1. Heard on admission. Challenge put-forth in the present petition under Article 226 of the Constitution of India is to an order dated 29.10.2009/11.11.2009 (Annexure P-4) whereby the petitioner has been issued with a charge-sheet, whereby the petitioner has been charged of financial embezzlement of Rs.3,84,700/- and of an act unbecoming of a government servant, violating Rule 3 (1) (i), (ii), (iii) and Rule 3 (2) (ii) of Madhya Pradesh Civil Services (Conduct) Rules, 1965 (hereinafter shall be referred to as Conduct Rules of 1965). Facts giving rise to initiation of a departmental enquiry was with first information report lodged on 12.6.2008 by one Chandrabhan Kulhade, Court Superintendent of District Consumer Forum, Seoni. The report was initially lodged against one Rajkumar Rai, Farrash at District Consumer Forum, Seoni alleging that a sum of Rs.3,84,700/- has been drawn from the Bank by putting forged signature. On the basis of said report a crime was registered for offences under Sections 420, 467, 468 and 471, IPC vide Crime No. 285/2008 dated 12.6.2008.
2. During course of investigation of said crime the petitioner and one Amar Singh Uike were apprehended as co-accused. The petitioner was arrested and placed for custody for more than 48 hours and were accordingly suspended vide order dated 26.9.2008. The said investigation culminated into filing of a challan forming subject matter of Criminal Case No. 105/2008 before the competent court of jurisdiction wherein the petitioner along with said Raj Kumar Rai and Amar Singh Uike has been framed as accused for alleged fraudulently drawing of Rs.3,84,700/- and offences under Sections 420, 467, 468, 471, 409 and 120-B are registered against them. When the matter stood thus, petitioner has been subjected to departmental enquiry vide impugned charge sheet wherein the following charges have been leveled against the petitioner.
"vkjksi OE- 1& tuojh 2007 ls ebZ 2008 dh vof/k esa ftyk miHkksDrk Qksje flouh ds LVsaV cSad vkWQ bUnkSj 'kk[kk foluh dpgjh pkSd flouh esa] ftyk miHkksDr Qksje flouh ds 'kkldh; [kkrk OE- 53018890240 dh pSd cqDl] tks vkidh ,oa Jh vej flag mbds dh la;qDr vfHkj{kk esa Fkh] esa ls dqy 20 pSDl pksjh gq, vkSj muesa ls mDr vof/k esa le; le; ij 17 pSDl ds ek/;e ls dqN 3]87]700@& voS/kkfud :i ls ftyk Qksje flouh ds v/;{k ds QthZ gLrk{kjksa ls Hkqxrku izkIr fd;k x;k ftldh lwpuk Hkh le; ij ugha nsdj fnukad 11&6&2008 dks Jh vej flag mbds }kjk ftyk miHkksDrk Qksje flouh ds v/;{k dks nh x;hA bl izdkj vki 'kkldh; [kkrs ls mDr jkf'k ds voS/kkfud vkgj.k esa lafyIr jgs vFkok bl voS/kkfud vkgj.k esa vius vU; O;fDr;ksa dk lg;ksx djrs gq, tkucw>dj vius drZO; ds izfr ?kksj ykijokgh mnklhurk ,oa xEHkhj =qfV dh gS vkSj vki mDr vijkf/kd d`R; esa fyIr jgs gSa ftlds dkj.k vkids fo:) iqfyl Fkkuk flouh esa vkijkf/kd izdj.k iathc) fd;k tkdj vkidks fuyfEcr fd;k x;k gSA
bl izdkj vkius e/; izns'k flfoy lsok 1/4vkpj.k1/2 fu;e 1965 ds fu;e 3&1/411/2 1/4,d1/2] 1/4nks1/2] 1/4rhu1/2] ,oa fu;e 3 1/421/2 1/4nks1/2] dk mYya?ku fd;k gS tks fd e/; izns'k flfoy lsok 1/4oxhZdj.k] fu;a=.k rFkk vihy1/2 fu;e 1966 dh /kkjk
14 ds vUrxZr n.Muh; gSA"
3. The petitioner by way of present petition questions the issuance of charge sheet on the ground that the criminal proceeding in respect of the same set of fact is pending in the competent court of jurisdiction and the petitioner would be disposed of to unveil his defence and the same will prejudicially affect his right of defence in the criminal case. It is urged that in case of the petitioner deposing in a departmental enquiry, there is likelihood of prosecution using the same against petitioner in the criminal proceeding. It is further submitted that the original records which relate to the charges framed against the petitioner are confiscated by the investigating agency are subject matter of the criminal case. It is contended by learned counsel for the petitioner that petitioner would be subjected to rigours of dual trial, i.e., criminal as well as departmental enquiry on the same set of facts. It is on these grounds the petitioner seeks quashment of charge sheet dated 29.10.2009/11.11.2009. Considered the submissions put-forth by learned counsel for the petitioner. Indisputably, the petitioner is a government servant and is governed by the Conduct Rules of 1965. The charges leveled against the petitioner by no stretch of imagination be taken to be a conduct congenial of a government servant. Rule 3 of the
Rules stipulates:
"3. General.-(1) Every Government servant shall at all times :-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority.
(ii) No Government servant shall, in the performance of his official duties or in the exercise of the powers conferred on him, act otherwise than in his best judgment except that when he is acting under the direction of his official superior and shall, where he is acting under such direction, obtain the direction in writing, wherever practicable, and where it is not practicable to obtain the direction in writing, he shall obtain written confirmation of the direction as soon thereafter as possible.
4. Explanation.- Nothing in clause (ii) of sub-rule (2) shall be construed as empowering the Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions, are not necessary under the scheme of distribution of powers and responsibilities. In State of Rajasthan v. B. K. Meena and others (AIR 1997 SC 13) while dwelling upon the similar issue as the present one,it was observed by their Lordships that:
"17. .. .. .. .. . The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."
In Baldev Singh Gandhi v. State of Punjab (2002) 3 SCC 667 their Lordships were pleased to hold:
9. Misconduct' has not been defined in the Act. The word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. There being different meaning of the expression 'misconduct', we, therefore, have to construe the expression 'misconduct' with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects of the statute. In M.M. Malhotra v. Union of India (2005) 8 SCC 351, their Lordships while dealing with the conduct of the persons belonging to a disciplined force were pleased to observe:
16. The scheme of the disciplinary rules in general is to identify the conduct which is made punishable and then to provide for the various punishments which may be imposed for the acts which are inconsistent with such conduct. For example, the Central Civil Services (Conduct) Rules, 1964 contain provisions which pertain to the standards of conduct which government servants (within the meaning of those rules) are to follow whereas the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provide the punishment or penalties which may be imposed for misconduct. The Conduct Rules and the Rules for punishment may be provided in separate rules or combined into one. Moreover, there are a host of departmental instructions which elucidate, amplify and provide guidelines regarding the conduct of the employees.
17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
21. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) "comprised positive acts and not mere neglects or failures". The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is: "A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness."
22. It may be generally stated that the conduct rules of the government and public sector corporations constitute a code of permissible acts and behaviour of their servants.
In the case at hand, the charges leveled against the petitioner certainly exposit, though prima facie a Conduct unbecoming of a member of a government servant and the same cannot, therefore, be interfered with at the charge sheet level, as has been held by their Lordships of the Supreme Court in Union of India and another v. Kunisetty Satyanarayana [(2006) 12 SCC28]
"13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge- sheet or show-cause notice vide Executive Engineer, Bihar State Housing Boar v. Ramesh Kumar Singh (1996) 1 SCC 327, Special Director v. Mohd. Ghulam Ghose (2004) 3 SCC 440, Ulagappa v. Divisional Commr. Mysore, State of UP v. Brahm Datt Sharma (1987) 2 SCC 179), etc.
14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which effects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
The petitioner has placed reliance on the judgment in
Indian Overseas Bank, Anna Salai and another v. P. Ganesan and others (2008) 1 SCC 650. The said case in the considered opinion of this Court is of no assistant to the petitioner as their Lordship of the Supreme Court were pleased to observe:
23. The High Court, unfortunately, although noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non stayed of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.
24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the bank which was not the subject matter of allegations in a criminal case, the departmental proceedings should not have been stayed.
26. Reliance placed by Mr. Prakash on Hindustan Petroleum Corporation Ltd. (supra) is not apposite. There were certain special features which were noticed by this Court. In that case itself it was held - : (SCC p.476, para 11)
"There can be no strait-jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case get prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
Therein the departmental proceedings were allowed to continue despite the fact that the delinquent officer therein had been charged for commission of an offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988.
In the context, regard can also be had of judgment in Uttaranchal Road Transport Corporation and others v. Mansaram Nainwal (2006) 6 SCC 366 wherein their Lordships were pleased to observe:
"11.The ratio of Anthony's case (supra) can be culled out from paragraph 22 of the judgment which reads as follows :
"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, the administration may get rid of him at the earliest."
In view of above no case for interference is made out. In the result petition fails and is hereby dismissed. It is, however, made clear that this Court has not expressed any opinion on the merit of the charges and the disciplinary authority shall conduct the enquiry without being influenced by the observations herein above. No costs.