1. This writ petition has been filed with the prayer to quash the order dated 28.11.2014 passed by opposite party no.1 contained at Annexure 1 to the writ petition, as well as the enquiry pending before opposite party no.2.
2. Brief facts of the case are that the petitioner was working as Inspector in Railway Protection Force. On 10.10.2013, he was deputed on duty at Yard Store Construction Division, Gorakhpur along with Sri Raj Kumar, the Store Keeper and Sri Ashok Kumar Srivastava, the Senior Stock Verifier to release Lot No.1013/BSB/Co./CPJ-Yard Store of Total 39.606 MT Tai Bar VCMP 90R, 60R. The petitioner allowed the loading of the aforesaid material as per D.O. dated 23.09.2013 in three Trucks. A Team of Vigilance Department intercepted a Truck No.UP53 AT3390 and after weighing the materials in Truck, 4.025MT material was found in excess over the quantity of material issued from yard. A First Information Report was lodged on 15.03.2013 as Case Crime No.7 of 2013 at Police Station R. P. F. Kaptanganj, Kushinagar against Subhash Singh - the agent of purchaser Firm under section 3 of the Railway Property (Unlawful Possession), Act 1966. On 28.10.2013, the investigating officer sent a report to the Court of Chief Judicial Magistrate, NER Varanasi wherein the petitioner including the others have been included as a accused. The petitioner was suspended from service on 14.10.2013 which was subsequently revoked on 08.04.2014 and he was transferred to Lucknow. An inquiry was initiated against the petitioner under Rule 153 of the Railway Protection Force Rules, 1987 vide order dated 30.07.2014. A charge-sheet was served upon the petitioner. The petitioner moved an application for suspension of the enquiry on 11.08.2014 which has been rejected by the impugned order. Hence this petition.
3. With this backdrop, learned counsel for the petitioner has submitted that the disciplinary proceedings as well as the criminal proceedings have been initiated against the petitioner on the same charges requiring proof of common question of fact regarding the involvement of the petitioner in the alleged overloading of the railway material on the Trucks. Learned counsel for the petitioner has submits that in the interest of justice, the disciplinary proceedings against the petitoner be stayed during the pendency of the criminal proceedings. He has relied on the judgment of Hon'ble the Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines and another 1999 (3)SCC 679 as well as the judgment in the case of M/s Stanzen Toyotetsu India P. Ltd vs. Girish and others (JT 2014 (2) SC 462). It has also been submitted that the impugned order is arbitrary, non-speaking and contrary to the law as laid down by the Hon'ble Apex Court hence, it is liable to be set aside and the petition is liable to be allowed.
4. Per-contra, Sri Chandra Shekhar Sinha learned Counsel for the Railways has vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that the departmental proceedings of major penalty under Rule 153 of the Railway Protection Force Rules, 1987 was issued against the petitioner for violation of Service Conduct Rules, which is independent of criminal misconduct for which the criminal proceedings, as per the rules, are required to be undertaken. It is submitted that since the case involve criminal angle as excess scrap material had been delivered under a criminal conspiracy, as such the criminal proceedings under section 3 of the R.P Act have been initiated against all the officials including the petitioner and the purchaser. The standard of proof required in the case of the criminal proceedings is 'beyond doubt' whereas departmental proceedings being 'quasi judicial' in nature works on the principle of 'preponderance' of probability and circumstantial evidence, where standard of proof is not required up to the extent of 'beyond doubt'. It is further submitted that in the case of departmental proceedings, a maximum punishment of removal / dismissal can be imposed on the delinquent charge official, whereas in the case of the criminal proceedings, the charged officer can be imprisoned along - with other punishment depending upon the merit of the case. Sri Sinha, learned counsel for the Railways has submitted that the departmental and criminal proceedings are altogether different in nature, thus, it is appropriate on the part of the administration to initiate major penalty against the petitioner under the Rules 1987.
5. Sri Sinha learned counsel for the Railways has submitted that on basic principles, the proceedings in criminal case and the departmental proceedings can go on simultaneously except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases the court has to decide, taking into account the special features of the case, whether simultaneous continuance of both would proper or not. It is submitted that 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, 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. Sri Sinha submits that there is no illegality in the impugned order and the petition is liable to be dismissed.
6. Heard learned counsel for the parties and perused the record. Counter and Rejoinder Affidavits are already on the recrod.
7. In the case of Cap. M. Paul Anthony vs. Bharat Gold Mines and another (1997) 2 SCC 699 the Hon'ble Apex Court indicates some fact situations which would govern the question whether departmental proceedings should be kept in abeyance during the pendency of a criminal case. In para 22 conclusions which are deducible from various decisions were summarized. They are as as follows :
(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.
8. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal court has been examined by a three Judges Bench of the Hon'ble Apex Court in the case of Depot Manager A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya and others, 1997 (2) SCC 699. The relevant para is as follows :
"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in 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, 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 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 of 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 the 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 Evidence Act. The evidence required in the departmental enquiry is not regulated by 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 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 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
9. In the case of Ajit Kumar Nag vs. General Manager (PJ) Indian Oil Corporation Limited Haldia and others reported at 2005 (7) SCC 764, the following has been held as under:
"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 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."
10. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
11. In view of the above facts as well as the law settled, I am of the view that two proceedings - criminal and departmental - are entirely different and they operate in different fields and have different objectives whereas the object of criminal trial is to inflict appropriate punishment on an offender, however, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. There is no provision of law empowering the Court to stay the departmental proceedings merely because criminal proceedings are pending in a criminal court. The departmental proceedings are taken to maintain the discipline and the efficiency in service, however, the criminal proceedings are initiated to punish a person for committing an offence violating any public duty.
12. In the case of M. Paul Anthony case (supra) it has been held that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. 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. Even 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 reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of ''preponderance of probability'. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso-facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority.
13. With the above observations, I do not find it to be a fit case for interference in the impugned order dated 28.11.2014 as there is no illegality in it. Consequently, the writ petition without substance is accordingly dismissed.
Order Date :- February 22, 2021.
VNP/-
[ Chandra Dhari Singh ]