IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 701 of 2008 Anekpal Singh …Petitioner. Versus The District Magistrate, Administrator, Nagar Palika, District Dehradun. …Respondents. Mr. A.K. Sharma, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for respondent nos. 1 and 2. Mr. B.D. Upadhyay, Advocate for respondent nos. 3 and 4. Hon’ble Sudhanshu Dhulia, J. The petitioner before this Court has challenged the order dated 29.1.1986 and 8.2.1989 passed by the District Magistrate, Dehradun and the Commissioner, Garhwal Division respectively. The petitioner was an employee of Municipal Board, Dehradun. At the relevant time in the year 1982-83 while the petitioner was serving as a Cashier in Municipal Board, Dehradun (as it was at the relevant time), he was charged with embezzlement along with another employee. A due process of law was adopted, inasmuch as a charge sheet was served upon the petitioner and full opportunity of hearing was given to the petitioner, and when the charges were established, his services were terminated vide order dated 29.1.1986. The case of the petitioner is that of the same charges, an FIR was also filed on 8.4.1986, which was registered as Crime No. 32 of 1986 under Section 409 I.P.C. at Police Station Kotwali, Dehradun. Consequently, a charge sheet was filed by the Police before the appropriate Court and a criminal trial proceeded against the petitioner, which ultimately resulted in acquittal of the petitioner on 21.1.1992. Now the contention of the learned counsel for the petitioner in the present writ petition is that since he has been acquitted of the charges, his termination order, which has been passed 2 earlier on 29.1.1986 and affirmed by order dated 8.2.1989 in appeal are liable to be set aside. Therefore, in short, the entire case of the petitioner moves around a proposition that since he has been acquitted by a criminal court, the entire disciplinary proceedings against the petitioner and the orders passed therein have no relevance and therefore, he should be taken back in the service and given all consequential benefits. This argument of the petitioner is wholly misconceived. It is a settled position of law that criminal proceedings and departmental proceedings are two separate proceedings and though a person may be acquitted in a criminal proceeding, it would not necessarily follow that the departmental proceedings against him will also be dropped or the order passed therein will be set aside. The acquittal in a criminal case would not be a bar in either drawing up a disciplinary proceeding against a delinquent officer, or setting aside the order passed in such a proceeding. This is so as the yardstick and standard of proof in a criminal case are different from that of a departmental proceeding. While the standard of proof in a criminal proceeding is “beyond reasonable doubt”, the standard of proof in a department proceeding is only “preponderance of probabilities”. The petitioner has cited the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another (1999) 3 SCC 679 in his favour and has contended that the Supreme Court in the aforesaid case has held that if a criminal proceeding and a departmental proceeding are on the identical set of facts, then in case a person is acquitted in a criminal proceeding, the departmental proceedings are also liable to be dropped. In the said case cited before this Court one Captain M. Paul Anthony, 3 who was working in a Government Undertaking in Karnataka as a Security Officer since 31.10.1983. A raid was conducted by the Superintendent of Police at his residence on 2.6.1985, where a mining sponge gold ball weighing 4.4 grams and 1276 grams gold-bearing sand was recovered from his house. On these set of facts, a First Information Report was lodged and consequently, he was also put under suspension and charge-sheeted in a departmental proceeding. The departmental proceeding culminated in his order of termination, whereas subsequently he was acquitted by the criminal Court. Captain Anthony, thereafter, came out with a case that since he has been acquitted by the criminal Court, his termination order is also liable to be set aside, as the action of his employer in both the cases i.e. the departmental proceeding as well as the criminal case was based on the same fact which was the raid conducted by the Superintendent of Police at his residence, from where a recovery was alleged to have been made and the departmental proceedings were, therefore, liable to be set aside as the facts and the evidence in the departmental proceeding as well as in the criminal proceeding were common. On these set of facts, the Apex Court in the said case held as under: “……the criminal case as also the departmental proceedings were based on identical set of facts, namely, “the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom”. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges 4 were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” However, the said case would not help the case of the petitioner for the simple reason that the only argument of the petitioner before this Court is that since he has been acquitted in a criminal proceeding, department proceeding and the orders passed therein are liable to be dropped. There is no effort on the part of the petitioner to explain that his case is based on identical set of facts as in the case cited above. Moreover, the Apex Court in the case of Capt. M. Paul Anthony (supra) had considered the entire law on the subject and had come to the conclusion that the basic rule in service jurisprudence is that the departmental proceeding and criminal proceeding can go on simultaneously and only in rare exceptional cases, where there are identical set of facts a different approach is required. Moreover, what had weighed before the Apex Court in the said case was that the petitioner in the said was not paid any subsistence allowance during his entire period of suspension as a consequence of which, he was unable to participate in the departmental proceedings. This act on the part of the department was held to be inhuman and in violation of the principle of “natural justice and fair play”. In the said judgment as relied 5 upon by the petitioner, after considering a catena of decisions, the Apex Court had drawn the following conclusions in such matters, which are stated in paragraph 22 of the said judgment. Paragraph 22 of the said judgment is being reproduced as below:- “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. (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, the administration may get rid of him at the earliest.” In the above case cited by the counsel for the petitioner, a reference is made of another Supreme Court’s decision in the case of State of Rajasthan Vs. B.K. Meena (1996) 6 SCC 417. It is appropriate to quote 6 the words of the Apex Court in the above judgment. These are as follows: “14. It would be evident from the above decision 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 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 also not 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 considerations is that the disciplinary enquiry cannot be –and should not be—delayed unduly. So far as the criminal cases are concerned, it is well known that they drag on endlessly where high officials 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 advice 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 administration and good government demand that these proceedings are concluded expeditiously. It must be remembered 7 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 view the various principles laid down in the decision referred to above.” In sum and substance, firstly the petitioner in the present case has not made out his case for himself as has been set out by the petitioner in the case of Capt. M. Paul Anthony (supra). Moreover, what the Supreme Court has laid down in the said case are the broad parameter under which all such matters have to be examined. The facts of the each case may vary and so would the approach of the Court. As stated above, therefore, this Court does not find any error of law in the orders dated 29.1.1986 and 8.2.1989, which call for interference from this Court. 8 In view of the above, the instant writ petition has, therefore, no merit and is liable to be dismissed. The same is accordingly dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 9.4.2010 Rathour