
by the Govt. that the departmental inquiry
pending against Smt. Neera Yadav may be
dropped.
Therefore, His Excellency, the Governor, grants
permission to drop the pending departmental
inquiry against Smt. Neera Yadav, lAS (1971)."
The basis as culled down from the order is as follows:
"It is worth mentioning that the points on
which Departmental Inquiry was initiated
against Smt. Neera Yadav on the basis of the
report of Hon’ble Mr. Murtaza Husain, on the
same point after due consideration of the CBI
inquiry report it was found that the
departmental inquiry was not required
Therefore, in view of the above it was decided
by the Govt. that the departmental inquiry
pending against Smt. Neera Yadav may be
dropped."
Learned Amicus Curiae has submitted that conclusions
are not based on any rationality. Departmental proceedings
and criminal proceedings stand on different footings. There is
no rationality in the decision and it cannot be said to be
reasonable by any standard.
Per contra, learned counsel for the State of U.P.
submitted that taking into account the totality of
circumstances, the order was passed and there is nothing
illicit in it. Mr. K.T.S. Tulsi, learned counsel appearing for
Smt. Neera Yadav submitted that the order does not suffer
from any infirmity and in any event if it is conceded for the
sake of argument that there was any infirmity, this Court can
direct the proceedings to take off from the stage as it stood on
5.8.1999 when the Govt. of Uttar Pradesh had passed order
for keeping the departmental proceeding in abeyance. This is
in fact a re-iteration of the stand taken by the State
Government. We are not only baffled but also perplexed at
such a stand being taken by the State. This prima facie shows
that the State Government is interested to protect Smt. Neera
Yadav at any cost.
A bare perusal of the order which has been quoted in its
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totality goes to show that the same is not based on any
rational foundation. The conceptual difference between a
departmental enquiry and criminal proceedings has not been
kept in view. Even orders passed by the executive have to be
tested on the touchstone of reasonableness. (See: Tata Cellular
v. Union of India (1994(6) SCC 651), and Teri Oat Estates (P.)
Ltd. v. U.T. Chandigarh and Ors. (2004 (2) SCC 130). The
conceptual difference between departmental proceedings and
criminal proceedings have been highlighted by this Court in
several cases. Reference may be made to Kendriya Vidyalaya
Sangathan and Others v. T. Srinivas (2004(7) SCC 442),
Hindustan Petroleum Corporation Ltd. and Others v. Sarvesh
Berry (2005(10) SCC 471) and Uttaranchal Road Transport
Corpn. v. Mansaram Nainwal (2006(6) SCC 366).
The purpose of departmental enquiry and of prosecution
is two different and distinct aspects. The 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 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 a 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
department 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.
A three-judge Bench of this Court in Depot Manager, A.P.
State Road Transport Corporation v. Mohd. Yousuf Miya and
Ors. (1997 (2) SCC 699) analysed the legal position in great
detail on the above lines.
The aforesaid position was also noted in State of
Rajasthan v. B.K. Meena and Ors. (1996 (6) SCC 417).
There can be no straight jacket formula as to in which
case the departmental proceedings are to be stayed. There
may be cases where the trial of the case gets prolonged by the
dilatory method adopted by delinquent official. He cannot be
permitted to, on one hand, prolong criminal case and at the
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same time contend that the departmental proceedings should
be stayed on the ground that the criminal case is pending.
In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.
(1999 (3) SCC 679), this Court indicated some of the fact
situations which would govern the question whether
departmental proceedings should be kept in abeyance during
pendency of a criminal case. In paragraph 22 conclusions
which are deducible from various decisions were summarised.
They are as follows:
(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, the
administration may get rid of him at the earliest.
The position in law relating to acquittal in a criminal
case, its effect on departmental proceedings and re-
instatement in service has been dealt with by this Court in
Union of India and Anr. v. Bihari Lal Sidhana (1997 (4) SCC
385). It was held in paragraph 5 as follows:
5. It is true that the respondent was acquitted
by the criminal court but acquittal does not
automatically give him the right to be re-
instated into the service. It would still be open
to the competent authority to take decision
whether the delinquent government servant
can be taken into service or disciplinary action
should be taken under the Central Civil
Services (Classification, Control and Appeal)
Rules or under the Temporary Service Rules.
Admittedly, the respondent had been working
as a temporary government servant before he
was kept under suspension. The termination
order indicated the factum that he, by then,
was under suspension. It is only a way of
describing him as being under suspension
when the order came to be passed but that
does not constitute any stigma. Mere acquittal
of government employee does not
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automatically entitle the government servant
to reinstatement. As stated earlier, it would be
open to the appropriate competent authority to
take a decision whether the enquiry into the
conduct is required to be done before directing
reinstatement or appropriate action should be
taken as per law, if otherwise, available. Since
the respondent is only a temporary
government servant, the power being available
under Rule 5(1) of the Rules, it is always open
to the competent authority to invoke the said
power and terminate the services of the
employee instead of conducting the enquiry or
to continue in service a government servant
accused of defalcation of public money. Re-
instatement would be a charter for him to
indulge with impunity in misappropriation of
public money."
The standard of proof required in departmental
proceedings is not the same as required to prove a criminal
charge and even if there is an acquittal in the criminal
proceedings the same does not bar departmental proceedings.
That being so, the order of the State Government deciding not
to continue the departmental proceedings is clearly untenable
and is quashed. The departmental proceedings shall continue.
Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav
stated that an appropriate motion shall be made before the
departmental authorities to keep the proceedings in abeyance
till conclusions of the criminal proceedings. If such prayer is
made, the same shall be considered in the light of the
principles set out by this Court in Hindustan Petroleum Ltd.’s
case (supra) and Uttaranchal Road Transport Corpn.’s case
(supra). It is ordered accordingly.