G. Yangantiah vs Depot Manager, Anantapur and another

The petitioner is an employee (under suspension) working in A.P. State Road Transport Corporation. He invokes the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India and prays for issuance of an appropriate directions to the respondents directing them not to proceed with Departmental enquiry initiated against him until the disposal of criminal case in Crime No.209 of 1998 pending on the file of the learned Additional Judl. First Class Magistrate, Anantapur.

The authorities of the Corporation have lodged complaint against the petitioner with I-Town Police Station, Anantapur on 6-9-1998 alleging that on 5/6-9-1998 the petitioner had committed theft of three flaps from garrage at about 23.55 hours and was about to carry them in tool box of his two wheeler and he was caught red-handed by the security. The Police has registered a case in Crime No.209 of 1998 u/s 380 of the Indian Penal Code. The investigation is stated to be in progress.

On the very same allegation, the respondents have initiated disciplinary action against the petitioner and framed the following two charges:

(1) For having left your work place and you were going out from the garage at 23.55 and 5-9-1998 without permission of your shift supervisor which constitutes misconduct as per Regulation 28(xxvii) of APSRTC Employees (Conduct) Regulations, 1963.

(2) For having attempted to steal three flaps from the garage on 5/6-9-1998 at about 23.55 hours keeping them in the tool box of your two wheeler and when you were going out, have you were stopped by the on duty security guard and caught red-handed which constitutes misconduct as per Regulation 28(x)(xxxi) of APSRTC Employees (conduct) Regulations, 1963.

According to the petitioner, the sum and substance of the allegations levelled against the petitioner both in the criminal complaint as well as the disciplinary enquiry are one and the same. It is alleged that proceedings in Departmental enquiry on the same set of charges pending before the learned Additional Judl. First Class Magistrate would cause prejudice to his defence in the said criminal case. The said action on the part of the respondent is alleged to be violative of principles of natural justice. The very same contentions are advanced by the learned Counsel for the petitioner. Learned Counsel for the petitioner would submit that the departmental enquiry is required to be kept in abeyance pending adjudication of the criminal case.

Nothing is stated in the affidavit filed in support of the writ petition as to how the proposed disciplinary enquiry would cause any prejudice to the petitioner except stating "that proceeding against me in a departmental enquiry on the same set of charges pending before the Additional Judl. First Class Magistrate, Anantapur, is prejudicial against my interest and also contrary to the principles of natural justice". What is the prejudice that is likely to be caused? In what manner the enquiry into the charges levelled against the petitioner in the departmental proceedings would cause prejudice and to which case? The affidavit is delightfully silent on this crucial question. What is the defence that is likely to be adopted by the petitioner is not revealed and who arc the witnesses he proposes to examine on his behalf either in the criminal case or in the departmental proceedings is not stated. It is also not stated as to who are the probable witnesses whom the department is likely to examine in the criminal case as well as in the departmental enquiry. It is not known as to whether the same witnesses are likely to figure in both the proceedings.

However, Sri Ratna Reddy, learned Counsel for the petitioner would place strong reliance upon the decision of the Apex Court in Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., . In my considered opinion, the said Judgment does not lend any support to the case put-forth by the petitioner. In feet, the decision of this Court directing stay of departmental enquiry on the ground that it would cause prejudice to the employees at the trial of criminal case was reversed by the Supreme Court observing that:

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, 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 feet and law. Offence generally implies infringement of public (sic 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 evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry lias to be conducted expcditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof."

As laid down by the Apex Court, what is required to be seen is whether the departmental enquiry would seriously prejudice the employee in his defence at the trial in the criminal case. Each case has to be decided on its own facts. In each case, the delinquent employee is required to make out a case as to how and under what circumstances the departmental enquiry would cause any prejudice and adversely affect his defence at the trial in criminal case. Mere self-serving averment that it .. would cause some prejudice is no ground to interdict the departmental proceedings. A clear case has to be made out as to in what manner the defence of delinquent employee would get adversely affected at the trial in the criminal case.

The law on the subject is not res Integra. The Apex Court in State of Rajasthan Vs. B.K. Meena and others, , had an occasion to consider similar question and observed:

"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 goon simultaneously and then say that in certain situations, it may not be ''desirable'' 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 last 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 The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , and Tata Oil Mills Co. Ltd. Vs. Its Workmen, , 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 holding high public offices are involved. They get bogged down on one or the other ground. They hardly even 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 arc concluded cxpcditiously. 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 cliarges, 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 arc 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 Apex Court further held:

"There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."

It is thus clear that postponement of disciplinary proceedings and grant of stay directing disciplinary authorities not to proceed with the enquiry is not a matter of course. Clear case has to be made out, that complicated questions of fact and law are involved at the trial in the criminal case and revealing of defence in the departmental proceedings would cause prejudice to the delinquent at the trial in the criminal case. The petitioner does not reveal anything in the affidavit as to in what manner the proceedings in the departmental enquiry would cause prejudice to his defence at the trial in the criminal case. As observed by the Apex Court, the provisions of law that are applicable, the nature of proof that is required to establish the charges, the character of the proceedings in the departmental enquiry and criminal case are not one and the same. In fact, interest of justice require expeditious disposal of departmental proceedings. It is not possible to direct postponement of disciplinary enquiry on the .mere ground of pendency of the criminal case in this case.

I do not find any merit in this writ petition and the same shall stand accordingly dismissed at the admission stage.