Experienced officer retired from a senior Group A level from Union Public Service Commission and well versed with CCS(CCA) Rules and service Rules is available to work as defence Assistant for Departmental proceedings/Vigilance Inquiries.
Double Jeopardy – Criminal Prosecution verses Disciplinary Proceedings:The object of the disciplinary proceedings is to ascertain whether the officer concerned is suitable to be retained in service. On the other hand the object of the criminal prosecution is to find out whether ingredients of the offence as defined in the penal statute have been made. Article 20(3) of the Constitution of India also does not apply to a departmental inquiry because the official is not being tried to for any criminal offence. [Bhagwan Singh vs. Deputy Commissioner Sitapur, AIR 1962 All 232: 1962 (1) CrLJ 554]Departmental Inquiry during the Pendency of a Criminal Prosecution:Holding of a departmental enquiry during pendency of a criminal prosecution in respect of the same subject-matter would not amount to a contempt of court. The departmental authorities are free to exercise such lawful powers as are conferred on them by the departmental rules and regulations and such exercise of powers bonafide will not come within the mischief of the law of contempt, especially when the departmental authorities did not publish their orders nor tried to influence the court in any manner.[Mehra Singh vs. Supdt of Post offices, Jabalpur, AIR 1962 MP 72]Natural Justice in Disciplinary Proceedings:The aim of Natural Justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.[Supreme Court - (1969) 2 SCC 262; AIR 1970 SC 150 - A.K. Kraipak vs. Union of India]There must be ever present to the mind of men the fact that our laws of procedure are grounded on the principle of Natural Justice which require that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings which affect their lives and property should not continue in their absence and that they should not be precluded from participating in such proceedings. [Ramseth vs. Collector of Dharbang, AIR 155 PAT 345]The expression 'Natural Justice' conveys the notion that the result of the process should be just. There are two concepts underlying this doctrine, namely, the authority deciding the dispute should be impartial and the party to be affected should be given full and fair opportunity of being heard. [C. Pitchiah vs. Andhra University - 1961 ALT. 317, AIR 1961 AP 465]The term 'misconduct' means an act done willfully with a wrong intention and as applied to professional people; it includes unprofessional acts, even though such acts are not inherently wrongful. It also means a dereliction of or deviation from duty. [Nahood Ali Khan, Inre, AIR 1958 AP 116]Speaking Orders in Appeal Cases:The Supreme Court and the High Courts have emphasised that the appellate authorities must give reasons and there should be some discussion of the evidence on record. An appellate authority has a legal duty to deliberate about merit and adjudge it before confirming, enhancing, reducing or setting aside the penalty. [Nathaniel Ghosh vs. Union Territory of Arunachal Pradesh, (1980) 2 SLR 733]Personal Hearings at Appeal Stage:It appears fairly clear that the fundamental basis on which it is thought necessary to include if the concept of "reasonable opportunity" the right of personal hearing and putting forward his case at the first stage is that he must have the opportunity of leading his evidence, cross-examining the prosecution witness, pointing out the demeanor of those witnesses and personal appeal to the Enquiry Officer to appreciate that the evidence in the light in which he would like to be appreciated and urge his case or convince him of the weakness of prosecution case and strength of his own case. At the second stage, however, only the right to make representation has been held to be sufficient compliance with the requirement of constitutional protection of giving a reasonable opportunity and the requirement of personal hearing is not thought necessary because at that stage the authority is merely to take his decision from the record before him. The right of personal hearing is intended to be necessary requirement of the concept of reasonable opportunity to show cause only at the stage when evidence is to be led, cross-examination of the witness is to be done and the demeanor of the witness is to be watched and not at the stage when decision is to be taken from record before the deciding Appellate Authority. The proceedings in the departmental proceedings are only quasi-judicial proceedings. All the procedure of an ordinary trial or proceedings in a Court of Law is not applicable. The principle obtainable in the court of law even at the stage of appeal the right of personal hearing is a necessary right to do justice between the parties cannot be bodily applied to departmental inquiries which are not bound to follow all the procedure and requirement of a judicial trial or proceedings. [State of Gujarat vs. P.B.Ramalbhai, AIR 1969 Guj, 260]Where an appeal is preferred by the Government Servant against the order of the disciplinary authority, it is not necessary that he should be given personal hearing at that stage. [F.N.Roy vs. Collector of Customs, Calcutta AIR 1957 SC 648]The proceedings before an appellate authority are a continuation of the proceedings before the enquiry officer and both these proceedings taken together point to the conclusion. That the guarantee under Article 311 is satisfied and the failure to give a personal hearing to the petitioner in appeal by itself will not render proceedings illegal. [Bindanath vs. State of Assam AIR 1959 Assam 112]Unless statutory rules so require or a specific prayer for personal hearing is made by the appellant in writing in the petition of appeal itself, it is not incumbent on the appellant authority to afford a personal hearing to a person aggrieved against an order imposing punishment on him in departmental proceedings. [Vijay Singh Yadav vs. State of Haryana and others 1971 SLR 720 (Punjab and Haryana)]Where the rules are silent regarding personal hearing but an opportunity is demanded by the delinquent official before the Appellant Authority to represent his case, such a request should not be refused, as it violates principles of natural justice. [Ranjit Singh vs. Inspector of Police and others, 1979 AISLJ 57 (Punj)]Provisions of Article 311 of the Constitution in Disciplinary Cases:The implications of the provisions of Article 311 have been the subject of a close examination by the Supreme Court. The Supreme Court has given exhaustive interpretation of the various aspects involved and they provide the administrative authorities authoritative guidelines in dealing with disciplinary cases. [Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36; Khem Chand vs. Union of India, AIR 1958 SC 300; and Union of India and another vs. Tlusiram Patel, 1985(2) SLR SC 576]Articles 310 and 311 apply to Government servants, whether permanent, temporary, officiating or on probation. [Purushotham Lal Dhingra vs. Union of India, AIR 1958 SC 36] Issue and Service of Charge-sheet:Endorsements of Postal Authorities on letters “not found”, “not traceable”, “not known”, “left” do not amount to service, but an endorsement “refused” does. The Supreme Court has laid down, that charge sheet is issued when it is framed and despatched to the employee irrespective of its actual service on the employee. [Delhi Development Authority vs. H.C. Khurana, 1993(2) SLR SC 509 and Union of India vs. Kewal Kumar, 1993(2) SLR SC 554]Disagreement of Disciplinary Authority with the Findings of the Inquiring Authority:On the question of the disciplinary authority disagreeing with the findings of the inquiring authority, the Supreme Court held, that the reasoning of the High Court that when the Disciplinary Committee differed from the finding of the inquiry officer it is imperative to discuss the materials in detail and contest the conclusion of the inquiry officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer’s report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the views expressed by the inquiry officer thereon. The findings of the inquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision-making authority is the punishing authority and therefore that authority can come to its own conclusion of course bearing in mind the views expressed by the inquiry officer. But it is not necessary that the disciplinary authority should “discuss materials in detail and contest the conclusions of the inquiry officer”. Otherwise the position of the disciplinary authority would get relegated to a subordinate level. [High Court of Judicature at Bombay vs. Shashikanth S. Patil 2000(1) SLJ SC 98]Standard of Proof in the Departmental Inquiry:The standard of proof required in a departmental oral inquiry differs materially from the standard of proof required in a criminal trial. The Supreme Court has given clear rulings to that effect that a disciplinary proceeding is not a criminal trial and that the standard of proof required in a disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable doubt, which is the proof required in a criminal trial. [Union of India vs. Sardar Bahadur, 1972 SLR SC 355; State of AP vs. Sree Rama Rao AIR 1963 SC 1723 and Nand Kishore Prasad vs. State of Bihar, 1978(2) SLR SC 46]The departmental authorities, if the inquiry is properly held, are the sole judge of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the constitution. [State of AP vs. S. Sreerama Rao AIR 1963 SC 1723] If two views are possible, court shall not interfere by substituting its own satisfaction or opinion for the satisfaction or opinion of the authority exercising the power, in judicial review. [Union of India vs. Harjeet Singh Sandhu, 2002(1) SLJ SC 1]The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. The disciplinary authority is the sole judge of facts. The Court/Tribunal in its power of review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence.[B.C. Chaturvedi vs. Union of India, 1995(6) SCC 749]Fresh Inquiry, in Case Proceedings are Quashed by Court on Technical Grounds:Where departmental proceedings are quashed by civil court on technical grounds of irregularity in procedure and where merits of the charge were never investigated, fresh departmental inquiry can be held on same facts. [Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh, AIR 1962 SC 1334]Action against Disciplinary Authority for Lapses in Conducting Proceedings:In the case of that if a superior officer holds the inquiry in a very slipshod manner or dishonestly, the State can certainly take action against the superior officer and in an extreme case even dismiss him for his dishonesty. [Dwarakachand vs. State of Rajasthan, AIR 1958 RAJ 38]The Central Administrative Tribunal, Madras held that disciplinary authority can be proceeded against in disciplinary action for misconduct of imposing a lenient penalty. [S. Venkatesan vs. Union of India, 1999(2) SLJ CAT MAD 492]Cross-Examination of a Witness:The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. [Maganlal vs. King Emperor AIR 1946 Nagpur 126] Suspension of a Government Servant:Utmost Caution to be exercised while ordering suspension. [Subramanian vs. State of Kerala, (1973) SLR 521]SC decisions setting out that the power is meant to be exercised primarily in the interest of justice. Court must be satisfied on the materials placed before it that granting permission would serve administration of justice.[Bansilal vs. Chandilal, AIR 1976 S.C. 370]Duty of the court to see that the permission sought for is not on grounds extraneous to the interest of justice. Ultimate guiding principle must be interest of administration of justice.[Balwant vs. Bihau, AIR 1977 S.C.2265]Court has to see that executive function of prosecution is not improperly exercised.[Paswn vs. Bihan, AIR 1987 S.C.877]Duty of the prosecution is to inform the Court, that Court must exercise itself of the reasons which prompted itself to withdraw from prosecution.[Jain vs. State, AIR 1980 S.C.1510]Broad ends of social justice may well include appropriate social economic and political purposes.[State of Punjab vs. Union, AIR 1992 S.C. 248]Paramount reasons behind S.321 (CRPC) is that it should advance the cause of justice.[2005 (2) S.C.C. 377]
31. Before proceeding to discuss the contentions of the counsel for the parties, it is necessary to recapitulate the current legal position as regards the continuation of disciplinary proceedings when a criminal trial on the same charges is pending.
32. The question whether the disciplinary proceedings can be allowed to proceed when a criminal trial is pending on the same charges has invariably arisen in the domain of service law. The cases discussed hereinafter will show that the context invariably has been of an employee facing disciplinary proceedings over a set of charges, which are either similar or identical to the charges forming the subject matter of a criminal trial in which such employee is the accused.
33. In Delhi Cloth & General Mills Ltd. v. Kushal Bhan AIR 1960 SC 806, it was acknowledged that it was not a principle of natural justice “that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.” However, it was observed by the Supreme Court 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.”
34. In Tata Oil Mills Co. Ltd. v. Workmen AIR 1965 SC 155, it was held to be “desirable” to stay the domestic enquiry pending final disposal of the criminal case. In Jang Bahadur Singh v. Baij Nath Tiwari AIR 1969 SC 30, it was held that “the initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.” In Kusheshwar Dubey v. Bharat Coking Coal Ltd. AIR 1988 SC 2118, the Supreme Court after analyzing the case law found that “it is neither possible nor advisable to evolve a hard and fast strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.” In the facts of that case, it was found that since the “criminal action and the disciplinary proceedings are grounded upon the same set of facts”, the disciplinary proceedings should have been stayed.
35. In Nelson Motis v. Union of India AIR 1992 SC 1981, it was held that the disciplinary proceedings could be continued even after the employee had been acquitted by the criminal court since the standard of proof was different. Moreover, the Court found that the subject matter of the disciplinary proceedings in that case was not exactly the same as in the criminal case.
36. In State of Rajasthan v. B.K. Meena (1996) 6 SCC 417, the State Government issued a memo of charges in regard to the allegation that the Respondent had misappropriated public funds while working as Additional Collector-cum-Project Director, District Rural Development Agency, Jaipur in the year 1989. An FIR had been registered in relation thereto on 12th March 1990. The Respondent had been arrested on 26th March 1990. After responding to the articles of charges in the disciplinary proceedings, the Respondent filed a petition before the Central Administrative Tribunal, Jaipur challenging the disciplinary proceedings. The CAT stayed the disciplinary proceedings. Thereafter the State of Rajasthan revoked the order of suspension and reinstated him. The Respondent thus amended his petition before the CAT and asked for the stay of the disciplinary enquiry. The CAT stayed the disciplinary proceedings pending the conclusion of the criminal trial. The Supreme Court reversed the CAT's order. After analyzing the relevant case law, it observed as under (SCC @ p.422-423):
“14. It would be evident from the above decision 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 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 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.”
37. The other factor on facts which weighed with the Supreme Court in B.K. Meena was that (SCC @ p. 423):
“The irregularities alleged against the respondent are of the year 1989. The conclusion of the criminal proceedings is nowhere in sight. (Each party blames the other for the said delay and we cannot pronounce upon it in the absence of proper material before us.) More than six years have passed by. The charges were served upon the respondent about 4 years back. The respondent has already disclosed his defence in his elaborate and detailed statement filed on 9.2.93. There is no question of his being compelled to disclose his defence in the disciplinary proceedings which would prejudice him in a criminal case. The charges against the respondent are very serious. They pertain to misappropriation of public funds to the tune of more than Rupees one crore. The observation of the Tribunal that in the course of examination of evidence, new material may emerge against the respondent and he may be compelled to disclose his defence is, at best, a surmise - a speculator reason. We cannot accept it as valid.”
The further factor that weighed with the Supreme Court was that the standard of proof in the disciplinary proceedings and that in the criminal trial would be different. It must be mentioned here that the observations in para 14 in B.K. Meena were heavily relied upon by Mr. Srinivasan, learned Senior counsel for the Respondent No. 1 ICAI to urge that the disciplinary proceedings may be stayed only where there are criminal cases involving questions of grave nature of both fact and law. He urged that in the present case there were no grave questions of law, which have been shown by the Petitioners to be involved in the criminal proceedings that warranted stay of disciplinary proceedings.
38. In Depot Manager APSRTC v. Mohd Yousuf Miya, the APSRTC initiated disciplinary proceedings against the Respondent driver on the ground that he had caused an accident in which a cyclist died. Prosecution was also launched against the driver under Section 304, Part II of the IPC in the criminal court. The High Court stayed the departmental enquiry pending criminal trial. This ruling of the High Court was reversed by the Supreme Court. After discussing the earlier decisions, it was observed in that case that the charge in the disciplinary proceedings was about the failure to anticipate the accident and prevention thereof. It was concluded that “it has nothing to do with the culpability of the offence under Section 304-A and 338 IPC.” It was reiterated that (SCC @ p. 704):
“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.”
39. In M. Paul Anthony v. Bharat Gold Mines Ltd., the appellant was a Security Officer in Bharat Gold Mines, a government undertaking. In a police raid, a mining sponge gold ball weighing 4.5 grams and 1276 grams of gold-bearing sand were recovered from the appellant's house. He was placed under suspension and disciplinary proceedings were commenced. Criminal proceedings were also initiated. On the conclusion of the disciplinary proceedings, the appellant was dismissed from service. Thereafter he was acquitted by the criminal court with the categorical finding that the prosecution had failed to establish its case. On the basis of his acquittal, he requested for reinstatement which was turned down. After unsuccessfully challenging it before the High Court, the appellant approached the Supreme Court. It was held that the criminal case and departmental proceedings were based on identical set of facts and in the circumstances, “it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.” The witnesses who were examined by the enquiry officer in the departmental proceedings were the same witnesses who were examined in the criminal case. Since there was no iota of difference in the facts and evidence in the departmental and criminal proceedings, it was concluded that “the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” In arriving at the above conclusion, the Supreme Court had an occasion to review the entire case law up to that point in time and summarized the position as under (SCC @ p. 691):
“22. 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, administration may get rid of him at the earliest.”
40. On account of the above decision in M.Paul Anthony, much of the argument in the present petitions centered on whether the Petitioners were facing charges in the criminal cases which were identical to that forming subject matter of the disciplinary proceedings before the ICAI; whether the charges in the criminal court were of a grave nature, and whether they involved “complicated questions of law and fact.”
41. To continue the discussion of the decisions on the point, the question again arose in Kendriya Vidyalaya v. T. Srinivas. There the Respondent, while working with the appellant Kendriya Vidyalaya Sangathan ('KVS') as an Upper Division Clerk, was arrested with the CBI and charged for the offence under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 ('PCA'). During the pendency of the criminal trial, departmental proceedings were initiated. The Tribunal stayed the disciplinary proceedings till the disposal of the trial. The KVS challenged the decision in the High Court stating that they should be permitted to proceed in the departmental enquiry at least in regard to Charge 3 which was independent of Charges 1 and 2. This was rejected by the High Court holding that Charge 3 was interconnected with the other two charges. The Supreme Court, while allowing the appeal of the KVS, found that the Tribunal and the High Court proceeded on an erroneous principle as if the stay of the disciplinary proceedings “is a must in every case where there is a criminal trial on the very same charges.” The Court followed the decision in State of Rajasthan v. B.K. Meena, and reversed the High Court's judgment.
42. In State Bank of India v. R.B. Sharma (2004) 7 SCC 27, the High Court order staying the departmental proceedings was reversed by the Supreme Court only on the ground that the High Court had come to an abrupt conclusion that the employee had been able to show that the entire matter in the departmental proceedings and the criminal court was the same. Since no details had been given to justify this conclusion, it was directed that the High Court should rehear the matter.
43. In HPCL v. Sarvesh Berry, the CBI raided the house of the Respondent in 1998 and charged him with having been in possession of assets disproportionate to his known sources of income. After obtaining sanction for prosecution, the CBI filed a charge sheet. The criminal trial did not progress for at least four years. In the disciplinary proceedings initiated by the employer, there were three charges. The first related to possession of assets disproportionate to the known sources of income and the other two related to misconduct relating to non-disclosure or non-submission of property returns as required by the conduct rules. A Division Bench of the High Court held that the second and third charges were related to the first charge and it would not be safe to permit the employer to continue the departmental proceedings till the completion of the criminal case. Allowing the appeal of the employer, the Supreme Court held as under (SCC @ p. 475):
“8. 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 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 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.”
Thereafter in para 13 it was observed as under (SCC @ p. 477):
“13. It is to be noted that in cases involving Section 13(1) (e) of the P.C. 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 P.C. 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.”
Consequently the employer was permitted to continue the departmental proceedings.
44. In NOIDA Entrepreneurs Association v. NOIDA (2007) 10 SCC 375, it was again held that there was a subtle difference between a departmental enquiry and the criminal proceedings, the standards of proof in which were different. The order of the State Government not to continue the departmental enquiry was held unsustainable and the departmental enquiry was directed to continue. In Indian Overseas Bank v. P. Ganesan, the Supreme Court again answered in the negative the question whether the pendency of a criminal case by itself would be a sufficient ground for stay of the departmental proceedings. Additionally in that case, it was noticed that the departmental proceedings against the employees in question had made considerable progress and a large number of witnesses had already been examined.
Applicability of the M Paul Anthony test to the present cases.
45. The judgments of the Supreme Court discussed hereinbefore by and large permitted the continuation of disciplinary proceedings notwithstanding the pendency of a criminal case on the same charges. In applying the law explained in the above cases to the present petitions, the Court is called upon to examine: (a) are the charges on which the disciplinary proceedings are proposed to be held identical or nearly similar to the charges on which they are facing criminal proceedings? (b) Are the criminal charges of a grave nature? (c) Do the charges involve complicated questions of law and fact?
46. It may at the outset be noticed that in the criminal case, arguments on charge which were in progress when these petitions were argued have been framed by the Special Judge on 25th October 2010. The offences mentioned in the charge sheets do allege that the Petitioners have committed offences which could be characterized as being of a 'grave' nature. These include the offences under Sections 409, 420, 468, 471, 477-A, 201 r/w Section 120-B IPC. Secondly, a comparison of the charges in the disciplinary proceedings with those in the criminal trial indicates that while the charges in the former will all be examined in the latter as well, the converse is not true. There would be additional matters that are likely to be examined in the criminal trial. This brings up the third limb, i.e. whether the charges involve complicated questions of law and fact? It may be recalled that in B.K. Meena the Supreme Court has reiterated that criminal case should be of a grave nature “involving complicated questions of fact and law.” In other words, it is not sufficient for a Petitioner resisting departmental proceedings to show that the criminal case is based on an identical set of facts but that it involves complicated questions of both fact and law.
47. The learned senior counsel for the ICAI was right in the submission that apart from merely stating that the charges involve complicated questions of law and fact there has been nothing actually shown by the Petitioners to demonstrate this. Whether in fact the charges that are stated to have been framed on 25th October 2010 by the Special Judge involve complicated questions of law and fact cannot be determined unless they are studied in some detail and further after the trial progresses. Also, the mere fact that the number of witnesses is large or that the alleged fraud is of a large sum need not by itself mean that the questions of fact and law are complicated. Thirdly, even if in criminal cases, the facts may be invariably complicated, the question of law need not be. Understandably therefore, the learned senior counsel for the Petitioners did not address the Court on this particular aspect except to repeat the requirement of M Paul Anthony that the criminal case involved complicated questions of law and fact. This however is not sufficient if the court has to be persuaded to stay the disciplinary proceedings.
48. The inescapable conclusion is that the third and important limb of the test evolved in the decisions discussed hereinbefore and succinctly summarised in M Paul Anthony has not been shown by the Petitioners to be satisfied in their cases viz., that the criminal cases in which they are arrayed as accused involve complicated questions of law and fact. They have therefore been unable to persuade this Court, on the basis of the law explained above, to stay the disciplinary proceedings pending the conclusion of the criminal trial.
49. One important factor in each of the above decisions that have been discussed is that the issue arose in the context of service law where the desirability of permitting an employee continuing to discharge official duties pending disciplinary proceedings weighed with the courts. In the present writ petitions, although the Petitioners cannot be equated with government servants, they too have been charged with professional misconduct in not discharging their duties, as expected of a professional chartered accountant in terms of the CA Act. A chartered accountant who continues to have a privilege of practising as such notwithstanding the fact that he may be facing charges of professional misconduct is indeed a matter of concern. It is no less than having a government servant facing disciplinary proceedings on serious charges. What is more significant is that a chartered accountant cannot be suspended from practice and there is nothing to prevent a chartered accountant practising as such till such time the disciplinary proceedings come to an end.
50. Relying on the observations of the Supreme Court in M Paul Anthony [SCC para 22 (v)] to the effect that the disciplinary proceedings can be asked to continue if “the criminal case does not proceed or its disposal is being unduly delayed”, it was urged that since there is a designated fast track court that has been asked to conclude the criminal trial before 31st July 2011, the disciplinary proceedings, even if stayed on account of the pendency of the criminal case, could be resumed and proceeded with soon thereafter and would therefore not get indefinitely postponed. This Court is not persuaded to accept this submission. The penultimate paragraph of the Supreme Court's order dated 26th October 2010 acknowledges that if the trial is unable to conclude before 31st July 2011 the accused whose bail have been cancelled can apply afresh for bail. In any event, unless this Court is shown that the charges involve complicated questions of law and fact the case for stay of disciplinary proceedings pending the conclusion of the criminal trial cannot be said to be made out.