274wp1622.10.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No. 1622 of 2010 (Surender Kumar s/o. Bansidhar Gupta .vs. Central Bank of India and Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D. D. Sinha and F. M. Reis, JJ. Date : 27/04/2010. Heard Mr. J. M. Gandhi, Adv. for petitioner and Mr.N.W.Almelkar, Adv. for respondent nos. 1 to 3. The short question which falls for our consideration in the instant Writ Petition is whether the departmental enquiry can be permitted to be continued while criminal case in respect of same charges is pending. Counsel for the petitioner has contended that since the charges to be proved by the department in the departmental enquiry as well as by prosecution in the criminal trial are identical and if the departmental enquiry is permitted to be continued before the criminal trial is over, in that event, the petitioner's defence would be adversely affected and therefore, the learned Counsel has prayed that the departmental proceedings may kindly be stayed till the criminal trial is completed. In order to substantiate the contentions, reliance is placed on the decision of the Supreme Court reported in 2005 (1) CLR 263, Hindustan Petroleum 274wp1622.10.odt 2 . Corporation Ltd. and Ors. vs. Sarvesh Berry. Counsel for the respondents, on the other hand, has contended that the issue is no more res-integra and is concluded by the decision of the Apex Court reported in 2004 (III) CLR page no.4, Kendriya Vidyalaya Sangathana and Ors. vs. T. Srinivas. It is contended that the facts involved in the present case are identical to one involved in the said case, which is decided by the Apex Court. It is contended that the Apex Court in para 11 of the said Judgment has observed 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 offence registered against him is established and, if established, what sentence should be imposed upon him. It is contended that, in view of decision of the Apex Court, considering gravity of charges and the issue involved, the Apex Court permitted the departmental proceedings to continue even though the criminal trial was pending in respect of the same charges. Considered the rival contentions canvassed by the respective Counsel and perused the decisions of the Apex Court cited. The Apex Court in para 8 in the case of Hindustan Petroleum Corporation Ltd. and Others (cited supra) has observed thus : “ It is 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 274wp1622.10.odt 3 . based on same set of facts and evidence in both the proceedings is common. It is in these cases, the Court has to decide, taking into account special features of the case, whether simultaneous continuance of both would be proper “ The above referred observations make it evidently clear that, in principles, the proceedings in criminal case and departmental proceedings can go on simultaneously. However, the Court has to decide taking into account special features of the case whether permitting both proceedings simultaneously would be proper or not. It is not in dispute that the facts involved in case of Kendriya Vidyalaya Sanghatana and Ors. (cited supra) are similar to one involved in the present Writ Petition and therefore, it will be appropriate to refer to the relevant observations made by the Apex Court in para 11 of the said judgment, which reads thus : “ 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 pending. Neither the Tribunal nor the High Court 274wp1622.10.odt 4 . 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) had 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 be almost similar to the facts of this case held that the Tribunal fell in error in staying the disciplinary proceedings.” Considering the observations made in para 11 of the Judgment, whether the proceedings of departmental enquiry should be permitted to continue simultaneously with that of the Criminal 274wp1622.10.odt 5 . trial would necessarily depend upon the nature of misconduct, the charges delinquent is facing in the departmental enquiry as well as in the Criminal trial before the competent Criminal Court. In the instant case, the charge pertains to acceptance of illegal gratification and therefore, desirability of continuing the petitioner in service in respect of such clear charge levelled against him needs to be decided by the department in the departmental enquiry, whereas in the criminal proceedings, the question would be whether the offence registered against the petitioner would be established and the sentence to be given to the petitioner accordingly. The Apex Court in this situation permitted the departmental enquiry to go on simultaneously even though the Criminal proceedings were pending before the Criminal Court. In the circumstances, no case is made out for showing indulgence. Hence, the petition is dismissed. JUDGE JUDGE jais