1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 1594/2011-B Reserved on :1st December, 2011 Date of Decision: 9th December, 2011 Rajdev Singh Jasrotia son of late Sh.Pradhan Singh, resident of House No.14, Mission Compound, Palampur, District Kangra, H.P. Petitioner Versus 1. State of Himachal Pradesh through Principal Secretary (Personnel) to the Government of HP, Shimla-2. 2. Deputy Superintendent of Police, SV & ACB Zone, Chamba, H.P. Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr. Dalip Sharma, Advocate For the respondent: Mr.R.K.Sharma, Sr. Additional Advocate General. Sanjay Karol, J. Petitioner has prayed for the following reliefs:- “(i) That the respondent may be restrained from proceeding with departmental proceedings initiated against the petitioner vide memorandum dated 24.11.2010, Annexure P-3, during the pendency of criminal proceedings against him pursuant to FIR Annexure P-1.” Whether the reporters of Local Papers are allowed to see the Judgment? 2 2. Annexure P-3 is the memorandum enclosing the Statement of Articles of Charges served in the disciplinary proceedings initiated against the petitioner, who was inducted into the H.P. Administrative Service in the year 1997. He was posted in District Chamba where many Hydro Electric Power Projects are being set up by private companies and was under transfer. On 11.2.2010 he was travelling from Chamba in a private Vehicle No. HP- 44A-0029 when Police intercepted and searched the same. Allegedly a sum of Rs.11,90,000/- was recovered from a briefcase, which was in his exclusive and conscious possession. He was unable to explain possession of such huge amount of cash in his custody. Police also recovered one LCD LG Plasma 81 cm. T.V., one Samsung Digital Camera and other electronic household items. FIR No.2/2010 dated 11.2.2010 was registered against the petitioner at Police Station, S.V. A.C.B, Chamba (HP). He was arrested but released on bail on 24.2.2010. On 12.2.2010 petitioner was placed under suspension. On 24.11.2010 he was served with the Memorandum containing Statement of Articles of Charges and statement of imputation of misconduct/misbehaviour in support thereof. 3. Articles of charges read as under:- “STATEMENT OF ARTICLES OF CHARGES FRAMED AGAINST SH. RAJ DEV SINGH JASROTIA, HPAS. 3 ARTICLE-I That the said Sh.Rajdev Singh Jasrotia, HPAS while travelling from Tissa after his transfer from the post of Sub Divisional officer (Civil), Tissa, District Chamba on 11.2.2010 in a vehicle bearing registration No. HP-44-A-0029 was intercepted at Hatli near Tunu Hatti by Sh. Arvind Chaudhary, Deputy Superintendent of Police in which the said Sh. Rajdev Singh Jasrotia, was found to be in possession of a sum of Rs.11.90 lakhs which was recovered from a brief case which was in his exclusive and conscious possession. Sh.RDS Jasrotia was not able to give any convincing or satisfactory answer to the Police party regarding possession of such huge amount of cash in his possession and consequently a case FIR No.2/2010 dated 11.2.2010, PS, SV&ACB, Chamba has been registered against the said Sh.RDS Jasrotia which is pending investigation. Thus, the said Officer by having such a huge amount of money in his possession without any satisfactory explanation has failed to maintain absolute integrity and devotion to duty in violation of provisions of rule-3 of Central Civil Services (Conduct) Rules, 1964 and has rendered himself liable for disciplinary action. ARTICLE-II That the said Sh.Rajdev Singh Jasrotia, HPAS, the then Sub Divisional officer (Civil), Churah at Tissa has also accepted one LCD, LG Plasma T.V. 81 CM worth Rs.30,800/- from Project Officer of 4 Tarolla Power Limited within his jurisdiction allegedly as a gift for the office of SDO (Civil), Tissa. In his capacity as SDO (Civil), Tissa he was having official dealings with the said project. At the time of interception on 11.2.2010 at Hatli Sh. Jasrotia was found to be carrying this TV with him which he had received from the above private party as a gift for the office. By removing this TV from the office to which it rightfully belongs or alternatively by receiving this gift for himself from the private party with whom the said Sh.Jasrotia was having official dealings, he has acted in contravention of Rule 3 of the CCS (Conduct) Rules, 1964 by failing to maintain absolute integrity or alternatively violating the provision of Rule 13(1) of Central Civil Services (Conduct) Rules, 1964 which prohibits Govt. servants from accepting gifts from any individual, commercial or Industrial firms having official dealings with him. Thus the said Sh.Raj Dev Singh Jasrotia has failed to maintain devotion to duty and has conducted himself in a manner unbecoming of a Govt. servant and has violated provisions of Rule 3(1) of CCS (Conduct) Rules, 1964 and has rendered himself liable for disciplinary action.” Sd/-24.11.10 Principal Secretary to the Government of Himachal Pradesh” 4. Petitioner responded to the same by filing reply dated 9.12.2010 (Annexure P-4), which is extracted in toto as under:- 5 “To The Principal Secretary (Personnel) to the Government of Himachal Pradesh, Shimla-171 002 Sub:- Reply to memorandum No. Per(A- IV)B(14)-2/2010 dated 24 Nov 2010. Sir, 1. The documents referred to in Annexure-III with the memorandum under reply have not been supplied to me. These documents would be necessary for enabling me to put forth my case effectively. Therefore, copies of the documents referred to in Annexure-III may kindly be supplied to me. 2. It is submitted that Article-I of the charges framed against me is subject matter of case FIR No.2/2010 dated 11.2.2010 registered at Police Station, SV&ACB, Chamba. As a matter of fact Article-I is reproduction of the allegations leveled against me in the aforesaid FIR. I have reasons to believe that all the witnesses cited against me in the memorandum under reply would also be examined as witnesses in the criminal trial pursuant to aforesaid case FIR. 3. The allegations in Article-II also appear to have arisen out of the same alleged incident as the list of documents at Annexure-III refers to “recovery memo of TV, LCD Plasma 81 cm”. I have reasons to believe that the allegations contained in Article-II would also be a subject matter of criminal trial against me pursuant to aforesaid FIR. The allegations alleged 6 in article-I & II are wrong and hence denied. 4. If the aforesaid inquiry precedes criminal trial, my defence before criminal court would be seriously prejudiced. In these circumstances it would be expedient in the interest of justice to stay departmental proceedings pending criminal trial pursuant to case FIR No.02/2010 dated 11.2.2010.” (Emphasis supplied) 5. Government did not accede to the petitioner’s request for staying the departmental proceedings. It was rejected vide order dated 18.3.2011. Consequently petitioner filed the instant petition on 23.3.2011. 6. Opposing the petition, the State has filed reply, inter alia, stating that considering the gravity of misconduct departmental proceedings stand initiated and also investigation in relation to the FIR being complete, challan is prepared which is to be submitted before the Court having competent jurisdiction. State has filed two affidavits dated 20.9.2011 and 24.11.2011. The second affidavit is filed to clarify the stand taken in the first affidavit. In crux the State has stated that:- “..The petitioner has also been chargesheeted for similar allegations including committing misconduct and an Inquiry has been initiated against the petitioner under Rule-14 of the CCS (CCA) 7 Rules, 1965, for failure to maintain absolute integrity and devotion to duty and receiving illegal gratification from sources with which he was having official dealings and also accepting gifts as is clear from the chargesheet served upon the petitioner” “….that in case the petitioner is innocent then he should not worry about the outcome of the criminal as well as departmental case as he may take defence on similar footing in both the matters.” 7. According to Mr. Dilip Sharma, learned counsel for the petitioner even as per the respondents’ own case, petitioner stands charge- sheeted on similar allegations, hence departmental proceedings ought to be stayed. In support of his contention, he has relied upon the decisions of the Apex Court in The Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, AIR 1960 SC 806 = (1960) 3 SCR 227, Kusheshwar Dubey v. M/s Bharat Cooking Coal Limited, (1988) 4 SCC 319, State of Rajasthan vs. B.K.Meena and others, (1996) 6 SCC 417, Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679 and State Bank of India and others vs. R.B.Sharma, (2004) 7 SCC 27, whereas according to Mr. R.K.Sharma, learned senior Additional Advocate General, if petitioner is innocent he should not worry about the outcome of the criminal as well as 8 departmental proceedings as it is open for him to take up defence on similar footing in both the proceedings. In support, he has also relied upon the decisions of the Apex Court in B.K.Meena (supra), Capt. M.Paul Anthony (supra), Kendriya Vidyalaya Sangathan and others vs. T.Srinivas, (2004) 7 SCC 442, Hindustan Petroleum vs. Sarvesh Berry, (2005) 10 SCC 471 and Indian Overseas Bank, Annasalai and another vs. P.Ganesan and others, (2008) 1 SCC 650. 8. In the instant case charge is serious. It is a case where a senior level government Officer, in the course of discharge of his duties was allegedly caught red handed by the police carrying cash amounting to Rs.11.90 lacs. He was also found to be possessed with a T.V., which was allegedly gifted by the contractor working in the area where petitioner was posted. 9. Facts relevant with regard to registration of FIR and institution of departmental proceedings are not in dispute. 10. After considering the decisions rendered by the Apex Court in The Delhi Cloth and General Mills Ltd. (supra), Tata Oil Mills Co. Ltd. vs. ITS Workmen, AIR 1965 SC 155 = (1964) 7 SCR 555, Jang Bahadur Singh vs. Baij Nath Tiwari, AIR 1969 SC 30 = (1969) 1 SCR 134, two Judge Bench of the Apex Court in B.K.Meena (supra), culled out various 9 principles/determining factors which are to be considered by the Courts for staying disciplinary proceedings initiated against the delinquent officials during pendency of proceedings initiated separately/simultaneously under the penal laws of the land. The Court was dealing with the case where a Senior member of the Indian Administrative Service while discharging his duties as Additional Collector, Development cum Project Director, District Rural Development Agency, was found to have amassed wealth by misappropriating public funds to the tune of Rs.1.05 crores. An FIR was lodged against him on 12.3.1990 and after conducting preliminary inquiry on the basis of complaint dated 8.12.1989 the Officer who was arrested on 26.3.1990 and remained in custody till 10.8.1990 was placed under suspension on 22.5.1990. Prosecution sanction was refused by the Government but disciplinary proceedings were initiated against him on 13.10.1992. He responded to the Articles of Charges supplied to him by filing a detailed reply. Subsequently challan was presented in the Court of learned Chief Judicial Magistrate on 15.5.1993. He initiated proceedings for stay of disciplinary proceedings pending criminal prosecution and the matter eventually landed up before the Apex Court and the order staying disciplinary proceedings, during the pendency of the criminal proceedings, passed by the High Court was vacated and both 10 proceedings were directed to be continued simultaneously. One of the factors which weighed with the Court was disclosure of defence by the delinquent official. 11. Reproduction of relevant portion of the said report, in my considered view, would be extremely beneficial for proper adjudication of the present lis:- “10. Purporting to follow the decision of this Court in Kusheshwar Dubey v. M/s Bharat Coking Coal Limited, [1988 (4) SCC 319] the Tribunal allowed the respondent's plea and stayed the disciplinary proceeding pending the criminal proceedings. 11. We are of the opinion that the order of the Tribunal is unsustainable both in law and on the facts of the case. In S.A. Venkataraman v. Union of India, {AIR 1954 SC 375}, the petitioner therein was subjected to disciplinary proceedings in the first instance and was dismissed from service on 17th September, 1953. On 23rd February, 1954, the police submitted a charge-sheet against the petitioner therein in a criminal Court in respect of the very same charges. The petitioner challenged the initiation of criminal proceedings on the ground that it amounts to putting him in double jeopardy within the meaning of clause(2) of Article 20 of the Constitution of India. A Constitution Bench of this Court rejected the said plea holding that there is no legal objection to the 11 initiation or continuation of criminal proceedings merely because he was punished earlier in disciplinary proceedings. It is thus clear - and the proposition is not disputed by Mr. K.Madhava Reddy, learned Counsel for the respondent - that in law there is no bar to, or prohibition against, initiating simultaneous criminal proceedings and disciplinary proceedings. Indeed not only the said two proceedings, but if found necessary, even a civil suit can also proceed simultaneously. Mr. Madhava Reddy, however, submits that as held by, this Court in certain later decisions, it would not be desirable or appropriate to proceed simultaneously with the criminal proceedings as well as disciplinary proceedings. 12. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan, [(1960) 3 SCR 227 : AIR 1960 SC 806], it was held that the principles of natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action against the employee. At the same time, the Court observed : "We may however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced." In Tata Oil Mills Company Ltd. v. Workmen, {(1964)7 SCR 555: (AIR 1965 SC 12 155)], it was observed, following D.C.M. [AIR 1960 SC 806] that : "it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. But to say, that domestic enquiries may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide." 13. In Jang Bahadur Singh v. Baid Nath Tiwari [(1969) 1 SCR 134 : (AIR 1969 SC 30)], the contention that initiation of disciplinary proceedings during the pendency of criminal proceedings on the same facts amounts to contempt of court was rejected. After considering the ratio of these three decisions, this Court held in Kusheshwar Dubey, [(1998)4 SCC 349 at page 323, paras 7 & 8] : "The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction 13 from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline. In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial Court's order of injunction which had been affirmed in appeal." 14. 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 14 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 fact 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 ground indicated in D. C. M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending, consideration is that the disciplinary enquiry cannot be - and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high official, or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of 15 administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. 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 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 periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in 16 view the various principles laid down in the decisions referred to above. 15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges ; some of them may he unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him. 16. Now, let us examine the facts of the present case. The memo of charges against the respondent was served on him, alongwith the articles of charges, on 13-10-92. On 9- 2-93, he submitted a detailed reply/defence statement, running into 90 pages, controverting the allegations levelled against him. The challan against him was filed on 15-5-93 in the criminal court. The respondent promptly applied to the Tribunal and got the disciplinary proceedings stayed. They remain stayed till today. The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames, the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The 17 respondent has already disclosed his defence in his elaborate and detailed statement filed on 9-2-93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise - a speculatory reason. We cannot accept it as valid. Though the respondent was suspended pending enquiry in May, 1990, the order has been revoked in October 1993. The respondent is continuing in office. It is in his interest and in the interest of good administration that the truth or falsity of the charges against him is determined promptly. To wit, if he is not guilty of the charges, his honour should be vindicated early and if he is guilty, he should be dealt with appropriately without any avoidable delay. The criminal Court may decide - whenever it does - whether the respondent is guilty of the offences charged and if so, what sentence should be imposed upon him. The interest of administration, however, cannot brook any delay in disciplinary proceedings for the reasons indicated hereinabove. 18 17. There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and 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 under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. 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 disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter