Hon'ble Sudhir Agarwal,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
01. This writ petition is directed against the judgment dated 18.5.1998 of U.P. Public Services Tribunal (hereinafter referred to as the Tribunal) in Claim Petition NO.477/1/90 whereby it has dismissed the claim petition of petitioner with cost of Rs. 500.
02. The aforesaid claim petition was filed challenging the order of punishment i.e. dismissal dated 22.5.1979 whereby the petitioner was dismissed from the post of Collection Amin as a result of departmental inquiry in which certain charges were found proved against him.
03. The facts in brief giving rise to the present dispute are as under:
04. The petitioner was appointed as Collection Amin in 1952. He was placed under suspension on 26.7.1978 and a charge sheet was issued on 26.12.1978. The petitioner submitted reply dated 5.3.1979 denying all the charges. Thereafter oral inquiry was held. Inquiry Officer submitted report on 6.5.1979 whereafter order of punishment was passed on 22.5.1979 by District Magistrate, Shahjahanpur, dismissing the petitioner from service and confining his salary to the extent of subsistence allowance paid during the period of suspension.
05. Learned counsel for the petitioner submitted that a criminal investigation was initiated against him pursuant to an FIR lodged on 3.12.1978 under Section 409 IPC and during pendency of criminal Investigation/Trial, for the same charge, no departmental inquiry could have been conducted, hence the entire proceedings is vitiated in law. He further submitted that relevant documents were not supplied to him and copy of inquiry report was also not supplied before passing order of punishment. Hence, disciplinary proceedings had been conducted in utter violation of principles of natural justice. Lastly it was contended that in criminal proceedings he was already acquitted and, therefore, in the departmental inquiry based on same transaction, no punishment could have been imposed. The learned Tribunal has erred in law in dismissing the claim petition and sustaining the order of dismissal.
06. We have heard learned counsel for the parties and perused the record.
07. A criminal case against an employee does not bar the employer from initiating disciplinary proceedings in respect to charge of misconduct. In criminal matter it is the allegation of committing an offence under a statute while in the disciplinary proceedings it is the conduct of Government employee which is under investigation. The nature of proceedings, procedure , level of standard of proof etc. are different and distinct in two kinds of proceedings.
08. It is now well settled that departmental proceedings can proceed simultaneously with criminal proceedings and there is no bar as such therein as held in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another 1999 (3) SCC 679. It has been held that departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question whether during pendency of criminal proceeding, the departmental proceeding should be stayed depends upon the facts and circumstances of individual case.
09. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that the procedure followed in both the cases as well as subject matter of departmental enquiry and criminal proceeding has different scope and it cannot not be said, when a criminal proceeding is going on in a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed.
10. Same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.
11. Referring to Capt. M. Paul Anthony (supra), the Apex Court in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability depend on the facts and situations obtained in each case.
12. Similarly, in Noida Entrepreneurs Assn. Vs. NOIDS & others JT 2007 (2) SC 620, the Court has summarised following conclusions deducible from various judgments, namely:
"(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 involved 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."
13. A similar view has also been taken in Indian Overseas Bank Vs. P. Ganesan & others AIR 2008 SC 553. Following the above exposition of law laid down by Apex Court, this Court in Priti Chauhan Vs. State of U.P. and others 2008(9) ADJ 388 and Shant Deo Tripathi Vs. State of U.P. and others (Writ A-1019 of 2002 decided on 16.9.2011) has taken the same view.
14. There appears to be four charges levelled against the petitioner. Charge no.1 relates to realisation of certain amount of arrears from an individual but not deposited in Government revenue. The said misappropriation of money amounts to embezzlement but simultaneously it also constitute a conduct unbecoming of a Government Servant and for the purpose of departmental inquiry it is the latter aspect which has to be seen. Similarly, charge no.2 relates to removal of certain documents from official record and temporary embezzlement of public revenue. Charge no.3 relates to tampering and forgery and charge no.4 relates to violation of Para 133 of Collection Manual in respect to maintenance of record so that collection of revenue and its deposit in the treasury could have been verified and checked. It thus cannot be said that the aforesaid charges would have barred departmental inquiry in its entirety after acquittal of petitioner in criminal proceedings or that no departmental inquiry could have been initiated or proceeded during the pendency of criminal proceedings.
15. In the light of above authorities and looking to the facts of the case, the argument of learned counsel for the petitioner that during pendency of criminal case, for the same charge, no departmental inquiry could have been conducted, shatters down and is rejected.
16. Since the punishment has been imposed pursuant to departmental enquiry, mere acquittal in criminal case would have no consequence.
17. The next submission is regarding non supply of documents. Despite repeated query, learned counsel for the petitioner could not demonstrate as to which documents were not supplied to the petitioner and in what manner the same has prejudiced him.
18. The third submission that a copy of inquiry report was not supplied and the proceeding is vitiated on that account has also no legs to stand. The petitioner has relied upon the Apex Court's decision in Managing Director EICL Vs. B. Karunakar (1993) 4 SCC 727. However, we find that in this very judgment the Apex Court has held that the orders of punishment which were passed before 20.11.1990 i.e., the date on which Union of India and others Vs. Ramzan Khan (1991 SCC (1) 588 =JT 1990 (4) 456) was decided, shall not be vitiated for non-supply of inquiry report and this law shall be operative in respect to orders of punishment passed on or after 20.11.1990. In the instant case, impugned order of punishment having been passed on 22.5.1979, mere non supply of inquiry report will not vitiate the departmental proceedings.
19. Lastly, it is contended that denial of full salary during suspension is not one of the punishment provided in the Civil Services (Classification,Control and Appeal) Rules, 1930 as applicable in U.P. (hereinafter referred to as CCA Rules) which were the Rules applicable at the relevant time when the disciplinary proceedings were conducted against the petitioner and as such, full salary could have been denied only in accordance with the procedure prescribed in Fundamental Rule 54-B after following the procedure laid down therein. No show cause notice under Fundamental Rule 54-B was issued and the procedure laid down therein was not followed. Hence, it is contended that the order of punishment insofar as it denies full salary during the period of suspension by forfeiting the same imposing it as a punishment on the petitioner is wholly illegal and without jurisdiction.
20. This submission in our view has substance and deserves sustenance.
21. Fundamental Rule 54-B contemplates a show cause notice separately where disciplinary authority is of the view that the delinquent employee should not be paid full salary for the period he was under suspension. The Fundamental Rule 54-B, relevant extract, reads as under:-
"54-B. (1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowance to be paid to the Government servant or the period of suspension ending with reinstatement or the date of his reinstatement on superannuation as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
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(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule(8), to be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
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22. A perusal of Sub-rules (3) and (5) of Fundamental Rule 54-B shows that the competent authority shall take a decision about the amount to be paid to the Government Servant during the period of suspension (not less than the subsistence allowance already received by him) after giving notice to him with respect to quantum proposed and after considering the representation, if any, made by him. The scope of the aforesaid decision is entirely different. The question as to whether full salary should be paid to the Government Servant or not, is not a kind of punishment provided under CCA Rules, 1930 as applicable in Uttar Pradesh but it is other than the punishment enumerated therein. However, it cannot be doubted that when disciplinary authority thinks that entire salary should not be paid to Government Servant for the period of suspension, such an order entails into civil consequences to the delinquent employee. Therefore consistent with the principles of natural justice, Fundamental Rule 54-B, Sub Rules (3) and (5), contemplate issuance of a show cause notice and thereafter an order needs be passed by the competent authority after considering representation, if any, of the delinquent employee. It is thus evident that along with order of punishment no decision can be taken by a competent authority to deny full salary to delinquent employee unless procedure prescribed under Fundamental Rule 54-B is observed.
23. It is well settled, when law requires something to be done in a particular way, it has to be done in that manner alone and not otherwise. This Court considered Fundamental Rule 54-B in Akhilesh Kumar Awasthi Vs. State of U.P. and others, 2008(8) ADJ 243=2008(4) ESC 2679 and said as under:
"A bare perusal of the aforesaid provision makes it clear that before passing an order depriving the Government servant of full salary for the period of suspension or when he was out of employment, a show cause notice has to be issued to the concerned Government servant and only thereafter, the competent authority may pass appropriate order considering various aspects.
Admittedly, no such procedure has been followed, therefore, the impugned order, to the extent the petitioner has been denied arrears of salary for the period of suspension as well as during the period he was out of employment pursuant to the dismissal order, which was modified by the revisional order, is set aside. The writ petition is, accordingly, allowed partly. . . . . . . ."
24. Following Akhilesh Kumar Awasthi (Supra) this Court in Uma Shankar Purwar Vs. The Principal Secretary, Food and Civil Supplies, Government of U.P., Lucknow and others (Writ Petition No.9519 of 2007, decided on 14.9.2009) in para 7 held as under:
"7. Admittedly, no such procedure has been followed by the respondents in the case in hand and on the contrary treating as if withholding a salary for the period of suspension can also be imposed as a punishment under the rules though the same is not one of the punishment prescribed under the rules. As a result of departmental inquiry, the authority concerned is empowered to deny full salary during the period of suspension as a consequence of reinstatement but final order can be passed after deciding whether the period of suspension was wholly unjustified or not and then the quantum of amount."
25. Here also, admittedly, the procedure prescribed in Fundamental Rule 54-B has not been followed. Denial of full salary vide impugned order is without affording any opportunity to the petitioner by way of issuing a show cause notice. The impugned order in so far as it denies full salary during the period of suspension without any notice to the petitioner is thus illegal and liable to be set-aside.
26. In the result, the writ petition partly succeeds. The impugned order dated 18.5.1998 imposing punishment is set aside only to the extent it denies full salary to the petitioner for the period of suspension. The order of the Tribunal shall stand modified to this extent. The matter is remanded to the respondent competent authority to take a fresh decision on this aspect of the matter in accordance with the procedure prescribed under Fundamental Rule 54-B and the observations made hereinabove.
27. No order as to costs.
Order Date :- 23.09.2011 Akn.