IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9213 of 2011 Ritesh Kumar son of Sri Bipin Kumar, Manager (Technical) F.C.I. Branch office Purnea, resident of Setu Nagar, near Sonali Auto P.S. Anisabad, Patna …Petitioner Versus 1. The General Manager,(Region) The Food Corporation of India, Regional office, Exhibition Road, Patna 2. The Area Manager, Food Corporation of India, Purnea 3. The Area Manager, Food Corporation of India, Patna 4. The Executive Director, East Zone, Food Corporation of India, Zonal office, 10-A, Middle Row, Calcutta- 17 5. The Deputy General Manager (Vig.) Food Corporation of India, Zonal office, Calcutta-71 Patna 6. The Deputy General Manager, Food Corporation of India, Regional Office, Patna. 7. The Assistant General Manager (pers) Food Corporation of India, Regional Office, Patna. 8. Sri S. A. Ansari, Food Corporation of India, Regional Office, Patna. Respondents ----------- For the petitioner :Mr. S.P.Mukherjee, Sr. Advocate For the Respondents :Mr. Prabhakar Tekriwal ----- 07. 14.09.2011 Petitioner has filed the present writ application under Article 226 of the Constitution of India seeking to quash the communication dated 21.10.2010 (Annexure-7) as also the communication dated 24.01.2011 (Annexure-9) passed by the respondents. By order contained in Annexure-7, a departmental proceeding has been initiated against the petitioner and statement of articles of charge has been served on him. By order/communication dated 24.01.2011 (Annexure-9), the respondents have appointed AGM(CE), FCI, Regional Office, Patna as the Enquiry Officer to enquire into the charges framed 2 against the petitioner. Setting of facts giving rise to the writ petition, in brief, are as under: The petitioner during the relevant period was functioning as the Manager (Technical)/Quality Control, Food Corporation of India (for short „the FCI‟) PPC Bihta, Bihar. He was arrested on 26.8.2009 by the sleuths of the Central Bureau of Investigation (CBI) while demanding and accepting bribe in the sum of Rs.20,000/- from one Shri Surendra Kumar Singh in lieu of issuance of acceptance note against delivery/deposit of 140 quintals of Advance Rice. Recovery of graft amount was made under memorandum of recovery by arranging a trap. Accordingly, a criminal case under section and 13(2) read with section 13(ii)(d) of the Prevention of Corruption Act,1988 was lodged igniting investigation whereafter the CBI submitted charge-sheet against the petitioner on 22.06.2010 and the case was fixed for framing of charges by the learned trial court. The General Manager of the FCI (respondent no.1) by order dated 01.9.2009 (Annexure-5) placed him under suspension with effect from 27th August,2009 on the ground that he was in judicial custody for more than 48 hours. Such order was passed invoking the provisions contained in FCI (Staff ) Regulations, 1971(for short „the Regulation 1971‟). By yet another order dated 19.04.2010 the said respondent revoked the suspension since the petitioner was released on bail. By another communication dated 21.10.2010 (Annexure-7), the Executive Director, FCI, Calcutta intimated the petitioner that the 3 respondents proposed to hold a departmental enquiry against him under Regulation 58 of Regulations 1971 and was served with articles of charges seeking his explanation/response thereon within ten days of the receipt of the communication. Statement of imputation of misconduct in support of the articles of charge reads as under: “STATEMENT OF IMPUTATION OF MISCONDUT OR MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OF CHARGE FRAMED AGAINST SRI RITESH KUMAR, MANAGER(QC)) A complaint dated 25.8.09 revealed that Shri Ritesh Kumar, Manager(QC) while posted at the centre of FCI, PPC, Bihta during the year 2009 has demanded total Rs.50,000/-(Rs. Fifty thousand) only from Shri Shivendra Kumar Singh, a Rice Miller, to issue acceptance note and analysis report against the advance rice delivered by him on 11.8.2009 at PPC, Bihta. On such complaint CBI laid a trap on 26.9.2009 and caught him while accepting Rs.20,000/- from the said Miller. Sri Ritesh Kumar, Manager (OC) was instantly arrested and taken into the custody by the CBI, Patna. Consequently Sri Ritesh Kumar, Manager(QC) was placed under deemed suspension by the competent authority vide order No.37(208)/2/2009 dated 01.9.2009 for remaining in custody exceeding 48 hours. On account of above mentioned misdemeanor by Sri Ritesh Kumar, manager(QC) a case was registered by the CBI, Patna under RC-0232009A0024. Shri Ritesh Kumar, Manager (QC) was supposed to discharge his duties at his deployed place of posting with honesty and sincerity and in a manner not prejudicial to the interest of the Corporation. But he deviated from normal line of functioning and abused his official status at the cost of the Corporation by cultivating the habit of discharging his duties under the inducement of illegal gratification. He brought down the image of the Corporation to the lower base in the Region where he was posted by his above misconduct. The culpable act committed by him amounted to offence of 4 criminal breach of trust and abuse of the official position. Shri Ritesh Kumar, Manager (QC) by his above act contravened Regulation-31(a), (b), (c), (d), 32 and 32A (1) (2) (5) and (30) of the FCI (Staff) Regulations, 1971 and made himself liable for disciplinary proceeding” Subsequently, an Enquiry Officer was appointed to enquire into the charges framed against the petitioner. The petitioner, by filing application, prayed for making him available certain documents before the said Enquiry Officer which, according to him, had bearings on the proceeding. Subsequently, he also submitted his explanation before the Enquiry Officer on 02.05.2011. It is the case of the petitioner that it was highlighted therein that departmental proceeding and the Criminal proceeding are based on the same set of facts/charges and, as such, his defence would be common in both the proceedings. If the petitioner is forced to contest the departmental proceeding, he would be required to disclose his defence which would prejudice him in criminal trial. The petitioner having failed to convince the authority for staying its hands, approached this court seeking direction(s) to quash the initiation of the departmental proceeding and/or a mandamus restraining the respondents from proceeding with the said departmental proceeding till conclusion of the criminal trial/proceeding. The respondents have resisted the claim of the petitioner by filing a counter affidavit. It is contended that the petitioner was caught red handed by the CBI (ACB, Patna) and after thorough investigation, charge-sheet has already been 5 submitted against the petitioner. It is contended with reference to the pleadings made therein that as per the decision of the management of the FCI and the instruction issued by the Central Vigilance Commission as also the decision of the Govt. of India, Ministry of personnel/Grievance and Training, Department of personnel and Training, New Delhi, the authorities were justified in initiating departmental action against the petitioner who was accused of serious charge of accepting bribe for due discharge of his official duty. The respondents have relied on the diverse circulars of the Corporation which specifically provide that simultaneous departmental action to be initiated wherever there is violation of conduct rules. It has been highlighted that purpose of departmental enquiry and the criminal prosecution is/are different and distinct. A criminal prosecution is launched for punishing the offender for having committed the offence punishable under the provisions of the P.C. Act and/or Indian Penal Code, as the case may be, whereas the departmental enquiry is to maintain discipline and efficiency in public service. According to the respondents, departmental enquiry has been initiated for the misconduct as provided in the Regulations 1971. Respondents have strenuously pleaded that there is no legal bar in initiation of departmental proceeding under 1971 Regulations of the FCI during the pendency of the criminal trial. Heard Mr. S. P. Mukherjee, learned Sr. counsel for the petitioner and Mr. Prabhakar Tekriwal for the Respondent-FCI. Learned counsel appearing in support of the 6 application admitted in course of argument that normal rule in such matter is that criminal proceeding and departmental proceeding can continue simultaneously subject to the condition that if the charges in departmental proceeding as well as in the criminal proceeding are one and the same then continuance of both the proceeding simultaneously would not be permissible if the petitioner is able to demonstrate the prejudice to be suffered by him in continuance of both the proceedings simultaneously. Learned counsel for the petitioner relying on ratio laid down in (1999) 3 SCC 679 (Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr.) contends that the Apex Court, on a consideration of various judgments including the one rendered in the State of Rajasthan vs. B. K. Meena (1996) 6 SCC 417, derived the following conclusion culled out in paragraph 22 of the report. It is appropriate to extract hereinbelow paragraph 22 of the report which reads as under: “22. The conclusion 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 lunched against the employee on the basis of evidence and material collected against him 7 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 or 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.” It is submitted that the charge in criminal case against the delinquent/petitioner is of grave nature which involves complicated questions of law and facts and, as such, the respondents are required to stay the departmental proceeding till the conclusion of the criminal case since if the departmental proceeding is allowed to continue, the same shall cause serious prejudice to the petitioner as he will be required to disclose his defence. Learned counsel has also placed reliance on a judgment rendered by learned Single judge of this Court in Kapil Muni Rai since reported in 2011 (1) PLJR 123 wherein reliance has been placed on the case of M. Paul Anthony (supra). Per contra, learned counsel for the respondents relying on a judgment of the Apex Court rendered in Appeal (Civil) 4985 of 2004 (Kendriya Vidyalaya Sangathan & Ors. Vs. T.Srinivas) reported in 2004 (6) SCALE 647 takes a stand that the Hon‟ble Supreme Court after having considered the judgment rendered in M. Paul Anthony (supra) as well as the State of Rajasthan vs. B. 8 K. Meena (supra) held that desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration facts and circumstances of the case. It should not be as a matter of course. It is contended, referring to the facts of the said case (KVS vs. T. Srinivas), that the respondents of the case was similarly arrested by the CBI after a trap and was facing charge punishable under section 7 read with section 13(i) (d) of the P.C. Act. Learned counsel referring to the said judgment of the Supreme Court contends that Hon‟ble Apex Court while differing with the view taken by the Tribunal and affirmed by the High Court, noticed that neither the Tribunal nor the High Court did take the seriousness of charge into consideration which pertains to accepting of illegal gratification and the desirability of continuing the appellant in service in spite of such serious charge(s) levelled against him. Arguing further, it is contended that a bare perusal of the articles of charge (Annexure-7) would show that apart from the fact that he was made accused of a criminal case punishable under the provisions of the P.C. Act for accepting bribe for due discharge of his official duty, the petitioner was charged for having brought down the image of the Corporation to the lower ebb/base in the region where he was posted by his above misconduct and, as such, he had contravened diverse provisions of the Regulations including Regulations 31(a), (b), (c), (d), 32 and 32A (1) (2) (5) and (30) of the FCI (Staff) Regulations,1971 which made him liable for the departmental action. It has been forcefully contended that 9 aforesaid charge(s) is/are different and distinct from the criminal charge for which the petitioner is facing criminal proceeding/trial. Mr. Tekriwal, learned counsel for the respondents further submitted that reliance placed by the petitioner on Kapil Muni Rai (supra) is not appropriate since a writ appeal thereagainst has already been preferred wherein, as per his instruction, notices have been issued by the appellate court. Having heard the rival submissions made on behalf of the parties and on perusal of the pleadings on record, it appears that the petitioner is facing a serious charge of demanding and accepting illegal gratification for due discharge of his official duty. In a trap laid by the CBI he was caught red handed accepting the bribe. His involvement in crime and recovery of the graft amount kept underneath the table cloth of his official desk in presence of the trap teach members brought disrepute to the institution/organization he was associated with. This is a misconduct under relevant Regulation of the FCI. It is thus seen that the petitioner is facing serious charge which pertains to acceptance of illegal gratification. The respondents are mandated to consider desirability of his continuing in service in spite of such serious charge having been levelled against him. His exoneration, if any, of such criminal charge at the trial may be for diverse reasons but still the respondents could consider the desirability of continuing such officer in service who, by his lecherous conduct, which may also be punishable under relevant statutory provisions, drooped the image of the organization having eroding 10 effect(s) on the efficiency and/or efficacy of the organization/institution. That apart, nothing has been sown to me as to how the ongoing criminal proceeding involves complicated questions of fact and law and, as such, the departmental proceeding should abate until conclusion of the criminal trial/proceeding. In the light of discussions made above, I do not find it to be an appropriate case where the respondents can be interdicted from proceeding with the departmental enquiry initiated against the petitioner by issuing appropriate writ(s)/order(s). The application is dismissed. No costs. hr ( Kishore K. Mandal )