IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5048 of 2009 DR.CHENPAL SINGH @ C.P.SINGH Versus RAJENDRA AGRI.UNIVERSITY & ORS ----------- For the Petitioner: M/s Ashok Kumar Choudhary and Rajnish Kumar, Advocates For the University : Mr. Y.V.Giri, Sr. Advocate Mr.Raju Giri, Advocate ------- 4. 1.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the University. The petitioner was appointed as Assistant Professor cum Junior Scientist in the Rajendra Agricultural University, Pusa pursuant to Advertisement No. 16 of 1981. In a dispute for promotion to the post of Associate Dean cum Director, on a claim of being senior most, after filing CWJC No. 6270 of 2000, on 22.1.2005 promotion was granted to the petitioner and the writ application withdrawn as infructuous on 15.12.2006. It is urged that disgruntled with grant of promotion to him, some persons in the Department had Tajpur (Pusa) PS Case No. 405 of 2007 lodged against him under Sections 419, 420, 467, 468 of the Penal Code. Simultaneously departmental proceedings were also initiated. The allegation in the FIR was that he had obtained appointment and consequently promotion on wrong educational qualification certificates. The charge in the departmental proceeding was that he obtained appointment and promotion on forged and fabricated Science Graduate qualifications and Ph.D. Further charge in the departmental proceeding was of unauthorized absence and wrong furnishing of residential address as notices sent to him were returned. He was placed under suspension on 11.10.2007 which order was also 2 returned un-served because of furnishing of wrong address. The submission thus was that the charges in the FIR and the departmental proceedings were the same. The departmental proceeding should therefore be stayed pending disposal of the criminal case. Learned Counsel for the respondents opposing the application submitted that the criminal cases take unduly long for disposal. Departmental proceedings need not necessarily be stayed pending disposal of the criminal case as a matter of routine. The charges in the criminal case and the departmental proceedings are different. If he is exonerated in the departmental proceedings the criminal prosecution shall collapse. The evidence in the two may not necessarily be the same so as to cause prejudice by disclosure of defence in the departmental proceeding. Reliance was placed on 1996 (9) SCC 1 (P.S.Rajya Vrs State of Bihar), 1999 (3) SCC 679 (Captain M.Paul Anthoney Vrs Bharat Gold Mines Limited & anr.) and 2005 (10 SCC 471 (Hindustan Petroleum Corporation & ors Vrs Sarvesh Berry). There is no inflexible formula or as straight jacket formula that departmental proceedings must necessarily be stayed where there is a criminal case on the same charge pending. It shall necessarily depend on the facts of each case, whether any prejudice shall be caused to the delinquent and if the nature of the evidence is common. While in a criminal case it is the interest of the society to penalize the wrong doer, in a departmental proceeding it is the employer who wishes to discipline or terminate a person in service dissatisfied with his 3 acts. While in the former it is an errant behavior deviating from the norms of a civilized society governed by a rule of law, the latter relates to misconduct in course of and discharge of duties. Larger societal interests are not involved. In the present case, the allegations in the First Information Report and charges 1 and 2 of the departmental proceedings are the same. They both relate to illegal appointment and consequent promotion obtained by the petitioner on basis of allegedly fake and fabricated certificates and qualifications. In fact, the respondents have themselves acknowledged to that extent in their counter affidavit when they state at paragraph 8 as follows:- ‘8. From the aforesaid averments it transpires that although the first two charges of the charge memo are similar to the allegation leveled in the FIR but as far as the third and fourth charge is concerned, the same is not in the FIR. Hence, in totality the charges contained in the charge memo is not exactly the same to the allegations as contained in the FIR.’ To this Court, that clinches the issue on the claim of the petitioner. In any enquiry with regard to the fakeness of the certificate before any forum the only question is going to be of its genuineness to be confirmed or denied by the authority who is alleged to have issued the same. The qualifications relate to a body other than the respondents which cannot be answered by the respondents. There is no doubt that in this enquiry of facts, if the petitioner is required to disclose his defence in the departmental proceeding he may be prejudiced. The source of 4 the certificates can be only one and either the proved or disproved by that source. In the criminal trial evidence from the source shall be led in law rather than a decision on presumptions in the departmental proceeding where the author of the certificate may or may not participate. In a criminal trial he can be compelled to participate. Additionally, the petitioner was appointed in 1981, obviously after verification of his credentials. He was promoted in 2005 when the authorities must have examined his credentials again. The FIR or the memo of charges does not disclose any material or reason why and how the authorities so belatedly came to suspect his educational qualifications. The reliance sought to be placed by the respondents on the letter of Director Administration, Agricultural Directorate, shall itself be the subject matter of an enquiry whether it be in the criminal case or the departmental proceedings. This Court makes no such observation with regard to charges 3 and 4 of the departmental proceeding. The case of P. S. Rajya (Supra) relied upon by the respondents is of no relevance as it arose out of an application under Section 482 Cr.P.C. holding that after exoneration in the departmental proceeding there was no justification to continue the criminal prosecution on the same charge. It shall be a travesty of justice if the petitioner was compelled to face the departmental proceeding on that reasoning to find himself ultimately prejudiced in the criminal case. In the case of Bharat Gold Mines (Supra) the charge in the departmental proceeding 5 and the criminal case were the same, of the recovery of a gold ball from the house of the delinquent. The request to stay the proceeding was refused and the Court granted the liberty to the authorities to defer the disciplinary proceedings if found expedient to do so. After dismissal from service in the departmental proceeding came the acquittal in the criminal trial. The departmental appeal was rejected. The facts therefore are different. It was however observed therein that in a departmental proceeding the charge relates to misconduct in service, enforcement of discipline, integrity of the staff and the standard of proof required distinct from a criminal case. An exception could be drawn where the departmental proceedings and the criminal case are based on the same set of facts and evidence common without variance. The conclusions of the Court for the principles to be followed were then delineated in paragraph 22. Holding that the criminal case and the departmental proceedings with regard to recovery of a sponge gold ball were based on identical set of facts, the witnesses examined were common, the departmental proceeding could not take precedence. It was held at paragraph 35 as follows:- ’35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceeding and the criminal case on the basis of such approach and burden of proof, would not be applicable to the instant case.’ 6 In the case of Sarvesh Berry (Supra) in pursuance of disproportionate assets to the known sources of income leading to a criminal prosecution, when no progress took place in the same, disciplinary proceedings were initiated that it was not in public interest to retain the employee in service. The first charge was with regard to disproportionate assets while the other two related to non submission of returns in respect of properties under the Service Rules. It was held at paragraph 7 as follows;- ‘7. It is a fairly well settled position in law that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the Court has to decide, taking into account the special features of the case, where simultaneous continuance of both would be proper.’ Holding that no inflexible rule was possible, what was required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. Charges 2 and 3 could not be adjudicated in the criminal case and charge 1 was integrally connected to charge 2 and 3 as the properties which constituted disproportionate assets were required to be disclosed in the property returns under the Service Rules. In 2004 (7) SCC 27 (State Bank of India & ors Vrs. R.B.Sharma), the issue related to fraudulent transaction by a bank official amounting to misconduct. It was observed that the offence triable in the criminal trial was an infringement of a 7 public duty as distinct from a departmental proceeding relating to conduct or breach of duty in service. What had to be seen was if the departmental enquiry would prejudice the delinquent in his defence in a criminal trial. The court must disclose skeletal reason why it was satisfied for the need to stay the departmental proceedings. The commonness of the charge in the FIR and in the departmental proceedings under Item 1 and 2 have been acknowledged by the respondents to be the same. It has already been discussed that the evidence with regard to the same is bound to be common. This Court is therefore satisfied that to allow the departmental proceeding to continue with regard to charge no. 1 and 2 shall cause prejudice to the petitioner. This Court therefore directs that the departmental proceedings shall remain stayed in so far as charge 1 and 2 are concerned till the disposal of the criminal trial but that the departmental proceedings shall continue with regard to charge 3 and 4 which are related to the conduct of the petitioner in course of service. In terms of the guidelines laid down in the Bharat Gold Mines case at paragraph 22(v) shall however apply as narrated hereinafter:- ‘22(v) If the criminal case does not proceed or its disposal is being unduly delayed the departmental proceedings, even 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 dater so that if the employee is not found guilty his honor may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.’ 8 The writ application is allowed but only to the extent indicated. Snkumar/- (Navin Sinha,J.)