.: Conduct & Disciplinary Rules - 32 : Article from Mr. K.V.Shridharan

Law in regard to simultaneous continuance of departmental inquiry and criminal proceedings in respect of a misconduct as laid down by the Supreme Court

Facts:- Bharat Gold Mines Ltd. is a Government undertaking at Colar Gold Fields in Karnataka, where the appellant was appointed as a Security Officer on 31.10.1983. On 2.6.1985, a raid was conducted by the Superintendent of Police at the house of the appellant where a mining sponge of gold ball weighing, 4.5 grams and 1276 grams of "gold bearing sand" were recovered. Thereafter, on the same day, a First Information Report (F.I.R.) was lodged at the police station and a criminal case was registered against the appellant, who was placed under suspension on 3.6.1985. The next day, namely, on 4.6.1985, a charge-sheet was issued proposing a regular departmental inquiry with regard to recovery of the above articles from his house. On 11.6.1985, the appellant made a representation to the Disciplinary Authority denying the allegation made against him in the charge-sheet and pleaded that the entire episode was a concoction. He prayed that the departmental proceedings initiated against him may be dropped or may in the alternative be postponed till the conclusion of the criminal proceedings against him on the basis of the F.I.R. lodged against him at the police station on 2.6.1985. The representation was rejected on 19.6.1985, and the appellant was informed that the disciplinary proceedings would be held against him on 1.7.1985. On 3.2.1987, Judgment in the Criminal case was pronounced and the appellant was acquitted with the categorical finding that the prosecution had failed to establish its case. This judgment was communicated by the appellant to the respondents on 12.2.1987, with a request that he may be reinstated, but the respondents by their letter, dated 3.3.1987 rejected the request on the ground that the appellant had already been dismissed from service on the completion of the departmental inquiry which was conducted independently of the criminal case and, therefore, the judgment passed by the Magistrate was of no consequence. The appellant's departmental appeal against his dismissal was also rejected by the appellate authority by order, dated 22.7.1987.

There is a consensus of judicial opinion on the basic principle that proceedings in criminal case and the departmental proceedings can proceed simultaneously with little exception. Proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many, such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings, the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.

The conclusions which are deducible from various decisions of the Supreme Court 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 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 materials collected against him during investigation or reflected in the charge-sheet.

(iv) The facts 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.

In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of "gold bearing sand'. It was on this basis that a criminal case was launched against him. On the same set of facts constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be "misconduct". On the service of the charge-sheet, the appellant raised an objection that the departmental proceedings should be stayed as the basis of these proceedings was the raid conducted in his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case should be awaited, but his request was turned down. The request made for the second time for that purpose also met with the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the High Court did not have any effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Enquiry Officer that he was ill. His request for adjournment of the inquiry proceedings on that ground was not acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charges and was dismissed from service.

In the instant case, the appellant was not paid any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness supported by medical certificates, was refused resulting in ex parte proceedings against him. In the circumstances we are of the opinion that the appellant had been punished in total violation of the principles of natural justice and he was literally not offered any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, which were held ex parte stand vitiated. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case and departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom." The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicates that the charges framed against the appellant were sought to be proved by police officers and punch witnesses who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court on the consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, when the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge in so far as it purports to allow the writ petition is upheld.

[Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., JT 1999 (2) SC 456; CASES REFERRED TO (1) Delhi Cloth & General Mills Ltd. v. Kushalbhan, AIR 1960 SC 806; (2) Tata Oil Co. Ltd. v. Workmen, AIR 1965 SC 155; (3) Jang Bahadur Singh v. Baij Nath Tewari, AIR 1969 SC 30; (4) Kusheswar Dubey v. M/S Bharat Coking Coal Ltd. AIR 1988 SC 2118; (5) Nelson Motis v. Union of India, AIR 1992 SC 1981; (6) State of Rajasthan v. B.K. Meena (1996) AIR 1997 SC 13; (7) Depot Manager, A.P.S.R.T.C. v. Mohd. Yoursuf Miyan (1997) AIR 1997 SC 2232.]

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

I. Government of India's instructions regarding criminal prosecution - Prosecution should precede departmental action

The following procedure should normally be adopted in cases of alleged misconduct of Government servant.

2. As soon as sufficient evidence is available for the purpose in the course of investigation in cases of misconduct, whether such investigation is conducted departmentally or through the police (including the Special Police Establishment), action should be taken forthwith. It has been decided that prosecution should be the general rule in all those cases which are found fit to be sent to Court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. In such cases, departmental action should not precede prosecution. In other cases involving less serious offences or involving malpractices of a departmental nature, departmental action only should be taken and the question of prosecution should generally not arise. Whenever, however, there is unresolved difference of opinion between the Central Bureau of Investigation and the Administrative Authority concerned as to whether prosecution in Court or departmental action should be resorted to in the first instance, the matter should be referred to the Central Vigilance Commission for advice.

3. Before initiating criminal proceedings advice on evidence should be obtained from Government Counsel, and in more important cases from the Attorney-General or the Solicitor General. Where the conduct of an officer discloses a grave offence of a criminal nature, criminal prosecution should be the rule and not the exception. Where competent authority is satisfied that there is no criminal case which can be reasonably sustained against such officer, criminal prosecution should not, of course, be resorted to; but prosecution should not be avoided merely on the ground that the case might lead to an acquittal.

[Govt. of India, M.H.A., O.M. No. F. 39/30/54-Ests., dated the 7th June, 1955 and No 39/8/64-Ests. (A), dated the 4th September, 1964.]

Monday, 26 July 2021

Conduct & Disciplinary Rules - 32 : Article from Mr. K.V.Shridharan

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