1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.1908 OF 2009 Sudhir s/o Sambhaji Maldode .. Petitioner Versus The Union of India, through Divisional Security Commissioner, Railway Protection Force, Nanded and anr. .. Respondents - WITH - WRIT PETITION NO.1176 OF 2009 Shankar s/o Dnyandevrao Barokar .. Petitioner Versus The Divisional Security Commissioner, Railway Protection Force, Nanded and anr. .. Respondents Shri S.R.Barlinge, Advocate for petitioners Shri M.N.Navandar, Advocate for respondents 1 and 2 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 23rd July 2009 PER COURT : 1. Since both these petitions raise a common question, these petitions are being decided by this common order. Undisputedly, the petitioners are being prosecuted for offence punishable under the 2 Prevention of Corruption Act on the basis of the F.I.R. dated 18.9.2008. Coupled with the prosecution of the petitioners for the aforesaid offence, the respondents initiated departmental enquiry and the petitioners were served a charge-sheet on 30.4.2008. We are informed by Shri M.N.Navandar, learned Counsel for the respondents that the enquiry in respect of the petitioner in Writ Petition No.1908 of 2009 has proceeded and five witnesses out of ten cited witnesses have been examined. The enquiry in respect of the petitioner in Writ Petition No.1176 of 2009 has also been started and eight witnesses out of ten cited witnesses have been examined. The petitioners, therefore, contend that the continuance of the enquiry during the pendency of the criminal trial is unwarranted as it would prejudice the defence of the petitioners and also the Enquiry Officer is not an authority who is an expert in deciding the guilt of the petitioners in respect of the offence punishable under the Prevention of Corruption Act. It is not denied before us that the act of the petitioners amounts to misconduct within the service conditions. 2, Shri Barlinge, learned Counsel for the petitioner has placed reliance on the Judgment of Supreme Court in Kusheshwar Dubey v. M/s.Bharat Coking Coal Ltd., and others, AIR 1988 SUPREME COURT 2118, particulary observations of Supreme Court which are to be found in head note “A”, which we reproduce below : 3 “ While there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, 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 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. It is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. In the instant case, the criminal action and the disciplinary proceedings were grounded upon the same set of facts and therefore the disciplinary proceedings could be stayed, in the facts and circumstances. “ 3. Reliance is also placed on the Judgment of Supreme Court in Tata Oil Mills Co.Ltd., v. The Workmen AIR 1965 Supreme Court 155, particularly at head note (f) which is reproduced thus : 4 “(f) Industrial Dispute – Domestic inquiry against workman in regard to certain incident – Criminal case in respect of the incident pending – Propriety of not staying domestic inquiry. 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. Reliance is thereafter placed on the Judgment of Supreme Court in Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. and another, AIR 1999 SUPREME COURT 1416, particulary the observations of Supreme Court at paragraph 34 which we reproduce below : “34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the 5 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 Inquiry 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 Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges 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.” 4. On the contrary, Shri Navandar, learned Counsel for the respondents has placed reliance on the Judgment of Supreme Court in 6 Indian Overseas Bank, Annasalai and another versus P.Ganesan and others, (2008) 1 Supreme Court Cases 650 in which the Supreme Court has held that there is no rule of automatic stay and the High Court before exercising its jurisdiction should have taken into consideration whether the charges and the evidence in both the proceedings were common, and whether any complicated question of law was involved. The Supreme Court, therefore, held that the stay of departmental proceedings was not considered proper in that case. 5. Reliance is also placed by Shri Navandar on the Judgment of Supreme Court in Noida Entrepreneurs Association versus Noida and others, (2007) 10 Supreme Court Cases 385 where the Supreme Court has held that the departmental enquiry is distinct from criminal proceedings and the standard of proof required in departmental enquiry is not the same as required to prove a criminal charge. The Supreme Court held that it was not proper to drop the departmental enquiry on consideration of the enquiry report of the CBI. Reliance is also placed on the Judgment of Supreme Court in Hindustan Petroleum Corporation Ltd. and others vs. Sarvesh Berry, (2005) 10 Supreme Court Cases 471. The Supreme Court in this Judgment has held that a criminal trial and departmental enquiry can proceed simultaneously. The Supreme Court has further held that the test for grant of stay is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the criminal trial. In the aforesaid case, the delinquent therein 7 was being prosecuted for the offence punishable under the Prevention of Corruption Act. Reliance is also placed on the Judgment of Supreme Court in State of Rajasthan versus B.K.Meena and others, (1996) 6 Supreme Court Cases 417, the Supreme Court quashed and set aside the order of the Central Administrative Tribunal which had stayed the proceedings of the departmental enquiry on the ground that the pendency of the enquiry would prejudice the delinquent in his defence in the criminal trial. The delinquent therein was being prosecuted for an offence punishable under the Prevention of Corruption Act. The Supreme Court at paragraph 17 observed thus : “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 ofCorruption 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 entrely distinct and different. Staying of disciplinary proceedings pending criminal 8 proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.” 6. In our considered opinion the Judgments on which reliance is palced by the petitioners would not apply to the facts of the present case. What is the ultimate effect of the enquiry as well as the criminal trial cannot be the basis for considering whether stay should be granted. The test as is held by the Supreme Court would be as to whether the evidence in both the cases is common and whether the continuance of the departmental enquiry would prejudice the delinquent in his defence in the criminal trial. We may at this juncture make a brief reference to a Judgment of Division Bench cited before us very fairly by Shri Barlinge though the Judgment is contrary to the proposition which is sought to be urged by the learned Counsel for the petitioners. The Division Bench in Shrikant Jain Narmada Prasad Jain Versus Secretary, Ministry of Coal & ors., 2009 (2) Bom.C.R.174 has held that the petitioner’s apprehension that his defence would be prejudiced was without foundation because he had already filed his defence in departmental enquiry. The Court found that no case for stay of departmental enquiry was found. In the present case, apart from the fact that no prejudice would be caused to the petitioners on account of the continuation of the departmental proceedings, the Enquiry Officer cannot be said to be a 9 person who would not be able to decide whether the delinquents/petitioners had committed misconduct or not. The standard of proof governing the enquiry and trial are entirely different. The enquiry has proceeded further and five witnesses and eight witnesses respectively have been examined in the case of the petitioners. In the light of that, therefore, according to us, no case at all is made out for stay to the departmental enquiry. We see no merit in the petitions and, therefore, the petitions are summarily dismissed with no order as to costs. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) (vvr/1908-1176.09wp)