{"id":45491,"date":"2007-01-15T00:00:00","date_gmt":"2007-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/noida-entrepreneurs-assn-vs-noida-ors-on-15-january-2007"},"modified":"2017-02-10T05:37:16","modified_gmt":"2017-02-10T00:07:16","slug":"noida-entrepreneurs-assn-vs-noida-ors-on-15-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/noida-entrepreneurs-assn-vs-noida-ors-on-15-january-2007","title":{"rendered":"Noida Entrepreneurs Assn vs Noida & Ors on 15 January, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Noida Entrepreneurs Assn vs Noida & Ors on 15 January, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, C.K. Thakker, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nWrit Petition (civil)  150 of 1997\n\nPETITIONER:\nNOIDA Entrepreneurs Assn\n\nRESPONDENT:\nNOIDA & Ors.\n\nDATE OF JUDGMENT: 15\/01\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT,C.K. THAKKER & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWith<\/p>\n
W.P.(C)  NO. 529 OF 1998<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
The present order will dispose of one of the issues
\nrelating to decision of the Uttar Pradesh Government not to
\ntake disciplinary action against Smt. Neera Yadav-respondent
\nNo.7.\n<\/p>\n
A brief reference to certain earlier events and orders
\npassed by this Court would be necessary.\n<\/p>\n
On consideration of complaints received during the
\nperiod 1994-96 the State Government decided to enquire into
\nthe allegations.  These allegations related to irregularities in
\nallotments and conversions of land in New Okhla Industrial
\nDevelopment Authority (in short ‘NOIDA’).  Explanation was
\nasked by Principal Secretary (Heavy Industries) of the
\nGovernment of U.P.  from Smt. Neera Yadav.  On 2.2.1995 the
\nthen Chief Minister of U.P. observed that there was no need for
\nany action in the matter. In November, 1995, a Memorandum
\nwas submitted by NOIDA Entrepreneurs Association- the
\npetitioner in the present writ petition, requesting for enquiry
\nby the Central Bureau of Investigation (in short the ‘CBI’)
\nregarding the alleged irregularities in allotments and
\nconversions in NOIDA.  It appears at different stages Smt.
\nNeera Yadav submitted her explanations. On 13.12.1996 a
\nletter was written by the then Director CBI Sri Joginder Singh
\nregarding information received from sources pertaining to
\nalleged irregularities in the matter of allotments, conversions
\nand regularization of plots in NOIDA.   Taking into account the
\nsaid letter the State Government constituted a Commission
\n(hereinafter referred to as Justice Murtaza Hussain
\nCommission).  A report was submitted by the said Commission
\non 9.12.1997.  In the report various details were given.  On the
\nbasis of the report, the then Chief Secretary recommended
\ndepartmental action in respect of specific findings against
\nSmt. Neera Yadav and  also an enquiry by the Vigilance
\ndepartment in matters relating to which the Commission had
\nnot given any clear finding.  The then Chairman of Board of
\nRevenue Mr. A.P. Singh was recommended to be the enquiry
\nofficer.  The then Chief Minister concurred with the findings of
\nthe then Chief Secretary. In the meantime, the writ petition
\nhad been filed before this Court. By order dated 6.1.1998 this
\nCourt directed the State Government to indicate its stand on
\naffidavit in respect of the conclusions of Justice Murtaza
\nHussain Commission.  On 9.1.1998 the then Chief Minister of
\nthe State approved the findings of the then Chief Secretary
\nrecorded on 27.12.1997 and specifically in relation to the
\nsuggestions for departmental action in accordance with the
\nrules.  On that very date the State of Uttar Pradesh filed an
\naffidavit before this Court wherein it was stated that keeping
\nin view the gravity of the irregularities committed, it has
\ndecided to start departmental proceedings against Smt. Neera
\nYadav.  It was also stated in the affidavit that regarding those
\ncharges about which the Commission had expressed its
\ninability to give specific recommendations for want of further
\ninvestigation, the State Government had decided to get the
\nmatter inquired into by the Vigilance department of the State.
\nTaking note of all these aspects, this Court by order dated
\n20.1.1998 directed that the matter should be investigated by
\nthe CBI and if such investigation discloses the commission of
\ncriminal offence the person\/persons found responsible should
\nbe prosecuted in a Criminal court.  It was specifically noted
\nthat the State Government was proposing to initiate
\ndepartmental proceeding against Smt. Neera Yadav.  On
\n18.12.1998 the State Government of Uttar Pradesh filed an
\naffidavit before this Court stating that the enquiry by the
\nVigilance department which was initiated in respect of those
\naspects about which Commission had expressed its inability to
\ngive specific recommendation was being dropped on account of
\nthe fact that the CBI was enquiring into the matter. Prior to
\nthat on 26.5.1998 charge sheet had been issued to Smt. Neera
\nYadav and an enquiry officer was appointed.  Three charges
\nframed were as follows:\n<\/p>\n
“1.\tAllotment and conversion of residential
\nplots in her favour and also in favour of her
\ntwo daughters.\n<\/p>\n
2.\tAllotment\/conversion of residential plots
\nin favour of Anand Kumar\/Subash Kumar
\nwithin three months of their appointment as
\ncarpenter and junior clerk.\n<\/p>\n
3\tAllotment\/conversion of the residential
\nplot to Rajeev Kumar Dy. CEO and increase in
\narea.”\n<\/p>\n
On 25.2.1999 Smt. Neera Yadav filed a representation
\nstating that in view of the criminal investigation, departmental
\nproceedings should not proceed.  On 1.5.1999 the State of
\nU.P. filed an affidavit before this Court indicating that
\ndisciplinary action had been initiated against Smt. Neera
\nYadav and charge sheet had been issued on her on 26.5.1998.
\nIt was also stated therein that Smt. Neera Yadav had
\nrequested that since the matter was being inquired into by the
\nCBI, departmental inquiry should be dropped.  The State
\nGovernment obtained the opinion of its Law department which
\nfound that the departmental inquiry was validly initiated, and
\nfurther plea to keep the proceeding in abeyance was taking
\nnote of by referring to para 1.8 of the Vigilance Manual.  On
\n8.7.1999 the Principal Secretary (Law) of the State took a
\nstand that parallel inquiry should be avoided and that any
\naction should be taken after completion of the CBI inquiry, on
\nthe basis of its report. On 22.7.1999 the then Chief Minister
\nnoted that when the CBI investigation was in progress, parallel
\nadministrative enquiry was not necessary. On 5.8.1999 the
\nGovernment of Uttar Pradesh passed an order keeping the
\ndisciplinary proceedings in abeyance. On 19.1.2001 this Court
\npassed the order directing the State of Uttar Pradesh to file an
\naffidavit about present position in relation to departmental
\nenquiry. In compliance of the said order, on 8.11.2001 the
\nState of Uttar Pradesh filed an affidavit stating that it has kept
\nthe disciplinary proceeding in abeyance till the CBI enquiry is
\nover.  On 28.3.2002 CBI submitted its report in sealed cover.
\nThis Court directed the State of U.P. to file an affidavit in
\nrespect of action taken against the officers and directed that
\nthe affidavit should also indicate the stage of disciplinary
\nproceedings against Smt. Neera Yadav.\n<\/p>\n
Thereafter starts a new twist to the whole matter.  On
\n13.6.2002 the Legal Remembrancer of the State opined that it
\nwould not be appropriate to accord sanction for prosecution or
\ninitiate departmental proceeding for any irregularity. On
\n24.6.2002 the Advocate General concurred with the said
\nopinion.   On 28.6.2002 the Government of U.P. decided not to
\ntake departmental action\/initiate prosecution in relation to
\nthe recommendations in the report of the CBI.  The State of
\nU.P. on 17.9.2002 filed an affidavit before this Court stating
\nthat there was no justification for initiating departmental
\nenquiry as “after detailed consideration of the report of the CBI
\nno justification was found for initiating departmental enquiry”,
\nsince the departmental enquiry recommended by Justice
\nMurtaza Hussain’s Commission was based only on those
\npoints.  In the light of said facts the allegations were not
\nlegally tenable and the Government has decided to close the
\npending departmental enquiry.  On 11.1.2005 this Court in
\nrelation to certain issues passed the following order:
\n“Having regard to the nature of the
\nproceedings it would be appropriate to appoint
\na Commission to go into the various questions
\nraised in these matters including the issue as
\nto why the departmental action has been
\ndropped against several respondents as
\npointed out by the Amicus Curiae in his report
\nfiled on 14.12.2004.  Mr. K.T.Thomas, retired
\njudge of this Court is appointed as the sole
\nmember of the Commission.”\n<\/p>\n
  The Commission framed several issues and noted that
\nthe State Government should not have dropped disciplinary
\nproceeding against Smt. Neera Yadav in the light of adverse
\nfindings against her in the report of the Judicial Commission
\nas well as on the report of the CBI. The State of U.P. was
\nasked to clarify as to under what circumstances the decision
\nto drop the departmental proceeding was taken.  The entire
\nrecords relating to the decisions at different stages have been
\nbrought on record and a synopsis has also been filed referring
\nto various letters\/observations\/findings at different points of
\ntime.\n<\/p>\n
The order dated 16th September, 2002 is the one the
\nlegality of which is questioned.  The entire order needs to be
\nquoted. The same reads as follows:\n<\/p>\n
“By the notification no. 86\/N\/96, dated 25
\nJanuary 97 one man inquiry commission was
\nconstituted. The Commission inquired into the
\nirregularities committed by Smt. Neera Yadav,
\nlAS (1971), during her posting as Chief
\nExecutive Officer, Noida in allotment of plots
\nand properties.\n<\/p>\n
On the basis of the report submitted by
\nHon’ble Mr. Justice Murtaza Husain Inquiry
\nCommission it was decided to initiate
\ndepartmental inquiry against Smt. Neera
\nYadav and by the order of Appointment Section\n<\/p>\n
-5 No. 930(l)\/Two-5-98-22(29)\/74 dated
\n26.5.1998 charge sheet was issued against
\nSmt. Neera Yadav.\n<\/p>\n
Smt. Neera Yadav vide her applications dated
\n16.9.98, 25.2.99 and 3.5.99 requested for
\ncancellation of departmental inquiry being
\ninitiated against her, on which after due
\nconsideration the departmental inquiry
\ninitiated against Smt. Neera Yadav was stayed
\nvide Govt. Order No.4209\/Two-599-\n<\/p>\n
35(136)\/97 dated 5 Aug., 1999 till finalization
\nof inquiry by the CBI against Smt. Neera
\nYadav.\n<\/p>\n
Because in the case under consideration the
\nreport of the CBI was received on 28.3.2002
\nalong with the recommendation, after
\nexamination of which State Govt. did not find
\nit necessary to take any action on the point of
\ndepartmental inquiry against Smt. Neera
\nYadav.\n<\/p>\n
It is worth mentioning that the points on
\nwhich Departmental Inquiry was initiated
\nagainst Smt. Neera Yadav on the basis of the
\nreport of Hon’ble Mr. Murtaza Husain, on the
\nsame point after due consideration of the CBI
\ninquiry report it was found that the
\ndepartmental inquiry was not required
\nTherefore, in view of the above it was decided
\nby the Govt. that the departmental inquiry
\npending against Smt. Neera Yadav may be
\ndropped.\n<\/p>\n
Therefore, His Excellency, the Governor, grants
\npermission to drop the pending departmental
\ninquiry against Smt. Neera Yadav, lAS (1971).”\n<\/p>\n
The basis as culled down from the order is as follows:
\n“It is worth mentioning that the points on
\nwhich Departmental Inquiry was initiated
\nagainst Smt. Neera Yadav on the basis of the
\nreport of Hon’ble Mr. Murtaza Husain, on the
\nsame point after due consideration of the CBI
\ninquiry report it was found that the
\ndepartmental inquiry was not required
\nTherefore, in view of the above it was decided
\nby the Govt. that the departmental inquiry
\npending against Smt. Neera Yadav may be
\ndropped.”\n<\/p>\n
Learned Amicus Curiae has submitted that conclusions
\nare not based on any rationality. Departmental proceedings
\nand criminal proceedings stand on different footings.  There is
\nno rationality in the decision and it cannot be said to be
\nreasonable by any standard.\n<\/p>\n
Per contra, learned counsel for the State of U.P.
\nsubmitted that taking into account the totality of
\ncircumstances, the order was passed and there is nothing
\nillicit in it.  Mr. K.T.S. Tulsi, learned counsel appearing for
\nSmt. Neera Yadav submitted that the order does not suffer
\nfrom any infirmity and in any event if it is conceded for the
\nsake of argument that there was any infirmity, this Court can
\ndirect the proceedings to take off from the stage as it stood on
\n5.8.1999 when the Govt. of Uttar Pradesh had passed order
\nfor keeping the departmental proceeding in abeyance. This is
\nin fact a re-iteration of the stand taken by the State
\nGovernment.  We are not only baffled but also perplexed at
\nsuch a stand being taken by the State. This prima facie shows
\nthat the State Government is interested to protect Smt. Neera
\nYadav at any cost.\n<\/p>\n
A bare perusal of the order which has been quoted in its
\ntotality goes to show that the same is not based on any
\nrational foundation. The conceptual difference between a
\ndepartmental enquiry and criminal proceedings has not been
\nkept in view.  Even orders passed by the executive have to be
\ntested on the touchstone of reasonableness. (See: Tata Cellular
\nv. Union of India<\/a> (1994(6) SCC 651), and Teri Oat Estates (P.)
\nLtd. v. U.T. Chandigarh and Ors.<\/a> (2004 (2) SCC 130).  The
\nconceptual difference between departmental proceedings and
\ncriminal proceedings have been highlighted by this Court in
\nseveral cases.  Reference may be made to Kendriya Vidyalaya
\nSangathan and Others v. T. Srinivas<\/a> (2004(7) SCC 442),
\nHindustan Petroleum Corporation Ltd. and Others  v. Sarvesh
\nBerry<\/a> (2005(10) SCC 471) and Uttaranchal Road Transport
\nCorpn. v. Mansaram Nainwal<\/a> (2006(6) SCC 366).\n<\/p>\n
The purpose of departmental enquiry and of prosecution
\nis two different and distinct aspects. The criminal prosecution
\nis launched for an offence for violation of a duty the offender
\nowes to the society, or for breach of which law has provided
\nthat the offender shall make satisfaction to the public. So
\ncrime is an act of commission in violation of law or of omission
\nof public duty. The departmental enquiry is to maintain
\ndiscipline in the service and efficiency of public service. It
\nwould, therefore, be expedient that the disciplinary
\nproceedings are conducted and completed as expeditiously as
\npossible. It is not, therefore, desirable to lay down any
\nguidelines as inflexible rules in which the departmental
\nproceedings may or may not be stayed pending trial in
\ncriminal case against the delinquent officer. Each case
\nrequires to be considered in the backdrop of its own facts and
\ncircumstances. There would be no bar to proceed
\nsimultaneously with departmental enquiry and trial of a
\ncriminal case unless the charge in the criminal trial is of grave
\nnature involving complicated questions of fact and law.
\nOffence generally implies infringement of public duty, as
\ndistinguished from mere private rights punishable under
\ncriminal law. When trial for criminal offence is conducted it
\nshould be in accordance with proof of the offence as per the
\nevidence defined under the provisions of the Indian Evidence
\nAct 1872 (in short the ‘Evidence Act’). Converse is the case of
\ndepartmental enquiry. The enquiry in a departmental
\nproceedings relates to conduct or breach of duty of the
\ndelinquent officer to punish him for his misconduct defined
\nunder the relevant statutory rules or law. That the strict
\nstandard of proof or applicability of the Evidence Act stands
\nexcluded is a settled legal position. Under these
\ncircumstances, what is required to be seen is whether the
\ndepartment enquiry would seriously prejudice the delinquent
\nin his defence at the trial in a criminal case. It is always a
\nquestion of fact to be considered in each case depending on its
\nown facts and circumstances.\n<\/p>\n
A three-judge Bench of this Court in Depot Manager, A.P.
\nState Road Transport Corporation v. Mohd. Yousuf Miya and
\nOrs.<\/a>  (1997 (2) SCC 699) analysed the legal position in great
\ndetail on the above lines.\n<\/p>\n
\tThe aforesaid position was also noted in State of
\nRajasthan v. B.K. Meena and Ors.<\/a> (1996 (6) SCC 417).\n<\/p>\n
There can be no straight jacket formula as to in which
\ncase the departmental proceedings are to be stayed. There
\nmay be cases where the trial of the case gets prolonged by the
\ndilatory method adopted by delinquent official.  He cannot be
\npermitted to, on one hand, prolong criminal case and at the
\nsame time contend that the departmental proceedings should
\nbe stayed on the ground that the criminal case is pending.\n<\/p>\n
\tIn Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.<\/a>
\n(1999 (3) SCC 679), this Court indicated some of the fact
\nsituations which would govern the question whether
\ndepartmental proceedings should be kept in abeyance during
\npendency of a criminal case. In paragraph 22 conclusions
\nwhich are deducible from various decisions were summarised.
\nThey are as follows:\n<\/p>\n
(i) Departmental proceedings and proceedings in a
\ncriminal case can proceed simultaneously as there is no
\nbar in their being conducted simultaneously, though
\nseparately.\n<\/p>\n
(ii) If the departmental proceedings and the criminal case
\nare based on identical and similar set of facts and the
\ncharge in the criminal case against the delinquent
\nemployee is of a grave nature which involves complicated
\nquestions of law and fact, it would be desirable to stay
\nthe departmental proceedings till the conclusion of the
\ncriminal case.\n<\/p>\n
(iii) Whether the nature of a charge in a criminal case is
\ngrave and whether complicated questions of fact and law
\nare involved in that case, will depend upon the nature of
\noffence, the nature of the case launched against the
\nemployee on the basis of evidence and material collected
\nagainst him during investigation or as reflected in the
\ncharge-sheet.\n<\/p>\n
(iv) The factors mentioned at (ii) and (iii) above cannot be
\nconsidered in isolation to stay the departmental
\nproceedings but due regard has to be given to the fact
\nthat the departmental proceedings cannot be unduly
\ndelayed.\n<\/p>\n
(v) If the criminal case does not proceed or its disposal is
\nbeing unduly delayed, the departmental proceedings,
\neven if they were stayed on account of the pendency of
\nthe criminal case, can be resumed and proceeded with so
\nas to conclude them at an early date, so that if the
\nemployee is found not guilty his honour may be
\nvindicated and in case he is found guilty, the
\nadministration may get rid of him at the earliest.
\n The position in law relating to acquittal in a criminal
\ncase, its effect on departmental proceedings and re-
\ninstatement in service has been dealt with by this Court in
\nUnion of India and Anr. v. Bihari Lal Sidhana<\/a> (1997 (4) SCC\n<\/p>\n
385). It was held in paragraph 5 as follows:\n<\/p>\n
5. It is true that the respondent was acquitted
\nby the criminal court but acquittal does not
\nautomatically give him the right to be re-
\ninstated into the service. It would still be open
\nto the competent authority to take decision
\nwhether the delinquent government servant
\ncan be taken into service or disciplinary action
\nshould be taken under the Central Civil
\nServices (Classification, Control and Appeal)
\nRules or under the Temporary Service Rules.
\nAdmittedly, the respondent had been working
\nas a temporary government servant before he
\nwas kept under suspension. The termination
\norder indicated the factum that he, by then,
\nwas under suspension. It is only a way of
\ndescribing him as being under suspension
\nwhen the order came to be passed but that
\ndoes not constitute any stigma. Mere acquittal
\nof government employee does not
\nautomatically entitle the government servant
\nto reinstatement. As stated earlier, it would be
\nopen to the appropriate competent authority to
\ntake a decision whether the enquiry into the
\nconduct is required to be done before directing
\nreinstatement or appropriate action should be
\ntaken as per law, if otherwise, available. Since
\nthe respondent is only a temporary
\ngovernment servant, the power being available
\nunder Rule 5(1) of the Rules, it is always open
\nto the competent authority to invoke the said
\npower and terminate the services of the
\nemployee instead of conducting the enquiry or
\nto continue in service a government servant
\naccused of defalcation of public money. Re-
\ninstatement would be a charter for him to
\nindulge with impunity in misappropriation of
\npublic money.”\n<\/p>\n
The standard of proof required in departmental
\nproceedings is not the same as required to prove a criminal
\ncharge and even if there is an acquittal in the criminal
\nproceedings the same does not bar departmental proceedings.
\nThat being so, the order of the State Government deciding not
\nto continue the departmental proceedings is clearly untenable
\nand is quashed.  The departmental proceedings shall continue.
\n  Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav
\nstated that an appropriate motion shall be made before the
\ndepartmental authorities to keep the proceedings in abeyance
\ntill conclusions of the criminal proceedings. If such prayer is
\nmade, the same shall be considered in the light of the
\nprinciples set out by this Court in Hindustan Petroleum Ltd.’s
\ncase (supra) and Uttaranchal Road Transport Corpn.’s case
\n(supra).  It is ordered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Noida Entrepreneurs Assn vs Noida & Ors on 15 January, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, C.K. Thakker, Lokeshwar Singh Panta CASE NO.: Writ Petition (civil) 150 of 1997 PETITIONER: NOIDA Entrepreneurs Assn RESPONDENT: NOIDA & Ors. DATE OF JUDGMENT: 15\/01\/2007 BENCH: Dr. ARIJIT PASAYAT,C.K. THAKKER & LOKESHWAR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-45491","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNoida Entrepreneurs Assn vs Noida & Ors on 15 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/noida-entrepreneurs-assn-vs-noida-ors-on-15-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Noida Entrepreneurs Assn vs Noida & Ors on 15 January, 2007 - 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