293wp964.11.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 964 of 2011 Rajesh Deorao Kurve , Aged 41 yrs., Oc. Service, r/o. Shastri Chouk, Near Nandadip Medical Stores, Bachelors Road, Wardha. ….. PETITIONER //VERSUS// 1. Maharashtra State Warehousing Corporation, Gul Tekdi Road, Market Yard, Pune-37, through its Chairman and Managing Director. 2. Departmental Enquiry Officer, Maharashtra State Warehousing Corporation, Gul Tekdi Road, Market Yard, Pune-37, through Shri S.V.Durekar. …... RESPONDENTS. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.A.C.Dharmadhikari, Adv. for the petitioner. Mr.N.R.Saboo, Adv. for respondent no.2. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 293wp964.11.odt 2 . Coram: D. D. Sinha and A. P. Bhangale, JJ. Date : 29/03/2011. ORAL ORDER : 1. Heard Mr.A.C.Dharmadhikari, Adv. for the petitioner and Mr.N.R.Saboo, Adv. for respondent no.2. 2. This petition is directed against the order dt. 17.2.2011 passed by the Enquiry Officer whereby the request made by the petitioner for staying the departmental enquiry in view of a criminal case pending before the Criminal Court on some charges came to be rejected. Counsel for the petitioner has submitted that the impugned order is bad in law in view of decision of the Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another reported in AIR 1999 SC 1416 (1) as well as decision of the Apex Court in the case of Noida Entrepreneurs Association .vs. Noida and Ors. reported in (2007) 10 SCC 395 293wp964.11.odt 3 . 3. Counsel for the petitioner has submitted that the Apex Court in the case of Capt. M. Paul Anthony has given guidelines in this regard. The relevant observations made in para 22 of the decision are as under : “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. 293wp964.11.odt 4 . (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, administration may get rid of him at 293wp964.11.odt 5 . the earliest. “ 4. It is submitted that the above referred observations, particularly in para 2, would show that 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 conclusion of the criminal case. It is submitted that, in view of the above referred observations, it is clear that if the charges are identical and of grave nature which involves complicated questions of law and facts, in such a situation it is always desirable to stay the departmental enquiry till such time the criminal case is decided by the Criminal Court. It is, therefore, contended that the impugned order passed by the Enquiry Officer is inconsistent with the law declared by the Apex Court in Capt. M. Paul Anthony (cited supra). 5. Similarly, Counsel for the petitioner has further contended that, the Apex Court in the case of Noida 293wp964.11.odt 6 . Enterpreneurs Association (cited supra), after taking into consideration the law declared by it in the case of Capt. M. Paul Anthony (cited supra), has virtually reiterated the law declared by the Apex Court in the case of Capt. M. Paul Anthony. 6. It is, therefore, contended that 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. 7. Counsel for the petitioner has, therefore, contended that the impugned order passed by the Enquiry Officer rejecting the request of the petitioner for staying the departmental enquiry during pendency of the criminal case is bad in law and is not sustainable in law. 8. Mr.N.R.Saboo, Adv. for the petitioner, on the other hand, has placed reliance on the decision of the Apex Court 293wp964.11.odt 7 . rendered in the case of Kendriya Vidyalaya Sangathan and Ors. vs. T. Srinivas reported in 2004 III CLR 4. It is submitted that the law declared by the Apex Court in the present case is squarely applicable to the facts of the case in hand. It is submitted that the observations made in para 11 of the said Judgment clearly show that neither the Tribunal nor the High Court took into consideration seriousness of the charge which pertains to acceptance of illegal gratification and desirability to continue the appellant in service in spite of such serious charges levelled against him. 9. It is submitted that the observations made by the Apex Court need to be considered depending upon seriousness of nature of charge. If the charge is of serious nature, such as accepting illegal gratification etc., in such a situation, it is not mandatory to stay the proceedings of departmental enquiry, though the charges framed against the delinquent are identical in both the proceedings i.e. in the departmental enquiry as well as in the criminal case. It is, therefore, submitted that the impugned order passed by the Enquiry Officer is sustainable in 293wp964.11.odt 8 . law. 10. Having considered the contentions canvassed by the learned Counsel for the respective parties and on perusal of decision of the Apex Court, we are of the view that, in the normal course, 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 is desirable to stay the departmental proceedings till the conclusion of the criminal case. However, the nature of charge in the case is grave or otherwise would necessarily depend upon the nature of offence, the nature of case launched against the employee on the basis of the evidence and the material collected against him during the investigation. 11. The Apex Court in the case of Capt. M. Paul Anthony (cited supra) in sub-clause (iii) of Para 22 of the decision, referred to hereinabove, has clearly observed in this regard. 293wp964.11.odt 9 . Similarly, in clause (ii) of para 14 of the decision of the Apex Court in Noida Enterpreneurs Association (cited supra) similar legal situation has been reiterated by the Apex Court. However, so far as decision of the Apex Court in the case of Kendriya Vidyalaya Sangathan and Ors. (cited supra) is concerned, the same is squarely applicable to the facts involved in the present case and the observations of the Apex Court in paras 11 and 14 of the said case are relevant for the purpose of considering the issue involved in the present case, which read thus : “11. In the instant case, from the order of the tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, reading of the two impugned orders indicates that both the tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is 293wp964.11.odt 10 . pending. Neither the tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the appellant in service in spite of such serious charges levelled against him. This Court in the said case of State of Rajasthan (supra) has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that in the disciplinary proceedings the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established and, if established, what sentence should be imposed upon him. The court in the above case further noted that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan the facts which seems to 293wp964.11.odt 11 . be almost similar to the facts of this case held that the tribunal fell in error in staying the disciplinary proceedings. “ “14. We are of the opinion that both the tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into second question whether at least charge no.3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned counsel for the appellant. “ 12. The observations made by the Apex Court in the case of Kendriya Vidyalaya Sangathan and Ors. (cited supra) in the above referred paragraphs clearly demonstrate that the approach and the objectives in the criminal proceedings and the disciplinary proceedings are altogether distinct and 293wp964.11.odt 12 . different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him are established, and if established, what sentence should be imposed upon him. It is also evident that the standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are distinct and different and therefore, if the nature of charge is identical in both the proceedings, however the offence is grave like in the present case of accepting illegal gratification, in such a situation, irrespective of outcome of the criminal case, the question would be desirability of continuation of such deliquent in service, which needs to be decided on entirely different set of facts and therefore, in view of the law declared by the Apex Court in the case of Kendriya Vidyalaya Sangathan and Ors. (cited supra) and Others, we are of the view that the petition suffers from lack of merits. 13. Counsel for the respondent states that, if the 293wp964.11.odt 13 . petitioner appears before the Enquiry Officer on 20.4.2011, further steps in the departmental enquiry shall be taken in accordance with law. 14. For the reasons stated hereinabove, no case is made out for showing indulgence. Hence, the petition is dismissed. JUDGE JUDGE jais