JUDGMENT
B.K. Sharma, J.
1. Heard Mr. D. Saikia, learned Counsel for the petitioner as Ms. R. Chakraborty, learned State counsel along with Ms. S. Borah.
2. By means of this writ petition, the petitioner has challenged the charge sheet issued to him under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. The charge sheet was issued on 17.02.04 (Annexure-G). At the time of issuance of the charge sheet, the petitioner was serving as Junior Engineer under the respondents at Jorhat. He was placed under suspension by order dated 28.08.03 pending drawl of the departmental proceeding.
3. The petitioner was to submit his written statement in defence within 10 days from the date of receipt of the same. He was also provided with an opportunity to inspect the documents. In fact, the petitioner as per the statement made in paragraph-8 of the writ petition intended to inspect the documents connected with the enquiry. He had addressed Annexure-H letter dated 05.03.04 in response to the charge sheet requesting the disciplinary authority to make necessary arrangement for inspection of documents. Immediately thereafter he invoked the writ jurisdiction of this Court making a challenge to the charge sheet primarily on the ground that pertaining to the same matter a criminal case being GR Case No. 75/2003 corresponding to Majuli P.S. Case No. 34/2003 Under Section 409 IPC was pending.
A copy of the FIR lodged against the petitioner on 16.06.03 has been annexed to the writ petition as Annexure-D. As per the FIR the petitioner was involved in corruption inasmuch he released the amount pertaining to certain works in favour of the parties although the works remained incomplete. The amounts were withdrawn by the parties. The particulars relating to FIR were indicated in Annexure-I to the FIR.
By the charge sheet dated 17.02.04 the petitioner has been charged with misappropriation of public money and for insubordination and unauthorized absence from headquarters and dereliction of duty. There are altogether two charges. While the first charge is in respect of misappropriation of public money, the second charge is for leaving the headquarter to avoid the criminal proceeding and remaining absent from duty.
It is in the aforesaid fact situation of the case, the petitioner approached this Court by filing the instant writ petition primarily on the aforementioned ground. This Court while entertaining the writ petition by order dated 09.04.04 stayed the charge sheet dated 17.02.04. In view of such stay order, the departmental proceeding which was sought to be initiated against the petitioner could not be initiated. On being asked, Mr. D. Saikia, learned Counsel for the petitioner submits that even in the criminal proceeding no charge sheet has been filed.
4. Mr. Saikia, learned Counsel for the petitioner submits that since the criminal case is pending against the petitioner, the disciplinary authority could not have initiated departmental proceeding on the same set of facts. On the other hand, Ms. R. Chakraborty, learned State counsel submits that there is no bar towards initiation of departmental proceeding even in case of pendency of criminal proceeding. She further submits that apart from the fact that the second charge as indicated in the charge sheet dated 17.02.04 is altogether different, the charge No. 1 also cannot be said to be identical to the misappropriation alleged in the FIR.
5. Merely because a criminal case is pending against the petitioner which has also not attained finally even after expiry of about four years, it cannot be said that the departmental authorities are precluded from initiating the departmental proceeding. In the case of State of Rajasthan v. B.K. Meena and Ors. , the Apex Court observed thus:
14. 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 emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting 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.
17. 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, who 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 district and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a 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.
In the case of State of Karnataka and Anr. v. T. Venkataramanappa reported in (1996) 6 SCC 455, it was held by the Apex Court that acquittal in criminal case in criminal prosecution is not a bar for departmental enquiry. It was pointed out that standard of proof required in both the proceedings is different while the charge in criminal proceeding is required to be proved beyond all reasonable doubt, in a departmental proceeding, it is preponderance of probability which is the parameter and yardstick towards establishing the charge.
6. In the instant case, the disciplinary authority could not proceed with the matter after issuance of the charge sheet dated 17.02.04. Although the petitioner responded to the charge sheet by submitting his application on 05.03.04 making a request therein to allow him to inspect the documents, but instead of doing so, he invoked the writ jurisdiction of this Court. As submitted by the learned Counsel for the petitioner, in the criminal case also no charge sheet has been submitted as yet. Prima facie, the charges brought against the petitioner are of serious nature and the petitioner being a public servant, is liable for both criminal proceeding and departmental proceeding as per the provisions of the rules. As has been held in various decisions, merely because a criminal case is pending, it cannot be said that the departmental proceeding invariably be stayed. Throughout the writ petition, the petitioner has not stated anything as to how the departmental proceeding will cause any prejudice to his defence in the criminal case or vice-versa. Here is a case in which neither the criminal proceeding nor the departmental proceeding has progressed for the last about four years, although prima facie the charges levelled against the petitioner is of grave and serious nature.
7. In view of the above, I did not find merit in the writ petition and accordingly it is dismissed. Interim order passed on 09.04.04 staying the departmental proceeding initiated by Annexure-G charge sheet dated 17.02.04 is vacated. A direction is issued to the respondents to finalize the departmental proceeding at the earliest opportunity by giving all reasonable opportunities to the petitioner.
8. Let a copy of this order be furnished to Ms. R. Chakraborty, learned State counsel.