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PETITIONER:

STATE OF RAJASTHAN

Vs.

RESPONDENT:

SHRI B.K. MEENA & OTHERS

DATE OF JUDGMENT: 27/09/1996

BENCH:

B.P. JEEVAN REDDY, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P. JEEVAN REDDY, J.

Leave granted. Heard counsel for the parties. This

appeal is preferred against the order of the Central

Administrative Tribunal, Jaipur staying the department

enquiry against the respondent till the conclusion of the

criminal trial against him.

The respondent is a member of the Indian Administrative

Service belonging to the Rajasthan cadre. He was working as

Additional Collector, Development-cum-Project Director,

District Rural Development Agency (DRDA), Jaipur during the

year 1989. He was transferred from the said post on

21.10.89. On 8.12.89, the successor to the respondent lodged

a FIR (No. 346 of 89) against the respondent in Police in

Police Station Bani Park, Jaipur inter alia alleging

misappropriation of public funds by the respondent to the

tune of Rs. 1.05 crores. The Anti-Corruption Department of

the State of Rajasthan investigated into the said offence

and found that the respondent was involved in the offence

and accordingly registered FIR No10/90 dated 12.3.90. On

22.5.90, the respondent was placed under suspension. The

respondent was arrested on 26.3.90 and remained in custody

till 10th August, 1990.

On 31.3.92, the State of Rajasthan requested the

Government of India for grant of sanction for prosecuting

the respondent under Prevention of Corruption Act, 1988. On

9.9.92, the Government of India, the Government of Rajasthan

to initiate disciplinary proceedings against the respondent.

Accordingly, on 13.10.92, the State Government issued the

memo of charges accompanies by articles of charges. On

9.2.93, the respondent submitted his written statement

(running into 90 pages) in reply to the charges served upon

him. At our direction, the learned counsel for the

respondent has filed a copy of the said written statement.

It purports to be in response to the memo of charges dated

13.10.92 communicated to him. Though at the end, the

respondent reserves his "right to add new points when and if

the documents as mentioned above are furnished tome or if

the investigating agency furnish other documents of

additional points not disclosed to me till now", the written

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statement is a detailed rebuttal of the charges framed

against the respondent. The respondent, no doubt, says that

since all the document were not furnished to him,, he

proposes to file a fuller statement after receiving those

documents but that does not mean that the respondent has not

put forward his case in reply to the charges framed against

him. Putting forward his case in reply to memo of charges

cannot but mean putting forward his defence.

On 13.4.93, the respondent filed O.A.No.212 of 1993

before the Central Administrative Tribunal, Jaipur

challenging the various orders passed against him including

the memo of charges.

On 15.5.93, charge-sheet was filed in the Court of the

Chief Judicial Magistrate, Jaipur, against the respondent

and cognizance thereof taken by the learned C.J.M.

At the instance of the respondent, the Central

Administrative Tribunal issued an order on 4.8.93 staying

the disciplinary proceedings against respondent. The State

of Rajasthan thereupon re-instated the respondent in

service, revoking the order of suspension pending enquiry.

The respondent amended his O.A. requesting that the

disciplinary enquiry against him be stayed pending the

criminal trial.

When the Original Application came up for final

hearing, the only ground urged by the respondent was that

the departmental proceedings be not allowed to go on so long

as the criminal proceedings are pending against him. It was

opposed by the State of Rajasthan stating inter alia that

inasmuch as the respondent has filed a detailed written

statement of defence on 9.2.93 (in response to memo of

charges framed against him) and because the respondent has

disclosed all possible defences in the said written

statement, there is no occasion or warrant for staying the

disciplinary proceedings.

The Tribunal found that the charge-sheet in the

criminal case and the memo of charges in the disciplinary

proceedings are based upon same facts and allegations. It

rejected the State's plea that the respondent having already

disclosed his defence, will not be prejudiced in any manner

by proceeding with the disciplinary enquiry. The Tribunal

observed :

"We cannot say at this stage what

will emerge during the enquiry

proceedings after examination of

the evidence. The applicant may

well have to put forward further

defence as and when material

against him emerges during the

enquiry proceedings and disclosure

of his defence at that stage could

well prejudice his defence in the

criminal trial."

Purporting to follow the decision of this Court in

Kusheshwar Dubey v. M/s Bharat Coking Coal Limited and

Others [A.I.R. 1988 S.C. 2118 = 1988 (4) S.C.C. 31], the

Tribunal allowed the respondent's plea and stayed the

disciplinary proceedings pending the criminal proceedings.

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 Another [A.I.R. 1954

S.C. 375], 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

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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, or prohibition against, initiating

simultaneous criminal proceedings and disclipnary

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.

In Delhi Cloth and General Mills Ltd. v. Kushal Bhan

[1960 (3) S.C.R. 227], it was held that the principles of

natural justice do not require that the employer should wait

for the decision of the criminal court before taking

disciplinary action against the employee. At the same time,

the Court observed : "We may, however, add that if the case

is of a grave nature or involves questions of fact or law,

which are not simple, it would be advisable for the employer

to await the decision of the trial court, so that the

defence of the employee in the criminal case may not be

prejudiced." In Tata Oil Mills Company Limited v. Workmen

[1964 (7) S.C.R. 555], it was observed following D.C.M. that

:

"It is desirable that if the

incident giving rise to a charge

framed against a workman in a

domestic enquiry is being tried in

a criminal court, the employer

should stay the domestic enquiry

pending the final disposal of the

criminal case. It would be

particularly appropriate to adopt

such a course where the charge

against the workman is of a grave

character, because in such a case,

it would be unfair to compel the

workman to disclose the defence

which he may take before the

criminal court. But to say that

domestic enquiries may be stayed

pending criminal trial is very

different from saying that if an

employer proceeds with the

domestic enquiry inspite of the

fact that the criminal trial is

pending, the enquiry for that

reason alone is vitiated and the

conclusion reached in such an

enquiry is either bad in law or

malafide."

In Janq Bahadur Singh v. Baij Nath Tiwari [1969 (1)

S.C.R. 134], the contention that initiation of disciplinary

proceedings during the pendency of criminal proceedings on

the same facts amounts to contempt of court was rejected.

After considering the ratio of these three decisions, this

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Court held in Kusheshwar Dubey :

"The view expressed in the these

cases of this Court seem to support

the position that while there could

be no legal bar for simultaneous

proceedings being taken, yet, there

may be cases where it would be

appropriate to defer disciplinary

proceedings awaiting disposal of

the criminal case. In the latter

class of cases it would open to the

delinquent employee to seek such an

order of stay or injunction from

the Court. Whether in the facts and

circumstances of a particular case

there should or should not be such

simultaneity of the proceedings

would then receive judicial

consideration and the court will

decide in the given circumstances

of a particular as to whether the

disciplinary proceedings should be

interdicted, pending criminal

trial. As we have a already stated

that it is neither possible nor

advisable to evolve a hard and

fast, strait-jacket formula valid

for all cases and of general

application without regard to the

particularities of the individual

situation. For the disposal of the

present case, we do not think it

necessary to say anything more,

particularly when we do not intend

to lay down any general guideline.

In the instant case, the criminal

action and the disciplinary

proceedings are ground upon the

same set of facts. We are of the

view that the disciplinary

proceedings should have been stayed

and the High Court was not right in

interfering with the trial court's

order of injunction which had been

affirmed in appeal."

It would be evident from the above decisions that each

of them starts with the indisputable proposition that there

is no legal bar for both proceedings to go on simultaneously

and then say that in certain situations, it may not be

'desirable', 'advisable' or 'appropriate' to proceed with

the disciplinary enquiry when a criminal case is pending on

identical charges. The staying of disciplinary proceedings,

it is emphasised, is a matter disciplinary proceedings, it

is emphasised, is a matter to be determined having regard to

the facts and circumstances of a given case ad that no hard

and fat rules can enunciated in that behalf. The only ground

suggested in the above questions as constitution 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. In our

respectful opinion, it means that not only the charges must

be grave but that the case must involve complicated

questions of law and fact. Moreover, 'advisability',

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'desirability' or 'propriety', as the case may be, has to be

determined in each case taking into consideration all the

facts and circumstances of the case. The ground indicated in

D.C.M. and Tata Oil Mills is not also an invariable rule. It

is only a factor which will go into the scales while judging

the advisability or desirability of staying the disciplinary

proceedings. One of the contending consideration is that the

disciplinary enquiry cannot be - and should not be delayed

unduly. So far as criminal cases are concerned, it is well-

known that they drag on endlessly where high officials or

persons holding high public offices involved. They get

bogged down on one or the other ground. They hardly ever

reach a prompt conclusion. That is the reality inspite of

repeated advice and admonitions from this Court and the

High Courts. If a criminal case is unduly delayed that may

itself be a good ground for going ahead with the

disciplinary enquiry even where the disciplinary

proceedings are held over at an earlier stage. The interests

of administration and good government demand that these

proceedings are concluded expeditiously. It must be

remembered that interests of administration demand that the

undesirable elements are thrown out and any charge of

misdemeanor is enquired into promptly. The disciplinary

proceedings are meant not really to punish the guilty but to

keep the administrative machinery unsullied by getting rid

of bad elements. The interest of the delinquent officer

also lies in a prompt conclusion of the disciplinary

proceedings. If he is not guilty of the charges, his honour

should be vindicated at the earliest possible moment and if

he is guilty, he should be dealt with promptly according to

law. It is not also in the interest of administration that

persons accused of serious misdemeanor should be continued

in office indefinitely, i.e., for long periods awaiting the

result of criminal proceedings. It is not in the interest of

administration. It only serves the interest of the guilty

and dishonest. While it is not possible to enumerate the

various factors, for and against the stay of disciplinary

proceedings, we found it necessary to emphasise some of the

important considerations in view of the fact that very

often the disciplinary proceedings are being stayed for long

periods pending criminal proceedings. 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 decisions referred to above.

We are quite aware of the fact that not all the

disciplinary proceedings are based upon true charges; some

of them may be unfounded. It may also be that in some cases,

charges are levelled with oblique motives. But these

possibilities do not detract from the desirability of early

conclusion of these proceedings. Indeed, in such cases, it

is all the more in the interest of the charged officer that

the proceedings are expeditiously concluded. Delay in such

cases really works against him.

Now, let us examine the facts of the present case. The

memo of charges against the respondent was served on him,

alongwith the articles of charges, on 13.10.92. On 9.2.93,

he submitted a detailed reply/defence statement, running

into 90 pages, controverting the allegations levelled

against him. The challan against him was filed on 15.5.93 n

the criminal court. The respondent promptly applied to the

Tribunal and got the disciplinary proceedings stayed. They

remain stayed till today. The irregularities alleged against

the respondent are of the year 1989. The conclusion of the

criminal proceedings is nowhere in sight. (Each party

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blames, the other for the said delay and we cannot

pronounce upon it in the absence of proper material before

us.) More than six years have passed by. The charges were

served upon the respondent about 4 years back. The

respondent has already disclosed his defence in his

elaborate and detailed statement filed on 9.2.93. There is

no question of his being compelled to disclose his defence

in the disciplinary proceedings which would prejudice him

in a criminal case. The charges against the respondent are

very serious. They pertain to misappropriation of public

funds to the tune of more than Rupees one crore. The

observation of the Tribunal that in the course of

examination of evidence, new material may emerge against the

respondent and he may be compelled to disclose his defence

is, at best, a surmise - a speculator reason. We cannot

accept it as valid. Though the respondent was suspended

pending enquiry in May, 1990, the order has been revoked in

October 1993. The respondent is continuing in office. It is

in his interest and in the interest of good administration

that the truth or falsity of the charges against him is

determined promptly. To wit, if he is not guilty of the

charges, his honour should be vindicated early and if he is

guilty, he should be dealt with appropriately without any

avoidable delay. The criminal court may decide - whenever it

does - whether the respondent is guilty of the offences

charged and if so, what sentence should be imposed upon him.

The interest of administration, however, cannot brooke any

delay in disciplinary proceedings for the reasons indicated

hereinabove.

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

casea 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.

We must make it clear that we have not case, and we

should not be understood to have cast, any reflection on the

merits of either party's case. What we have said is confined

to the question at issue, viz., the desirability or

advisability of staying the disciplinary proceedings against

the respondent pending the criminal proceeding/case against

him.

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/-.

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