-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2210 OF 2007 Babulal Verma ) Working as Area Officer, Incharge of Western ) Railway, Churchgate, Mumbai-400 020 ) residing at Room No. 7, 3rd floor, Station Building, ) Marine Lines Railway Station, ) Mumbai-400 020 )..Petitioner versus 1. Union of India, through its ) General Manager, Western Railway, ) Churchgate, Mumbai-400 020 ) 2. Inquiry Officer, FA & CAO ( C) II, ) Churchgate, Western Railway, ) Mumbai-400 020 )..Respondents Mr. C.M. Jha for the petitioner. Mr. Suresh Kumar for the respondents. CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J. Judgment reserved on : January 11, 2008 Judgment delivered on: January 17, 2008 JUDGMENT (Per Swatanter Kumar, C.J.): 1. The petitioner was appointed and is presently working as Area Officer, Western Railway, Churchgate, Mumbai. The Central Bureau of Investigation (“C.B.I.”) conducted a raid at Surat Railway -2- Station when the petitioner was working as Area Officer at Surat Railway Station under respondent No.1. In furtherance to the raid, the C.B.I. filed a charge-sheet on 23rd January, 2000 bearing No. RC 2 (A) 2000 GNR in the Gandhinagar Court for offences punishable under Sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code and under Section 13 (2) read with 13 (1) of the Prevention of Corruption Act, 1988. The C.B.I. Investigation conducted against the petitioner disclosed, inter alia, that the refund was granted on tickets on which journey had already been performed, despite its confirmation full refund was granted deducting only Rs. 10/- as clerical charges, tickets were refunded despite bearing the remarks “no refund”, cancellation slips were prepared on plain paper which is contrary to the Railway Rule and that the refunds were issued by Surat Railway Station, while it was not so authorised and that too without verification of addresses and the persons claimed the refund, etc. The criminal trial is pending before the Court of competent jurisdiction. However, no effective proceedings have been taken in these cases, though they are pending now for a period of more than seven years. 2. Respondent No.1 issued a charge-sheet to the petitioner on 6th December, 2002. A copy of the said charge-sheet is annexed at -3- Exhibit-B to the petition. There is some similarity between the allegations made in the charge-sheet and the report filed by the C.B.I. under Section 173 of the Criminal Procedure Code. However, the main thrust of the article of charges served upon the petitioner departmentally is of causing financial loss to the Railways to the extent of Rs. 2,06,143/-, failing to exercise proper supervision and condoning the delay and issuing manual refund which was not permissible at Surat Station in such circumstances. The petitioner filed an application before the Enquiry Officer to stay the proceedings on the ground that the article of charges and the report filed by the C.B. I. were on similar facts and as such the departmental enquiry should be stayed. He placed reliance upon the judgment of the Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. And another, 1999 (3) SCC 679. Vide order dated 27th December, 2006, the representation of the petitioner was rejected by the enquiry officer stating that the enquiry was at the final stage and there was no justification for staying the departmental enquiry. Dissatisfied by the order of the enquiry officer dated 27th December, 2006, the petitioner also filed a representation before the Disciplinary Authority to stay the domestic departmental enquiry till conclusion of the criminal trial on 28th December, 2006. This was also declined and vide order dated 26th February, 2007, the enquiry -4- officer was asked to continue and conclude the departmental enquiry. 3. Aggrieved with the above order, the petitioner filed Original Application before the Central Administrative Tribunal bearing No. 128 of 2007 on 13th March, 2007. The Tribunal vide its order dated 12th June, 2007, rejected the request of the petitioner. The order of the Tribunal gave the following reasons for declining the request of the petitioner. “A bare reading of the criminal charge-sheet as well as department charge-sheet makes it clear that the CBI is concerned with the issue from a different angle altogether. The CBI is concerned with the larger issue of criminal conspiracy alleged to have been chalked out by the applicant and some other officers along with some outsiders in defrauding the Railways. Whereas the departmental inquiry is solely concerned with the conduct/misconduct of the applicant in his capacity as an Area Officer at Surat Railway Station and his role in the incident. The issues before the disciplinary inquiry is whether the applicant transgressed the powers etc. “ “12. This is also evident from the records of the case that no complicated questions of law and facts are involved in the case so as to dissuade the Disciplinary Authority to stop the disciplinary proceedings to be conducted by the Inquiry Officer in question. The charges in the disciplinary inquiry are plain and simple and hence the contention of the learned counsel in this regard that the charges are complicated is rejected. Thus, there is no infirmity or -5- illegality in simultaneously continuing the departmental proceedings in the present case.” 4. The order is impugned primarily on the ground that the departmental proceedings and the criminal case are based on identical and similar set of facts and it would be desirable to stay the departmental proceedings. While relying upon Article 20 (2) of the Constitution of India, the petitioner also contends that it will tantamount to double jeopardy and there is prohibition that the petitioner should be asked to continue the departmental enquiry. It is stated that the evidence is the same and as such grave prejudice will be caused to the petitioner, if he is compelled to continue with the departmental enquiry. It will be useful to refer to the relevant law on the subject at this stage. 5. A Bench of this Court in the case of Anupama Naik vs. The Standard Chartered Bank and ors. (Writ Petition No. 956 of 2007), decided on 21st June, 2007, after discussing the law in detail held as under. “In the case of Darshan Kumar Gupta v. Punjab National Bank (CWP No. 8796 of 2001), a Division Bench of the Punjab High Court answered this question, after discussing the law, as follows:- “Whether as a matter of rule, there ought to be -6- deferment of conclusion of departmental proceedings till pronouncement of judgment by the Court of competent jurisdiction in a criminal-trial, where the delinquent claims similarity in articles of charges and the charge framed in criminal proceedings? is the question that arises for consideration before us in this writ petition. The Petitioner was working as Assistant Manager in Saidoke Branch of the Punjab National Bank. Upon registration of FIR No. 3 of 2000 dated 4.10.2000, the petitioner was arrested by the State Vigilance Department of the State of Punjab on 4.10.2000. Vide order dated 30.10.2000, petitioner was placed under suspension as a result of his arrest in a criminal case. The respondent Bank served a charge-sheet upon him containing different articles of Charges accompanied by memorandum of allegations on 16.4.2001. Enquiry officer was appointed vide order dated 7.6.2001. In furtherance to registration of the F.I.R., the investigating agency filed the challan and a charge was framed against the petitioner by the Court of competent jurisdiction. The contention of the petitioner is that the charge framed by the criminal Court and the Articles of charges served upon the petitioner are based upon common premises and in the event of departmental proceedings continuing, the petitioner would suffer a serious prejudice in his defence before the criminal Court the foundation of both the charges being the same. While relying upon the judgment of the Supreme Court in the case of M.Paul Anthony Versus Bharat Gold Mines Ltd., 1999 (2) RSJ 318 and Jatnu Ram Versus State of Haryana, 1999 (3) RSJ 134, the petitioner prays for stay of departmental proceedings till the conclusion of the criminal trial. Vide order dated 4.7.2001 a Division Bench of this Court had granted interim exparte stay of departmental proceedings. The respondents filed an application for vacation of the stay order under Article -7- 226(3) of the Constitution of India. The reply affidavit was also filed. Written Statement was also filed along with stay application. According to the respondents, the writ petition was liable to be rejected as the petitioner had not approached the Court with clean hands. The charge-sheet dated 16.4.2001 is stated to be different and distinct from the charge framed against the petitioner under Sections 17 and 13(2) of the Prevention of Corruption Act, 1988. It is specifically pleaded that the scope of the enquiry and investigation is distinct and different in the facts and circumstances of the present case. The petitioner was caught red handed while accepting the bribe. As pleaded by the respondents, the petitioner used to demand money from various customers for advancement of loans. The specific incident related to 3.10.2000 when documents of loan were got executed. Despite sanction of the loan, the cash orders were not delivered to persons, which were seized on 4.10.2000 upon arrest of the petitioner. As this question arises more than often in various cases before the Court, we consider it appropriate to discuss the law enunciated by different judgments in regard to such matters. Thus, it would be appropriate to examine the legal aspect of the case before we proceed to discuss the merits of the contentions raised in view of the peculiar facts and circumstances of this case. We have no hesitation in answering the proposition at the very outset of the judgment in the negative. It is neither practicable nor possible to accept the contention of the petitioner as a matter of absolute proposition of law. General principles which emerge from various pronouncements of the Hon'ble Apex Court definitely indicate that there cannot be a strait jacket formula for deciding the controversy of the present kind. Where there is no specific bar for simultaneous progress of the departmental enquiry and the criminal trial, there the exceptions have also been carved out to the rule. There could be cases -8- where the departmental enquiry and the criminal trial are not only based on identical facts, but are so intermingled that their simultaneous progress could cause serious prejudice to the right of defence of the delinquent. Unless the evidence to be led in support of articles of charges in disciplinary proceedings and in criminal trial are so intricate and difficult and require proper technical or legal appreciation for their final determination, no fruitful purpose can be served by stalling departmental proceedings which are much simpler in their nature and do not require strict adherence to rule of evidence. The distinction between the departmental enquiry and criminal trial is distinctively accepted and is not a fine one so as to normally cause over-lapping of proceedings and evidence. Initiation of criminal proceedings per se is not a bar to concurrent and continuation of disciplinary proceedings on somewhat similar facts. In certain cases, the Supreme Court has even sustained the argument of the department that departmental proceedings could continue even after the delinquent is acquitted by a criminal Court of such charge. In light of these principles we would now refer to specific judgments to provide clarity to the point of view we propose to take in the present case. A Division Bench of this Court in a very recent judgment in the case of Shri Birbal Versus Haryana State Electricity Board and others, CWP No. 15171 of 2002, decided on 26.09.2002 held as under:- 'It is settled principle of law that the departmental proceedings in all the cases cannot be stayed till the conclusion of the proceedings before the criminal court merely on the ground the articles of charges and charges before the criminal court have the similarities. It will have to be decided keeping in view the facts and circumstances of each case. At this stage, it may be relevant to -9- refer to the view expressed by the Hon'ble Apex Court in various cases relating to desirability of continuation of disciplinary proceedings despite criminal charge having been filed against the delinquent official. The Hon'ble Supreme Court in the case of Delhi Cloth and General Mills Ltd. v. Kushal Bhan A.I.R. 1960 Supreme Court 806 held as under:- 'Though very often employers stay enquiries into the misconduct of the employees pending the decision of the criminal trial courts dealing with the same facts and that is fair, it cannot be said that principles of natural justice require that an employer must wait for the decision, at least of the criminal trial court, before taking action against an employee.' Further reference can be made to the case of Jang Bhadur Singh V. Baij Nath Tewari reported as A.I.R. 1969 S.C. 30. The above view was reiterated with approval and with further extended limits of desirability of continuation of disciplinary proceedings even after being absolved or otherwise by the Hon'ble Supreme Court in the case of State of Punjab & Anr. v. Dalbir Singh & Ors. J.T. 2000 (10) S.C. 456, where the court held as under:- 'The question that arises for consideration, therefore, is whether the levy of penalty under the provisions of Motor Vehicles Act would absolve the concerned employee from all liabilities and would debar the disciplinary authority to initiate disciplinary proceedings. In other words, the question would be whether initiation of a departmental proceedings would tantamount to violation of provision contained in Article 20 (2) of the Constitution. Having examined the relevant facts involved in these appeals and having examined the judgment of the Full Bench of Punjab and Haryana High Court, we have no hesitation to come to the conclusion that the Full Bench rightly interfered with the judgment of the Division Bench of -10- Punjab and Haryana High Court. In our view, the payment of penalty under the provisions of Motor Vehicles Act would not absolve the employee fully from all other liabilities nor would it debar the employer from initiating a departmental proceedings for the alleged misconduct of the concerned delinquent employee. Such initiation of a departmental proceedings by no stretch of imagination, can be held to be a violation of provision of Article 20 of the Constitution of India.' Similar view was expressed a Division Bench of this Court in R.N. Yadav, Accountant Sugar Mills, Shahabad Markanda, Haryana v. State of Haryana and others, 1997 (2) SCT 332. Another Division Bench of this Court in the case of Som Prakash Wadhawan vs. The Uttari Haryana Bijli Vitran Nigam and others decided on 12.4.2002, where the Court held as under:- 'It is a well settled rule of law that the scope, effect and consequences of the criminal and departmental proceedings are distinct and different. One necessarily may not determine the fate of the other. Once the employer has a reasonable suspicion on its employee for a serious offence like demanding and accepting illegal gratification, to prevent the department from taking recourse to conclusion of the proceedings, merely because the criminal proceedings have also been initiated against the official by the police / State Vigilance Department, would neither be just nor fair. The burden to show serious prejudice to his rights is upon the delinquent officer / official. The learned counsel for the petitioner has not been able to show as to what prejudice the petitioner is likely to suffer if both the proceedings continue. The rules governing a criminal trial are so stringent that a delinquent officer as an accused may get benefit of doubt and resultant acquittal, but that necessarily may not entitle him clearance in the departmental enquiry. The department would be well within its right to conduct an enquiry and -11- pass appropriate orders in accordance with law. In the present case the evidence of the petitioner has still to start and it is not certain as to when the criminal proceedings pending before the Court of competent jurisdiction would attain finality. To keep the departmental proceedings in abeyance for such an indefinite period even otherwise would not be in consonance with the settled canons of service jurisprudence. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of the 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.' It also must be noticed that there is no rule which on its plain reading or on the principle of “necessary implication” can be construed as a bar for continuation of the two proceedings simultaneously. Thus, unless it is demonstratively shown that the petitioner would be exposed to grave prejudice and the proceedings are so intermingled that one cannot continue de-hors the other it may not be appropriate for the Court to stay the continuation of departmental proceedings till conclusion of the criminal proceedings. In this regard reference can also be made to a judgment of the Calcutta High Court and a Division Bench judgment of Rajasthan High Court respectively in the cases of Basudev Mitra, 1994(5) S.L.R. 401 and Laxman Lal Versus State of Rajasthan, 1994 (5) S.L.R. 120. (Reference State of Rajasthan Versus Shri B.K. Meena and others, JT 1996 (8) S.C. 684 = AIR 1997 S.C. 13).' In addition to the above judgments, reference to some other judgments of the Apex Court which have a direct bearing on the -12- matter in issue would be proper. In the case of State of Rajasthan Versus B.K. Meena and others, AIR 1997 Supreme Court 13, it was held as under:- “'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 emphasised, 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 facts 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. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to -13- enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long period pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be a matter of course.” In the case of Capt. M.Paul Anthony Versus Bharat Gold Mines Ltd. and another, 1999 (2) RSJ 318, the Hon'ble Apex Court held as under:- “These decisions indicate that though it would not be wrong in conducting two parallel proceedings, one by way of disciplinary action and the other in the criminal court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the employees in a domestic inquiry is being tried in a criminal court.' In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and another vs. Ramchandra and others, 1981 (2) S.L.R. 274, it was held as under:- 'Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered.' In the case of Jang Bahadur Singh Versus Baij Nath Tiwari, AIR 1969 Supreme Court 30, the Hon'ble Supreme Court held as under:- 'The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The -14- same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceedings does not bar the taking of disciplinary action. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding.' Upon analysing the application of principles enunciated by the Hon'ble Apex Court, a Division Bench of this Court in the case of Sarita Kumari and others versus The Punjab State Electricity Board, Patiala and others, 1995 (1) P.L.R. 495 spelled out the conditions which need to be satisfied before the Court could grant stay of departmental proceedings because of pendency of criminal trial of the delinquent official. The Court held as under:- 'It is true that Court may not be able to evolve any hard and fast rule or formula on the basis of which stay of departmental proceedings can or cannot be granted in cases of simultaneous invocation of remedies by an employer. Equally true is the position of law that emerges from various other pronouncements including the judgments referred to supra that there can be no legal bar for simultaneous proceedings being taken against delinquent employee i.e. disciplinary as well as criminal action. Thus, we feel that it may be appropriate to satisfy certain basic conditions or criteria which the Courts may consider while dealing with the cases specially of the present nature. These are intended to be general guiding factors and are not exhaustive. Thus, the Courts may have to consider the existence of the following conditions in their right perspective to determine and decide whether the stay may or may not be granted in a given case:- i) The criminal action and the disciplinary proceedings are grounded upon the same set of facts; ii) Identical and or similar questions arise for determination before the criminal Court of competent -15- jurisdiction and the disciplinary / enquiring authority; iii)The complexity of the merits of the case, that is to say, the case is of grave nature and involves questions of fact or law which are not simple and normally should be decided by a Court of law alone; and iv)Whether it will be unfair to the delinquent employee to permit continuation of simultaneous proceedings because it would prejudicially affect the case of the said employee, or the delinquent employee would face serious prejudice in his criminal