CONSTABLE RAVINDER RANA Vs. UNION OF INDIA

JUDGEMENT

(1.) RAVINDER Rana, petitioner was enrolled as Constable in Central Industrial Security Force (in short CISF). The petitioner was posted on deputation at Indian Embassy at Kathmandu, Nepal with other CISF personnel. On the night falling between 17th/18th January, 2005 the petitioner unauthorisedly used the service rifle of Constable Anoop Singh and opened fire at his colleagues at the security barrack at Indian Embassy, Kathmandu, Nepal at about 0530 hrs. Constables R. Kannan and T. Shankar his colleagues succumbed to injuries instantaneously and other Constables namely Bidesh Dutta, Sunil Singha, Rajbir Singh received injuries. A criminal case commenced in the court of Special Judge CBI, New Delhi and at the time of filing the instant writ petition the said criminal case was fixed for 23.8.2005 for framing of charges. In the meantime, the respondents issued memorandum dated 27.5.2005 proposing to initiate disciplinary action in respect of the above said case. They also required him to disclose his defence even before the completion of prosecution evidence in trial court. Under these circumstances, the present writ petition was filed with the prayer to quash the above said memo issued by the respondents, as according to the petitioner he would be greatly prejudiced if he was asked to disclose his defence prior to the completion of the prosecution evidence in the criminal court. It was further prayed that respondents be restrained from initiating or holding any disciplinary action against the petitioner on the above said charges. The respondents have contested the present writ petition.

(2.) WE have heard the counsel for the parties. The learned counsel for the petitioner placed reliance on the Apex Court authorities titled as Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr., : JT 1999 (2) SC 456, Kusheshwar Dubey v. M/s Bharat Cooking Coal Ltd. & Others, : AIR 1988 SC 2118 and Delhi Cloth and General Mills Ltd. v. Kushal Bhan, : AIR 1960 SC 806. The learned counsel for the petitioner stressed that in view of this position of law, the departmental proceedings should be ordered to be stayed till the conclusion of criminal case. For the reasons to be noted below, we do not hold with his arguments. The position was illuminatingly highlighted by the latest judgments by the Apex Court and our own High Court. In the instant case nothing has come out to justify the grant of stay of departmental proceedings. Even the petitioner has failed to give the skeletal description as to how the substantial similarity in both the proceedings can be indicated. The petitioner cannot be permitted to have the benefit of both the worlds. There are cases where the trial of the case gets prolonged by the dilatory tactics adopted by the accused. He cannot be permitted to, on one hand, prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. It must be noted that two and a half years have elapsed since the charge was framed in the criminal court. The counsel for the petitioner did not inform the Court as to how many witnesses have already been examined before the criminal court. Again, he has merely stated that the charges leveled against him in the court proceedings as well as in the departmental proceedings are the same. He has not explained whether the defence of the petitioner has not yet been disclosed after the elapse of so much time. Above all there is no inkling in the pleadings or in the arguments advanced before us that non -grant of stay of disciplinary proceedings would prejudice the petitioner because the matter in question involves a complicated question of law or fact. We were able to locate a recent authority of law which discusses almost all the authorities of the Apex Court. In Indian Overseas Bank, Anna Salai and Anr. v. P. Ganesan and Ors. [ : (2008) ILLJ 502 SC], the Apex Court was pleased to hold, 15. Legal position operating in the field is no longer res integra. A departmental proceeding 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. 16. In Delhi Cloth and General Mills Ltd. v. Kushal Bhan, : AIR 1960 SC 806, Court while holding that the employer should not wait for the decision of the criminal court before taking any disciplinary action against the employee and such an action on the part of the employer does not violate the principle of natural justice, observed: We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to wait the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced. The same principle was reiterated in Tata Oil Mills Co. Ltd. v. The Workmen : AIR 1965 SC 155. 17. In State of Rajasthan v. B.K. Meena and Ors. : (1996) 6 SCC 417, this Court held: 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. 18. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., and Anr. : JT 1999 (2) SC 456, also deserves to be noticed. This Court therein held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Court summarized its findings as under: (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. 19. The issue came up for consideration yet again in T. Srinivas (supra) [ : (2004) 7 SCC 442] where this Court while analyzing B.K. Meena (supra) and Capt. M. Paul Anthony (supra) held that: 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. 20. The High Court, unfortunately, although noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges leveled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non staved of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also the matter involves a complicated question of law. (emphasis supplied)

(3.) IN another case reported in Noida Entrepreneurs Assn. v. Noida and Ors. [ : AIR 2007 SC 1161] the Apex Court was pleased to hold. 8. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. (See: Tata Cellular v. Union of India : 1994 (6) SCC 651, and Teri Oat Estates (P.) Ltd. v. U.T. Chandigarh and Ors. : (2004) 2 SCC 130. The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidvalaya Sangathan and Ors. v. T. Srinivas : (2004) 7 SCC 442, Hindustan Petroleum Corporation Ltd. and Ors, v. Sarvesh Berry : (2005) 10 SCC 471 and Uttaranchal Road Transport Corpn. v. Mansaram Nainwal : AIR 2006 SC 2840. 9. The purpose of departmental enquiry and of prosecution is 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 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 Indian Evidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding 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. Under these circumstances, what is required to be seen is whether the department 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. 10. A three -judge Bench of this Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd. Yousuf Miya and Ors., : (1997) 2 SCC 699, analysed the legal position in great detail on the above lines. 11. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena and Ors. : JT 1996 (8) SC 684. 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.