09 December 2004
Supreme Court


Case number: C.A. No.-007980-007980 / 2004
Diary number: 23229 / 2003



CASE NO.: Appeal (civil)  7980 of 2004

PETITIONER: Hindustan Petroleum Corporation Ltd. & Ors.

RESPONDENT: Sarvesh Berry

DATE OF JUDGMENT: 09/12/2004



(Arising Out of S.L.P. (Civil) No. 24560 of 2003)


       Leave granted.

       Appellants calls in question legality of the judgment rendered by  a Division Bench of the Andhra Pradesh High Court which set aside the  judgment of the learned Single Judge and directed that departmental  proceedings were not to be continued until conclusion of criminal  charge.

       Background facts in a nutshell are as under:

       Hindustan Petroleum Corporation Ltd. (hereinafter referred to as  the ’employer’) is a Government of India enterprise.   

       Officials of the Central Bureau of Investigation (in short the  ’CBI’) raided the house of the respondent (hereinafter referred to as  the ’employee’) on 13.3.1998 and found that he was in possession of  assets disproportionate to his known sources of income and consequently  a case was registered on 5.5.1998. After completion of investigation  charge sheet was filed. In the meantime departmental proceedings were  initiated against the respondent and charge sheet was issued.  The  employee filed a writ petition before the Andhra Pradesh High Court  taking the stand that departmental proceedings should be stayed till  completion of the criminal case.  It was specifically stated that once  sanction has been granted to launch criminal prosecution nothing  further warrants initiation and continuance of departmental proceedings  as the issues involved in both the departmental inquiry and the  criminal case are identical.  The appellants filed counter affidavit  stating that raid was conducted in the year 1988 and after completion  of investigation, CBI requested the employer-appellant no.1 to sanction  prosecution on 21.12.2000 and on 19.6.2001 sanction has been accorded  to prosecute the employee for the criminal charges. Though CBI had  filed the charge sheet there was no noticeable progress for four years.   Employer initiated the disciplinary proceedings on the ground that  continuation of the employee in service of the employer-Corporation  would not be in the public interest. Learned Single Judge dismissed the  writ petition holding that there is no legal bar on departmental  proceedings and criminal case continuing simultaneously even though  they are based on identical or similar set of facts. Reference was made



to a decision of this Court in Capt. M. Paul Anthony vs. Bharat Gold  Mines Ltd. and Anr. (1999 (3) SCC 679).  Matter was carried in appeal  by the employee before the Division Bench of the High Court in writ  appeal and by the impugned judgment the High Court held that there were  3 charges indicated in the charge sheet. The first related to  possession of assets disproportionate to the known sources of income  and the other two related to misconduct in (a) not filing correct  property returns and/or (b) not filing return at all for some years as  required under Rule 13(1)(c) of the Hindustan Petroleum Management  Employees Conduct, Discipline and Appeal Rules, 1976 (in short the  ’Rules’). The third charge related to failure of the respondent- employee to file property returns for the years 1991-92, 1994-95, 1995- 96, 1996-97 and 1997-98. The High Court stated that though the charges  2 and 3 related to non-disclosure or non-submission of property returns  they are relatable to the first charge relating to possession of assets  disproportionate to the known sources of income. It would not be safe  to permit the appellants to continue the departmental proceedings till  completion of criminal case.  However, an opportunity was given to take  steps for early disposal.   

       In support of the appeal, learned counsel for the appellants  submitted that charges 2 and 3 as noted above are different from the  charge no.1 which related to possession of assets disproportionate to  the known sources of income.  The Criminal Court will have no occasion  to deal with those charges.  Further the criminal case is under Section  13(2) read with Section 13(1)(e) of the Prevention of Corruption Act,  1988 (in short the ’PC Act’). It would not be proper to continue  respondent in the employment of the appellants as it would not be in  the public interest and in any event the respondent would be able to  place facts relevant to all the charges in the departmental  proceedings.   

       Per contra, learned counsel for the respondent submitted that  respondent-employee would be required to disclose its defence and in  any event charge no.1 is not covered by any of the provisions of the  Rules and the departmental authorities have no jurisdiction to deal  with the matter in any departmental proceedings.  Additionally, it is  submitted that the trial has commenced and, therefore, the order of the  High Court is correct in view of what has been stated in Capt. M. Paul  Anthony’s case (supra).

It is fairly well-settled position in law that on basic  principles proceedings in criminal case and departmental proceedings  can go on simultaneously, except in some cases where departmental  proceedings and criminal case are based on the same set of facts and  the evidence in both the proceedings is common. It is in these cases,  the Court has to decide, taking into account special features of the  case, whether simultaneous continuance of both would be proper.              The purpose of departmental enquiry and of prosecution is two  different and distinct aspects. The criminal prosecution is launched  for an offence for violation of a duty the offender owes to the  society, or for breach of which law has provided that the offender  shall make satisfaction to the public. So crime is an act of commission  in violation of law or of omission of public duty. The departmental  enquiry is to maintain discipline in the service and efficiency of  public service. It would, therefore, be expedient that the disciplinary  proceedings are conducted and completed as expeditiously as possible.  It is not, therefore, desirable to lay down any guidelines as  inflexible rules in which the departmental proceedings may or may not  be stayed pending trial in criminal case against the delinquent  officer. Each case requires to be considered in the backdrop of its own  facts and circumstances. There would be no bar to proceed  simultaneously with departmental enquiry and trial of a criminal case  unless the charge in the criminal trial is of grave nature involving



complicated questions of fact and law. Offence generally implies  infringement of public duty, as distinguished from mere private rights  punishable under criminal law. When trial for criminal offence is  conducted it should be in accordance with proof of the offence as per  the evidence defined under the provisions of the Indian Evidence Act  1872 (in short the ’Evidence Act’). Converse is the case of  departmental enquiry. The enquiry in a departmental proceedings relates  to conduct or breach of duty of the delinquent officer to punish him  for his misconduct defined under the relevant statutory rules or law.  That the strict standard of proof or applicability of the Evidence Act  stands excluded is a settled legal position. Under these circumstances,  what is required to be seen is whether the department enquiry would  seriously prejudice the delinquent in his defence at the trial in a  criminal case.  It is always a question of fact to be considered in  each case depending on its own facts and circumstances.   

A three-judge Bench of this Court in Depot Manager, A.P. State  Road Transport Corporation v. Mohd. Yousuf Miya and Ors.  (1997 (2) SCC  699) analysed the legal position in great detail on the above lines.

       The aforesaid position was also noted in State of Rajasthan v.  B.K. Meena (1996 (6) SCC 417). There can be no straight jacket formula as to in which case the  departmental proceedings are to be stayed.  There may be cases where  the trial of the case gets prolonged by the dilatory method adopted by  delinquent official.   He cannot be permitted to, on one hand, prolong  criminal case and at the same time contend that the departmental  proceedings should be stayed on the ground that the criminal case is  pending.

       In Capt. M. Paul Anthony’s case (supra) this Court indicated some  of the fact situations which would govern the question whether  departmental proceedings should be kept in abeyance during pendency of  a criminal case. In paragraph 22 conclusions which are deducible from  various decisions were summarised.  They 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 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.  

       It is to be noted that in cases involving Section 13 (1)(e) of  the P.C. Act, the onus is on the accused to prove that the assets found  were not disproportionate to the known sources of income.  The



expression ’known sources of income’ is related to the sources known to  the authorities and not the accused. The Explanation to Section 13(1)  of the P.C. Act provides that for the purposes of the Section, "known  sources of income" means income derived from any lawful source and such  receipt has been intimated in accordance with the provisions of any  law, rules or orders for the time being applicable to a public servant.  How the assets were acquired and from what source of income is within  the special knowledge of the accused. Therefore, there is no question  of any disclosure of defence in the departmental proceedings. In the  criminal case, the accused has to prove the source of acquisition.  He  has to satisfactorily account for the same.  Additionally, issues  covered by charges 2 and 3 cannot be the subject matter of adjudication  in the criminal case.   

That being the position, the High Court was not justified in  directing stay of the departmental proceedings pending conclusion of  the criminal charge. As noted in Capt. M. Paul Anthony’s case (supra)  where there is delay in the disposal of a criminal case the  departmental proceedings can be proceeded with so that the conclusion  can be arrived at an early date. If ultimately the employee is found  not guilty his honour may be vindicated and in case he is found guilty  the employer may get rid of him at the earliest.         

Regarding aspects which are related to the criminal case, we do  not express any opinion. The appellants are free to continue  departmental proceedings.  Since the criminal trial has commenced, it  would be in the interest of parties to assist the Court for its  expeditious disposal.        The appeal is allowed accordingly with no order as to costs.