Sima Sarkar vs Bharat Sanchar Nigam Limited And Ors

C.A.N. 381 of 2016 in W.P.C.T. No.7 of 2010 Sima Sarkar vs. Bharat Sanchar Nigam Limited and Ors.

and

C.A.N. 382 of 2016 in W.P.C.T. No.8 of 2010 Sima Sarkar vs. Bharat Sanchar Nigam Limited and Ors.

For the petitioner : Mr. Kalyan Bandopadhyay, Sr. Advocate, Mr. Joytosh Majumdar, Advocate, Mr. Siddhartha Ghosh, Advocate.

For the respondents : Mr. Dhruba Mukherjee, Advocate, Mr. Subir Kumar Saha, Advocate.

Heard on : February 19 and 20, 2019 Judgment on : April 29, 2019

DIPANKAR DATTA, J:-

1. We are seized of two writ petitions involving common parties. The issue

arising therein for decision is also common, as would appear from the

discussions infra. We, therefore, propose to decide these writ petitions by

this common judgment and order. 2

2. The central issue requiring a decision on these writ petitions is, whether

refusal to grant interim relief to the petitioner by the Central Administrative

Tribunal, Calcutta Bench (hereafter 'the tribunal') is justified or not. This

issue emerges from an issue of law which, however, is not too uncommon.

Time and again, such issue having arisen before the Supreme Court, law

has been laid down in clear terms and it is our duty to apply such law here.

3. At the time the writ petitions were received by this Court in 2010, the

coordinate Bench was urged to consider whether the tribunal was right in

its approach in not staying the departmental proceedings (two in number)

initiated against the petitioner, thereby allowing the same to continue

simultaneously with the two criminal proceedings which were continuing in

the criminal court. During the several years that have passed since

admission of the writ petitions, much water has flown down the Ganges. The

criminal court has pronounced the petitioner 'not guilty' in one of the two

criminal cases where she stood trial for over a decade. The other case is yet

to be finalized. The factual matrix, because of such development, has been

altered insofar as one of the writ petitions is concerned. However, in the

changed circumstances, what has been argued before us on behalf of the

petitioner is, what would be the effect of an acquittal of an accused recorded

by a competent criminal court on a departmental proceeding, where such

accused is the charged employee, and when the incidents, which happen to

be the source of the departmental charge-sheet and the criminal trial, is the

same, the witnesses who would support the version of the management in

the departmental proceedings and in favour of the prosecution of the trial

have deposed in the trial are the same, and the documentary evidence to be 3

relied on in the departmental proceedings is the same evidence that was led

before the criminal court?

4. The facts as discerned from W.P.C.T. 7 of 2010 are these.

4.1. The petitioner is an employee of Bharat Sanchar Nigam Limited (hereafter

BSNL). At the material time, she was working as an Accounts Officer as well

as Disbursing Officer in the office of the Executive Engineer (E), TED-II,

BSNL, Yogayog Bhawan, Kolkata.

4.2. In February 2003, in course of an enquiry, it was found that no

computer/furniture had actually being purchased by the office of the SE

(E), TEC-I, BSNL, Kolkata, although a number of bills/invoices had been

cleared for payment and cheques upon being signed by the petitioner had

been encashed, resulting in financial loss to the BSNL. It was further found

that fake bills and invoices were raised. It also came to light that one

Chandan Biswas (hereafter Chandan), the then Cashier, TEC-I, BSNL,

Kolkata, had brought those bills for payment and he pursued the matter

resulting in its clearance.

4.3. An F.I.R dated May 9, 2003 was registered, whereupon the Central Bureau

of Investigation (hereafter the CBI) commenced investigation. Upon

completion of investigation, police report (charge-sheet bearing no. 28/04,

dated September 30, 2004) under Section 173, Code of Criminal Procedure

(hereafter the CrPC) was filed before the competent court. It was mentioned

in the charge-sheet that investigation had revealed commission of offences

by several employees of the BSNL including Chandan and the petitioner, in

collusion with several private parties. It appears from the charge-sheet that

investigation revealed diverse acts of omission/commission at the instance 4

of Chandan, Shri Ajay Rampuriya and Shri Sanjay Rampuriya of M/s.

Mohini Computers, Shri Harihar Prasad Vidyarthi, another employee of

BSNL as well as the petitioner. Insofar as the petitioner is concerned,

investigation revealed that she facilitated the fraudulent withdrawals of all

the questioned bills through her omission and commission as mentioned

thereunder, thereby causing wrongful loss to the tune of Rs.5,10,443/- to

BSNL. The petitioner was alleged to have failed to verify genuineness of the

sanction memos, work orders and invoices besides forgery of signatures.

She was further alleged to have allowed the accused, Chandan, to

unauthorizedly prepare some of the cheques though he was neither the

custodian thereof nor supposed to write the body portion of the cheques.

These were intended to give undue advantage to Chandan by the petitioner

and the vested interest taken by both of them in the fraud. It was also

alleged that the petitioner received various gadgets free of costs, viz.

computer, printer, software operating system, etc. from M/s. Mohini

Computers as a reward for facilitating fraudulent withdrawals. It was based

on such allegations that the petitioner was charged under Section 120B

read with Sections 420/467/468/ 471 and 477A of the India Penal Code

(hereafter IPC) and Section 13(2) read with 13(1)(d) of the Prevention of

Corruption Act, 1988 (hereafter the PC Act). The court having taken

cognizance, charges were framed and the accused including the petitioner

were put up for trial. It appears that the petitioner stood trial, charged with

offence punishable under sections 120B/420, IPC and section 13(1)(d) read

with section 13(2) of the PC Act. 5

4.4. Almost after 4 years of submission of the police report under Section 173(2)

of the CrPC, the Chief General Manager, BSNL issued a memorandum on

October 23, 2008, drawing up departmental proceeding against the

petitioner in terms of the provisions contained in the BSNL Conduct,

Discipline and Appeal Rules, 2006 (hereafter the CDA Rules). She was

required to submit her written statement of defence within 10 days and also

to state whether she desired to be heard in person. Annexures-I to IV of the

memorandum contained the statement of Article of Charge framed against

the petitioner, the statement of imputations of misconduct or misbehavior

in support of the article of charge, the list of documents and the list of

witnesses by which the article of charge framed against the petitioner were

proposed to be sustained, respectively. Annexure-I of the memorandum

containing the statement of Article of Charge reads as follows:

"That said Smt. Sima Sarkar while functioning as Accounts Officer as well as Disbursing Officer, O/o the Executive Engineer(E), TED-II, BSNL, Yogayog Bhawan Kolkata during the year 2002-2003 showed lack of devotion to duty and integrity inasmuch as she gave orders on the fake invoices cum challans of M/s Mohini Computers Pvt. Ltd., 10, Ganesh Chandra Avenue, Kolkata-13 and also signed the cheques as 1st signatory for making against the fake invoices of aforesaid company in blatant violation of laid down rules and regulations causing loss to the BSNL amounting to Rs. 5,10,452/=. By her aforesaid acts, said Smt. Sima Sarkar failed to maintained absolute integrity, devotion to duty and acted in a manner unbecoming of a BSNL employee and thereby contravened the provisions of Rule-4(1)(a), 4(1)(b) & 4(1)(c) of BSNL Conduct, Discipline and Appeal Rules, 2006".

4.5. The case run in W.P.C.T. 8 of 2010 is substantially similar to that run in

W.P.C.T. 7 of 2010.

4.6 While the petitioner had been standing trial in Case No. 16 of 2004 before

the Judge, Special (C.B.I.) 3rd Court, Kolkata under sections 420/120 B, 6

IPC and section 13(2) read with section 13(1)(d) of the PC Act, she was

served with another memorandum dated October 23, 2008, whereby the

Chief General Manager of BSNL initiated a separate departmental

proceeding against her. What appears from a reading of Annexure -I thereof

is:

"That said Smt. Sima Sarkar while functioning as Accounts Officer as well as Disbursing Officer O/o the Executive Engineer(E), TED-II, BSNL, Yogayog Bhawan, Kolkata during the 2002-2003 showed lack of devotion to duty and integrity inasmuch as she gave pay orders on the fake bills of M/s Bhumi Solution Ltd., P-37, Bank Garden, Kolkata-700070 and also signed the cheques as 1st signatory along with Shri Sekhar Chakraborty, AAO as 2nd signatory for making payment against the fake invoices and bills of aforesaid company in blatant violation of laid down rules and regulations causing loss to BSNL amounting to Rs 12,57,468/=. She also accepted illegal gratification in the form of computers from the said company without paying any money for the computers. She also did take any permission from the competent authority regarding the said computer and thereby violated rule 21(2) of BSNL, CDA Rules, 2006.

By her aforesaid acts, said Smt. Sima Sarkar failed to maintain absolute integrity devotion to duty and acted in a manner unbecoming of a BSNL employee and thereby contravened the provisions of Rule- 4(1)(a), 4(1)(b) & 4(1)(c) of BSNL Conduct, Discipline and Appeal Rules, 2006".

4.7. Without responding to the aforesaid memoranda, the petitioner rushed to

the tribunal, with separate original applications (O.A. No. 1148 of 2009

and O.A. No. 1149 of 2009) seeking, inter alia, stay of the two

departmental proceedings initiated against her vide memoranda dated

October 23, 2008 till disposal of the criminal cases pending before the

Judge, 3rd Special (CBI) Court, Kolkata. The tribunal was also urged to

pass an interim order of injunction restraining the respondents from giving

further effect to the impugned memoranda and/or from proceeding with 7

the enquiry in pursuance thereof till the disposal of the original

applications.

4.8. Upon the original applications being moved, the tribunal passed separate

but identically worded orders dated November 16, 2009 thereon. While

admitting the original applications and calling for affidavits, the tribunal

declined interim relief. The last two paragraphs from the tribunal's order

passed on O.A. 1148 of 2009 read as follows:

"8. Finally, Id. Counsel for the applicant sought direction be given to the applicant to approach the respondents by making representation for keeping the departmental proceeding in abeyance till conclusion of the criminal proceedings. The Hon'ble Supreme Court has exercised such power under Art.141 of the Constitution. The Tribunal has no power as such. 9. Accordingly, we reject the interim prayer. The applicant is at liberty to approach the respondents for stay of the departmental proceedings till conclusion of the criminal proceedings, by submitting a representation as per rules, but the applicant should not plead, the Tribunal given liberty to approach the Disciplinary Authority for such prayer. The liberty is already there with the applicant. It is an admitted fact that the applicant has not submitted any representation against the charge memo. So, it is not possible for us, to direct the applicant to approach the respondents at this stage. The applicant may approach the authorities, if he so desires. The Tribunal is not giving any direction in this regard. Let the matter be listed on 18.12.2009 for hearing an admission. Respondents are granted 4 weeks' time to file reply."

5. These two orders dated November 16, 2009 were subjected to challenge in

W.P.C.T. 7 of 2010 and W.P.C.T. 8 of 2010, dated December 22, 2009.

Therein, the common relief claimed was for setting aside the impugned

orders dated November 16, 2009 and for orders restraining the

respondents from taking any step or further step in pursuance of the

memoranda dated October 23, 2008 till the disposal of the criminal cases.

Interim relief was also sought for in terms of prayers (g) and (h). Prayer (h)

reads as follows: 8

"h) An interim order may kindly be passed restraining the respondent authorities from taking any step and/or steps in pursuance of the charge sheet vide Memorandum being no.VIG/Z-207/2/2003 dated 23rd October, 2008 till disposal of the instant application;"

6. The writ petitions were moved on February 22, 2010 before a coordinate

Bench. While admitting the writ petitions and directing exchange of

affidavits by separate but similarly worded orders, the Bench granted

interim order in terms of prayer (h) (extracted supra), to be operative until

further orders. The orders, however, did not record a single reason why the

Bench felt persuaded to grant interim relief as prayed for by the petitioner.

7. In due course, the respondents had their counter-affidavits to the writ

petitions affirmed on March 3, 2010 and served on the petitioner. The

petitioner affirmed her reply affidavits as late as on June 21, 2016.

8. Since the petitioner was enjoying interim relief without filing her reply

affidavits, the respondents by presenting C.A.N. 381-382 of 2016 in

January, 2016 applied for vacating of the interim orders passed by the

coordinate Bench on February 22, 2010. It was almost three years after

C.A.N. 381-382 of 2016 were presented that the same came up for

consideration before us.

9. While hearing the applications, we had expressed our desire to hear and

decide the writ petitions on merits. The parties agreed to the same. In

course of hearing, a supplementary affidavit dated February 19, 2019 was

filed by the petitioner. In such affidavit, she pleaded that Regular Case No.

11 of 2003 corresponding to Special (CBI) Case No. 51 of 2011 [State

(C.B.I.) vs. Chandan Biswas and Ors.] had been decided by the Judge,

Special (CBI) Court No.3, Kolkata, by a judgment and order dated June 11, 9

2018. The petitioner had been acquitted as charges under section 420 and

120B IPC along with section 13(1)(d) read with section 13 (2) of the PC Act,

1988 were not established against her. However, the main accused,

Chandan, was convicted of offences under section 467/471/420/120B,

IPC as well as section 13(1)(d) read with section 13(2) of the PC Act.

10. It is this judgment and order of acquittal that has been made the sheet

anchor of the petitioner's case in W.P.C.T. 8 of 2010 by Mr.

Bandopadhyay, learned senior advocate. On the first day of hearing, it was

contended by Mr. Bandopadhyay by referring to certain authorities that

based on the order recording acquittal, we ought to quash the

departmental proceeding. Hearing had to be adjourned, for, it was time for

us to rise for the day. Having realized that quashing of the departmental

proceeding was not even the relief claimed in the original application and

that the Court was not favorably disposed towards acceptance of such a

contention, Mr. Bandopadhyay returned the next day to argue that the

sources of the departmental and the criminal proceedings are the same

incidents, the charges in both the proceedings are the same, and common

documentary evidence and witnesses are likely to be cited for drawing

home the charges levelled against the petitioner in the departmental

proceeding. He took great pains in drawing our attention to the contents of

the charge-sheet submitted by the investigating police officer and the

departmental charge-sheet as well as the annexures thereto in support of

the above contention. According to him, the departmental proceedings

were initiated 4/5 years after the charge-sheets in the criminal cases were

submitted and, therefore, there is no reason as to why the departmental 10

proceedings should be allowed to resume at this stage without the

disciplinary authority considering the decision of the criminal court

acquitting the petitioner.

11. Several authorities were cited by Mr. Bandopadhyay to enlighten us on the

approach adopted by the Supreme Court in cases of like nature where the

charges in the departmental and the criminal proceedings, the

documentary evidence and the witnesses are the same. It was his

contention that the Supreme Court has consistently been of the opinion

that where an accused is acquitted by the criminal court, it would not be

proper for the disciplinary authority to proceed against him on charges

drawn on the self-same incident out of which the criminal proceedings

arose and on similar charges as well as common evidence/witnesses.

12. Mr. Bandopadhyay, accordingly, prayed that W.P.C.T. 8 of 2010 may be

disposed of with a direction upon the disciplinary authority of the

petitioner to consider the judgment and order of the criminal court and

then to decide, whether the departmental proceeding should continue

against her or not.

13. Insofar as W.P.C.T. 7 of 2010 is concerned, Mr. Bandopadhyay prayed that

the disciplinary authority should be left to decide whether, having regard

to the order of the criminal court acquitting the petitioner in one case, the

departmental proceeding should at all continue or not. He prayed that the

departmental proceeding should remained stayed till a finding is returned

by such court; alternatively, the criminal court may be directed to

conclude the trial within a year and depending upon the decision given by 11

such court, the disciplinary authority of the petitioner may be granted

liberty to decide his next course of action.

14. The authorities cited by Mr. Bandopadhyay (not in the order they were

cited but in chronological order) are these:

(a) R.P. Kapur v. Union of India & anr. : AIR 1964 SC 787 (para 9); (b) Jeevanprakash Pandurang Mokashe v. State Bank of India & anr. : 1982 SCC OnLine Bombay 99 (para 20); (c) Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. & ors. : (1988) 4 SCC 319 (para 8); (d) Jaywant Bhaskar Sawant v. Board of Trustees of the Port of Bombay & ors. : 1994 SCC OnLine Bombay 144 (para 14); (e) Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & anr. : (1999) 3 SCC 679 (para 22); (f) State Bank of India & ors. v. R.B. Sharma : (2004) 7 SCC 27 (paras 7, 12 and 13); (g) G.M. Tank v. State of Gujarat & ors. : (2006) 5 SCC 446 (para 30); (h) Noida Enterpreneurs Association v. Noida & ors. : (2007) 10 SCC 385 (paras 11, 13, 16 and 17); (i) Indian Overseas Bank, Annasalai v. P. Ganesan & ors. : (2008) 1 SCC 650 (para 18); (j) Stanzen Toyotetsu India Private Limited v. Girish V. & ors. : (2014) 3 SCC 636 (paras 16 and 19); (k) S. Bhaskar Reddy & anr. v. Superintendent of Police & anr. : (2015) 2 SCC 365 (para 20); (l) General Manager (Operations), State Bank of India & anr. v. R. Periyasamy : (2015) 3 SCC 101 (para 13); and (m) State Bank of India & ors. v. Neelam Nag & anr. : (2016) 9 SCC 491 (para 14). 12

15. Appearing in support of the applications seeking vacation of the order

dated February 2, 2010 as well as opposing the writ petitions on merit on

behalf of the respondents, Mr. Mukherjee, learned advocate contended that

despite no case for interference having been set up by the petitioner, the

coordinate Bench while admitting the writ petitions grossly erred in the

exercise of its jurisdiction by staying the departmental proceedings and,

that too, without assigning a single reason in support thereof. According to

him, neither are the charges in both the proceedings same nor all the

witnesses/evidence common; and, since the defence of the petitioner has

already been disclosed in the trial before the criminal court, there is no

question of the petitioner suffering any prejudice by reason of resumption

of the departmental proceedings. Relying on the decisions of the Supreme

Court reported in Neelam Nag (supra) and State of Rajasthan v. B.L.

Meena : (1996) 6 SCC 417 as well as a decision of a learned Judge of this

Court in Tamal Chanda vs. The State Bank of India : (2016) 4 W.B.L.R.

(Cal) 683 and Ors., Mr. Mukherjee prayed that the interim order should be

immediately vacated, the writ petitions dismissed and the disciplinary

authority of the petitioner permitted to resume the departmental

proceedings and to take the same to their logical conclusion in accordance

with law.

16. We have heard the parties and perused the materials placed before us.

17. Let us start by first ascertaining the extent of law laid down, if any, in the

decisions cited by Mr. Bandopadhyay which, according to him, could guide

us to make the interim orders absolute and thereby grant relief claimed by

the petitioner. 13

18. In R.P. Kapur (supra), an order of suspension pending a criminal case was

under challenge before the Punjab High Court. The point taken was that

suspension could have been ordered only as a penalty and not otherwise,

in view of the guarantee extended to the appellant by Article 314 of the

Constitution, as it then existed. The challenge was spurned and on a

certificate granted by the high court, the appeal was presented. By a

majority decision, the appeal stood allowed; the order of suspension was

held to be invalid. In paragraph 7, the Court noticed the only question that

was debated before it. It was with respect to suspension, whether as a

punishment or otherwise, of a member of one of the Secretary of State's

Services, and that it was the only question that fell for determination in the

appeal. After discussing Article 314 of the Constitution in paragraph 8, the

Court dealt with an argument advanced on behalf of the respondents in

paragraph 9 with regard to orders of suspension that could be passed in

varying circumstances, and observed as follows:

"9. *** The dispute is only as to suspension pending a departmental enquiry or pending a criminal proceeding. There can in our opinion be no doubt that suspension of this kind also must be comprised within the words "disciplinary matters" as used in Article 314. Take the case of suspension pending a departmental enquiry. The purpose of such suspension is generally to facilitate a departmental enquiry and to ensure that while such enquiry is going on -- it may relate to serious lapses on the part of a public servant-- he is not in a position to misuse his authority in the same way in which he might have been charged to have done so in the enquiry. In such a case suspension pending a departmental enquiry cannot be but a matter immediately related to disciplinary matters. Take again the case where suspension is pending criminal proceedings. The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. In such a case a public servant may be suspended pending investigation, enquiry or trial relating to a criminal charge. Such suspension also in our opinion is clearly related to disciplinary matters. If the trial of the 14

criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, even in case of acquittal proceedings may follow where the acquittal is other than honourable. The usual practice is that where a public servant is being tried on a criminal charge, the Government postpones holding departmental enquiry and awaits the result of the criminal trial and departmental proceedings follow on the result of the criminal trial. Therefore, suspension during investigation, enquiry or trial relating to a criminal charge is also in our opinion intimately related to disciplinary matters. We cannot therefore accept the argument on behalf of the respondent that suspension pending a departmental enquiry or pending investigation, enquiry or trial relating to a criminal charge is not a disciplinary matter within the meaning of those words in Article 314."

(underlined portion is relied on by the petitioner)

19. Having read R.P. Kapur (supra), we are of the respectful opinion that the

question arising for decision there was completely different and it cannot

be read as an authority for the proposition that honourable acquittal in a

criminal proceeding would operate as a bar to the disciplinary authority

initiating a departmental proceeding based on the self-same incident giving

rise to the former.

20. The decision of the Bombay High Court in Jeevanprakash Pandurang

Mokashe (supra) holding that a departmental proceeding against a person

upon his acquittal in a criminal proceeding is impermissible on

applicability of the principles of issue estoppel and res judicata, may not

be the correct exposition of law having regard to differences in the object,

nature, scope and approach of disciplinary and criminal proceedings. We,

therefore, respectfully disagree with such decision.

21. We are rather inclined to agree with the views taken in the other decision of

the Bombay High Court cited before us in Jaywant Bhaskar Sawant

(supra) that (i) if an accused has been honourably acquitted by the 15

criminal court, the departmental authorities are under an obligation to

attach considerable weightage to the verdict of the criminal court, and (ii)

that it is possible in the realm of theory that the departmental authorities

may be justified in continuing the inquiry for a cause notwithstanding the

honorable acquittal. The learned Judge, we have reason to believe, was

inspired to hold so based on the view expressed by the Supreme Court in

Corporation of the City of Nagpur v. Ramchandra G. Modak : (1981) 2

SCC 714. The passage from such decision quoted by the learned Judge

reads as follows:

"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered.***"

(underlined for emphasis by us)

22. We shall certainly keep the aforesaid decision in Ramchandra G. Modak

(supra) in mind while reasons are assigned by us for the conclusions we

ultimately reach.

23. In Kusheshwar Dubey (supra), the appellant had allegedly assaulted his

supervising officer for which he was subjected to a disciplinary proceeding

as also a criminal prosecution. The order of injunction granted by the civil

court was reversed by the Patna High Court, which was in turn reversed by

the Supreme Court. The Court was urged to settle the law in a strait-jacket 16

formula as judicial opinion was conflicting on the point as to whether

parallel proceedings ~ criminal proceeding and departmental proceeding ~

could run or not. The argument was repelled by observing that hazarding

such a step would create greater hardship and individual situations may

not be available to be met and thereby injustice is likely to ensue. After

considering the decisions in Delhi Cloth & General Mills Ltd. v. Kushal

Bhan : AIR 1960 SC 806, Tata Oil Mills Co. Ltd. v. Workmen : AIR 1965

SC 155, and Jang Bahadur Singh v. Baij Nath Tiwari : AIR 1969 SC 30,

the Court ruled:

"7. 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 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. 8. 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."

(underlined portion is relied on by the petitioner) 24. Apart from the fact that in Kusheshwar Dubey (supra) the matter had

reached the Supreme Court when the trial was yet to begin, the Court by

the last sentence of paragraph 7 made it clear that it did not intend to lay 17

down any general guideline. Mr. Bandopadhyay is, however, right that

since both proceedings were grounded on the same set of facts, the Court

upheld the injunction granted by the civil court.

25. Strong reliance was placed on Capt. M. Paul Anthony (supra) by Mr.

Bandopadhyay. Bare perusal of the facts reveals a raid at the residence of

the appellant having been conducted on June 2, 1985 leading to recovery

of a mining sponge gold ball weighing 4.5 grams and 1276 grams of "gold

bearing sand", which led to his suspension on June 3, 1985. Since the

appellant had allegedly committed theft of the company's property which

he was entrusted to guard, he was viewed by his employer to have

indulged in 'misconduct' and hence, a charge-sheet dated June 4, 1985

was issued against him. Simultaneously, criminal prosecution was

launched. On receipt of the charge-sheet, the appellant pleaded innocence

and prayed that the disciplinary proceeding be deferred on the ground that

the raid conducted at his residence was the subject matter of the criminal

proceeding. The prayer was not accepted. Despite the appellant not having

been paid subsistence allowance as well as reporting that illness was the

ground for his inability to attend the enquiry, the same progressed.

Ultimately, based on the findings of the enquiry officer, the appellant was

dismissed from service. An appeal, presented thereagainst, proved

abortive. On February 3, 1987, the criminal court acquitted the appellant

holding that the prosecution had failed to establish its case whereupon the

appellant prayed for his reinstatement few days later. It was declined on

the ground that the appellant had been dismissed earlier. The writ petition

before the Karnataka High Court succeeded, but the appellate court 18

reversed the decision of the learned single judge. The Supreme Court

finally granted relief to the appellant on the grounds that he was proceeded

against in clear breach of the principles of natural justice as well as what

was discussed in paragraph 34, reading as follows:

"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 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 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." (underlined for emphasis by us)

26. The position is, therefore, pellucid that in the criminal trial the 'raid and

recovery' at the appellant's residence could not be proved, which tilted the

scales in favour of the appellant despite the enquiry officer having returned

a contra-finding in the disciplinary proceeding.

27. While considering the civil appeal, the Supreme Court had the occasion to

consider the decisions of the Supreme Court in Delhi Cloth & General

Mills Ltd. (supra), Tata Oil Mills Co. Ltd. (supra), Jang Bahadur Singh

(supra) and Kusheshwar Dubey (supra) as well as those in Nelson Motis

v. Union of India : (1992) 4 SCC 711, B.K. Meena (supra) and Depot 19

Manager, A.P. SRTC v. Mohd. Yousuf Miya : (1997) 2 SCC 699. The

conclusions deducible from the aforementioned decisions were

summarized in paragraph 22, which is set out 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."

(underlined portion is heavily relied on by the petitioner)

28. We shall discuss the effect of this decision and the other decisions referred

to therein a little later.

29. R.B. Sharma (supra) is a decision where the Supreme Court reiterated the

well-settled position in law that on basic principles proceedings in criminal

case and departmental proceedings can go on simultaneously, except

where departmental proceedings and criminal case are based on the same 20

set of facts and the evidence in both the proceedings is common. The Court

also observed that there could be no straitjacket formula as to in which

case the departmental proceedings are to be stayed. Pertinently, the Court

noticed that a learned judge of the Delhi High Court came to an abrupt

conclusion that the petitioner before His Lordship had been able to show

substantially that the entire matter in the departmental proceedings and

before the criminal court is the same. The Court ruled that though

elaborate reasoning may not be necessary to be indicated, certainly, the

skeletal description of how there is substantial similarity has to be

indicated.

30. G.M. Tank (supra) is the next decision we are required to examine in some

detail. The Anti-Corruption Bureau carried out an investigation against the

appellant, an overseer, and submitted a report and on the basis of the said

report, a charge-sheet dated February 20, 1979 was issued alleging that

the appellant had illegally accumulated excess income by way of

gratification. The appellant submitted his explanation on May 15, 1979

and denied the allegations as well as charges made in the charge-sheet. A

departmental enquiry was ordered and as per departmental enquiry report

dated March 31, 1980, the appellant was found guilty of the charge. The

respondent by an order dated October 21, 1982 passed an order of

dismissal from service as punishment. Challenging the said order of

dismissal, the appellant filed a writ petition before the High Court. The

learned Single Judge concluded that there was sufficient evidence against

the appellant and dismissed the writ petition. The order of the learned

Single Judge was carried in appeal by the appellant, wherein he raised 21

relevant contentions. The Division Bench dismissed the appeal by

confirming the order of the learned Single Judge. The said decision was

challenged in the appeal by special leave. One of the contentions that had

been raised before the Division Bench was that the appellant had been

prosecuted before the criminal court but the court had acquitted him. The

departmental proceeding and the criminal case were based on identical

and similar set of facts and the charge in the departmental case against

the appellant and the charge framed before the criminal court are one and

the same, yet, the Division Bench did not consider the fact of honourable

acquittal recorded by the criminal court. To have the civil appeal

dismissed, the respondent relied on the decisions in Krishnakali Tea

Estate v. Akhil Bharatiya Chah Mazdoor Sangh : (2004) 8 SCC 200, Ajit

Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd. : (2005) 7 SCC 764 and

Mohd. Yousuf Miya (supra). It is in such factual background that the

Supreme Court formulated the questions arising for decision in paragraph

16 and answered question no.2 in paragraph 30 as follows:

"16. On the above pleadings and the arguments advanced by the counsel appearing on either side, the following questions of law arise for consideration of this Court:

1. *** 2. Whether acquittal, absolutely on merits amounting to clear exoneration of the appellant by the Special Court under the PC Act does ipso facto absolve the appellant from the liability under the disciplinary jurisdiction when the charges levelled against the appellant in the departmental proceedings and the criminal proceedings are grounded on the same set of facts, charges, circumstances and evidence.

***

22

30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand."

(underlined portion relied on by the petitioner)

31. Noida Entrepreneurs Association (supra) was a decision whereby the

Supreme Court decided that the Uttar Pradesh Government was

unjustified in deciding not to take disciplinary action against the

respondent no.7, an IAS officer. It was held that the conceptual difference

between a departmental enquiry and criminal proceedings had not been

kept in view. The Court then proceeded to notice the law laid down in

Capt. M. Paul Anthony (supra) as well as the position in law relating to

acquittal in a criminal case, its effect on departmental proceedings and

reinstatement in service as dealt with by such Court in Union of India v.

Bihari Lal Sidhana : (1997) 4 SCC 385 and reproduced paragraph 5 in its 23

entirety. Ultimately, the order of the State Government was quashed and

the departmental proceeding was directed to continue. On the prayer of the

respondent no.7, the Court granted her liberty to pray for keeping the

proceedings in abeyance till the conclusion of the criminal proceedings. If

such prayer were made, the same was directed to be considered in the

light of the principles set out by the Court in Hindusthan Petroleum

Corporation Ltd. v. Sarvesh Berry : (2005) 10 SCC 471 and Uttaranchal

RTC v. Mansaram Nainwal : (2006) 6 SCC 366.

32. In P. Ganesan (supra), the principal question that emerged for decision

was, whether pendency of a criminal case by itself would be a sufficient

ground for stay of the departmental proceedings. Paragraph 18 of the

decision being relevant, is quoted below:

"18. Legal position operating in the field is no longer res integra. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter."

33. The Court then considered various decisions, viz. Delhi Cloth and

General Mills Ltd. (supra), Tata Oil Mills Co. Ltd. (supra), B.K. Meena

(supra), Capt. M. Paul Anthony (supra) and quoted paragraph 10 from the

decision in Kendriya Vidyalaya Sangathan v. T. Srinivas : (2004) 7 SCC

442, reading as follows:

"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course."

24 34. In paragraph 24 of the decision in P. Ganesan (supra), we also find the

following observation:

"24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed."

35. The question arising for decision in Stanzen Toyotetsu India Private

Limited (supra) is found in paragraph 1, i.e., whether the Karnataka High

Court so also the courts below were right in holding that the disciplinary

proceedings initiated by the appellant against its employees (the

respondents therein) ought to remain stayed pending conclusion of the

criminal case instituted against the respondents in respect of the very

same incident. Almost all the authorities on the point were considered and

it was held in paragraph 16 as follows:

"16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees."

25 36. Paragraph 19 of this decision was also relied on by Mr. Bandopadhyay in

support of the contention noted above that the other criminal proceeding,

which is still pending, may be directed by us to be expedited and only after

the final decision therein the disciplinary authority should be permitted to

decide whether there is any necessity to carry it forward.

37. For proper appreciation of the ratio of the decision, we consider it

appropriate to reproduce paragraph 17 of the said decision, which reads:

"17. The charges levelled against the respondents in the instant case are under Sections 143, 147, 323, 324, 356, 427, 504, 506, 114 read with Section 149 IPC. These are no ordinary offences being punishable with imprisonment which may extend up to 3 years besides fine. At the same time seriousness of the charge alone is not the test. What is also required to be demonstrated by the respondents is that the case involves complicated questions of law and fact. That requirement does not appear to be satisfied in an adequate measure to call for an unconditional and complete stay of the disciplinary proceedings pending conclusion of the trial. The incident as reported in the first information report or as projected by the respondents in the suits filed by them does not suggest any complication or complexity either on facts or law."

(underlined for emphasis by us)

38. S. Bhaskar Reddy (supra) is a decision where the Court found the charges

in the two proceedings, departmental and criminal, to be almost similar

and that the decisions referred to and relied upon by the appellants, i.e.

Capt. M. Paul Anthony (supra) and G.M. Tank (supra) were aptly

applicable to the case at hand. The decision in Inspector General of

Police v. S. Samuthiraman : (2013) 1 SCC 598 was referred to for tracing

the meaning of 'honourable acquittal' and finally, the orders of dismissal

were set aside. Pertinently, in S. Bhaskar Reddy (supra), the appellants

had been implicated in a murder case and other offences and were

honourably acquitted by the criminal court.

26

39. On perusal of the decision, it is not too clear what exactly the charges were

that the appellants faced in the departmental proceedings. It is in such

context that we consider proper to quote below paragraph 21 of the

decision:

"21. It is an undisputed fact that the charges in the criminal case and the disciplinary proceedings conducted against the appellants by the first respondent are similar. The appellants have faced the criminal trial before the Sessions Judge, Chittoor on the charge of murder and other offences of IPC and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. Our attention was drawn to the said judgment which is produced at Ext. P-7, to evidence the fact that the charges in both the proceedings of the criminal case and the disciplinary proceeding are similar. From perusal of the charge-sheet issued in the disciplinary proceedings and the enquiry report submitted by the enquiry officer and the judgment in the criminal case, it is clear that they are almost similar and one and the same. In the criminal trial, the appellants have been acquitted honourably for want of evidence on record. The trial Judge has categorically recorded the finding of fact on proper appreciation and evaluation of evidence on record and held that the charges framed in the criminal case are not proved against the appellants and therefore they have been honourably acquitted for the offences punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and under Sections 307 and 302 read with Section 34 IPC. The law declared by this Court with regard to honourable acquittal of the accused for criminal offences means that they are acquitted for want of evidence to prove the charges."

(underlined for emphasis by us)

Therefore, the civil appeal succeeded because the charges were either

'similar' or were 'almost similar and one and the same'.

40. R. Periyasamy (supra) was cited for the proposition that an acquittal

based on benefit of doubt would not stand on a par with a clean acquittal

on merit after a full-fledged trial, where there is no indication of the

witnesses being won over.

41. Paragraph 1 of the decision in Neelam Nag (supra) noted the question that

required a decision of the Supreme Court, i.e., whether the High Court of 27

Judicature at Bilaspur, Chattisgarh was justified in directing stay of the

disciplinary proceedings initiated by the appellant against the respondent

until the closure of recording of prosecution evidence in the criminal case

instituted against the respondent, based on the same facts. The answer to

this question was given by the Court in the affirmative (paragraph 27).

Directions were also issued for expediting the trial within a year, failing

which the enquiry officer was granted liberty to resume the disciplinary

proceedings.

42. Once again, by citing this decision Mr. Bandopadhyay prayed for a

direction for completion of the pending criminal trial and for direction on

the disciplinary authority to decide on the fate of the departmental

proceeding based on its outcome.

43. The Court in paragraph 14 summed up what was previously held in

Karnataka SRTC v. M.G. Vittal Rao : (2012) 1 SCC 442. We consider it

proper to reproduce the same below:

"14. This Court in Karnataka SRTC v. M.G. Vittal Rao has summed up the same in the following words:

(i) There is no legal bar for both the proceedings to go on simultaneously.

(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law.

(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."

(italics in original) 28

44. We now venture to advert to certain other decisions on the point, some

cited by Mr. Mukherjee and the rest having been referred to in the

decisions that Mr. Bandopadhyay had placed before us.

45. In B.K. Meena (supra), an IAS officer was charged with misappropriation

of public funds in excess of a crore. The relevant tribunal having been

moved, it stayed the disciplinary proceedings pending criminal trial. The

Supreme having been approached by the State challenging the order of the

tribunal, it had the occasion to consider all its previous decisions rendered

on the point of advisability and desirability to proceed with a disciplinary

enquiry when a criminal case is pending on identical charges. Paragraphs

14 and 17 contain instructive discussions and we feel tempted to quote the

same below:

"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 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 criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high 29

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 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 decisions referred to above. ***

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 of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."

(italics in original) (underlined for emphasis by us) 30

46. The aforesaid opinion of a Bench of two learned Judges was approved by a

Bench of three learned Judges in Mohd. Yousuf Miya (supra). Paragraph 8

of this decision is worth quoting:

"8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course.

The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and 31

circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."

(underlined for emphasis by us)

47. In Bihari Lal Sidhana (supra), the Court while dealing with the case of a

temporary employee ruled that:

"5. It is true that the respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control & Appeal) Rules or under the Temporary Service Rules. ... Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. ... Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money."

48. Much the same view is expressed in Ajit Kumar Nag (supra). A dismissed

employee upon acquittal by the criminal court sought for reinstatement,

which was refused holding that:

"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond 32

reasonable doubt', he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.

49. Tamal Chanda (supra) dwells on various aspects of whether the criminal

proceedings arise out of acts performed by an employee in the course of

official discharge of duty or not, as well as whether the same are in respect

of matters extraneous to his duties. The distinctions having been noted in

paragraphs 16, 17 and 18, the learned Judge went on to hold in

paragraphs 20 and 21 as follows:

"20. In a case where the charges levelled against the perceived delinquent in the criminal matter are more or less the same as in the disciplinary proceedings and such charges have a direct nexus with the official duties and functions of the perceived delinquent, it would be more appropriate to ensure that the disciplinary proceedings are concluded and the order of punishment, if any, may be made subject to the outcome of the criminal trial to the extent that an honourable acquittal may entitle the employee to seek a review of the punishment awarded to him in the disciplinary proceedings.

21. Here also, one needs to tread with caution and circumspection. Criminal jurisprudence makes no distinction between an acquittal simplicitor and an honourable acquittal. It is only judge-made law in recent times that makes such a distinction, probably as a convenient tool to deal with matters of the present kind".

50. In Tamal Chanda (supra), the charged officer was found to have given a

detailed reply to the charge-sheet and hence the Court was not called upon

to examine the question of disclosure of defence prior to the criminal trial

prejudicing the defence case; the defence had already been disclosed. It is

in such circumstances that the Court did not arrest the departmental 33

proceeding and observed that the charged officer's participation shall be

without prejudice to his rights in the criminal trial.

51. What follows from the decisions we have noted above is that although

there is no bar in continuing parallel proceedings ~ departmental and

criminal ~ on more or less same charges or even identical charges, the

disciplinary authority ought to proceed with care and caution so that by

insisting upon the charged employee to submit his/her written statement

of defence to the departmental charge-sheet, he/she is not exposed to the

risk of disclosing his/her defence in the criminal trial. Every human being

would cherish living a life with dignity. It is axiomatic that even if an

employee loses a job as part of a disciplinary action (for good reasons or

even where there is lack of it), he does not forfeit his right to live with

dignity. He might get employment elsewhere and earn a living. However, if

taking advantage of a prior disclosure of defence in the departmental

proceedings the prosecution is allowed to build up its case to its

convenience and to the detriment of the employee/accused before the

criminal court, ultimately leading to a conviction being recorded and award

of even the minimum sentence, not only could it amount to transgression

of the imperative of a free and fair trial, an essence of the Right to Life

entrenched in Article 21 of the Constitution, but could also result in the

accused to carry on his forehead the indelible mark of a 'convict' for the

rest of his life (if such conviction were not appealed against or reversed).

The punishment that might be imposed by way of disciplinary action for

any slip in the performance of official duty on a comparative scale does not

even match with a punishment that the State through its machinery 34

imposes upon an accused upon launching a criminal prosecution for

commission of offences against the society. It is for such reason, we are

minded to hold, that the Supreme Court in Delhi Cloth & General Mills

(supra), B.K. Meena (supra) since approved in Mohd. Yousuf Miya

(supra), P. Ganesan (supra), Stanzen Toyotetsu India (P) Limited (supra)

and Neelam Nag (supra) has insisted upon a scrupulous guarding of the

accused's fundamental right guaranteed by the Constitution, though

express reference to it is not made, coupled with the condition that the

case must involve complicated questions of fact and law.

52. There is one other significant aspect which attracts us to deliberate upon.

If an individual is alleged to have committed a crime punishable under the

penal laws, it is the State which prosecutes him/her. It is invariably the

State machinery that comes into play and it conducts proceedings as the

prosecutor. The de facto complainant does not have much role to play. The

police, which have the duty to maintain law and order as well as to

investigate crimes, are expected to work in an organised and dedicated

manner. More often than not, the failure of the State machinery,

particularly the police, is noticeable. Either the police investigation is

inefficient or flawed, or vital witnesses retract when present in Court to

testify. Compromises made by the State machinery when it is required to

deal with those having money power or unholy nexus with the power

corridor are also discernible. In a criminal case, all the ingredients of the

offence in question have to be proved in order to secure the conviction of

the accused. Having regard to the standard of proof applicable in a

criminal trial, the courts find it difficult to hold the prosecution case to 35

have been established beyond reasonable doubt entailing the acquittal of

the accused for want of evidence. In the process of justice dispensation,

the State is a pivotal stakeholder but rarely does one find proceedings

being taken to its logical end efficiently and flawlessly, leading to

convictions. The rate of conviction in this country is abysmally low, several

factors being responsible for contributing to such low rates of conviction. It

is, therefore, essential that the trust of the citizenry in the State machinery

is rebuilt.

53. Be that as it may, the aforesaid prelude has been necessitated for

emphasizing that an employer, who complains of a crime having been

committed by its employee in the official course of duty, is left high and dry

if the police falter to bring him/her to book. The employer may have

evidence for proving charges relating to violation of the service rules (not

necessarily restricted to charges of the nature punishable under the PC

Act) which, by application of preponderance of probabilities, might lead to

recording of guilt in a duly constituted disciplinary proceeding. Is it the law

of the country that an order of acquittal recorded by the criminal court

would bind the employer, thereby disabling it to take disciplinary action

against an employee who is prima facie negligent in discharging official

duty and against whom there is evidence to proceed therefor? There is a

line of cases which lay down the law that a decision of a criminal court is

not binding on a civil court. In a civil action between different parties the

finding of a criminal court certainly cannot be treated as binding. If any

authority is required, one may refer to the decision in Syed Askari Hadi

Ali Augustine Imam v. State (Delhi Administration) : (2009) 5 SCC 528. 36

However, the decisions in Capt. M. Paul Anthony (supra) and G.M. Tank

(supra) could pose as stumbling block for the employer to proceed against

his employee for disciplinary action if the tests laid down therein upon

application to the facts are found to be satisfied. It would then require

consideration as to whether the finding of the criminal court should also

bind an employer, who might have done whatever was at its disposal to

secure a conviction but the result turns out to be otherwise not for any

fault on the employer's part. The one and only small window for the

employer appears to be this. When courts consider application of judicial

decisions having the effect of binding precedents, the courts have to be

careful in finding out whether the principle of law laid down therein and

which is sought to be applied, fits in with the facts of the case before it.

One must be mindful of the well-settled law that it is the rule deducible

from the application of law to the facts and circumstances of a case which

constitutes its ratio decidendi and not some conclusion based upon facts

which may appear to be similar; one additional or different fact can make a

world of difference between conclusions in two cases even when the same

principles are applied in each case to similar facts [see Regional Manager,

FCI v. Pawan Kumar Dubey : (1976) 3 SCC 334]. Taking a cue from this

proposition of law, if the employer makes out a case while defending an

original application before a tribunal or a writ petition before a high court

that a vital witness or a vital document has not been produced before the

criminal court but such oral/documentary evidence, if produced, could

have a material bearing on the outcome of the criminal trial, should such

employer be shut out from continuing a disciplinary proceeding, which it 37

had already initiated, and taking it to its logical conclusion upon such

evidence being adduced notwithstanding an acquittal recorded by the

criminal court? Would it not constitute an additional or different fact

between conclusions in two cases even when the same principles are

applied in each case to similar facts? While we hope and trust to look

forward to appropriate guidance flowing from the Supreme Court in an

appropriate case in future, at our end we are clear in our mind that having

regard to the distinctions pointed out in B.K. Meena (supra), Mohd.

Yousuf Miya (supra) and the other cases referred to above, and the law

laid down in Ramchandra G. Modak (supra), even an honourable acquittal

upon a hotly contested criminal trial may not be sufficient in all cases

(emphasis ours) for the acquitted accused to avert a departmental

proceeding. We repeat, for interference with a departmental proceeding

based on the result of the criminal trial, a fool-proof case has to be made

out of the nature found in Capt. M. Paul Anthony (supra) and G.M. Tank

(supra). After all, as the Supreme Court has repeatedly observed, each case

has to depend on its own peculiar facts and no strait-jacket formula is

applicable.

54. It is now time to consider whether the charges in both the proceedings are

common or not. We think not. While it is the accusation of the prosecution

that the petitioner has conspired with Chandan to beget undue favours,

the charge in the departmental proceeding is of failure to maintain

devotion to duty and maintain high standards of integrity. The reasons for

which the Supreme Court in its decisions in Capt. M. Paul Anthony

(supra) and G.M. Tank (supra) proceeded to interfere and quash the orders 38

of dismissal impugned before it, are not available insofar as the

departmental proceedings initiated against the petitioner are concerned.

First, the charges are not the same. Secondly, one cannot reasonably

anticipate at this stage whether oral/documentary evidence to be led in the

enquiry would be the same as those adduced at the criminal trial. Thirdly,

the trial in one case is incomplete whereas the departmental proceedings

are yet to progress beyond drawal of such proceedings. Since there has

been no domestic enquiry consequent to the interim orders passed by the

coordinate Bench and finding of guilt in the departmental proceedings is

yet to be reached, the decisions in Capt. M. Paul Anthony (supra) and

G.M. Tank (supra) do not aid the petitioner.

55. Apart from the criminal case where an order of acquittal has been

recorded, we have been informed that in the other the prosecution has by

now led its evidence. More than forty witnesses have deposed in support of

the prosecution case and examination of the petitioner under section 313

of the CrPC is likely to start soon. There is, thus, no question of the

petitioner being prejudiced now, if she were to disclose her defence in the

departmental proceedings.

56. We cannot be unmindful of the fact that in the course of her employment in

BSNL, the petitioner was entrusted with the duty of verifying the vouchers

and then to issue cheques. She may not have been directly dealing with

cash but was most certainly dealing with public money and engaged in

financial transactions. While acting in a fiduciary capacity, she was

holding a position of trust where honesty and integrity are inbuilt

requirements of functioning. Judged in that background, we are of the 39

clear opinion that the petitioner may not have been found guilty in the

criminal case to be involved in any conspiracy with Chandan to cause

financial loss to BSNL or even under the PC Act but Chandan having been

found guilty by the criminal court, it would definitely be a matter of

consideration in the departmental proceeding whether by her failure to

maintain devotion to duty, the petitioner in any way paved the way for

Chandan to reap illegal benefits. The stage is thus now ripe for the facts to

be unearthed.

57. In the final analysis, we hold that there was, in the first place, no

justifiable ground to grant the interim orders dated February 2, 2010 and

there is, presently, no reason to make such interim orders absolute. The

interim orders need to be lifted for the law to take its own course. The

unreasoned and unjustified interim orders granted on February 2, 2010

stand vacated. W.P.C.T. 7 of 2010 as well as W.P.C.T. 8 of 2010 stands

dismissed. There shall be no order for costs.

58. Before parting, we wish to observe that although the tribunals created in

terms of the Administrative Tribunals Act, 1985 are required to act as the

courts of first instance in terms of the decision in L. Chandra Kumar v.

Union of India : AIR 1997 SC 1125 and the tribunal has not yet decided

the original applications finally, our elaborate decision (on the issue as to

whether the tribunal was justified in refusing interim relief by the

impugned orders and further as to whether the petitioner is entitled to

have the departmental proceedings stayed till such time as prayed for on

her behalf) has been necessitated in view of the extensive and well-

researched arguments advanced by Mr. Bandopadhyay; and having regard 40

to such decision, nothing substantial survives for decision on O.A. 1148 of

2009 and O.A. 1149 of 2009. We, therefore, consider it not to be in the

best interest of justice to prolong the litigation pending before the tribunal

unnecessarily. In such view of the matter, we make an exception and

direct that O.A. 1148 of 2009 and O.A. 1149 of 2009, on the file of the

tribunal, shall also stand dismissed. It shall, however, be open to the

petitioner to file her reply to the charge memoranda within four weeks. The

petitioner shall be free to raise such defence as is available in law. In the

process, she shall be entitled to urge her disciplinary authority to consider

the desirability of proceeding further in the light of the decision of the

criminal court qua the charge memorandum which is the subject matter of

W.P.C.T. 8 of 2010. The disciplinary authority of the petitioner shall also

be free to take the departmental proceedings further, to its logical

conclusion, in accordance with law bearing in mind that this judgment

and order ought to be read as a decision that answers the issue noticed at

paragraph 2 supra.

59. The Registrar (L. & O.M.) of this Court is directed to transmit a copy of this

judgment and order to the Registrar of the tribunal for information and

follow-up action.

(SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)