1. Heard Sri Jeevan Prakash Sharma, learned counsel for the petitioner and Sri Shakti Dhar Dube, learned counsel for the respondents No.2 & 3. No one appears on behalf of respondent No.1 despite service of notice.
2. This writ petition has been filed by the petitioner praying for the following relief:
"(i) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 06.04.2016 passed by respondent No.3.
(ii) Issue a writ order or direction in the nature of mandamus directing the respondent authority to revoke the suspension of the petitioner forthwith, during the pendency of the enquiry.
(iii) Issue any such other and further order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
(iv) Award the cost of the writ petition against the contesting respondents"
3. By the impugned order, the petitioner has been suspended on the charges of misconduct of stealing computers, CPU, monitor, key-board and printers, routers and two fans in the night of 05.04.2016 between 12 to 2.15 A.M. The evidence which came in the hands of the department, was CCTV footage in which the petitioner was seen stealing the aforesaid articles from the office of the General Manager. An FIR was lodged on the next day with the concerned Police Station. The Police took quick action, raided the residential house of the petitioner and recovered the aforesaid articles from his possession in his residential house as well as from his Swift D-Zire Car bearing registration No.UP64Y-1963.
4. Learned counsel for the petitioner submits that since a criminal case has been registered against the petitioner and as such his suspension is wholly uncalled for in view of the decision of Hon'ble Supreme Court in the case of M Paul Anthony Capt. Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416.
5. Learned counsel for respondents submits that departmental proceeding has been lawfully initiated against the petitioner on charges of misconduct and as such, the initiation of departmental proceeding is wholly valid.
6. I have carefully considered the submissions of the learned counsel for the parties.
7. Perusal of the impugned order dated 06.04.2016 suspending the petitioner shows that the petitioner has been suspended on charges of misconduct attracting major penalty under clauses 26.01, 26.22 & 26.23 of the Standing Orders. By the impugned order, petitioner has been required to submit his explanation. The impugned order also provides for payment of subsistence allowance to the petitioner during the period of suspension. The impugned order records that the charges of misconduct are evidenced by CCTV footage.
8. It is settled law that initiation of a criminal proceeding and a departmental proceeding operate in distinct and different jurisdictional areas. The standard of proof required in departmental proceeding is different from that required in a criminal case. In departmental proceeding, the standard of proof is one of preponderance of the probabilities while in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt.
9. In the case of State of Rajsthan Vs. B.K. Meena, (1996) 6 SCC 417 = AIR 1997 SC 13, (para-14 of AIR), Hon'ble Supreme Court held as under:
"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 situation, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charge. 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., AIR 1960 SC 806 and Tata Oil Mills, AIR 1965 SC 155 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 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 inquired 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 of the various principles laid down in the decisions referred to above."
10. In the case of M Paul Anthony Capt. (supra) relied by learned counsel for the petitioner, Hon'ble Supreme Court has referred to the judgment in the case of B.K. Meena (supra) and observed in paras-20, 21 & 22 as under:
"[20] This decision has gone two steps further to the earlier decisions by providing :
1. The 'advisability', 'desirability' or 'propriety' of staying the departmental proceedings "go into the scales while judging the advisability or desirability of staying the disciplinary proceedings" merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.
(2) One of the contending considerations would be that the disciplinary enquiry cannot -- and should not be -- delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings.
[21] In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699 : AIR 1997 SC 2232, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law.
[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, administration may get rid of him at the earliest."
11. The facts of the present case as afore-noted and the law laid down by Hon'ble Supreme Court in the case of B.K. Meena (supra), the Depot Manager, Andhra Pradesh State Road Transport Corporation (supra), in the case of M Paul Anthony, Capt. (supra) clearly indicate that the respondents have not committed any error of law to suspend the petitioner by the impugned order dated 06.04.2016. Under the circumstances, I do not find any merit in this writ petition.
12. Consequently, writ petition fails and is hereby dismissed.
Order Date :- 14.09.2016 NLY