IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4822 of 2013 [ENTITY] Petitioner Versus [ENTITY] & another Respondents CORAM: The Hon'ble Mr. Justice [ENTITY] For the Petitioner: Mr. [ENTITY], Advocate For the CCL: Mr. [ENTITY], Advocate 02/ 16.09.2014
Heard counsel for the parties.
2. The petitioner herein has sought a direction upon the respondents not to proceed in a departmental proceeding initiated against him vide memorandum dated 17th October 2012 by the Chairman-cum-Managing Director-cum- Disciplinary Authority, [ENTITY] (Respondent No. 2) during the pendency of the criminal case lodged by the Central Bureau of Investigation on the identical facts.
3. The petitioner has been proceeded against for the alleged misconduct under two articles of charges as shown in the charge sheet at annexure-1. The first article of charge is that the petitioner while posted as General Manager (Mining) and functioning as Area General Manager, Dhori Area during the year 2010-11, committed gross irregularity in the matter of maintenance of physical coal stock at the places indicated therein. During course of surprise check in presence of representative of Vigilance Department and Survey Personnel drawn from different areas and CCL Headquarter from 04th January 2011 to 7th January 2011 and from 11th January 2011 to 16th January 2011 in the presence of respective area officials, abnormal shortage of coal stock was revealed. The shortage was found upon surprise check of the respective book stocks and physical stock of coal found on measurement as indicated in the chart. Coal stock shortage at Amlo Project was to the tune of 60.44%; at SDQ-3(Tarmi) Project, 66.54% and at SDQ-1(Kalyani) Projects, the shortage was 4[SECTION]7%. Such shortage was substantially beyond the permissible limit of + 5% as fixed by the company. In the second articles of charges, it has been alleged that the petitioner being the Area General Manager, was responsible for updation of the monthly coal face measurement register and coal stock maintenance register after September 2010, as per Code for Uniform System of Maintenance, Control and Verification of Coal Stock in all Mines of CIL (known as Yellow Book) in respect of the aforesaid projects falling under his administrative jurisdiction. Since he did not ensure the aforesaid monthly updation and check any abnormal shortage in physical stock of coal, these irregularities has been committed in league with the other officials responsible for maintenance of coal stock. The aforesaid acts of omission and commission amounted to non-fulfillment of duties and obligations prescribed under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT], as amended up to April 2000, as also tantamount to misconduct under [SECTION], [SECTION], [SECTION] & [SECTION] under the said rules. The FIR at annexure-3 was instituted by the Central Bureau of Investigation being RC 10(A)/2012(D) registered under [SECTION] and [SECTION] [ACT] and [SECTION] of the [ACT].
4. Counsel for the petitioner submits that these FIRs' have been instituted for different areas. Perusal of the FIR indicates that the allegations of criminal conspiracy have been made against the accused persons including the petitioner and other officials of dishonestly misappropriating the amount of coal over which they had dominion, causing wrongful loss to the coal company and corresponding wrongful gain for themselves. Article of charges in the departmental proceedings therefore indicate dereliction of official duty on the part of the petitioner in the maintenance of the monthly coal face measurement register and coal stock measurement register as also failure to follow the yellow book. These allegations contained in the two articles of charges therefore point out to the incidences of lapses of duty on the part of the petitioner which amounts to misconduct under the [ACT]. The allegation in the FIR, on the other hand, relate to the criminal conspiracy and acts of dishonest
misappropriation of the alleged quantity of coal which has caused loss to the company. The element of mens rea has to be established in the matter of criminal prosecution to bring home charges beyond all reasonable doubt. However, allegations in the departmental proceeding are definitely related to dereliction of official duty and will not, in any way, prejudice the case of the petitioner if the same are continued despite institution of the criminal case.
5. The principle of law as settled by the Hon'ble Supreme Court in series of judgments such as in the case of [PRECEDENT] which have also been referred to in a recent judgment dated 21st January 2014 passed in the case of [PRECEDENT]. which reads as under:
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honor may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."
6. It therefore appears that there is no legal bar for departmental proceeding to go on simultaneously and in certain cases, it may not be desirable or appropriate to proceed with the departmental inquiry when the criminal case is pending on identical charges. The stay of departmental proceeding is a matter to be determined having regard to the facts and circumstances of the given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested for seeking stay of the disciplinary proceedings is that defence of employee in the criminal case may not be prejudiced. This ground, however, has been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave, but the case must have involved complicated questions of fact and law. The Hon'ble Supreme Court in the judgment rendered in the case of M/s Stanzen Toyotetsu India P. Ltd. (Supra) have also after referring to the case of [PRECEDENT] observed that stay of disciplinary proceedings cannot and should not be a matter of course and all the relevant factors for and against, should be weighed and a decision taken keeping in view the various principles laid down. The case of the petitioner instituted by the CBI may get prolonged indefinitely when number of accused arraigned and several witnesses have to be examined. However, the employer in cases of instances of official misconduct and contravention of Discipline Rules which are alleged in the Articles of charges, may have the option to continue with the disciplinary proceedings pending conclusion of the trial.
7. In the instant case, on the basis of the principles discussed in the case of M/s Stanzen Toyotetsu India P. Ltd. (Supra) and on comparison of the articles of charges with the allegations in the FIR, this Court is of the view that no case is made out for stay of the departmental proceedings pending criminal trial against the petitioner. The writ petition is therefore dismissed.
([ENTITY], J) [ENTITY]