1. The applicant B.P. Pandey who was Assistant Station Master, originally filed this O.A. for staying the disciplinary proceedings initiated in pursuance of the order dated 29.9.94 as contained in Annexure A-1 to the O.A. Subsequently, a relief for quashing the disciplinary proceedings in pursuance of the order dated 29.9.94 and for quashing the charge-sheet was substituted. When the O.A. was filed, following the decision of the Hon. Supreme Court in the case of Kusheshwar Dubey v. Bharat Coaking Coal Limited and Ors. (Judgment Today (1988) 4 S.C.C. 319), further departmental proceedings was stayed. An application for vacation of Interim order was moved by the respondents but the same remained pending. The learned Counsel for the parties however, agreed that the O.A. may be heard and disposed of on merit.
2. We have heard the learned Counsel for the parties at great length.
The brief facts of the case are that the applicant was Assistant Station Master at Gosainganj. A raid was conducted on 3.8.94 and the applicant was caught by the Anti Fraud Squad (Tickets) with 10 Number of fake tickets ex-Gosainganj to Ludhiana and 5 tickets of Bilharghat were also found in the tube which were shown as sold in D.T.C. book.
The applicant was arrested in pursuance of the F.I.R. lodged by Shri Sanjay Gupta, S.I. The applicant was however granted bail on 16.8.94.
By order of the Chief Judicial Magistrate (N.R.) the case was handed over to C.B.I. for investigation due to involvement of several other persons for offences under Sections 120-B/420/467/468 and 471 I.P.C.The applicant was also served with a charge-sheet dated 29.9.94/6.10.94 in accordance with Railway Servants (Discipline and Appeal) Rules, 1968 for misconduct while performing the duty. As the charges against the applicant in the disciplinary proceedings were serious in nature and as the conduct of the employee rendered Financial loss to the Railway Administration, the applicant was asked to submit reply to the charge-sheet. The applicant, moved an application for inspection of documents. However, due to interim order passed by this Tribunal on 7.2.95 further progress in the departmental proceedings could not be made.
3. The learned Counsel for the applicants has submitted that the disciplinary proceedings and the criminal proceedings against the applicant is based on same set of facts and common question of law and fact are involved. In case the departmental proceedings are allowed to proceed, the applicant would be required to disclose his defence before the disciplinary proceedings, which will seriously prejudice the applicant's interest in the case. It has therefore, been submitted that in view of the various facts of the case, the charge-sheet be quashed or that the disciplinary proceedings be stayed to avoid the result of the criminal action. In support of his submission the learned Counsel for the applicant has placed reliance on the following decisions.Capt. M. Paul Anthony v. Bharat Gold Mines Limited and Ors., J.T. 1999 (2) SC 456.Deputy Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yusuf Miyan, AIRState of Rajasthan v. B.K. Meena, 4. The respondents' case is that the charges against the applicant in the departmental proceedings are not identical, nor similar to the criminal proceedings which have been initiated by the C.B.I. against the applicant. Further submission of the learned Counsel for the applicant is that the departmental disciplinary action initiated against the applicant in regard to violation of Railway Servants Conduct, Rules, 1966 whereas criminal case has been initiated for violation of the provisions of Indian Railway Act, and under Indian Penal Code. The submission is that the two proceedings are separate and cannot be said to be identical in nature. The nature of punishment in the two proceedings shall also be different. It has been also submitted that no ground in the O.A. has been shown for quashing of the charge-sheet or the departmental proceedings. The learned Counsel for the respondents has placed reliance on the decision of B. K. Meena (supra) and on the decision of Jang Bahadur Singh v. Baij Nath Tewari (AIRS.A. Venkataraman v. Union of India AIR 5. It is not necessary for us to deal separately with each and every case cited by the learned Counsel for the parties at the Bar as all decisions have been considered by the Hon. Supreme Court in the case of Capt. M. Paul Anthony (supra). After considering the decisions in the case of Depot Manager, Andhra Pradesh State Corporation (supra), Kusheshwar Dubey (supra), Tata Oil Mills Co. Ltd. (supra), Jang Bahadur Singh (supra) and Delhi Cloth and General Mills Ltd. (supra) and some other cases, the Hon. Supreme Court in the case of Capt. M. Paul Anthony (supra) has given its conclusion in para 22 which is reproduced below: "22. The conclusions which are deducible from various decisions of this Court referred to above are : (i) Departmental 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." 6. The learned Counsel for the applicant has further drawn our attention towards para 13 of this decision and has submitted that though the basic principle is that departmental proceedings and proceedings in a criminal case can proceed simultaneously, it has a "little exception" and this little exception is that in case the departmental proceedings and the criminal case are based on identical and similar set of facts, and the charges in the criminal case against the delinquent employee is of grave nature, which involves complicated question of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
7. As against the above, the learned Counsel for the respondents has submitted that as the criminal case has not proceeded and its disposal is unduly delayed the departmental proceedings may be allowed to continue.
The facts of the present case have to be examined in the light of the decision of the Apex Court in the case of Capt. M. Paul Anthony (supra). It has to be examined as to whether the criminal case, as also the departmental proceedings are based on identical set of facts and if so, whether disclosure of the defence of the applicant in the departmental proceedings would prejudice the applicant's defence in the criminal case pending against him. In case the answer to these are in affirmative, the departmental proceedings against the applicant will have to be stayed.
8. In view of the above, we propose to examine the facts of the present case. It is admitted fact that the applicant was posted as Assistant Station Master at Railway Station Gosainganj. It is not denied that the applicant was also looking after the Ticket Booking counter. The allegations are that the applicant was found indulging in a racket of selling forged and tampered tickets which was unearthed by a team of Anti Fraud Squad headed by the Assistant Commercial Manager, N.R.Lucknow and Sr. CMI Lucknow on 3rd October, 1984 at Gosainganj Line. On checking pocket of the trousers of the applicant 10 numbers of fake tickets bearing Nos. 67180 to 67189 M.E. were found from the right side pocket wrapped in a cigarette panni Ex-Gosainganj to Ludhiyana. The tickets were tampered. The ticket tube was checked and five number of tickets for Bilhar-Ghat from serial Nos. 05940 to 05944. second ordinary, were found which were shown in the D.T.C. book as sold.Further allegation is that the applicant was found indulging in tampering short distance tickets into long distance tickets and pocketing the balance amount for his personal gains. Thus the question involved on the basis of these facts is that the applicant was arrested on the date and time alleged and a personal search was made which resulted in recovery of 10 Nos. of fake tickets from the pocket of the applicant. Recovery of the tickets and the fact that the recovered tickets were fake are also the questions which require a finding.
Further points are that the five tickets of Bilharghat were found in Tube but were shown as sold in the D.T.C. book maintained at the station which indicates that a wrong entry in the D.T.C. book was made.
It is not known as to who made the wrong entry in the D.T.C. book nor any specific allegation has been made in this regard. The criminal case against the applicant as stated earlier, is under Section 120-B i.e.
criminal conspiracy to commit an offence (ii) under Section 420 i.e.
cheating and thereby dishonestly including delivery of property (iii) under Section 467 i.e. forgery of valuable security or to receive any money etc. (iv) under Section 468 i.e. forgery for purposes of cheating and (v) under Section 471 i.e. using as genuine of forged document which is known to be forged.
9. Thus, the criminal case is also based on the fact that the applicant was caught red handed and fake tickets were recovered from his trousers. It is also based on the fact that the applicant was a member of a gang indulging in the racket of selling forged and tampering tickets which was unearthed by the team of Anti Fraud Squad. The criminal case as well as the departmental proceedings are also based on the fact mat the applicant was found tampered short distance tickets into long distance tickets and wrong entry was made in the D.T.C. book though five tickets were actually not sold and were found in the Tube.
Thus, we are of the view that the criminal case as also the departmental proceedings are based on identical set of facts namely raid conducted by the Anti Fraud Squad, recovery of fake tickets from the trousers of the applicant, recovery of five tickets from the Tube shown as sold in the D.T.C. book. Thus, evidence in both the proceedings namely departmental proceedings and the criminal case is same without there being an iota of difference. Same set of facts would be required to prove departmental proceedings as will be required to prove the criminal case. Though the standard of proof required in a criminal case and the departmental proceedings may differ, but the evidence required for the two proceedings is the same.
10. It is further seen from the supplementary Rejoinder Reply (M.P. No.759/99) filed on 8.4.99 that the charge-sheet and other papers connected thereto in the criminal proceedings have been served on the applicant by C.B.I. on 25.2.99. It cannot therefore be said that the criminal proceedings have made no head way. Since the criminal proceedings initiated against the applicant have made some progress in as much as charge-sheet has been served on 25.2.99. It would serve the ends of justice if departmental proceedings are stayed for the time being. If however the disposal of the criminal case is unduly delayed, it will he open for the respondents to resume and proceed with the departmental proceedings so as to conclude at an early date.
11. As regard the quashing of the charge-sheet of the departmental proceedings, we find that the grounds taken in the O.A. are not such as to establish that the charge is fake, or baseless. Just because a criminal case is proceeding against the applicant, the charge sheet or me departmental proceedings against the applicant cannot be quashed on that ground only. Thus, in so far as the quashing of the charge-sheet and the departmental proceedings is concerned there is no merit in the applicant's case.
12. The facts disclosed in the O.A. show that raid was conducted on 3.8.94, charge memo was given on 29.9.94. Departmental proceedings were stayed by this Tribunal on 7.2.95. The Departmental proceedings could not thereafter make any progress. The investigation in the criminal case was completed and charge-sheet was submitted in Court. Copies of the criminal case were given to the applicant on 25.2.99. These dates show that more than four years have now passed after the date of arrest of the applicant and alleged recovery from his possession. The investigation in criminal case has also taken a long time. However, as the charge sheet in criminal case has been now submitted, we are of the view that a reasonable time for conclusion of criminal trial may be provided.
13. In view of discussions made above, this O.A. is partly allowed. The relief for quashing of charge memo and departmental proceedings is rejected. The departmental proceedings shall remain stayed for a period of two years or till the conclusion of criminal case, whichever is earlier. In case however, the trial of criminal case is not concluded within a period of two years, from the date of this order, the department can resume and proceed with the departmental proceedings and pass necessary orders.