ORDER
B. Panigrahi, J. (Vice Chairman)
1. This case has suffered a chequered history of litigation and therefore, it is necessary to state briefly the background facts at the outset.
2. The applicant was working as Sr. Observer (Tech.), in the Meteorological Centre, Alipore and claimed to have been working without any blemish all through. In 1990 he was posted in the Bill Section of the office without obtaining his consent, although he belonged to Technical Side and was not supposed to be posted in the Administrative Side. On 20.9.94 the applicant was placed under suspension in contemplation of a departmental proceeding against him. Therefore on 8.9.95, a charge-memo was issued against him alleging that the applicant in collusion with others, while preparing OTA bills during the period from April, 1991 to September, 1994 for out station employees, illegally and fraudulently, drawn and defalcated an amount of Rs. 5,59,973/- by converting Proforma I into Proforma II. The applicant in his written statement denied and disputed the said allegation. Thereafter a preliminary enquiry was said to have been conducted in November, 1995 and subsequently on the basis of a departmental enquiry in respect of the above charge-sheet, a punishment order dated. 23.10.96 was issued removing him from service. Being aggrieved the applicant filed an Original Application bearing No. O.A. 534 of 1996 before this Tribunal challenging the suspension order, the major penalty charge-sheet and the removal order and for his reinstatement with arrears salary etc.
3. It may be mentioned that along with the applicant, two other employees were also similarly charge-sheeted and removed from service and one such person, namely, Shri Asit Kr. Sarkar, came before this Tribunal by filing O.A. 199 of 1996. Both the said O.As., filed by the applicant and Shri Asit Kr. Sarkar, were heard together and disposed of by a common order dated 29.7.91. The Tribunal noticed that charge No. 2 in respect of the present applicant was vague and insufficient, therefore, the Tribunal quashed the said charge-memo and gave liberty to the respondents to proceed against the applicant afresh by issuing a fresh charge-sheet within 3 months from the date of communication of the said order. The Tribunal also noticed certain irregularities in the handling of the matter of alleged misappropriation of Govt. money and all the persons supposed to be involved in the conspiracy were not brought to the net. The Tribunal further observed that the respondents No. 1 and 2, namely the Secretary, Ministry of Science and Technology, and, the Director General, Meteorology, New Delhi, should look into the matter, and take appropriate steps so that all the guilty persons were brought to book. It was also directed that the applicant will remain on suspension during the de novo proceedings, but the respondents shall consider enhancement of subsistence allowance as per rules.
4. Subsequent, thereto the respondent authorities issued a fresh charge memorandum dated 29.10.97 by re-drafting the charges and giving full particulars about the other accomplices. On this occasion, however, the respondents have mentioned that the total amount of defalcation of Govt. money was to the tune of Rs. 6,18,983/-. Along with the charge memo, a list of four documents by which charges were sought to be proved was enclosed and in the list of witness, there was only one witness i.e., namely Shri H.L. Saha, who was the D.D.O. at the relevant point of time, by whom the charge was proposed to be proved. Be it noted that the Tribunal in its earlier order had observed that Shri Saha should also be involved in the proceedings as he actually signed and passed the alleged fake OTA bills.
5. Thereafter a Board of Enquiry was constituted consisting of 3 Sr. Officers to enquire into the allegations. The applicant was also allowed to be represented by a legal practitioner in the enquiry proceedings.
6. At this stage it may be noted that respondent No. 2, Mr. M.K. Guha, who is also the Disciplinary Authority of the applicant, made a written complaint/FIR in 1994 to the local police (Metiabruz P.S) regarding the incident of defalcation of Govt. money. However, no progress was made in the investigation by the police pursuant to the said FIR, for a long time.
7. During the course of departmental enquiry, the applicant prayed for supply of as many as 21 additional documents including a copy the preliminary enquiry report. The Board of Enquiry, however, allowed him only four documents and rejected his prayer for supply of the other documents on the ground that the same were not relevant. The applicant continued to make representations for supply of those documents giving his explanation regarding their relevancy. However, the applicant claimed that he was not supplied with those documents. In respect of some documents it was the case of the respondents that those were seized by the police in connection with criminal investigation and the applicant was asked to inspect those documents from Lal Bazar police custody and also from the concerned Court of Ld. SDJM, Alipore. Ultimately the applicant could inspect some documents in that process. However, he was dissatisfied that all the documents sought for by him were not supplied to him and in some cases the documents supplied were incomplete. He, therefore, made an appeal before the Appellate Authority for supplying all those documents, particularly the preliminary enquiry report.
8. In the meanwhile the applicant also moved writ petitions/Rev. petition before the Hon’ble High Court (CRR 2563/2000 and W.P. 175668-W/2001) seeking direction for conclusion of the criminal investigation as early as possible since the matter was pending for a long time. Ultimately Hon’ble High Court directed for farming of charges in the criminal case within 31.8.2002 and pursuant to that direction the charge in the criminal case was submitted on 28.8.2002 in the Court of Ld. Judge, First Special Court, Alipore under Sections 467, 468, 477(A), 409, 120(b) read with Section 13(1)(c) of Prevention of Corruption Act, 1988. The said criminal case has not yet been concluded and is stated to be pending.
9. In the departmental proceedings the applicant had also raised certain other objections. His main objection was that both the criminal proceedings and departmental proceeding should not be conducted concurrently as in that event he would be prejudiced in the criminal case, if he was compelled to divulge his defence in the departmental proceedings. He, therefore, prayed for stay of the departmental proceedings till the finalisation of the criminal case. His further objection was that respondent No. 2 was the complainant and he was the main witness in the criminal case and, therefore, he could not have acted as Disciplinary Authority for the applicant in view of the Govt. of India decision appearing below Rule 14 of CCS (CCA) Rules. His other objection was that the Members of the Board of Enquiry were acting at the dictate of the said Disciplinary Authority and they have illegally withheld relevant materials from being supplied to the applicant in spite of his repeated requests. Moreover, the applicant was not allowed to cross-examine the sole prosecution witness, Shri Saha. Therefore, the said members of the board were biased against him and hence they should be replaced by other members. Since the request of the applicant was not acceded to, it appears that the applicant and his Counsel did not participate in the final stage of enquiry.
10. The enquiry was concluded in the meanwhile. It may be noted here that at the time of the admission hearing of the O.A. an interim order was passed by the Tribunal directing that the proceedings may continue but no final order shall be passed. Although the enquiry was completed in January, 2001 and a copy of the enquiry report was also supplied immediately to the applicant on 18.1.01, no final order could be passed by the Disciplinary Authority because of the interim order. The respondents eventually filed M.A. 456/2001 for modification and/or variation of the interim order so that the final order in the D.A. proceedings could be passed. The applicant also filed some supplementary affidavit to bring on record new developments, which occurred during the pendency of the O.A., seeking amendment of the original application by incorporating these facts.
11. In the O.A. the applicant has mainly challenged the charge-sheet and the disciplinary proceedings and as also a letter dated 25.3.99 by which the Disciplinary Authority intimated the applicant that his objection regarding appointment of the board of enquiry and also the on going disciplinary proceedings on the basis of the fresh charge-sheet was unsustainable and baseless and that it was not possible to keep same in abeyance.
12. The respondents have filed reply to the O.A. and have stated that pursuant to the direction of the Tribunal, fresh charge-sheet was issued and a board of enquiry consisting of 3 Sr. Officers were appointed. The applicant was also given assistance of a legal practitioner to represent him in the proceedings and all the listed documents were also supplied to the applicant. Only the documents which were not relevant were not supplied. However, in respect of some documents those could not be supplied because they were not readily traceable but that did not prejudice the defence of the applicant. It is further stated that the applicant himself sought posting in the Bill Section vide his representation at Annexure-C to the reply. On a consideration of the same, he was given posting. It is also submitted that the applicant has confessed the charge as will appear from the daily order sheet dated 11.6.99 (Annexure-B to the reply) wherefrom it appears that the applicant admitted to have prepared a bill in respect of Bhagalpur Center. It is further stated the enquiry was completed and a copy of the same was furnished to the applicant calling for his representation. However, the applicant from the very beginning had been raising objections on various grounds to scuttle the enquiry and to delay finalisation of the same. The respondents have also contended that the disciplinary enquiry was concluded in January, 2001 whereas the charge-sheet in the criminal proceedings was filed only in August, 2002 and, therefore, it could not be said that both the criminal proceeding and disciplinary proceeding were being conducted simultaneously. Had the applicant cooperated the disciplinary proceedings could have been concluded much earlier. However, the applicant purposely and deliberately took steps by filing various applications before the Hon’ble High Court as also before the Tribunal for delaying the D.A. proceedings so that he can get rid of the serious charge brought against him.
13. We have heard the ld. Counsel for the parties at length.
14. The main plank of argument of Mr. M.A. Vidyadharan, learned Counsel appearing for the applicant is that both the disciplinary proceedings and criminal proceedings cannot be conducted simultaneously on the same set of charges and therefore the D.A. proceedings should be stayed till the Crl. case is finalised. He has relied on various decisions of the Hon’ble Supreme Court to contend that when a criminal proceeding is in progress on the same charges the disciplinary proceedings should not be conducted till the finalisation of the criminal case.
15. On this point, the Ld. Counsel for the applicant has mainly relied on the decision of the Hon’ble Supreme Court in the case of Khusheswar Dubey v. Bharat Coking Coal Ltd., AIR 1988 SC 2118 wherein it has been held as under :
“While there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, 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 be 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 case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. It is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. In the instant case, the criminal action and the disciplinary proceedings were grounded upon the same set of facts and therefore the disciplinary proceedings could be stayed, in the facts and circumstances. Decision of Patna High Court Reversed…..”(Underlining Supplied)
16. The Ld. Counsel has also relied on a more recent decision of the Hon’ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., (1999) 3 SCC 679=1999(3) SLJ 152 (SC) wherein similar principle was laid down. The relevant para is quoted below:
“There is a consensus of judicial opinion on a basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. Basis for this proposition is that proceedings in a criminal case and departmental proceedings operate in distinct and different jurisdictional areas. In departmental proceedings, factors operating in the mind of the Disciplinary Authority may be many, such as enforcement of discipline, or to investigate level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance and probabilities, in a criminal case, the charge has to be probed by the prosecution beyond reasonable doubt.”
In that case the Apex Court has laid down five broad principles to be followed in such a situation. It is inter alia held that in case where the nature of charge in a criminal case is grave and complicated questions of law and fact are involved, the disciplinary proceeding should be stayed. But if the criminal case does not proceed or its disposal is being unduly delayed, the D.A. proceedings, even if they were stayed on account of pendency of criminal case, can be resumed and proceeded with so as to conclude them at an early date. The purpose is 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.
17. We find that in a recent decision in the case of Kendriya Vidyalaya Sangathan and Ors. v. T. Srinivas, 2004 AIR SCW Page 4558 the Hon’ble Apex Court considered the earlier decisions in the case of M. Paul Anthony (supra) and State of Rajasthan v. B.K. Meena, AIR 1997 Page 13. The Hon’ble Apex Court held that stay of departmental proceedings during the pendency of criminal proceedings in regard to the same misconduct should not be a matter of course. Seriousness of charge brought against the delinquent should also be looked into while taking any decision in this regard. The Hon’ble Apex Court had inter alia held as below:
“12. 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 has 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 in spite 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 on 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. 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).
14. 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.
15. 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 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.
16. 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.”
(Underlining supplied for emphasis)
18. Here in the case before us, the charge against the applicant is very serious and grave as was already held by the Tribunal in the earlier proceeding. It is brought to our notice by the respondents that Shri Asit Kr. Sarkar, who filed O. A. 199 of 1996, which was considered along with the earlier case filed by the present applicant analogously and decided by the common order dated 29.7.97, carried the matter up to the Hon’ble Supreme Court against the decision of the Hon’ble Calcutta High Court where a writ petition was filed against the aforesaid common order of the Tribunal and the Hon’ble Supreme Court also directed for conclusion of the departmental proceedings as early as possible. Thus, the charge brought against the applicant having been serious and the departmental proceedings having already been concluded by submission of the enquiry report prior to the filing of the charge-sheet in the criminal proceedings, we are of the considered opinion that even though for the same misconduct criminal proceedings and the departmental proceedings have been initiated against the applicant, it is not a fit case where the departmental proceedings which are at the final stage, should be stayed/interdicted till the finalisation of the criminal case which is uncertain. Furthermore, the charge in the criminal case does not involve complicated question of law and fact because not only the applicant but other two persons were charge-sheeted and one has already confessed the guilt as will appear from the observation made in the earlier O.A.
19. In view of the above discussions, we are unable to accept the prayer made by the applicant for staying the departmental proceedings till the finalisation of the criminal case.
20. The Ld. Counsel for the applicant has also raised a point that even though in the earlier case filed by the applicant a direction was given to the respondents to initiate fresh departmental proceeding within 3 months, the respondents have issued the fresh charge-sheet with some delay. However, we find that the applicant has himself mentioned that the delay was only for one day which is not fatal one. In this context we may also refer to a Full Bench decision in the case of J.M. Burman v. Union of India and Ors., 2004(2) ATJ 340 wherein it has been held that unless there is inordinate delay which causes prejudice to the delinquent, the order so passed i.e., after the time prescribed by the Court, cannot be declared as illegal. As already pointed out, the delay in this case is only nominal and , therefore, on this ground the charge-sheet cannot be quashed.
21. The Ld. Counsel has also taken the point that respondent No. 2 having filed the complaint/FIR before the police against the applicant and he is the primary witness in the criminal proceeding he could not have acted as the Disciplinary Authority, He has relied on a Govt. of India decision appearing below Rule 12 of CCS (CCA) Rule wherein it is stated that where the officer who is the prescribed Disciplinary Authority is/will be the complainant and/or the witness in a disciplinary proceedings, another officer should be appointed as the Disciplinary Authority. However, in the instant case, the respondent No. 2 is not the complainant or witness in the disciplinary proceedings but in the criminal proceedings and he may be a witness in the criminal trial and therefore the above decision is not applicable. The Ld. Counsel has also contended that the persons who have conducted the preliminary enquiry should not be involved in the disciplinary proceedings as no proper justice can be expected from such persons who are likely to be biased against the applicant. His submission is that since respondent No. 2 has conducted the preliminary enquiry, he should not act as Disciplinary Authority as in that case there is every likelihood of being biased. Same is the case of the Members of the Board of Enquiry. He has relied on the case of Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-edn.) H.S. School, (1987) 4 SCC 611 and Institute of Chartered Accountants v. L.K. Ratna, (1986) 4 SCC 537. This argument, in our opinion is far-fetched as the Board of Enquiry consists of three Senior Officers and it is inconceivable that all these senior officers are biased against the applicant. In L.K. Ratna’s case, the facts were different. There as per relevant Act, the President, Vice-President of the Institute were ex-officio members of the Disciplinary Committee along with three other members. The findings of the Disciplinary Committee was to be placed in the Council in connection with enquiry regarding misconduct of a member. In that background, the Apex Court observed that such members who were in the Disciplinary Committee should not participate in the Council where their report was to be considered. But the scheme of CCS (CCA) Rules is different. According to the rules, the Disciplinary Authority himself can conduct an enquiry against a delinquent employee or he can appoint an Enquiry Officer.
In the instant case, a Board of Enquiry was appointed consisting of three members. Therefore, the contention of the applicant’s Counsel does not appear to be sound as long as the Rules are there. In the other case cited by the Ld. Counsel, the principle of bias has been elaborated. There is no quarrel with the proposition of law enunciated therein. But by merely alleging bias, the delinquent cannot seek change of the Disciplinary Authority or the Enquiry Officer. In that event, there will be no end of such process and on every occasion, the delinquent employee will raise such objection at the slightest motivation. Moreover, there is Govt. of India decision that there is no bar for an officer, who has conducted the preliminary enquiry to act as Disciplinary Authority.
22. Be that as it may, we need not delve into this controversy in detail the reason that Dr. M.K. Guha, who acted as Disciplinary Authority for the applicant and who was the complainant before the police or who may be an witness in the criminal proceedings or who conducted the preliminary enquiry, has since retired and, therefore, the aforesaid objections of the applicant’s Counsel have lost much of their relevancy. Since the enquiry was concluded the applicant may file his representation raising all these points, and in that case the new Disciplinary Authority will be in a position to take an appropriate decision in the matter. Therefore, we need not address ourselves on these issues at this stage.
23. The Ld. Counsel has also complained that in spite of all his requests the applicant was not supplied with the documents asked for on one ground or the other and in some cases it was stated that those documents were lost. His further contention is that the applicant has not even been supplied the preliminary enquiry report. The Ld. Counsel has, therefore, contended that denial of those documents, particularly the preliminary enquiry report has prejudiced the applicant in D.A. proceedings and he, therefore, made an appeal before the Appellate Authority but no decision was conveyed to him by the said authority notwithstanding a number of reminders. Therefore, the applicant was compelled to decide not to participate in the enquiry. The ld. Counsel has relied on the decision of Delhi High Court in the case of Surat Singh and Ors. v. S.R. Bakshi, AIR 1971 Delhi 133. The Ld. Counsel has emphasised the general principle of law that exclusion of pre-decisional opportunity of hearing cannot effectively remedied by post decisional opportunity of hearing. He has relied on the decision of the Apex Court in L.K. Ratna ‘s case (supra). We have already held that in Ratna ‘s case, the facts were different. In CCS (CCA) Rules, there is specific provision of appeal.
24. However, it is the settled law that ordinarily preliminary enquiry report or the documents on which the charge is based should be supplied to the delinquent. Even those documents which may not have been used in the articles of charge may also be supplied if asked for by the delinquent provided they are relevant. Non-supply of important documents may prejudice the delinquent in the D.A. proceedings. But where the documents are not relied on by the prosecution, there is no hard and fast rule for supply of such documents to the delinquent. The only question to be looked into is whether non-supply of such documents can prejudice the delinquent or not. We find that the applicant by a letter dated 23/24.3.99 (Annexure-S) has explained the relevancy of the documents. There is, however, no detailed reasons given except stating that the same were relevant to counter the allegations. In Surat Singh’s case, we find in Para 7 of the judgment, it is clearly observed that the respondents in that case did not deny the relevancy of the documents asked for by the delinquent petitioner and in that context, the Hon’ble Delhi High Court held that those documents should have been given to the delinquent and that the petitioner was right in not participating in the enquiry due to non-supply of those documents. We find that the Hon’ble Apex Court has recently held that even non-furnishing of the enquiry report may not always be fatal unless the delinquent has shown as to how he has been prejudiced vide State of U.P. v. Harendra Arora, AIR 2001 SC 2319, Oriental Insurance Co. v. S. Balakrishnan, AIR 2001 SC 2400. In the instant case, the applicant has merely stated that he has been denied opportunity to prove his innocence by non-furnishing the documents which he asked for, but there is no elaborate reasoning as to how he has been prejudiced. It is noticed that the respondents have furnished most of the documents and also permitted him to inspect other documents from police custody and also obtained necessary permission for inspection from the Ld. Court of SDJM where the documents were lying. Thus, we are not much convinced by the argument of the ld. Counsel that the applicant has been prejudiced for non-supply of some of the documents. Another grievance of the applicant is that he was not allowed to cross-examine Shri H.L. Saha, the sole prosecution witness. In the supplementary it is brought to our notice that Shri Saha was subsequently held to be guilty of the aforesaid misappropriation of the Govt. money and the same have been recovered from his retrial dues/gratuity. Therefore, it is not correct that the applicant was responsible as charged. Since Shri Saha has already retired, there may be difficulty in compelling him to call again for cross-examination. Even if he was found to be guilty for alleged defalcation, it still remains to be decided whether the applicant or others, who were charge-sheeted, were also involved in the said defalcation or misappropriation and this can only be proved in the D.A. proceedings when finalised. Involvement directly or indirectly in misappropriation of Govt. money is certainly a misconduct.
25. The Court or Tribunal does not normally interfere in such matters at the stage where the proceedings are still going on and have not reached finality. As already indicated, in the instant case the proceedings have not been concluded and no final order has yet been passed. Even after the final order has been passed the delinquent applicant has the statutory remedy to file appropriate appeal before the Appellate Authority who being a quasi-judicial authority is duty bound to consider all the points/objections raised in the appeal according to law.
26. For the reasons stated above we are unable to interfere at this stage nor do we incline to stay the disciplinary proceedings to reach its finality during the pendency of the criminal proceeding as claimed by the applicant. However, we observe that the new Disciplinary Authority, the respondent No. 2 having retired, shall look into the grievances of the applicant made in the representation if filed or to be filed against the enquiry report and shall pass appropriate final order in the D.A. proceedings according to law. If the applicant is aggrieved by the said order he will be free to file appropriate appeal before the statutory Appellate Authority for redressal of his grievance, if any.
27. With the above observation the application is hereby dismissed. The connected M.As. stand disposed of. The interim order is vacated. No costs.