IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6121 of 2009 YUGAL PD.GUPTA Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. Abhijeet Kr. Lal, Adv. For the Co-operative Bank:- Mr. S.N. Pathak, Adv. For the State:- Mr. S. Rahman, Assistant Counsel to S.C.17 ---------------- 2. 21.5.2009 Heard learned counsel for the petitioner, for the State and for the Bihar State Co-operative Bank. A chargesheet was drawn up against the petitioner on 1.7.2008. It contained nine charges. The gist of the charges relate to the acts of the petitioner along with others, with regard to grant of non agricultural loans violating the provisions regulating the same to persons on false identification. Such loans were granted from the Hatia Branch where the petitioner was posted and which loans were recommended by him. A show cause had been asked, which was found unacceptable. Charge one stated that certain loans which had been recommended by him on the premise that the loanee was an employee of CCL, but the loanee has been found fictitious. The pay scale, undertaking and employee code number furnished by such employee of CCL was also found fake and fictitious. Several of such loans had become NPA. These loans were granted in conspiracy by him. The loan application forms were not found filled up properly. In some case, the date of application for the loan and the grant of the loan were the same. All papers were processed in one day - 2 - under a pre-meditated plan causing loss to the Bank. A First Information Report has also been lodged against the Branch Manager including the petitioner registered at Doranda P.S. Case No. 59 of 2007 on 2.3.2007 prior to the issuance of the chargesheet under Sections 419 and 420 of the Penal Code and Sections 13(1)(d)(i) of the Prevention of Corruption Act. Learned counsel submits that the charges in the departmental proceeding and in the First Information Report are the same. If the departmental proceedings are not stayed, the petitioner may be required to disclose his defence which may prejudice him in the criminal trial. The prayer, therefore, is to stay the departmental proceedings till disposal of the criminal trial. The law stands settled that merely because there may be similarity between the charges in a departmental proceeding and in a criminal trial with regard to the same delinquent, with a similarity of evidence also may not simplicitor require stay of departmental proceedings pending disposal of the criminal trial. The purpose of the two are entirely different. In a criminal trial, the prime consideration is the need to control deviant behaviour contrary to the norms set by the Society, to protect the Society by deterrent punishment after proof of delinquency by strict rules of evidence to prevent miscarriage of justice. On the contrary in - 3 - a departmental inquiry, charges are to be proved on preponderance of probability only. In the departmental enquiry, the employer decides upon the dependability of the employee to be retained in service or other appropriate order conducive to administrative discipline. Even if the allegations are not proved in a criminal trial, nonetheless the employer may not have the confidence or desire to retain in service given the employers perception of usefulness and dependability, discipline. In the criminal trial, mens rea and culpability have an important role to hold guilt. While in a departmental inquiry, deviant conduct detrimental to the employer and discipline, shall suffice, without the need for any finding of mens rea or culpability. The question of prejudice to the delinquent by continuance of the departmental proceeding cannot be readily presumed or inferred. Only if grave and complicated questions of fact and law are involved, can the Court consider the stay of departmental proceedings. Each case shall thus depend on its own facts, and there can be no straight jacket formula. In the criminal trial issues of mens rea and culpability in conspiracy shall arise. In the departmental proceedings, violation of procedures in granting and recommending loans causing financial loss to the bank shall arise. The law in this regard stands well explained by the Supreme Court in 2007(10) SCC 385 (Noida Entrepreneurs - 4 - Association Vs. Noida and Ors.) at Paragraph 11 which reads as follows:- “A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness (See Tata Cellular v. Union of India and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh). The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas, Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry and Uttarachand RTC v. Mansaram Nainwal. “8 ……The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short „the Evidence Act‟). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict - 5 - standard of proof or applicability of the Evidence Act stands excluded is a settled legal position….. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.” A three – Judge Bench of this Court in Depot Manager, A.P. SRTC V. Mohd. Yousuf Miya (SCC pp. 704-05, para 8) analysed the legal position in great detail on the above lines.” This Court in the facts and circumstances of the case holds that the issues arising in the departmental proceedings and the criminal trial are therefore entirely different. In the former he may be found liable for penal punishment while in the latter the issue may be of the continuance of an employer employee relationship. The Court finds no merit in the plea for stay of departmental proceedings pending criminal trial. The application is dismissed. P. Kumar (Navin Sinha, J.)