Sunil Kumar vs Indian Oil Corporation Ltd.

Sunil Gaur, J.—Petitioner - Sunil Kumar is a Senior Manager with the respondent- Indian Oil Corporation Ltd. (hereinafter referred to as the ''respondent � Corporation''). On 29th September, 2005, petitioner had allegedly demanded bribe of Rupees Two lacs from Jaswinder Singh, proprietor of M/s Surjeet Oil Carriers to allow him to load the petroleum products. A trap was laid at the office of the respondent-Corporation at Ambala Centre and a criminal case u/s 7 of the Prevention of Corruption Act, 1988, was registered against the petitioner, which is pending trial before the Special Judge, CBI, at Ambala, in Haryana. Respondent had initiated departmental enquiry against the petitioner, which is said to be pertaining to the aforesaid incident of 24th September, 2005. It is a matter of record that regular departmental enquiry was initiated against the petitioner in pursuance to Memo, of 13th September, 2008, Annexure - P-8, and this was done despite report of 26th September, 2003, Annexure-P-3 of the Deputy General Manager of respondent-Corporation, which purportedly gave a clean chit to the petitioner by observing that the most probable cause for arranging a CBI raid by M/s Surjit Oil Carrier appears to be, to settle score with STM, Ambala, i.e. the petitioner.

According to the petitioner, the departmental enquiry against him is being adjourned from time to time and on 23rd January, 2009, the petitioner could not appear before the Enquiry Officer and his request for adjournment was rejected by the Enquiry Officer, who proceeded to examine the witness of the department ex parte. As per enquiry proceedings of 18th February, 2009, Annexure P-15, department''s witness (PW-1) had to be cross-examined by the Defending Officer of the petitioner on 2nd and 3rd March, 2009.

The relief sought in this petition is of stay of the departmental proceedings till the conclusion of the criminal case pending against the petitioner. What petitioner claims, is that both these proceedings are based on identical set of facts and evidence and these two proceedings involve complicated questions of law and fact. Criminal case against the petitioner is said to be of a grave nature. It is asserted by the petitioner that the continuance of departmental proceedings ex parte in haste, is causing great prejudice to the petitioner. Reliance has been placed on the decisions reported in (1999) 3 SCC 679; (2005) 10 SCC 471; JT 2007 (2) SC 620 and (2008) 1 SCC 650 to contend that it is unfair and against the principles of natural justice to compel the petitioner to disclose his defence in the departmental proceedings, as it would not be in the interest of the petitioner in the criminal case, which is of a grave nature.

Respondent in their counter affidavit, has taken stand that they had awaited for a reasonable period for the conclusion of the criminal trial and thereafter only, petitioner has been charge-sheeted on 6th February, 2008, in the departmental proceedings. It is pointed out that the petitioner is also facing a criminal prosecution at Leh. Respondent relies upon Clause 10.6 of "Special Chapter on Vigilance Management in Public Sector Enterprises and the Role and Function of the CVC" to highlight that simultaneous conduct of departmental proceedings and criminal prosecution should be resorted to, especially if the prosecution case is not likely to be adversely effected by the simultaneous conduct of departmental proceedings.

The stand of the respondent is that almost three years are over since initiation of the criminal proceedings against the petitioner, but the criminal trial is still at initial stage. It is pointed out that out of nineteen witnesses in the criminal case, so far two witnesses, i.e. complainant and the shadow witness, have been examined and the criminal proceedings are likely to take considerable time, and, therefore, departmental proceedings should not be unnecessarily delayed. It is asserted by the respondent that no prejudice is being caused to the petitioner as the first witness in the departmental proceedings is yet to be cross-examined on behalf of the petitioner. On behalf of the respondent, reliance has been placed upon decisions reported in AIR 2005 SC 1406 and Indian Overseas Bank, Anna Salai and Another Vs. P. Ganesan and Others, to contend that departmental enquiry and criminal trial can go on simultaneously, as a departmental enquiry would not seriously prejudice the delinquent in his defence at trial.

In the rejoinder, petitioner has reiterated the stand taken in the writ petition.

Both the sides have been heard at length and the material on record as well as the case law cited, has been perused.

The question as to whether departmental proceedings and the criminal case proceedings based on similar set of facts should be allowed to continue simultaneously, is no longer res integra. The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge. The test is whether departmental enquiry would seriously prejudice the delinquent in his defence in criminal trial. However, where there is a delay in disposal of the criminal case, departmental proceedings ought to continue to facilitate early conclusion of the proceedings.

In the case of Noida Entrepreneurs Assn. Vs. Noida and Others, , the clinching observations made by the Apex Court on the issue in hand are as under:

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 of 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 the light of the aforesaid, there can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. The departmental proceedings need not be stayed during the pendency of the criminal case, save and except for cogent reasons. A valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced". Petitioner has already disclosed his defence in the criminal case by cross-examining the complainant of that case and it is not shown by the petitioner as to how the disclosure of his defence in the departmental proceedings would be of any consequence in the criminal case now.

Apex Court in its recent decision in the case of Indian Overseas Bank, Anna Salai and Another Vs. P. Ganesan and Others, has deliberated upon this aspect, in the following words:

Furthermore, it was obligatory on the part of the High Court to arrive at a finding that the non stayed of disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.

To my mind, no complicated question of law is involved in the criminal trial or in the departmental proceedings. In the case of "NOIDA Entrepreneurs Association" (Supra), Apex Court has gone to the extent of declaring 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 case in the criminal proceedings, the same does not bar departmental proceedings. In this case, the Apex Court had directed the State - Government to continue with the departmental proceedings.

In a situation like the present one, the petitioner should in all fairness come forward to avail of the opportunity to get his honour vindicated in the departmental proceedings and not to get the departmental proceedings stalled by relying upon the pendency of the criminal proceedings, more so when it is uncertain when the criminal proceedings would ultimately conclude. A delinquent cannot be permitted to, on the one hand, prolong criminal case and at the same time contend that departmental proceedings should be stayed on the ground that the criminal case is pending.

Without going into this aspect any further, this Court finds that no prejudice would be caused to the petitioner if the departmental proceedings and the criminal trial proceedings are allowed to continue simultaneously. It is so said because the material witnesses in the criminal trial, i.e. the complainant and the shadow witnesses have been already examined and the first witness in the departmental proceedings is yet to be cross-examined by the petitioner.

What has been highlighted in this petition, by the petitioner, is that he had requested the Enquiry Officer in the departmental proceedings to defer the departmental proceedings till the cross-examination of the complainant and the evidence of two shadow witnesses, is completed in the criminal trial. It is not in dispute that the cross-examination of the complainant in the criminal trial has been completed and one of the shadow witnesses, i.e. from Food Corporation of India, has been already examined. Perhaps the other shadow witness from Food Corporation of India remains to be examined in the criminal trial. If it is so, then the Enquiry Officer, in the departmental proceedings, ought to defer the departmental proceedings for a period of twelve weeks or so, to enable the petitioner to cross-examine the second shadow witness. However, it is made clear that in case both the shadow witnesses have been examined in the criminal trial, then, there is no reason to defer the departmental proceedings against the petitioner.

To aforesaid limited extent, the prayer for deferment of the departmental proceedings against the petitioner is accepted. Since the criminal trial against the petitioner is taking place beyond the territorial jurisdiction of this Court, therefore, no time bound direction can be given to the criminal Court to expedite the criminal trial against the petitioner. Anyhow, it is expected that the criminal Court would make all the endeavors to expedite the conclusion of the criminal trial against the petitioner.

This petition stands disposed of in the terms, as aforesaid.

No costs.