JUDGMENT
P.K. Mohanty, J.
1. The petitioner in the present writ application prays for a direction to the opposite parties 2 and 3 to stay the departmental proceeding started under Annexure-2 till conclusion of the criminal trial in T.R. No. 1 of 1993 pending before the learned Special Judge, Bhubaneswar.
2. The short facts of the petitioner’s case is that he was working as an Executive Engineer, Electrical under the Grid Corporation of Orissa (opp. party No. 2) and was posted at Bhubaneswar. On March 25, 1990, search was conducted in the official quarters and the native house of the petitioner by the Vigilance Department. Prosecution was launched and a case under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 has been instituted in the Special Court and is now pending trial in the Court of the Special Judge, Bhubaneswar after abolition of Special Court. It is stated that the total value of assets found in possession of the petitioner on the date of search was Rs. 10,35,745.80 as against the probable saving of Rs. 4,50,104.63 and thus, an asset worth more or less Rs. 5,85,641.17 was found to be disproportionate to the known source of income of the petitioner. Charge-sheet was submitted against the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. A copy of the Charge-sheet is Annexure-1 and the criminal proceeding is pending trial before the learned Special Judge, Bhubaneswar. It is stated that when the matter stood thus, on May 25, 1994, opp. party No. 2 initiated a departmental proceeding against the petitioner basing upon the Charge-sheet submitted by the Vigilance Department. The charges against the petitioner in the departmental proceedings were (1) possession or movable and immovable properties disproportionate to the known and lawful source of income (2) gross misconduct. A copy of the charges framed in the departmental proceeding is Annexure-2, which was served on the petitioner on June 6, 1994 asking the petitioner to submit his written explanation within 30 days. The petitioner after receipt of the charges having found the same to be identical to the charges in the criminal proceeding pending trial, made a representation to the departmental authorities to stay the proceeding till conclusion of the criminal trial on the ground that the written explanation to the aforesaid charges by disclosing the defence will seriously prejudice the petitioner in his defence in the criminal case. A copy of the representation is Annexure-3. It is alledged that without disposing of the representation, opp. party No. 1 by order dated February 2, 1996 appointed opposite party No. 3 as the Enquiring Officer to conduct the enquiry initiated against the petitioner.
3. Sri D. P. Das, learned counsel on behalf of Sri S.K.Mund, learned counsel for the petitioner submits that during the course of enquiry a number of documents are to be proved and some witnesses are to be examined on behalf of the prosecution in order to establish the case of the prosecution and the petitioner will be examined under Section 313, Cr. P.C. where he has also to disclose his defence. Disclosure of the defence of the accused prior to the examination of witnesses for the prosecution may in all likelihood prejudice the accused in his defence. Therefore, it is his submission that if the petitioner is compelled to disclose his defence on the threat of ex parte disposal of the departmental proceeding at this stage when the trial in the criminal case is yet to commence the same would jeopardise his defence and as such in the fitness of things, the departmental proceeding should remain stayed during the pendency of the trial. It is further submitted that the accusation in the departmental proceeding is on the basis of materials collected during the investigation of the criminal case by the Vigilance Department and complicated facts are to be proved in course of criminal trial, which involves examination of a large number of witnesses and innumerable documentary evidence. The petitioner can only be able to establish his innocence through rebuttal evidence either by proving them by examination of independent witnesses or by confrontation to the prosecution witnesses. It is submitted that the petitioner is having charges under the Prevention of Corruption Act and the onus is on the accused to disprove the allegation levelled against him. But however, if the petitioner is to explain the charges in the departmental proceeding, there would be hardly any scope to disprove the charges in the criminal proceeding and establish his innocence since the prosecution would be aware of the possible defence before the trial starts.
4. A counter affidavit has been filed on behalf of opp. party No. 2 contending inter alia that there is no legal bar for a simultaneous proceeding being taken up against delinquent employee both in a disciplinary proceeding as well as in a criminal trial, inasmuch as the issue in the disciplinary proceeding is whether the employee is guilty of charges on which it is proposed to take action against him. The said issue may arise for a decision in a civil or criminal proceeding pending in the Court, does not bar a disciplinary action and in such view of the matter, mere is no necessity nor it is required to stay the further proceeding in the departmental proceeding. Sri S.P. Mishra, learned Addl. Government Advocate however appears for opp. party No. 1 and even though no counter has been filed, he has made his submissions on the legality and validity in the continuance of the departmental proceeding taking the similar stand as that of opp. party No. 2.
5. Heard the learned counsel for the parties. The raid and search was conducted in the official quarters and the native house of the petitioner by the Vigilance Police on March 25, 1990, F.I.R. was lodged on March 30, 1990, investigation was conducted and charge-sheet has been filed on November 7, 1992, a copy of which is Annexure-1 to the writ application. It is revealed that a prima facie case of criminal misconduct under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 having been made out, charge-sheet has been filed. A detailed calculation of the known source of income and the probable saving has been calculated and indicated in the charge-sheet and the prima facie disproportionate assets to a tune of Rs. 5,95,641.17 has been found. It is undisputed that the trial of the criminal proceeding is yet to commence. In the departmental proceeding initiated against the petitioner by Proceeding No. 1384 dated April 25, 1994, the delinquent-petitioner has been charged for possession of movable and immovable properties disproportionate to his known lawful source of income and for gross misconduct. He has been asked to explain within 30 days and he was given option to peruse the records relevant to the proceeding and take extracts therefrom if he so desired by making prior appointment. The petitioner did not submit any explanation but made a representation for stay of the departmental proceedings. The State Government in the department of Energy vide order dated February 2, 1996 appointed the Chief Electrical Inspector, Orissa as the Enquiring Officer to conduct the enquiry and the Deputy Secretary to the Government in G.A.(Vig.) Department has been appointed as the Marshalling Officer. The counter affidavit filed by opp. party No. 2, the Grid Corporation of Orissa, does not disclose the factual position as to the stages of proceedings as on date and simply reiterates the legal submission that there is no bar for continuance of simultaneous proceeding both departmental and in Civil or Criminal Court. However, it is stated that initiation and continuance of proceeding in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceedings.
6. The learned counsel for the petitioner has cited and relied on a decision in State of Rajasthan v. B.K.Meena and Ors. (1997-I-LLJ-746) (SC), in support of his contention that in the facts and circumstances of the case, the departmental proceeding ought to be stayed. The Apex Court in the aforesaid judgment while reiterating the earlier decision has held that un-disputably there is no legal bar for both proceedings to go on simultaneously but in certain situation, 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 proceeding is a matter to be determined having regard to the facts and circumstances of a given case and there can be no hard and fast rule in that behalf. The only ground which should weigh in the minds of the Court is that when the defence of the employee in the criminal case is likely to be prejudiced, the Court may consider staying all the departmental proceeding with the further rider that this should be done in case of grave nature involving questions of facts and law. It has further been held in the aforesaid decision that one of the contending consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as the criminal cases are concerned, it is well known that they drag on endlessly, where high officials or persons holding high public offices are concerned. They hardly ever reach a conclusion and that is the reality. 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 at the earliest stage. In the interest of justice, these proceedings are to be concluded expeditiously. Their Lordships have held that the disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery clean by cutting root of bad elements. Stay of disciplinary proceeding cannot be as a matter of course and all the relevant factors for and against should be weighed and a decision taken keeping in view the principle laid down in the decision referred to above. The Apex Court has come to the conclusion regarding validity or the legality of the order of stay passed by the Central Administrative Tribunal in that case and having found that the respondent had already disclosed his defence in his elaborate and detailed statement filed before the disciplinary authority and therefore there was no question of he being compelled to disclose his defence in the disciplinary proceeding which would prejudice him in a criminal case. Their Lordships in paragraph 17 of the judgment had observed:
“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 the 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 cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to report, should not be a matter of course but a considered decision. Even if stayed atone stage, the decision may require reconsideration if the criminal case gets unduly delayed.”
7. This Court in Hindustan Aeronautics Employees’ Association, represented through its General Secretary, Koraput Division and Anr. v. Hindustan Aeronautics Ltd. Koraput Division, represented through its General Manager and Anr. 1990 (1) OLR 337 has also taken a similar view and observed that the pendency of the criminal case in all cases does not bar taking of disciplinary action and the power is vested on the authorities. The only question to he considered is, if the employee will be prejudiced in his defence in the criminal case, and the prejudice is to be shown or established. There is vast difference between misconduct which forms the subject matter to the departmental proceeding and the offence instituting the trial in the Criminal Court. However, it is to be stated that the departmental proceeding and the criminal cases in that case were with regard to the allegation of improper behaviour and misconduct of the Petitioner No. 2 for which an FIR was lodged and consequently police investigations were made and the departmental proceeding was initiated also on self-same ground.
8. In the case of Depot Manager, A. P. State Road Transport Corporation v. Mohd. Yousuf Kiya and Ors. (1997-II-LLJ-902), the Apex Court has also taken a similar view.
In the case of Kusheshwar Dubey v. Bharat Cooking Coat Ltd. and Ors., (1988-II-LLJ-470), the Hon’ble Apex Court expressed the view that there could be no legal bar for simultaneous proceedings being taken, but yet there may be cases where it would be appropriate to offer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases, it would be open to the delinquent 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. The Court in that case having found that the disciplinary proceeding and the criminal trial having been grounded upon the same set of facts, held that the disciplinary proceeding should have been stayed.
9. Consequent upon tiling of charge-sheet, the petitioner has been charged under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988. Sections 13(1)(e) and 13(2) of the Act are quoted hereunder:
“Section 13(1) A public servant is said to commit the offence of criminal misconduct –
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(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources of property disproportionate to his known sources of income.
Explanation – For the purposes of this Section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.”
It is, therefore, incumbent upon the prosecution to establish that the accused-petitioner is a public servant, the nature and extent of pecuniary resources or property which were found in his possession, it must also be proved as to what were his known sources of income and that such sources or property found in possession of the accused were disproportionate to his known sources of income. Once these ingredients are established, unless the accused is able to account for such resources or property, he can be held guilty.
10. In the case at hand, undisputedly the charge-sheet No. 38 dated November 7, 1992 has been filed on the basis of the FIR dated March 30, 1990 and the trial of the case is yet to begin. A comprehensive and details of income tax returns and the income of the petitioner and his wife has been indicated in the charge-sheet including the names of the witnesses. On the basis of such calculation, a prima facie case having been found, the prosecution has been launched. According to the charge-sheet, the petitioner is in possession of assets to the tune of Rs. 10,37/745.80 which is disproportionate to the tune of Rs. 5,85,641.17 which cannot be accounted for, as found during investigation.
The departmental proceeding as indicated in Annexure-2 indicates that the petitioner was charged under the following two grounds:
(i) possession of movable and immovable properties disproportionate to his known lawful source of income;
(ii) gross-misconduct;
and has been asked to show-cause. This proceeding is dated May 25, 1994, which the petitioner appears to have received on June 6, 1994. An Enquiring Officer has been appointed by order dated February 2, 1996. It is stated that the petitioner filed a representation stating inter alia that both the charges in criminal proceeding as well as in the departmental proceeding being similar, submission of written explanation in the departmental proceeding will disclose the defence and as such, will seriously prejudice the petitioner in his defence in the criminal case.
11. In a case of this nature, where a Public Officer is charged with illegally acquiring and/or possessing assets disproportionate to his known sources of income, it is for the prosecution to choose what according to it, is the period which having regard to the accusitive activities of the public servant in amassing wealth characterised and isolate that period for special scrutiny. It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession and once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving in the standard of criminal evidence that the public servant is or, was at any time during the period of his office in possession of pecuniary resources or property disproportionate to his source of income, the prosecution discharges his burden of proving and the burden of proving is shifted from the prosecution to the defence, it, then becomes necessary for the public-servant to satisfactorily account for the possession of such properties and pecuniary resources.
12. In that view of the matter, it is clear that the departmental proceeding has been initiated on the basis of charge-sheet filed by the Vigilance Police, pursuant to their investigation on the identical ground. In a charge under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, once the prosecution places essential ingredients of the offence of criminal misconduct by proving in the standard of criminal evidence that the petitioner a public servant during the period of his office at the relevant time is in possession of properties disproportionate to his known source of income, the burden shifts on the petitioner to satisfactorily account for the apparently disproportionate nature of his possessions of such property. In that event, unlike in other criminal prosecution, the petitioner has to satisfactorily account for his possession of disproportionate assets or properties by producing legal evidence on record. In such circumstances, if the petitioner is called upon to disclose his defence, in the departmental proceeding before the departmental authorities that defence, may be known to the prosecution and may be utilised by it in establishing the prosecution case, in which event it would definitely prejudice the petitioner. In that view of the matter, in the fitness of things, it is desirable to stay the departmental proceeding.
13. In the aforesaid view of the matter, we allow the writ petition, stay the departmental proceedings and direct the opposite parties not to proceed with the departmental proceeding till conclusion of the criminal trial. However, it is made clear that once the criminal trial is concluded, there shall be no bar or impediment for the departmental authorities to proceed with the departmental proceeding in accordance with law. In the circumstances, there shall be no order as to cost.
P.C. Naik, J.
14. I agree.