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
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
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
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’,
‘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
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/-.