1. The present O. A. is filed for directing the respondents not to conduct the departmental inquiry till a decision in criminal proceedings is reached.
2. The applicant is working as Travelling Ticket Examiner in the Mumbai Division of Central Railway. On 22/23.4.2003 the applicant was on duty in train No. 1093 Dn. According to the applicant a decoy check was conducted by incompetent persons in contravention of the Rules in the Vigilance Manual. As per Vigilance Inspectors version the applicant was accosted at Kasara Station on 23.04.2003 and sought to show the personal and Railway cash. The applicant refused to cooperate with the Vigilance Inspectors. The applicant with a view to avoid detection, pushed the Vigilance Inspectors and the independent witnesses and threatened the Vigilance Inspector. The chargesheet was issued to the applicant. The chargesheet mentioned that the Vigilance Department had a source of information that Travelling Ticket Examiners in train No.1093 Dn. were collecting extra money from passengers over and above the Railway dues illegally from the passengers while allotting the berths.
The chargesheet mentions that a decoy passenger handedover Rs. 100 given to him by the Vigilance Inspector to the applicant in S/5 Coach at Kalyan Station. It is further mentioned that the Vigilance Inspector accosted the applicant at Kasara Station and sought to show the personal and Railway cash. The applicant refused to co-operate and pushed back. It is contended that the Enquiry Officer vide its letter dated 23rd September called upon the applicant to attend the preliminary enquiry on 7th October. 2003. It is also contended that the Vigilance Inspector Shri Chandrakant D. Pagare's report under Section 146 of the Railway Act alleged that the applicant in order to avoid detection of the alleged receipt of cash from the decoy passenger Mr.
Darange, pushed the Vigilance Inspectors and the Railway Constable aside and refused to cooperate with Vigilance Inspectors' demand for showing the cash and the Excess Fare Receipt Book. After completion of investigation the Igalputi Police Station has submitted the chargesheet before the Railway Magistrate's Court. It is further contended that on 9.10.2003 the applicant denied all the allegations made in the statement and filed his preliminary objections and prayed for stay of the inquiry proceedings pending disposal of criminal case to avoid miscarriage or failure of justice. However, the Enquiry Officer rejected his plea. It is further contended that the applicant filed the detailed written statement of defence disclosing the true version of the events, the manner in which the Vigilance Team manhandled him in the presence of other TTEs. Thus he has filed this O.A.3. The respondents appeared and filed their counter Affidavit. The respondents contended that the applicant has been issued a chargesheet in respect of the conduct of the applicant for accepting a bribe of Rs. 100 as illegal gratification from the decoy passenger without issuing any EFT. The applicant has refused to show the EFT Railway and private cash in his possession and manhandle the Chief Vigilance Inspectors.
The Chief Vigilance Inspector also filed a criminal complaint for the criminal act of manhandling committed by the applicant. It is contended that the question of staying Departmental Proceedings docs not arise in the present case. There is no complicated question of law and fact involved. It is a simple case of manhandling of the Chief Vigilance Inspectors and thereby trying to obstruct a Government Servant from carrying out his legitimate and legal duties. It is contended that charges in the departmental proceedings on the one hand and criminal proceedings on the other hand are not identical. The charges to some extent may relate to the same incident. However, they are not identical. It is also contended that the question of law and fact is not involved in the criminal case. It is also contended that the detailed written statement of defence disclosing the true version of events has been filed by the applicant. So there is no question of any further possibility of the applicant disclosing his defence by participating in the departmental enquiry.
4. The applicant also filed the rejoinder and reiterated the contentions in the O.A.5. Heard the learned Counsel Mr. G.S. Walia for the applicant and Mr.
R.R. Shetty for the respondents.
6. The learned Counsel Mr. Walia for the applicant submitted that the criminal proceedings and the departmental proceedings are based on same set of facts and evidence. The learned Counsel also submitted that the charges in criminal proceedings and the departmental proceedings are identical. The charge is grave and is of serious nature and complicated question of law and fact are involved. The learned Counsel also submitted that the facts and evidence being the same the applicant will be prejudiced if he is compelled to disclose his defence in the departmental enquiry. Great hardships and prejudice would be caused to the applicant if the Departmental Enquiry is allowed to be conducted on the same charge and evidence. The learned Counsel relied on the judgment in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999 SCC (L&S) 810 : 1999(3) SLJ 152 (SC). He also relied on the judgment dated 19.12.2002 of this Bench in O.A. No. 532/2002, in the case of P.N. Muralidharan Pillai v. UOI.7. On the other hand, the learned Counsel Mr. R.R. Shetty submitted that the charge in criminal case is not identical to the charge in the departmental proceedings. He also submitted that the applicant has been chargesheeted for the offence under Section 146 of the Indian Railway Act. No complicated question of law and fact are involved and charge in the criminal case is not of a grave nature. He submitted that the applicant has already submitted his defence statement before the Inquiry Officer. So there is no question of prejudice to the applicant by disclosing his defence in the departmental proceedings. The learned Counsel submitted that as charges are not identical no complicated question of law and fact involved, the defence is already disclosed by the applicant in departmental proceedings. There is no question for staying the departmental proceedings till the completion of the criminal case. The learned Counsel relied on the judgments in the case of (i) State of Rajasthan v. B.K. Meena and Ors., 1996 SCC (L&S) 1455 : 1997(1) SLJ 86 (SC), (ii) in W.P. No. 5119 of 2002 in the case of UOI v. SC Thakur dated 1.11.2002 and (iii) Bombay High Court judgment in the case of Secretary, Ministry of Home Affairs and Anr. v. Tahir Ali Khan Tyagi, 8. We have heard the rival submissions, perused the records and the case law cited by both sides.
9. In B.K. Meena's case (supra) Their Lordships of the Apex Court has held as under: "Departmental enquiry - Criminal proceedings also on--Stay of disciplinary proceedings by the CAT till the conclusion of criminal trial cannot be as a matter of course--It should be based on all the relevant factors and by keeping in view the principles laid by the Supreme Court -- It is in the interest of the administration and the delinquent that proceedings be concluded expeditiously--IAS Officer working as Additional Collector, alleged to have misappropriated a huge amount (Rs. 1.05 crores) of public funds, suspended and thereafter arrested State Govt. seeking grant of sanction for prosecution under Prevention of Corruption Act, but the Central Government instead advising initiation of disciplinary proceedings--State Government issuing memo of charges accompanied by articles of charges--The delinquent officer submitting a detailed reply (running into 90 pages) Thereafter the delinquent reinstated--CAT staying the departmental enquiry on the ground that the criminal trial and the departmental enquiry being based on upon the same facts and allegations, the disclosure of his defence at this stage could prejudice the delinquent's defence in the criminal trial -- Such order of the CAT, held unsustainable both in law and on facts. Case law discussed--Prevention of Corruption Act, 1988." "Held that departmental proceedings and criminal proceeding can run simultaneously and departmental proceeding can also be initiated even after acquittal in a criminal proceeding particularly when the standard of proof in a criminal proceeding is completely different from the standard of proof that is required to prove the delinquency of a Government servant in a departmental proceeding, the former being one of proof beyond reasonable doubt, whereas the latter being one of preponderance of probability." In Capt. M. Paul Anthony's case (supra), Their Lordships of the Apex Court held as under: "Conclusions which are deducible from various decisions of the Supreme Court (referred to in Paras 14 to 22 of the judgment) on this point, are as follows: (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 criminal case against the delinquent employee is of a grave nature which involves complicates questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case; (iii) Whether the nature of charge in a criminal case is grave and (sic) complicated questions of fact and law are involved in that case, will depend upon the nature of the 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) Factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay departmental proceedings but due regard has to be given to the fact that 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 pendency of criminal case, can be resumed and proceeded with, so as to conclude them at an early date. The purpose is that if the employee is found not guilty, his honour may be vindicate and in the case he is found guilty, administration may get rid of him at the earliest." 10. It is apparent from the above Supreme Court judgments that there is no bar for proceeding in a criminal case and departmental proceedings simultaneously. Stay of departmental proceedings is not a matter of course. All the relevant factors are required to be considered while deciding to stay the departmental proceedings. The proceedings in criminal case and departmental proceedings operate in distinct and different jurisdictional areas. There is a clear difference between misconduct and offence though they arise out of the same incident. (1) In criminal case, he as an individual is answerable to the society as a whole under the penal law whereas in the departmental proceedings he is answerable to his employer as an employee, (2) The standard of proof required in criminal trial and the departmental proceedings is also different. In departmental proceedings standard of proof is one of the preponderance of probabilities whereas in criminal case charge has to be proved beyond reasonable doubt. (3) The departmental proceedings is adopted for the purpose of dealing with the case of misconduct under the rules and regulations governing the service of the employer. On the other hand a criminal prosecution is a proceeding for the purpose of dealing with violation of penal law of the land.
10A. In the instant case, the charge in the criminal case is that of manhandling the Vigilance Officer by the applicant and preventing him from performing the official duty under Section 146 of the Indian Railway Act whereas the charge in the departmental proceedings is for accepting Rs. 100 as an illegal gratification without issuing the EFT, refusing to show the Railway and private cash in his possession on being asked by the Vigilance Team and thereby adopting the very non-co-operating attitude towards the Vigilance Check and thirdly running away from the coach after manhandling the Chief Vigilance Inspector and threatening them to dire consequences, thereby contravening the provisions of Rule 3.1(i)(ii) and (iii) of Railway Service (Conduct) Rules, 1966. The charges in the departmental proceedings are not the same in the criminal case. Only the charge No.III in the departmental enquiry and the charge in the Criminal Court appears to be identical.
11. The case against the applicant has been registered as a summary case bearing No. 3384/2003 under Section 146 of the Indian Railway Act.
The offence under Section 146 of the Indian Railway Act is punishable for imprisonment to the extent of six months or the fine to the extent of Rs. 1000. The trial against the applicant will be by way of summary procedure. In M. Paul Anthony's case Their Lordships of the Supreme Court has observed that if the departmental proceedings and 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. The applicant had been chargesheeted for the offence under Section 146 of the Indian Railway Act for which the punishment is imprisonment to the extent of six months or fine, from the nature of the allegation in the chargesheet, the offence under Section 146 of the Indian Railway Act cannot be said to be a grave in nature. The offence may be a serious one. Not only that charge must be a grave but that the case must involve complicated question of facts and law. When the applicant, is charged under Section 146 of Indian Railway Act, one cannot say complicated questions of law and fact are involved. The only question before the Court will be whether the complainant was obstructed in discharging his duty by the applicant. We have mentioned that the trial will be conducted by a summary procedure. In a summary procedure notes of evidence are taken. Considering the nature of the offence in question, we find it difficult to hold that the present case will fall in the category (ii) of the Apex Court judgment in M. Paul Anthony's case (supra) for staying the departmental enquiry.
12. It is contended that if the departmental proceedings will go on simultaneously the applicant will be required to disclose his defence which will prejudice him in the criminal trial. It be remembered here that the applicant has already disclosed his defence in his elaborate and detailed statement filed by him before the Enquiry Officer on 24.4.2003. So there is no question of being compelled to disclose his defence in the disciplinary proceedings which will prejudice him in the criminal case.
13. The judgment in O.A. 532/02 in P. Muralidharan's case (supra) is not helpful to the applicant. In the said case, the Tribunal has held that offence for the applicant stands prosecuted is of a grave nature which may involve complicated question of law and facts and thus, the case of the applicant in that case falls in the category (ii) of M.Paul Anthony's case for staying the departmental enquiry. We have mentioned that in the instant case, no complicated question of law and facts are involved in the criminal case.
14. The charges against the applicant in departmental proceedings are serious those pertaining to corruption. In B.K. Meena's case (supra) Their Lordships have observed in para 14 that it must be remembered that the interest of administration demands 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 delinquent officer also lies in a prompt conclusion of disciplinary proceedings.
15. In view of the aforesaid discussion we find it difficult to hold that the present case falls in the category of the cases covered by the Apex Court in Capt. M. Paul Anthony's case (supra) where departmental proceedings can be stayed. Accordingly, the O.A. is dismissed. No order as to costs.