Shivappa Malappa Tattimani vs The Disciplinary Authority and Divisional Controller and Another

Subhash B. Adi, J.—Petitioner, in this writ petition has sought for a direction to the respondent No. 1 not to proceed with the Disciplinary proceedings in view of the Criminal Case No. 332/2007 pending on the file of the I Additional Civil Judge and C.J.M., Dharwad.

Facts leading to this case are that, a criminal case was registered against the petitioner for the offences punishable under Sections 468, 471, 406, 408, 409 of I.P.C. on the allegation that, the petitioner has committed a crime of cheating, breach of trust by misappropriating the Corporation fund. Simultaneously, a departmental enquiry was also initiated against the petitioner in pursuance of the charge sheet dated 19.02.2007 produced at Annexure ''A'' inter-alia alleging that, the petitioner had made xerox tickets and has used them to collect the fares from the passengers. He had collected an amount of Rs. 1,268/- by way of sale of said tickets. It is also alleged that, he had sold tickets worth of Rs. 15,090/- and also found with excess cash.

Learned Counsel for the petitioner submitted that, the criminal proceedings are initiated against the petitioner on the same set of facts and the material. He submitted that, in the criminal proceedings the evidence and the witnesses relied are one and the same and if the criminal proceedings is pending, the departmental enquiry for the same offence cannot be proceeded. In this regard, he relied on a judgment in the matter of State Bank of India and Others Vs. R.B. Sharma, and submitted that, the Apex Court after considering the various judgments at paragraph 11 has observed that:

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.

By relying on the said observation made in the said decision, he further submitted that, if the criminal proceedings are initiated in pursuance of the alleged charge, the departmental enquiry ought to have been stayed or kept in abeyance till the criminal case is decided. He also submitted that, the witnesses and the evidence relied in the criminal case are the same witnesses/material sought to be relied before the Enquiry Officer.

Learned Counsel appearing for the Corporation submitted that, the departmental enquiry initiated against the petitioner is not on identical charges alleged in the criminal case. The criminal case relates to the offences punishable u/s 460, 471, 406, 408 and 409 of I.P.C. Whereas the allegations in the charge sheet for the departmental enquiry relates to the defrauding the Corporation and misappropriating the Corporation fund by cheating and also committing fraud by getting xerox tickets and selling the same to the passengers and also holding excess amount and further snatching the ticket tray from the Security Office and causing disturbances and causing loss to the Corporation revenue. It is also submitted that, there is no complicated question of law or facts involved in this case. She submitted that, the decision relied by the learned Counsel for the petitioner is not applicable to the facts and circumstances of the case. She also further submitted that, the decision relied by the learned Counsel for the petitioner was considered in another decision of the Apex Court. In support of her contention, she has relied on a decision of the Three Judges Bench of the Apex Court in the matter of Noida Entrepreneurs Assn. v. Noida and Ors. AIR 2007 SCW 1178. Relying on paragraphs 11 and 17, learned Counsel submitted that, the Apex Court has observed:

The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short the ''Evidence Act''). Converse is the case of departmental enquiry. The enquiry in a departmental 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 department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.

The Apex Court has considered the judgment in the matter of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. AIR 1999 SCW 1098 which was also referred to in the decision of State Bank of India and by referring to the said decision, the Apex Court observed that,

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, there is no bar to continue the departmental proceedings.

In the case of Noida Entrepreneurs'' case, the Apex Court has quashed the order of the State Government not to proceed with the departmental enquiry pending the criminal trial and observed that, the standard of proof and the evidence required to prove the criminal case is different from the standard of proof to prove the charge sheet against the delinquent officer.

The only question that arise for consideration in this writ petition is:

As to whether the pending criminal case the departmental enquiry is required to be stayed

The charges alleged for the departmental enquiry appears to be different from the charge levelled against the petitioner in a criminal case. There are four charges alleged in the departmental enquiry. Whereas the charge sheet is filed for the offences punishable u/s 460, 471, 406, 408 and 409 of I.P.C. and the allegations in support of the said charge is that, the petitioner has committed a criminal breach of trust, forgery and cheating, whereas the charge alleged in the departmental enquiry is that, making xerox copy of the tickets and selling them, collecting money causing loss of revenue to the Corporation. From the facts of the case it does not show that, there is any complicated question of law and fact involved in the criminal case which requires adjudication by the Criminal Court and the departmental enquiry is required to be stayed till then. The decision of the Apex Court in the case of State Bank of India has referred to the decision of Capt. M. Paul Anthony''s case and based on which the decision was rendered. The three Judges Bench of the Apex Court in the case of Noida Entrepreneurs''s case has considered the said decision at para 15 and has observed that:

Standard of proof for the criminal case and the standard of proof for the departmental enquiry are distinct and different and it is also observed that unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.

There is no bar to proceed simultaneously both on criminal case as well as the departmental enquiry.

The departmental enquiry being a distinct proceedings under the relevant statute and the criminal case is tried based on the evidence, that would be lead in proof of the charges. The amount of standard of proof are the burden of establishing the charge in the criminal case is different from the burden of proof in establishing the charge in the departmental enquiry is different, unless it is shown that, it involves complicated questions of law or fact, which requires the adjudication by the criminal Court and till then the proceedings under Departmental enquiry cannot be proceeded then only the case requires as to whether the departmental proceedings to be stayed or not. From the facts I do not find any complicated questions of law or fact. In the light of the observations made by the Apex Court in the case of Noida Entrepreneurs case at paragraphs 15 and 17, and in view of the facts and circumstances of this case, I do not find any error in proceeding with the departmental enquiry simultaneously with the criminal case.

Hence, this writ petition does not merit and calls for interference. Accordingly fails and the same is dismissed.