Awadhesh Kumar Mandal vs The State of Bihar and Others

Shivaji Pandey, J.—1. Heard learned counsel for the petitioner and learned counsel for the State.

In the present writ petition, the petitioner is seeking relief in the nature of mandamus directing and commanding the respondents authorities not to act upon the resolution, as contained in memo No. 9735 (Bh) dated 15.7.2013 (Annexure-4 series) Praptra K by which departmental proceeding has been initiated and further sought a relief for restraining the respondent to go ahead with the departmental proceeding till the conclusion of Economic Offence P.S. Case No. 16 of 2013 lodged against the petitioner with respect to accumulation of disproportionate asset to the known source of income of the petitioner and further an interlocutory application was filed vide I.A. No. 9075 of 2013 by which additional relief has been sought for setting aside the office order vide memo No. 6710 dated 19.6.2013 by which the petitioner has been put under suspension during pendency of the departmental proceeding.

The petitioner is holding the post of Executive Engineer and was working in the Department of Building Construction at Muzaffarpur. A raid was conducted by the Economic Offence Wing of the State of Bihar on 29.5.2013 at his residence, led to registration of Economic Offence P.S. Case No. 16 of 2013 against the petitioner making an allegation of assets accumulated disproportionately to the known source of his income which constitute offence under Sections 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988. Inspector General of Police, Economic Offence Wing. Bihar, Patna sent intimation about the institution of criminal case, subsequently the Joint Secretary, Government of Bihar in exercise of power under section 9(1) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as ''the Rules, 2005) vide letter No. 6709 dated 19.6.2013, placed the petitioner under suspension during the pendency of the departmental proceeding and during that period departmental he has been made entitled to subsistence allowance, further stipulated, necessary order will follow in connection with initiation of departmental proceeding. Later on the Joint Secretary, Government of Bihar vide resolution No. 9735 dated 15.7.2013 served the charge-sheet intimating, the departmental proceeding would be conducted by the Commissioner of Departmental Enquiry, Bihar Patna and Saligram Prasad the Additional Secretary, Building Construction Department, Government of Bihar was appointed as Presenting Officer.

In the charge memo it has been stated that the police has lodged a criminal case in connection with accumulation of asset more than his known source of income and the same is the subject matter of the departmental proceeding annexing the copy of the FIR of the Economic Offence Case No. 16 of 2013 and also the order of suspension.

Learned counsel for the petitioner has submitted that the allegations made in the FIR as well as in the charge sheet are identical and if the petitioner would be exposed to Departmental Proceeding he would have to divulge his defence, will cause prejudice in a criminal trial and as such departmental proceeding be stayed till the conclusion of criminal case.

The charges mentioned in the departmental enquiry is identical to alleged offence mentioned in the First Information Report and as such the standard of proof of misconduct in the departmental proceeding will be the same as that of criminal case, the alleged charges have to be proved beyond reasonable doubt. The general principle is in department proceeding where, basically misconduct is proved applying principle of preponderance of probability but in the present case as the charge-sheet of misconduct is in the nature of quasi criminal, of preponderance of probability will not be applicable. In support of his submission, he has placed reliance on the following judgments in the case of Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others, reported in , (1987) 1 SCC 227, paragraph 40, Bennion on Statutory Interpretation 5th Edition page 830, Union of India and others v. Gyan Chand Chattar, reported in , (2009) 12 SCC 78, paragraph Nos. 20 and 21 and Kapil Muni Rai v. The State of Bihar and others, reported in , 2011(1) PLJR 123. On that strength counsel for the petitioner submits that departmental proceeding should remain stayed.

With regard to the order of suspension, it has been submitted that the order of suspension has been passed in view of the pendency of criminal case in terms of Section 9(1)(C) of the Rules, 2005 where it is required that the competent authority must record his satisfaction in the public interest it is expedient to suspend the Government Servant which is pre-requisite before placing an employee under suspension which is completely silent in the order of suspension so much so there is no averment in the order of suspension that the petitioner has been put under suspension on account of contemplation of departmental proceeding or any departmental proceeding is pending. In such view of the matter, when the satisfaction competent authority has not been recorded of public interest the order of suspension is liable to be quashed and he has placed reliance on two judgments of this Court passed in C.W.J.C. No. 8229 of 2014 (Arvind Kumar Singh v. The State of Bihar & Ors.) (Annexure-9) and C.W.J.C. No. 14057 of 2013 (Mithilesh Kumar v. The State of Bihar & Ors. (Annexure-10), on that strength, counsel for the petitioner submits that in both the cases this Court has quashed the order of suspension as competent authority while passing the order of suspension has not recorded his satisfaction of placing the employee under suspension in the public interest.

In contra, learned counsel for the State submits that an FIR has been lodged against the petitioner for accumulation of the asset beyond his known source of income as well as for the same charge a departmental proceeding has been initiated. There is no bar in continuation of departmental enquiry during pendency of criminal case, as standard of proof in the criminal trial is proof beyond reasonable doubt but in the departmental standard of proof is quite different as the proof charge of misconduct is based on principle of preponderance of probability. As this issue has been gone into on different occasions by Hon''ble Supreme Court and this Court, the principle has been laid that even though the charges made in the criminal case as that of departmental proceeding be the same and identical, the departmental proceeding cannot be stayed one of the reason has been mentioned that criminal trial takes a long time for its conclusion and on that account the departmental proceeding with respect to the same matter cannot be kept in abeyance apart from standard of proof of criminal chare vis-�-vis the misconduct in the departmental proceeding. He has placed reliance on the judgment in the case of Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, reported in , (2005) 10 SCC 471, Noida Entrepreneurs Association v. Noida and others, (2007) 10 SCC 385, paragraph No. 16, Md. Yunus v. The State of Bihar and others, , 2014(1) PLJR 159, Divisional Controller, KSRTC v. M.G. Vittal Rao, reported in , 2011(8) Supreme Today 185, the order passed in C.W.J.C. No. 437 of 2014 (Shiv Nandan Sah v. State of Bihar where identical issue was raised and the Court has taken a view that pendency of criminal case on the identical charge can not be a basis for keeping the departmental preceding in abeyance. On the point of suspension he has submitted that the order of suspension has been passed in terms of Rule 9(1) of the Rules, 2005 not confined to the pendency of criminal case but also for contemplation of the departmental proceeding which is indication of fact from para 4 of the letter of suspension where it has been indicated that after the order of suspension necessary order be issued. He has further submitted that the competent authority purposely has not mentioned the definite reason for placing petitioner under suspension rather the order of suspension has been passed against the petitioner considering the pendency of criminal case and also contemplation of departmental proceeding, in support of his submission he has produced the departmental note-sheet which was generated after raid conducted by Economic Offence Division Wing, State of Bihar, on that strength and he has submitted that the note-sheet itself discloses that petitioner was not put under suspension only because of the criminal case rather also in contemplation of departmental proceeding.

Having considered the rival contentions of the parties, this Court has to decide, (i) whether in the present matter, will it be a better course to stay the departmental proceeding till the conclusion of criminal trial or departmental proceeding should continue even without waiting the out come of criminal case. (ii) Another issue whether the order of suspension has been passed in view of pendency of the criminal case only but also for contemplation of departmental proceeding and whether this Court should interfere with order of suspension.

Stay of departmental proceeding during the pendency of criminal trial.

While deciding the question of staying the departmental proceeding during pendency of criminal trial precursor would be the standard of proof in the criminal trial vis-�-vis in a departmental proceeding. As per the claim of the petitioner even in a departmental proceeding, charges are quasi criminal are the same and identical as that of criminal proceeding the standard of proof of charge in the departmental proceeding will be the same as that of the criminal trial. As the charges in the departmental proceeding is in the nature of quasi criminal have to be proved beyond reasonable doubt and to the hilt. Generally the standard of proof in the departmental proceeding when the facts involved charges of misconduct are same and identical, so much so those are not grave which may not lead to deprivation of the livelihood, the standard of proof is based on preponderance probability and criminal case would take long time, suspension of departmental proceeding will not be justified. In contrary this principle does not apply when the charges are same as that of criminal case, as livelihood is at stake, in case of proving the charge delinquent may loose bread and butter. In support of submission reliance has been placed to the Bennian on Statutory Interpretation at page 830 which is as follows:

"Standard of proof. Where an enactment would inflict a serious detriment on a person if certain facts were established then, even though the case is not a criminal cause or matter, the criminal standard of proof will be required to establish those facts, that is their existence will not be taken to be proved merely on a balance of probabilities. Proof must be beyond reasonable doubt, so that anyone testing it would feel sure.

Example 271.3 Under the Agricultural Marketing Act 1958 s 35 (repealed) a registered milk producer was precluded from selling milk except to the Milk Marketing Board. The Board refused to purchase milk from the appellant following tests on the quality of his produce. Held The criminal standard of proof applied, and this had not been satisfied. Forbes J said; ''When a man''s livelihood is at stake the standard of proof should not be lower than in criminal proceedings."

The aforesaid quotation suggests when charges are serious may lead to the deprivation of livelihood it should not be lightly taken and standard of proof will not be taken to be proved merely on balance of probabilities. Proof must be beyond reasonable doubt. Further the petitioner has got support from the judgment in the case of Shivajirao Nilangekar Patil (supra) where in paragraph 40 the Hon''ble Supreme Court has held that as per Halsbury''s Laws of England, Fourth Edition, Volume 17 page paragraph 19 deals with the standard of proof necessary in these types of cases. It has been stated that in civil cases the standard of proof is satisfied on a balance of probabilities. However, even within this formula, there are variations depending upon the subject matter of allegations. This paragraph does not deal the standard of proof to be followed in case of departmental proceeding. In terms of public policy as being followed from old period the standard of proof in civil cases and departmental proceeding will not be the same as that of criminal proceeding.

The purpose of departmental enquiry and of criminal prosecution are based on two different and distinct principles. Criminal cases are initiated for foreign act constitute 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. Crime is an act of commission in violation of law or of omission of public duty whereas the departmental enquiry is to maintain discipline in the service and efficiency of public service. It is well settled principle of law that the proceeding in a criminal case and departmental proceeding can go on simultaneously. In some cases where the departmental proceeding and criminal cases are based on same set of facts and the evidence in both the proceedings is common, in that situations, the court has to decide, taking into account the special features of the case, whether simultaneous continuance of both proceeding would be proper. Stay of departmental proceeding 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 but the gravity of the charge will not itself a ground to determine the question unless the charge involves complicated question of law and fact While examining the issue of stay of disciplinary proceeding the question must be kept in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large in that circumstance the court has to draw a balance between the need of a fair trial on the one hand and the competing demand for an expeditious disposal of the disciplinary proceedings on the other and early conclusion of the disciplinary proceeding itself in the interest of institution as well in the interest of employees. Some times it also happens the criminal case remain protracted years together, some time 10-15 years, by that time the witnesses those were required for departmental enquiry dissipated or those who has to give evidence either retired or have died. In such situation the balance has to be drawn not only for the delinquent but also for the institution. There cannot be straitjacket formula to stay the departmental proceeding but it depends upon the nature of allegation and complicity of situation. On this issue there are long line of case of Hon''ble Supreme Court and this Court dealing with the situation in what circumstances departmental proceeding should be stayed till disposal of the criminal case.

In long line of cases, it will be proper to examine the case of Delhi Cloth and General Mills Ltd. v. Kushal Bhan, reported in , AIR 1960 SC 806. In that case delinquent appeared before the Enquiry Committee where he has taken a plea of pendency of criminal case took the plea that a criminal case is pending against him, he did not want to produce his defence till the matter is decided by the criminal court and further said that he did not want to take part in the enquiry and was not proper to give any answer to the question put to him. Whenever a question was put to him he refused to give answer. Lastly he left the enquiry. The employer proceeded with the enquiry, found the charges proved passed the order of dismissal. There the question arose during the pendency of criminal case the continuation of departmental enquiry will be a violation of natural justice and fair play. There the plea was taken that natural justice requires that an employer should wait till the decision of the criminal trial. The Hon''ble Supreme Court has given answer in the following manner where it has been held as follows:

"It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against the employee. In Shri Bimal Kanta Mukherjee v. Messrs. Newsman''s Printing Works, 1956 Lab AC 188, this was the view taken by the Labour Appellate Tribunal. 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 await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."

In the case of Tata Oil Mill C. Ltd. V. Workmen, reported in , A.I.R. 1965 SC 155, similar view has been taken as stated above in the following manner. It will be relevant to quote paragraph 9 of the aforesaid judgment:

"9. There is yet another point which remains to be considered: the Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kaushal Bhan, , 1960-3 SCR 227 : (AIR 1960 SC 806) it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. It would be particularly appropriate to adopt such a course where the charge against the workman is of a grave character, because in such a case, it would be unfair to compete the workman to disclose the defence which he may take before the criminal court. But to say that domestic enquiries may be stayed pending criminal trial is very different from anything (sic) that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide. In fairness, we ought to add that Mr. Menon did not seek to justify this extreme position. Therefore, we must hold that the Industrial Tribunal was in error when it characterised the result of the domestic enquiry as mala fide partly because the enquiry was not stayed pending the criminal proceedings against Raghavan. We accordingly hold that the domestic enquiry in this case was properly held and fairly conducted and the conclusions of fact reached by the Enquiry Officer are based on evidence which he accepted as true. That being so, it was not open to the Industrial Tribunal to reconsider the same questions of fact and come to a contrary conclusion."

In the case of State of Rajasthan v. B.K. Meena and others, reported in , AIR 1997 SC 13 identical question was raised about the continuation of departmental proceeding during pendency of criminal trial. There the Court has said that there is no legal bar for both proceedings to go on simultaneously. It may not be desirable and advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges, The only ground suggested of discloser is that defence of the employee before the disciplinary proceeding will not be prejudiced. The Court has dealt with the issue and held that the disciplinary enquiry cannot and should not be unduly delayed. So far criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. 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 proceeding is concluded at an earlier date. The interest of administration and good governance demands 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 misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting ride of bad elements In such situation it requires, early conclusion of the departmental proceeding. It will be relevant to quote paragraph 14 of the aforesaid judgment:

"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. (, AIR 1960 SC 806) and Tata Oil Mills (, AIR 1965 SC 155) is not also 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, consideration 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 official, or persons holding high 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 advise 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 emphasize 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."

The similar issue was considered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines, reported in , (1999) 3 SCC 679 dealing with identical situation and issue about the continuation of departmental proceeding. It will be relevant to quote paragraph Nos. 20 and 22 of the Capt. M. Paul Anthony (supra):

"20. This decision has gone two steps further than the earlier decisions by providing:

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.

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.

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."

Again the matter came for consideration before Hon''ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. (supra). The facts of present case and aforesaid case shows nearness. In that case, identical to the present case official of Central Bureau of Investigation raided the house of Sarvesh Berry and found that he was in possession of asset disproportionate to his known source of income and after investigation charge-sheet was submitted, simultaneously departmental proceeding was initiated on the ground that continuation of employee in service of Corporation would not be in the public interest. Disciplinary proceeding was challenged before the writ court. Learned Single Bench refused to interfere with the departmental proceeding holding, having no legal bar with the continuation of departmental proceeding and criminal trial simultaneously even though they are based on identical or same set of facts. L.P.A. Bench in appeal set aside the order of learned Single Judge. Matter went to the Hon''ble Supreme Court, there the question was raised with regard to that fact as the allegation in the criminal case is accumulated wealth of disproportionate to the known source of income and the same charge also leveled in the departmental proceeding. Both are grave in nature may take away livelihood in the event charge has been proved the Court looked into the matter and held that in a case when the asset found are disproportionate to known source of income. Known source of income means income derived from any lawful source and such receipt has been made in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. Apart from the known source if assets were acquired is only within the knowledge of the accused. In such circumstances there is no question for any disclosure of defence in the departmental proceeding. It will be relevant to quote paragraph 7,8, 12 and 13 of the Hindustan Petroleum Corporation (supra):

"7. It is a fairly well-settled position in law that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases 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 be proper.

The purposes of departmental enquiry and of prosecution are two different and distinct aspects. 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 a grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private right 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 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. 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 Capt. M. Paul Anthony case this Court indicated some of the fact situations which would govern the question whether departmental proceedings would be kept in abeyance during pendency of a criminal case. In para 22 conclusions which are deducible from various decisions were summarized. They are as follows: (SCC p.691)

"22.(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneous 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 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"

It is to be noted that in cases involving Section 13(1)(e) of the PC Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression "known sources of income" is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the PC Act provides that for the purposes of the section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally, issues covered by Charges 2 and 3 cannot be the subject matter of adjudication in the criminal case."

In the case of South Bengal State Transport Corpn. V. Sapan Kumar Mitra and others, reported in , (2006)2 SCC 584 where the question arose whether continuation of departmental proceeding is legal in the event of acquittal in the criminal trial, the Court has held that even in a case the delinquent is acquitted from a criminal charge does not mean the departmental proceeding cannot continue with respect to the charges leveled against him. The natures of criminal case are different from those of departmental proceeding and the order of acquittal, therefore, cannot conclude the departmental proceeding. It will be relevant to quote paragraph Nos. 9 and 10 of the aforesaid judgment:

"9. We have heard the learned counsel for the parties and also examined the relevant records of this case. Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned counsel for the respondents sought to argue this ground before us. In our view, this ground is no longer res integra. In Nelson Motis v. Union of India 1 a three-Judge Bench of this Court observed at SCC p. 714, para 5, as follows:

"5. So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject-matter of the criminal case."

(emphasis supplied)

Similarly in Senior Supdt. of Post Offices v. A. Gopalan the view expressed in Nelson Motis v. Union of India was fully endorsed by this Court and similarly it was held that the nature and scope of proof in a criminal case is very different from that of a departmental disciplinary proceeding and the order of acquittal in the former cannot conclude the departmental proceedings. This Court has further held that in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. Such being the position of law now settled by various decisions of this Court, two of which have already been referred to earlier, we need not deal in detail with the question whether acquittal in a criminal case will lead to holding that the departmental proceedings should also be discontinued. That being the position, an order of removal from service emanating from a departmental proceeding can very well be passed even after acquittal of the delinquent employee in a criminal case. In any case, the learned Single Judge as well as the Division Bench did not base their decisions relying on the proposition that after acquittal in the criminal case, departmental proceedings could not be continued and the order of removal could not be passed."

In the case of Uttaranchal Road Transport Corpn. and others. V. Mansaram Nainwal, reported in , (2006) 6 SCC 366 identical question arose about the continuation of departmental proceeding. Issue was raised when the police after investigation did not find him guilty the order of dismissal was not justified. The Court has taken a view that acquittal in criminal case cannot be a basis for closure of departmental proceeding. It will be relevant to quote paragraph 10 of the aforesaid judgment:

"10. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and reinstatement in service has been dealt with by this Court in Union of India v. Bihari Lal Sidhana. It was held in para 5 as follows: (SCC pp. 387-88)

"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 and Appeal) Rules or under the Temporary Service Rules. Admittedly, the respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money."

Hon''ble Supreme Court in the case of Noida Entrepreneurs Association (supra) the Court has considered what will be the standard of proof in the criminal trial as well as in departmental enquiry. It has been held that standard of proof required in departmental enquiry is not the same as required to prove a criminal trial and even if there is an acquittal in the criminal trial the same does not bar the departmental proceedings. There, on the basis of enquiry conducted by CBI, the departmental proceeding was dropped. But Hon''ble Supreme Court interfered with the matter and directed for completion of departmental proceeding. The Court has held that there can be no straitjacket 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 and he cannot be permitted to, on one hand, prolong criminal case and at the same time challenge the departmental proceeding on the ground of pendency of criminal trial. It will be relevant to quote paragraph Nos. 13 and 16 of Noida Entrepreneurs Association (supra) :

"13. There can be no straitjacket 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.

The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue."

In the case of West Bokaro Colliery (Tisco Ltd.) v. Ram Pravesh Singh, reported in , (2008) 3 SCC 729 in paragraph 20 the Court has held that

"It is well-settled principle of law that yardstick and standard of proof in a criminal case is different form the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities."

Learned counsel for the petitioner has placed heavy reliance on the judgment of the Hon''ble Supreme Court in the case of Union of India and others v. Gyan Chand Chattar (supra) for his proposition of the stay of disciplinary proceeding, specially placed reliance on paragraph Nos. 20 and 21. In the aforesaid case allegation was made of taking 1% commission for making the payment of allowances. Learned Single Judge considered the evidence of each and every witness examined in the proceeding, arrived to a conclusion that no witness deposed against the delinquent making allegation of demanding the commission. In paragraph 21 the Court says that such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal proceeding upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi criminal nature was liable to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. This statement has been made by the Hon''ble Supreme Court in a situation when there was none to make imputation against the delinquent. There the Hon''ble Court has said that the charges should be definite with the statement of allegation on which each charges framed and any other circumstances which it proposed to be taken in passing the order. The charges should not be vague but should be definite giving a clear picture of delinquency so that the delinquent may take effective step of his defence and ultimately arrived to a conclusion that as a matter of fact the enquiry proceeding was initiated out of anguish of superior officers as there had been an agitation by the railway staff making demand of pay and allowances and they detained the train illegally which led too much hue and cry for several hours on the railway station. The Enquiry Officer has taken into consideration the non-existing material and failed to consider the relevant material and finding of all facts recorded by him could not be sustained in the eye of law. Hon''ble Supreme Court has bracketed the steps of action to be taken in a departmental proceeding has been mentioned in paragraph 35 of the judgment which is as follows:

"35. In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."

This Court in the case of Kapil Muni Rai (supra) has passed the order for departmental proceeding in view of pendency of vigilance case. It appears that judgment of Hindustan Petroleum Corporation Ltd. (supra) was not brought to the notice of the Court and as such it will not be appropriate to place reliance on the said judgment in view of the fact that at later stage the Hon''ble Supreme Court again considered the ratio of continuation of the departmental proceeding in a situation of pendency of criminal trial in the case of the Divisional Controller, KSRTC v. M.G. Vittal Rao (supra). Hon''ble Supreme Court has considered long line of earlier cases. There ultimately in paragraph 19 the Court has taken a view that standard of proof in both proceedings is quite different and termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings and action of departmental proceeding cannot be termed as double jeopardy. It will be relevant to quote paragraph 19 of the aforesaid judgment:

"19. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. M. Paul Anthony (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry."

In the case of Md. Yunus (supra) identical issue was raised. By and large facts are the same. There also a criminal case was instituted under Sections 13(1) and 13(2) of the Prevention of Corruption Act, 1988. Simultaneously he was placed under suspension and led to a regular departmental proceeding. Challenge was made for continuation of departmental proceeding, relief was sought on account of pendency of criminal case the departmental proceeding should be stayed. The Court has considered large number of cases including the judgment of Kapil Muni Rai (supra) placing reliance on large number of cases and refused to interfere with the departmental proceeding and asked him to face consequences of the departmental proceeding, placing reliance on the case of Hindustan Petroleum Corporation Ltd. (supra) which does not require elaborate discussion of the aforesaid judgment.

Hon''ble Supreme Court has occasion to consider the continuation of departmental proceeding during pendency of criminal trial in the case of Stanzen Toyotetsu India Private Limited v. Girish V. and others, reported in , (2014)3 SCC 636 discussing earlier judgment culled out in what manner the Court will deal with matter in a case when identical charges are involved in the criminal trial as well in the departmental proceeding. It will be relevant to quote paragraph 16 of the aforesaid judgment:

"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."

Recently learned Single Bench of this Court has again considered the identical issue in the case of Shiv Nandan Sah v. The State of Bihar and others (C.W.J.C. No. 437 of 2014) and placing reliance on long line of cases has refused to interfere with the departmental proceeding. Basically reliance has been placed on the case of Hindustan Petroleum Corporation Ltd. (supra). In this case also the question is with respect to pendency of criminal case under Section 13(1) of the Prevention of Corruption Act and initiation of departmental proceeding. This Court has taken a view that generally disposal of criminal case takes a long time and the same will not be beneficial to the institution as well as employee requires early conclusion be helpful to the employee as also the institution. It will be relevant to quote paragraph 16 of the aforesaid judgment:

"16. The petitioner Prem Kumar of CWJC No. 2693 of 2014, while he was posted as Jail Superintendent, Sitamarhi, was apprehended in a trap case on 06.11.2006. He was allegedly caught red-handed while accepting bribe of Rs. 1 lac from the complaint Ram Lakhan Yadav, and accordingly, Vigilance P.S. Case No. 73 of 2006 dated 07.11.2006 for offences under Section 7/13 (2) read with Section 13 (1)(d) of the PC Act was instituted. Indisputably, cognizance was taken in the aforesaid criminal case and criminal trial is pending for the last 8 years. According to learned State counsel, the petitioner is not co-operating in early conclusion of the trial. Indisputably, the departmental proceeding was initiated against this petitioner as far back as in the year 2008 itself and memo of charge was served to him in the year 2008. Some how or other the departmental proceeding could not be concluded earlier and now when the Commissioner of the Departmental Enquiry, General Administration Department, Govt. of Bihar, is entrusted to conclude the departmental enquiry, then the present writ petition has been filed by the petitioner for staying the departmental proceeding on the ground of pendency of a criminal case on the same set of charges. Apparently, he is not allowing the criminal trial to proceed, but at the same time, he wants that the departmental proceeding be kept in abeyance for an indefinite period. These aspect of the matter was taken into consideration by the Hon''ble Apex Court in the cases of State of Rajasthan v. B.K. Meena (supra) as also Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (supra) and it was held that where there is undue delay in disposal of the criminal case, the departmental proceeding can be proceeded. In view of the law laid down by the Hon''ble Apex Court and in view of the special feature of the present case, particularly, in view of pendency of criminal trial for last 8 years and departmental proceeding for the last 6 years, this Court is not inclined to accede to the prayer made on behalf of the petitioner for staying the departmental proceeding till conclusion of the criminal trial. Therefore, this writ petition has also to fail and departmental proceeding must be taken to its logical conclusion."

In view of the authoritative pronouncement of the judgment as aforesaid in a case of departmental proceeding as well as criminal trial is pending which may lead to deprivation of livelihood involved complex question of facts and law, in such circumstances normally proceeding of departmental proceeding be stayed. But in a situation when criminal proceeding will take a long time for its conclusion it will not be in the interest of justice to stay the departmental proceeding as has been held in Hindustan Petroleum Corporation Ltd.(supra) in the case of allegation of accumulation of asset beyond the known source of income the onus is upon the delinquent to show in what manner he has a procured the asset beyond known source of income known to the officials.

Learned counsel for the petitioner has submitted that in Prapatra K. save and except the photocopy of FIR and of order of suspension. Nothing extra was brought by way of evidence. It has further been submitted that it cannot be proof of misdemeanor of commission of misconduct as allegation mentioned in that FIR itself is required to be proved before the court of law cannot be treated to be a piece of evidence against the petitioner. The order of suspension is nothing but keeping the relationship of master and servant hold up, cannot be a piece of evidence for proving the charge of misconduct.

Learned counsel for State has refuted this submission staying that this issue of sufficiency material evidence will be seen at the time of departmental proceeding cannot be a subject matter of discussion for staying the departmental proceeding during pendency of criminal trial.

The State is correct in submission, the issue will be considered during departmental proceeding. It is not be proper stage to discuss the issue of sufficiency of material evidence.

In such view of the matter, there is no need to stay the departmental proceeding during the pendency of criminal case. Hence departmental proceeding will continue.

Whether the order of suspension has been passed only on account of lodging of criminal case or also for contemplation of departmental proceeding:

Before dealing with the fact, It is proper to record that this Court has directed the State to produce the original file with respect to departmental enquiry relating to petitioner. The same was produced and photocopy of the relevant portion of the file has been taken by this Court for proper purpose of deciding the issue involved.

In the present case some facts are relevant to be looked into for proper consideration of issue involved in the present case. On 29.5.2013 First Information Report was lodged against the petitioner for offences under Sections 13(2) read with section 13(1)(c) of the Prevention of Corruption Act, 1988. The Inspector General of Police Economic Offences wrote a letter to the Secretary, Building Construction Department, Government of Bihar informing that a raid was conducted in the house of the petitioner where material has been found showing he has acquired asset beyond his known source of income. On 19.6.2013. The Government of Bihar issued a notification dated 19.6.2013 whereby and whereunder in exercise of power under Rule 9(1) of Rules, 2005 placed the petitioner under suspension. In paragraph 4 of the said letter it has been mentioned that after the said order of suspension a proper order with respect to initiation of departmental proceeding will be issued. The Joint Secretary of Government of Bihar issued memorandum dated 15.7.2013 thereby communicated the decision of competent authority for initiation of departmental proceeding against the petitioner annexing Prapatra K. There evidence has been shown, an FIR with respect to Economic Offence P.S. Case No. 16 of 2003 and photocopy of order of suspension.

It has been argued that the order of suspension has been passed on account of pendency of criminal proceeding under Section 9(1)(C) of Rules, 2005 which stipulates that when an investigation, inquiry or trial with respect to criminal case against the Government servant is pending, is put under suspension it is prerequisite for competent authority to record his satisfaction about expediency to suspend the Government servant in public interest, as in the order of suspension it has not been recorded that petitioner has been placed under suspension on account of public interest. As submitted, in such situation, the order of suspension is not sustainable in law, liable to be set aside. In sum and substance in absence of such recording of satisfaction of the competent authority the order cannot be sustained. He has placed reliance on two judgments of this case passed in C.W.J.C. No. C.W.J.C. No. 14057 of 2013 (Mithilesh Kumar v. The State of Bihar and others) and C.W.J.C. No. 8229 of 2014 (Arvind Kumar Singh v. The State of Bihar & others) where the Court has considered the affect of absence in recording of satisfaction of public interest in terms of Rule 9(1)(c) of Rules, 2005. The Court has considered three events putting an employee under suspension; one is contemplation of departmental proceeding, another is Government servant has engaged himself in the activities prejudicial to the interest of the security of the State and third one is pendency of criminal trial which requires satisfaction of the competent authority in public interest. Sub Rule 1(b) of Rule 9 of Rules, 2005 is not attracted in the present case. Only clause (a) and (c) have an application to the facts of this case. While putting an employee under suspension on account of pendency of criminal case without recording the satisfaction of public interest by competent authority in that situation this Court in aforesaid cases has annulled order of suspension but liberty was given to the competent authority to pass a fresh order strictly in accordance with law.

In the present case the order of suspension has been passed under Section 9(1) of Rules, 2005 without disclosing any sub-clause either (a) or (c) indicating that it will follow a departmental proceeding against the petitioner. For arriving to right conclusion it will be appropriate to examine the notings in the file. It will be relevant to quote relevant portion of the file itself:

On perusal of the nothings in the file it appears that after having received the information of initiation of criminal proceeding a file was moved for putting the petitioner for departmental proceeding as well to put him under suspension. Proposal was given for initiation of departmental proceeding as well putting the petitioner under suspension. In such view of the matter, it cannot be derived that the petitioner was put under suspension only on account of criminal case rather petitioner has also been put under suspension for the contemplation of departmental proceeding as the order of suspension has been passed on 19.6.2013 and within one month a proper charge sheet was issued against him itself shows living link between the order of suspension and initiation of departmental proceeding. So looking to the facts and circumstance of this case this Court safely arrived to a conclusion that order of suspension has not bee issued only on account of pendency of criminal case rather the order of suspension is a result of criminal case as well as departmental proceeding.

In such view of the matter, this point also goes against the petitioner and accordingly this Court finds that there is no merit in the present case.

Accordingly this writ petition is dismissed. However, respondents are directed to conclude the departmental enquiry without unnecessary delay preferably within a period of six months from the date of receipt of a copy of this order.