JUDGMENT [ENTITY], J.
1. The question as to whether a criminal proceeding as well as a departmental enquiry, on the same set of facts, can proceed simultaneously, which has frequently arisen, confronts the Court in the present writ proceeding also. The facts leading to the institution of the present case by the writ petitioner may be briefly summarized as below :
An FIR was lodged with the Dibrugarh Police Station on 2.6.2003 alleging that on 7.3.2003 the writ petitioner, who was then working as the Deputy Registrar (Finance & Accounts) in the Dibrugarh University, put up a cheque for an amount of Rs. 1,57,240.00 for signature of the Registrar. The Registrar, on verification, found certain irregularities in the supply orders and the bill raised by the supplier in respect of the payment covered by the cheque in question and, therefore, a direction was issued to verify the matter, in course of which verification it was revealed that though the supply order issued to one M/s. Padmini Printing Press, was for 6000 Nos. of envelopes, in the bill submitted by the supplier, a new item, i.e., "Roll sheet of B.A. Part-I" was inserted. As the verification revealed forgery and falsification of accounts, some other bills which were recently paid to the same supplier M/S. Padmini Printing Press were scrutinized and the said payments were also found to have been paid on the basis of certain tamperings and forgeries committed. In the FIR filed, it was further stated that the matter having been drawn to the notice of the Vice Chancellor, a committee consisting of one Professor Shri [ENTITY] and Professor Shri [ENTITY] was constituted to investigate the matter and the said committee conducted an investigation by perusing the different supply orders, challans, bills, vouchers, stock book, registers, payment register, peon books etc. for the period January 2000 to March 2003. According to the first informant, such enquiry, and investigation revealed that the prevailing procedure and practice with regard to the placing of supply orders and processing of bills for payment were adhered to in all cases except in the case of M/s. Padmini Printing Press. In so far as the aforesaid supplier M/s. Padmini Printing Press is concerned, the committee, on investigation found that during the period 4.2.2000 to 1.1.2003, 51 different print orders were issued by the Examination Branch of the University to M/s. Padmini Printing Press. Out of the aforesaid 51 print orders, only 43 were found to be available and the committee constituted found tampering, forgery and falsification of account in respect of 38 bills/vouchers. The committee also found that while placing the print orders with the supplier, i.e., M/s. Padmini Printing Press and in processing the bills submitted for payment as well as in making payment to the said supplier, the Examination Branch as well as the Finance and Accounts Branch of the University had failed to adhere to the established procedure, as a consequence of which, an amount of Rs. 30,08,745,00 was fraudulently drawn by the aforesaid supplier, i.e., M/s. Padmini Printing Press. On the aforesaid facts, the Registrar of the University, by means of the FIR filed on 2.6.2003 requested the investigating authority to register a case in respect of the incident alleged and take appropriate action in accordance with law. On the basis of the aforesaid FIR filed, Dibrugarh P.S. [CASE NUMBER] under [SECTION] of the [ACT] was registered. The said case is presently pending investigation.
2. On the same date, i.e., on 2.6.2003, a show cause notice under [SECTION] of the [ACT] was issued asking the petitioner to show cause as to why any of the penalties prescribed in [SECTION] of the Ordinance should not be inflicted on the charges mentioned in Annexure-I to the show cause. The statement of allegations on which the charges were founded together with a list of witnesses and a list of documents were enclosed as Annexures-2, 3 and 4 to the show cause notice dated 2.6.2003. A perusal of the Articles of charges read with the statements of allegations in support of the charges as enclosed to the show cause notice dated 2.6.2003 would go to show that the writ petitioner, who was at the relevant time Deputy Registrar (Finance & Accounts) of the University was charged with misconduct on account of failure to attend to duties assigned by the competent authority as well as failure to maintain absolute integrity, honesty and devotion to duty thereby facilitating the excess payment of an amount of Rs. 30,08,745.00 to the M/s. Padmini Printing Press. A further charge of commission of forgery and falsification of accounts either by the petitioner himself or through other persons in connivance and conspiracy with M/s. Padmini Printing Press, thereby facilitating the aforesaid excess payment, was also levelled against the writ petitioner.
3. On receipt of the aforesaid show cause notice, the petitioner prayed for inspection of the documents mentioned in Annexure-4 to the show cause notice dated 2.6.2003. The application for inspection having been allowed, the petitioner inspected the documents and at the conclusion of such inspection, submitted a representation dated 14.7.2003 before the Registrar of the University asking for postponement/deferment of the departmental proceeding, at least, till such a stage when sufficient progress in the criminal case is reached. The grounds on which the aforesaid postponement was sought by the writ petitioner, appear to be that the simultaneous conduct of the two proceedings may have the effect of prejudicing the writ petitioner in the criminal case, inasmuch as, he would be required to disclose in the departmental proceeding what would be his possible defence in the criminal case. The aforesaid request of the writ petitioner having been negatived by the Registrar by his order dated 22.7.2003, the instant writ petition has been filed calling into question the actions of the University in proceeding with the departmental enquiry initiated on the basis of the show cause notice dated 2.6.2003.
4. I have heard Mr. [ENTITY], learned Sr. Counsel for the writ petitioner as well as Mr. [ENTITY], learned Sr. Counsel appearing on behalf of the University.
5. The argument advanced on behalf of the petitioner though elaborate, has centred around one principal issue. The subject-matter of the criminal case as well as the departmental proceeding is the same. Both the proceedings having been initiated on the same set of facts, the stand which the writ petitioner may be required to take to defend himself in the departmental proceeding may cause prejudice to him in the criminal case, inasmuch as, in that event the petitioner would be compelled to disclose his defence in the criminal proceeding. This, it is argued, is against the fundamental canons of criminal jurisprudence and, therefore, it is submitted, the departmental proceedings should remain under animated suspension, if not till the criminal proceedings are concluded, at least, till some satisfactory progress in the said proceeding is reached. An elaborate recital of the relevant case law has been made by the learned counsel for the writ petitioner in support of the submissions advanced. The judgment of the Apex Court in the case of [PRECEDENT] has been cited in addition to two other cases of the Apex Court, reported in [PRECEDENT] and [PRECEDENT] (Capt. [ENTITY] v. Bharat Gold Mines Ltd. and Anr.). Two judgments of this Court, wherein departmental proceedings were ordered to remain under suspension during the pendency of the parallel criminal proceedings were also cited on behalf of the petitioner. The aforesaid judgments of this Court are reported in [PRECEDENT] and [PRECEDENT])
5. The arguments made on behalf of the writ petitioner have met with stiff resistance from the learned senior counsel appearing on behalf of the University. Mr. [ENTITY], learned Sr. counsel appearing for the University, has argued that the criminal proceeding against the writ petitioner is presently at the stage of investigation. There is no criminal case as such pending against the writ petitioner. The investigation may or may not result in a trial. It is, therefore, contended that the question of prejudice at the stage of trial is premature and the judgment cited on behalf of the writ petitioner on the point, being on the question of possible prejudice to the accused only at a criminal trial, the contention advanced is that the said judgments would have no application. In support, reliance has been placed on a judgment of this Court in the case of [ENTITY] v. Airport Authority of India and Ors., reported in 2001 (3) GLT 389 to contend that this Court has held that a criminal proceeding would come into being only when the matter conies before the Court and not earlier to it. Learned counsel for the University has further argued that even assuming that the present position of the criminal investigation can be equated to a criminal case pending against the writ petitioner, no question of prejudice can and does arise, inasmuch as, the writ petitioner has already disclosed his defence, which disclosure, according to the learned counsel, is evident from the statements of the writ petitioner made before the enquiry committee constituted by the Vice Chancellor. The aforesaid statements enclosed to the affidavit of the respondent University have been placed before the Court in support of the submissions advanced.
6. The question as to whether a criminal proceeding and a departmental enquiry can and should proceed simultaneously has been answered by the Apex Court in numerous pronouncements over the last 5 decades. Notwithstanding the pronouncements made, the question has cropped up time and again and is likely to crop up in the future, primarily because the question has to be answered not from the stand point of any legal bar to the simultaneous conduct of the two proceedings as there is none, but from the stand point of desirability and/or advisability of such simultaneous continuance. The principles covering the question has been succinctly pointed out in the case of Capt. [ENTITY] (supra) and the said principles may be usefully extracted herein below :
"22. The conclusions which are deducible from various decisions of this Court referred to above are :
(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 honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."
7. In [ENTITY]'s (supra) case, the Apex Court before laying down the principles considered the entire gamut of case laws available on the subject including the cases cited on behalf of the petitioner and thereafter arrived at the above stated conclusions. The Apex Court in [ENTITY]'s case also considered an earlier decision in the case of [PRECEDENT], before holding that the question of prejudice is only one of the factors that will go into the balancing scale while judging the question of advisability, desirability or propriety of staying the departmental proceedings and one of the relevant considerations that must be put in the scale is that the departmental enquiry cannot and should not be unduly delayed. The eventual decision that a Court would be required to render on the issue raised, therefore, would depend on the facts and circumstances of each case.
8. In the instant case, it has been argued with great vehemence by the learned counsel for the petitioner that the criminal case and the departmental proceeding being admittedly on the same set of facts, if the writ petitioner is to participate in the departmental enquiry, his stand therein may amount to a disclosure of his possible defence in the criminal case. As noticed above, the argument has been met by contending that there is no criminal case pending against the writ petitioner; what is pending is an, investigation and the investigation may not result in a trial. The decision of this Court in the case of [ENTITY] (supra) to the effect that a "Criminal Proceeding" comes into existence only when the matter comes before the Court and not earlier to it", is an obiter, contends the learned counsel for the petitioner, inasmuch as, this Court in the aforesaid judgment had clearly indicated that the said point has been decided though not strictly arising for decision in the case. In such circumstances, learned counsel for the petitioner has repeatedly sought to persuade this Court that the question is open and should be decided in the present case. The true test, according to learned counsel for the petitioner is the possibility of prejudice in the trial that may be held against the petitioner. Notwithstanding the very weighty arguments advanced, this Court finds that the question raised would, once again, not arise for the decision, of the Court inasmuch as the case is capable of resolution even on a hypothetical assumption of the answer in favour of the writ petitioner. Assuming that it will be open for the writ petitioner to advance the plea of possible prejudice in the criminal case, even though the said case is at the stage of investigation, what has to follow is that such possible prejudice must be put in the balancing scale on one side with other factors on the other side of the scale and thereafter the Court must see which way the scale tilts. The other factors that will go into the balancing scale will have now to be evaluated.
It is not unknown that criminal investigation drag and often drag on for years. This is not to suggest that the present investigation has been delayed or would be delayed. But the possibility as noted above cannot be ruled out. At the end of such investigation, the case may not go for tail at all and even if it does, the trial may be a prolonged one. These are the factors that have to be put on the other side of the balance. The charge against the writ petitioner in the departmental proceeding is indeed serious and if any part of the said charge is correct, the petitioner would have no right to continue in office. Public interest would require that a charge of the nature brought against the writ petitioner must be determined at the earliest. Such a course of action may be advantageous to the writ petitioner also; he would have an early opportunity of proving his innocence. Public interest in such a situation must reign supreme and public interest, as already indicated, would require that the charges against the writ petitioner in the departmental proceeding is brought to its earliest conclusion. Individual rights built on established principles of criminal jurisprudence must give way, in an appropriate case, to public interest. Departure from such established principles are not known. The presumption of innocence of the accused, has given way to exceptions made by the Legislature whereunder the burden to prove such innocence has been sifted to the accused. Likewise, the possibility of prejudice must give way to the demands of public interest calling for a speedy conclusion of departmental proceeding. If the aforesaid factors are put on the opposite scale of the balance, the balance, in the considered view of the Court, appears to be tilted in favour of an early conclusion of the departmental proceeding.
9. For the aforesaid reasons, I am of the considered view that in the facts of the present case, the reliefs sought for by the writ petitioner ought to be refused and the respondent-authority should be given full liberty to proceed with the departmental enquiry against the writ petitioner and bring the said proceedings to its logical conclusion at the earliest.
The writ petition is, therefore, dismissed. However, having regard to the facts and circumstances of the case, there shall be no order as to costs.