Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3677 of 2017 Md. Rafique Alam, son of Md. Siddique … … Petitioner VERSUS1 The State of Jharkhand 2. Chairman-cum-Managing Director, Jharkhand Urja Vikas Nigam Ltd., Ranchi 3. Managing Director, Jharkhand Bijli Vitran Nigam Ltd.
4. General Manager (HR), Jharkhand Bijli Vitran Nigam Ltd., 5. Deputy General Manager (HR), Jharkhand Bijli Vitran Nigam Ltd. … ... Respondents CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK For Petitioner : Mr. A. Allam, Sr. Advocate. Ms. Nehala Shramin, Advocate. Ms. Priya Shreshtha, Advocate For the JUVNL : Mr. Mukesh Kumar Sinha, Advocate. Ms. Suchita Pandey, Advocate. C.A.V. On 07/11/2017 Pronounced on 18/12/2017 Dr. S.N.Pathak, J.
Heard learned counsel for the parties.
2. Petitioner has approached this Court with a prayer for quashing the memo no. 623, dated 28.04.2017, issued by the Deputy General Manager (HR), Jharkhand Bijli Vitran Nigam Limited, Ranchi whereby and whereunder, charge memo dated 28.04.2017 has been served upon him for initiation of departmental proceeding and for filing reply before the enquiry officer, failing which an ex-parte order shall be passed. Further prayer has been made for stay of said proceeding whereby show-cause notice has been issued for filing reply the charge memo dated 28.04.2017.
3. The factual exposition as has been delineated in the instant writ petition is that petitioner was appointed as a Junior Engineer, Jharkhand State electricity Board on 01.09.2011. After his joining, he was posted as Junior Engineer at different places. When petitioner was posted at Ghatshila Division on 08.07.2016, then in the month of August, 2016, one Ravindra Kumar Agarwal had applied for electrical connection in his newly established Play School on 10.08.2016. After processing the said application, petitioner prepared estimates for electrical connection on 27.08.2016 and, thereafter, sent it to the Assistant Engineer of the Division for further approval and necessary formalities. RC2It alleged that the time allowed for the electric connection is fixed for three weeks’ from the date of application. But one Shri Bimal Kumar Agarwal claimed to be brother of Ravindra Kumar Agarwal approached him for immediate electric connection before completion of said three weeks. The petitioner replied that all the formalities has been completed and file has been sent to the Assistant Engineer for further formalities. So, he should go and meet Assistant Engineer. It is further contended that during posting and stay of the petitioner at Ghatshila and Galudih area, he saw a large number of persons not paying electric bills properly and the department is at heavy loss of revenue. So, with the help of Police Constable, he raided at 26 places where several First Information Reports were lodged and 300 illegal connections were disconnected as the consumers were either not paying the Bills or were not paying appropriate bills and using the electricity illegally. Besides that, the load survey of the electricity was checked-up and scrutinized. Two persons were caught who were not paying the Bills and fine were imposed against them. Eight FIRs. were also filed. So, for these reasons, local leaders threatened the petitioner to stop lodging FIRs. and checking of the electric connections i.e. hooking etc. and also petitioner was threatened not to disconnect the line who were not paying the Bills. It is alleged that due to aforesaid reasons, one Bimal Kumar Agarwal, who claimed to be brother of the applicant Ravindra Kumar Agarwal, hatched a conspiracy and filed a complaint before the Vigilance Inspector on 28.08.2016 with a statement that illegal gratification are being asked by the petitioner. It is also alleged that the Vigilance Inspector namely Nagendra Kumar Mandal verified those allegations on 29.08.2016 and prepared formalities for raiding office of the petitioner. As per plan, the Vigilance Inspector Nagendra Kumar Agarwal arrested the petitioner on 30.08.2016 in his office. It is alleged that Bimal Kumar Agarwal paid Rs.4,000/- for immediate electric connection. Petitioner was thereafter remanded to judicial custody on 30.08.2016. RC3Petitioner was released on bail by Order of the High Court on 08.12.2016 and released on furnishing bail bond on 09.12.2016 and on 10.12.2016. Petitioner thereafter submitted his joining in the department and he was allowed to continue in service. However, during the period of detention, an order was issued by the department on 20.09.2016 whereby and whereunder petitioner was suspended with effect from 30.08.2016 but suspension order has already been revoked due to joining of the petitioner in the new place of posting in Jamtara Division and continuing his service.
4. It is alleged that entire allegations were concocted as the petitioner had already completed his work assigned to him before the allegations were made and raid was conducted against him in which Rs.4,000/- were kept by force in his pocket and he was asked by the Vigilance Inspector to take out money in order to implicate petitioner in the case. It is alleged that even Section Officer of the Department, who informed Vigilance Department about the real fact, has not been considered and taken into account by the Police authorities. After recording statement under Section 161 Cr.P.C., the Investigating Officer of Anti Corruption Bureau, has submitted chargesheet before the Court of learned Additional Sessions Judge, Chaibasa – cum – Special Judge in Special Case (Vigilance) No. 02/2016 in which allegations have been made, which are self explanatory. After passing of six months, the Deputy General Manager, Jharkhand Bijli Vitran Nigam Limited, vide Memo No. 623, Dated 28.04.2017, has issued a Show-cause notice along with the Charge Memo to the petitioner directing him to reply on the charge set out in the departmental enquiry failing which orders shall be passed ex-parte.
5. It is alleged that after issuance of the order, as contained in Memo No. 623, dated 28.04.2017, passed by the Deputy General Manager, showing cause the petitioner of the charges, the petitioner submitted an application before the Enquiry Officer – cum – Advisor to the Corporation, Jharkhand Bijli Vitran Nigam Limited, as per the direction of the Deputy General Manager and submitted the same on 05.06.2017. In the said representation, petitioner has also prayed for staying the departmental proceeding as the nature of criminal as well as departmental proceeding are same, the charges are based on RC4same set of facts. So, the departmental proceeding may be stayed. However, the petitioner has not yet been communicated with any order whether the departmental proceeding has been stayed or not as 30.06.2017 was the date of hearing and the next date is fixed on 03.08.2017 for further hearing before the enquiry officer. Since petitioner is facing criminal trial before the competent court of law as also the departmental proceeding for the same cause of action and as such, he has knocked door of this Court to exonerate him from the departmental proceeding.
6. Mr. A. Allam, learned Senior Counsel assisted by Ms. Nehala Shramin and Ms. Priya Shrestha strenuously urges that contents of the charge in the criminal case as also in the departmental proceeding, are same and similar. The departmental proceeding has been initiated on the basis of the same set of charge which has been set out in the chargesheet filed by the enquiry officer in Vigilance Case No. 02/2016 and nothing new has been incorporated. Shri V.K. Jha, Advisor to the Human Resources Department of the respondent no. 2 has been appointed as Enquiry Officer, who has summoned the witnesses namely Shri Shankar Thakur, Chandrika Prasad, Bittu Toppo and Gurupado Mahli for giving evidence before the enquiry officer in which Shri Chandrika Prasad was called on 30.06.2017 and examined. The other witnesses whose names are also found in the chargesheet, namely Aman Kumar Pandey, Shakaldeo Ram, Sunil Kumar Choudhary have already been named in the departmental proceeding. So, against four witnesses summons have already been issued and name of three witnesses are found in the chargesheet, as well as charge memo of the department. So, total seven witnesses of the criminal case are similar who are also similar in the departmental proceeding and who have been called to give evidence against the petitioner in the departmental proceeding. Only left out witnesses is the complainant of the criminal case and the department has informed the petitioner that he will also be called in the departmental proceeding. So, all the witnesses whose names are mentioned in the criminal case i.e. in the chargesheet, are the witnesses in the departmental proceeding. Learned counsel further submitted that the documents which are RC5being used against the petitioner, are also same which are being used in the departmental proceeding against the petitioner. Learned Sr. Counsel further submitted that the the statement of allegations in the chargesheet as well as in the departmental proceeding in the charge memo are same and similar and therefore, it shall highly prejudice the petitioner if the departmental proceeding is allowed to continue. Learned Sr. Counsel further submitted that the Hon’ble Supreme Court has been pleased to observe in several judgments that if the criminal case is continuing for indefinite periods like ten years or more, then in that circumstances the department shall not wait and it shall proceed. Learned counsel submitted that in the present case, criminal case was initiated in the last day of month of August and the departmental proceeding has been initiated within six months of filing of the criminal case i.e. 28.04.2017 and as such, there is no delay in criminal proceeding and on each and every date, the petitioner is appearing before the learned Special Judge, Chaibasa for conclusion of the criminal case. The Charge is likely to be framed very soon against which the petitioner is taking every step to appear and get the criminal case concluded. Learned Sr. Counsel further submitted that as per Judgment of the Hon’ble Supreme Court, if charges of departmental proceeding is based on same and similar identical facts and nature of charge is also identical in both the cases and common allegation is made, then if the departmental proceeding is allowed to continue, then it shall highly prejudice the accused/ employee and as such, departmental proceeding may be stayed in the facts and circumstances of the case till conclusion of the criminal case or closure of the prosecution witnesses. Learned Sr. Counsel further submitted that right from the date of appointment in the year 2011, no complaint whatsoever has ever been filed against the petitioner nor any such allegation has been made during the work which he used to execute under the orders of his superiors. So, the present allegation is concocted and misleading and in order to harass him and as such, instant writ is fit to be allowed. Learned Sr. Counsel further submitted that on the RC6same, similar and identical charges, criminal proceeding has been lodged against the petitioner as well as departmental proceeding has been initiated. So far departmental proceeding is concerned, the witnesses in the departmental proceedings are Amar Kumar Pandey, Shri Shakaldeo Ram, Sunil Kumar Choudhary, Nagendra Kumar Mandal, Amar Ghosh and Ramanuj Kumar Singh whereas in criminal case, the chargesheet witnesses are Bimal Agarwal, Binod Kumar Agarwal, Shiv Shankar Thakur, Chandrika Prasad, Bittu Toppo, Haripado Mahli, Amar Kumar Pandey, Shakaldeo Ram, Nagendra Kumar Mandal. Learned Sr. Counsel further submitted that so far enquiry witnesses are concerned, three witnesses namely Amar Kumar Pandey, Shakaldeo Ram and Nagendra Kumar Mandal, who are the chargesheet witnesses in the criminal case also. The other four witnesses namely Shiv Shankar Thakur, Chandrika Prasad, Bittu Toppo and Haripado Mahli have already been noticed by the enquiry officer in the departmental proceeding and either they have been examined or is going to be examined by the department. Rest of the three common witnesses whose names are mentioned in the departmental enquiry shall be examined one by one besides three witnesses. Learned counsel submitted that in this manner, six witnesses who are going to be examined or have been examined in the departmental enquiry, have already been noticed and further rest of the three witnesses who are common, have also been likely to be examined soon. So, out of 9 chargesheet witnesses, only 2 witnesses are left i.e. Bimal Agarwal (informant of the case) and Bimal Kumar Agarwal, the present family member of the informant to whom the enquiry officer has said that they shall also be examined. Learned counsel further submitted that the 4 witnesses whose names stand in criminal case, but have been noticed, have given evidence in the departmental proceedings on 06.06.2017. To buttress his arguments, learned Sr. Counsel has relied upon the following Judgments: (i) State Bank of India Vs. Neelam Nag reported in 2016(4) JLJR82 (ii) M. Paul Anthony Vs. Bharat Gold Mines Ltd. reported in AIR1999(SC) 1416; (iii) G.M. Tank Vs. State of Gujrat reported AIR2006(SC) 2129 RC7Learned Sr. counsel further submitted that if witnesses in criminal case as well as the departmental enquiry are the same, then it shall prejudice case of the delinquent. The Hon’ble Supreme Court has interfered in such cases where the witnesses in both the cases are identical and deprecated the same and as such, in the instant case, petitioner cannot be allowed to face criminal trial as well as departmental proceeding for the same set of facts and allegations.
7. Per contra counter affidavit has been filed on behalf of the respondents. Mr. Mukesh Kumar Sinha, learned counsel appearing on behalf of the respondents – JUVNL has opposed the submission advanced by learned Sr. Counsel appearing on behalf of the petitioner. Mr. Mukesh Kumar Sinha submitted that petitioner is prima-facie accused in ACB, Jamshedpur O.S. Case No. 02/2016, dated 29.08.2016. Suspension of petitioner has been vacated in accordance with Rule 99 of the Service Code after his release from the judicial custody. The conduct of the petitioner is totally unbecoming of a government servant and he has maligned dignity of the post held by him as he has been trapped red-handed while accepting bribe. Learned counsel further submitted that Memo No. 10158, dated 23.08.1963 of the Chief Secretary, Government of Bihar, clearly stipulates that the criminal proceeding and departmental proceeding may go simultaneously and it may be stayed only in the case where there is complicated question of law involved in the matter. Learned counsel has further drawn attention of this Court to the Judgment dated 31.08.2012 passed in Criminal Appeal No. 1334 of 2012 wherein the Full Bench of the Hon'ble Apex Court has held that exoneration in departmental proceeding ipso facto would not result into quashing of the criminal prosecution. Learned counsel further submitted that the Hon'ble Apex Court has clearly held that criminal trial and the departmental proceedings are held by two different entities and are not in the same hierarchy. The departmental proceeding and criminal proceeding are two distinct matters and may not overlap each other. The outcome of departmental proceeding has no bearing upon the criminal proceeding and hence it does not seem any legal bar in continuing both simultaneously. RC8Learned counsel further argued that there is no bearing of departmental proceeding upon the criminal proceeding and hence question of any prejudice against the petitioner does not arise. Learned counsel has placed reliance in the case of Sunil Kumar Vs. Central Coalfields Limited, Ranchi & Others reported in 2017 (!) AIR Jhar. HCR283 Learned counsel further argued that no interference is required in the instant writ petition and as such, it is fit to be dismissed.
8. Be that as it may, having gone through rival submission of the parties and after careful perusal of the entire records and going through chargesheet dated 28.04.2017 and that of the criminal proceeding, this court is of the view that in rarest of rare cases the departmental proceeding can be stayed during pendency of criminal proceeding i.e. if the charges in the criminal proceeding as well as departmental proceedings are totally identical. It is not only the charge but the evidences and the witnesses have to be same. From bare perusal of the chargesheet dated 28.04.2017 and that of the criminal case 02/2016, it is clear that though the departmental proceeding is based on criminal case but the witnesses in the criminal case and that of the departmental proceeding are not same and similar. There are six witnesses in the departmental proceeding and 9 in the criminal proceeding. Reliance has been placed by the petitioner in the case reported in 2016(4) JLJR82that if witnesses in criminal case as well as departmental enquiry are same, then it shall prejudice case of the delinquent, does not come to rescue of the petitioner. In the instant case, the witnesses cannot be said to be same and similar. Now coming to the legal proposition of law, as enunciated by the Hon'ble Apex Court in para-22 of the Judgment in the case of Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and another reported in 1999 AIR (SC) 1416, which reads as under:
“22. The conclusion 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. RC9(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 ith so as to conclude them at any 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.” Reliance placed by learned counsel for the petitioner in the case of G.M. Tank V. State of Gujarat and others reported in 2006 AIR (SC) 2129 also does not come to his rescue. In the said case the Hon'ble Apex Court has observed that once in a criminal case the charges is not proved, it would be unjust and unfair rather oppressive to allow the findings in the departmental proceeding to stand. I do not find that the ratio decided by Hon'ble Apex Court in the said case is at all applicable in the facts and circumstances of the instant case. From perusal of records, it is evident that there are 9 chargesheet witnesses and on the contrary, in the departmental proceedings, there are six witnesses. It is, therefore, denied that in criminal as well as departmental proceedings, there are same set of evidences/ witnesses. From the departmental proceedings, it appears that the charges are of grave misconduct which cannot be decided in a criminal proceeding. The charges amounts to unbecoming of a government servant which cannot be matter of RC10decision in a criminal case whereas in criminal case, charge is of illegal gratification. The misconduct alleged against the petitioner in the departmental proceeding is, therefore, different and distinct than the criminal case. Moreover, there is no legal bar for both – criminal as well as departmental proceedings to proceed simultaneously.
9. The Hon'ble Apex Court in the case of Avinash Sadashiv Bhosale V. Union of India and Ors. Reported in 2012 AIR (SC) 755, has been pleased to hold as under: “54.1 There is no legal bar for both proceedings to go on simultaneously. 54.2 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 question of facts and law. 54.3 Such defence ought not to be permitted to unnecessarily delay the departmental proceeding. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. 54.4 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.” Coordinate Bench of this Court, in the case of Sunil Kumar V. Central Coalfields Limited, Ranchi & Others has considered aforesaid Judgments and has reiterated same view and has been pleased to hold that there is no legal bar for both criminal as well as departmental proceedings to proceed simultaneously.
10. After due consideration and perusal of records, documents and settled principles of law and consideration of Court in the aforesaid cases, there is no dispute that there is no legal bar to the conduct of disciplinary proceeding and criminal trial simultaneously. There is no straight jacket formula to stay departmental proceeding only on the ground that the witnesses in a criminal proceeding and the departmental proceedings are same. The instant case is a trap case of illegal gratification and admittedly there is involvement of complicated question of fact as well as law. The departmental proceeding had been instituted because of criminal case by the Anti Corruption Bureau, Jamshdpur pertain to maligning dignity of the RC11Department. The Government servant involved in criminal misconduct, departmental proceeding and prosecution. The criminal proceeding and departmental proceeding may go simultaneously and it may be stayed only in the case where there is complicated question of law. The criminal trial and the departmental proceedings are two different entities and are not in the same hierarchy and are two distinct matter and may not overlap each other and the outcome of the departmental proceeding has no bearing upon the criminal proceeding. Hence, there is no legal bar in continuing both the proceedings simultaneously.
11. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is of the considered view that no interference is required in the instant writ petition. The departmental proceeding against the petitioner cannot be stayed on the pretext of pendency of criminal case of the same or similar nature.
12. Resultantly, this writ petition is dismissed. (Dr. S.N. Pathak, J.) High Court of Jharkhand at Ranchi Dated December 18, 2017 RC RC