Jivendra Prasad Singh vs State Of Bihar & Ors

The present writ petition has been filed for setting aside the order dated 08.08.2016 passed by the Joint Secretary, Road Construction Department,

Patna whereby and whereunder, the petitioner has been suspended with immediate effect and departmental proceeding has been initiated against him

on the basis of Vigilance case dated 16.07.2015. The petitioner has further prayed for directing the respondents not to proceed with the departmental

proceeding during the pendency of the criminal proceeding.

The only issue canvassed in the present case is that since a criminal proceeding bearing Vigilance PS case no. 56 of 2015 is pending and on same

and similar charge, departmental proceeding in question has been initiated by the respondents vide order dated 08.08.2016, the departmental

proceeding is required to be stayed till the conclusion of the criminal proceeding.

At this juncture, it would be relevant to state that the ongoing criminal case bearing Vigilance PS case no. 56 of 2015 dated 16.07.2015 has been

lodged on the basis of the written report of the informant namely Sunil Kumar dated 07.07.2015 wherein, he had made a complaint before the

Superintendent of Police, Vigilance Investigation Bureau of Patna to the effect that for the purposes of checking and passing the bill of the informant

namely Sunil Kumar, the petitioner herein, who was posted as Executive Engineer was demanding bribe. Thereafter, the Deputy Superintendent of

Police-cum-Incharge of the raiding party, Vigilance Investigation Bureau, Patna had caught the petitioner herein red-handed while taking bribe and

had also arrested the petitioner herein.

The departmental proceeding in question has been initiated which is apparent from the Memo dated 08.08.2016, on the charges of the petitioner

having been caught red-handed while taking bribe.

The learned counsel for the petitioner has relied on various judgments of the Hon’ble Apex Court to contend that in cases where the charges

leveled in the departmental proceeding as well as the allegations leveled departmental proceeding criminal proceeding. in the F.I.R. are same and

similar, the should be stayed till the conclusion of the

Per contra, the learned counsel for the respondents has submitted that no delay is being caused in the criminal case as far as the respondents are

concerned, inasmuch as the respondents have already granted sanction for prosecution under Section 197 of the Code of Criminal Procedure vide

letter dated 06.11.2015. Relying on various authorities on the subject matter, the learned counsel for the respondents has submitted that the allegations/

charges leveled against the petitioner herein are not at all complex or complicated, hence there is no requirement of stay of the departmental

proceeding pending the criminal proceeding.

I have heard the learned counsel for the parties and perused the materials on record. Admittedly both the criminal proceeding and the departmental

proceeding are based on same and similar charges. Nonetheless, before coming to a finding in the present case, it would be relevant to delve on the

law laid down by the Hon’ble Apex Court in various judgments pronounced from time to time. First judgment on the subject matter is the one

reported in (1997) 2 SCC 699 (Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya), paragraphs no. 7 and 8 whereof are reproduced hereinbelow :-

The rival contentions give rise to the question whether it would be right to stay the criminal proceedings pending departmental enquiry? This Court

in Meena case1 had elaborately considered the entire case law including Kusheshwar Dubey case relieving the necessity to consider them once over.

The Bench, to which one of us, K. Venkataswami, J., was a member, had concluded thus: (SCC pp. 422-24, paras 14 and 17)

 “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. and Tata Oil Mills 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 â€" and should not be â€" 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 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 emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being

stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the

relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to

above.

* * *

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.â€​

We are in respectful agreement with the above view. 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 fact 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 the 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 has to be conducted expeditiously 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. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these

circumstances, the High Court was not right in staying the proceedings.

From the aforesaid judgment rendered in the case of Mohd. Yousuf Miya (supra), it is apparent that the Hon’ble Apex Court had held that

invariably the department inquiry has to be conducted expeditiously so as to effectuate efficiency in administration and the criminal trial will take its

own course though the Hon’ble Apex Court was of the view that the only issue to be considered is as to whether the departmental inquiry would

seriously prejudice the delinquent in his defense at the trial in a criminal case.

The next judgment on the subject matter is a judgment reported in (1996) 6 SCC 417 (State of Rajasthan v. B.K. Meena and ors), paragraphs no.

14 and 17 whereof are reproduced hereinbelow :-

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 prejudicedâ€. 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. and Tata Oil Mill 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 â€" and should not be â€" 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 ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court

and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where

the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are

concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of

misdemeanour is 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 emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long

periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for

and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.

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.

In the aforesaid judgment rendered in the case of B.K. Meena (supra), the Apex Court was of the opinion that the interest of administration and

good governance demands that the departmental proceedings are concluded expeditiously and a person, accused of serious misdemeanour, should not

be permitted to continue in office indefinitely awaiting the result of criminal proceedings since the same only serves the interest of the guilty and

dishonest person. The other judgment of the Hon’ble Apex Court is the one reported in (1999) 3

SCC 679 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. And Another), paragraph no. 22 whereof is reproduced hereinbelow :-

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.

Another judgment on the subject matter is the one report in (2014) 3 SCC 636 (Stanzen Toyotetsu India Private Ltd. v. Girish

V. and others), paragraphs no. 10, 12, 16 and 17 whereof are reproduced hereinbelow :-

The relatively recent decision of this Court in Karnataka SRTC v. M.G. Vittal Rao, is a timely reminder of the principles that are applicable in

such situations succinctly summed up in the following words:

 “(i) There is no legal bar for both the proceedings to go on simultaneously.

(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the

criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.

(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the

employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts

and the evidence in both the proceedings is common.â€​

In Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry the respondent was charged with possessing assets disproportionate to his known sources

of income. The question was whether disciplinary proceedings should remain stayed pending a criminal charge being examined by the competent

criminal court. Allowing the appeal of the employer Corporation this Court held: (SCC p. 475, para 8)

“8. … So, a 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. … 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.â€​

(emphasis supplied)

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.

The charges levelled against the respondents in the instant case are under Sections 143, 147, 323, 324, 356, 427, 504, 506, 114 read with Section

149 IPC. These are no ordinary offences being punishable with imprisonment which may extend up to 3 years besides fine. At the same time

seriousness of the charge alone is not the test. What is also required to be demonstrated by the respondents is that the case involves complicated

questions of law and fact. That requirement does not appear to be satisfied in an adequate measure to call for an unconditional and complete stay of

the disciplinary proceedings pending conclusion of the trial. The incident as reported in the first information report or as projected by the respondents in

the suits filed by them does not suggest any complication or complexity either on facts or law.

Yet another case on the subject matter is the one reported in 2016(4) PLJR 197(SC) ( The State Bank of India and another

v. Neelam Nag, paragraphs no. 8, 9, 10 and 12 whereof are reproduced hereinbelow :-

We have heard the learned counsel for the parties at some length. The only question that arises for consideration is no more res integra. It is well

settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can

be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. The contour of the approach

to be adopted by the Court has been delineated in a series of decisions.This Court in Karnataka SRTC v. M.G. Vittal Rao has summed up the same in

the following words:

(i) There is no legal bar for both the proceedings to go on simultaneously.

(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the

criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law.

(iii) Such defence ought not to be permitted to unnecessarilydelaythedepartmental proceedings. The interest of the delinquent officer as well as the

employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts

and the evidence in both the proceedings is common.

(emphasis supplied)

The recent decision relied on by the appellant in Stanzen, has adverted to the relevant decisions including M.G. Vittal Rao. After adverting to those

decisions, in para 16, this Court opined as under: (Stanzen case, SCC p. 643)

“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.â€​

(emphasis supplied)

The Court then went on to examine the facts of that case and observed in para 18 as follows:

“18. … The charge-sheet, it is evident from the record, was filed on 20-8-2011. The charges were framed on 20-12-2011. The trial court has ever

since then examined only three witnesses so far out of a total of 23 witnesses cited in the charge-sheet. Going by the pace at which the trial court is

examining the witnesses, it would take another five years before the trial may be concluded. The High Court has in the judgment under appeal given

five months to the trial court to conclude the trial. More than fifteen months has rolled by ever since that order, without the trial going anywhere near

completion. The disciplinary proceedings cannot remain stayed for an indefinitely long period. Such inordinate delay is neither in the interest of the

appellant Company nor the respondents who are under suspension and surviving on subsistence allowance.â€​

 (emphasis supplied)

In para 19, the Court proceeded to conclude thus: (SCC p. 644)

 “19. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three courts

below have exercised their discretion in favour of staying the ongoing disciplinary proceedings, we do not consider it fit to vacate the said order

straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the court dealing with the criminal charges against the

respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope

and trust that the trial court will take effective steps to ensure that the witnesses are served, appear and are examined. The court may for that

purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to

cooperate with the trial court for an early completion of the proceedings. We say so because experience has shown that the trials often linger on for a

long time on account of non-availability of the defence lawyers to cross-examine the witnesses or on account of adjournments sought by them on the

flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this

order, despite the steps which the trial court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed

and concluded by the inquiry officer concerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the

date of the order.â€​

In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against

the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against Respondent 1 for an indefinite period; and in larger

public interest, the order as passed in Stanzen case be followed even in the fact situation of the present case, to balance the equities.

I have heard the learned counsel for the parties and gone through the materials on record. As stated above, both the departmental proceeding as

well as the criminal case are based on same and similar charges/ allegations. Thus the only question, required to be answered, in view of the law laid

down by the Hon’ble Apex Court in a catena of decisions specially the one rendered in the case of Capt. M. Paul Anthony (supra), is as to

whether the criminal case involves complicated question of law and fact. Upon perusal of the allegations leveled in the FIR, I am of the opinion that

the said charges do not involve any complicated question of law and fact, hence according to the law laid down by the Hon’ble Apex Court, it

would not be desirable to stay the departmental proceedings till the conclusion of the criminal case. Even otherwise, the interest of administration

demands that the departmental proceeding should be concluded expeditiously and undesirable element be thrown out. It is also not in the interest of

administration that persons accused of serious misdemeanour should be continued in office indefinitely for long period awaiting the result of the

criminal proceedings since the same only serves the interest of the guilty and dishonesty, hence it is in the interest of justice as also in the interest of

good governance that the departmental proceeding is completed expeditiously without any delay.

Having regard to the facts and circumstances of this case, I do not find any reason to stay the departmental proceeding during the pendency of the

criminal proceeding, hence the present writ petition is dismissed being devoid of any merit.