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CASE NO.: Appeal (civil)  4985 of 2004

PETITIONER: Kendriya Vidyalaya Sangathan & Ors.

RESPONDENT: T.Srinivas

DATE OF JUDGMENT: 05/08/2004

BENCH: N.Santosh Hegde & S.B.Sinha.

JUDGMENT: J U D G M E N T

(Arising out of SLP)No.24698 of 2003)

SANTOSH HEGDE,J.

       Heard learned counsel for the parties.

       Leave granted.

The appellants being aggrieved by the dismissal of their  writ petition filed before the High Court of Judicature, Andhra  Pradesh at Hyderabad are in appeal before us. Basic facts  required for the disposal of this appeal are as follows: The respondent herein while working with the first  appellant as Upper Division Clerk at Visakhapatnam was arrested  by the CBI after a trap and was charged for offence punishable  under Section 7 read with Section 13(i)(d) of Prevention of  Corruption Act and a case in this regard  is pending trial before  the competent court. During the pendency of the said trial, the  appellants decided to initiate departmental proceedings against  the respondent and a charge memo framing three charges was  issued to the respondent. First Article in the memo of charges  referred to the allegations of the respondent receiving Rs.200/- as  bribe in violation of Rule 3(1)(i)(ii) & (iii) of CCS (Conduct)  Rules, 1964. Article II of the said charge memo referred to the  conduct of the appellants in not maintaining absolute integrity  devotion to duty and acting in a way unbecoming of an employee  in violation of Rule 3(i) (ii) & (iii) of the CCS (Conduct) Rules,  1964 and Article III of the said charge memo referred to the  respondent suppressing the fact that he was in police custody on  16th of September, 2002 which according to the appellants was  again a misconduct  in violation of Rule 3(1)(i)(ii) & (iii) of the  CCS (Conduct) Rules, 1964.  The respondent herein challenged the said decision of the  appellants to hold a departmental enquiry while a criminal trial on  identical facts was pending against him before a competent court.  This challenge was made before the Central Administrative  Tribunal, Hyderabad Bench at Hyderabad. The tribunal by its  order dated 2.7.2003 came to the conclusion that the first two  Articles of charges are identical to the charge levelled against the  petitioner before the special court under the provisions of the  Prevention of Corruption Act and the third Article of charge  though not a subject matter of the trial is an inter-connected  charge with charges 1 and 2, hence it allowed the application of  the respondent and directed the appellant that proceedings  pursuant to the charge memo be stayed till the applicant discloses  his defence in the pending criminal trial. It, however gave  permission to the appellant to proceed with the disciplinary

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proceedings after the disclosure of the defence by the respondent  which in effect would mean that the disciplinary proceedings will  stand stayed almost till the disposal of the trial before the  criminal court.  Being aggrieved by the said order of the tribunal, the  appellants herein, as stated above, preferred a writ petition before  the High Court . The High Court by the impugned order agreed  with the tribunal that the disciplinary proceedings should be  stayed till the criminal trial was over and the request of the  appellant, atleast to permit it to proceed with the departmental  enquiry in regard to the charge No.3 which was independent of  charges 1 and 2 was rejected on the ground that the said charge  No.3 is inter-connected with the other two charges. It is against  the said order of the High Court confirming the order of the  tribunal, the appellants are before us in this appeal.  Mr.Rakesh K.Khanna, learned counsel appearing for the  appellants submitted that it is now a well settled principle in law  that merely because a criminal trial is pending a departmental  enquiry involving the very same charges as is involved in the  criminal proceedings is not barred or can not be initiated,  therefore, the courts below erred in holding otherwise. He also  submitted that atleast in regard to charge No.3 which is not a  subject matter of the trial the department ought to have been  permitted to proceed  with the departmental enquiry. In support  of his contention, the learned counsel placed reliance on two  judgments of this Court in the case of State of Rajasthan vs.  B.K.Meena & Ors. (1996 (6) SCC 417) and Capt. M.Paul  Anthony vs. Bharat Gold Mines Ltd. & Anr. (1999 (3) SCC 679).  Shri P.S.Narasimha, learned counsel appearing for the  respondent contended that the charges before the criminal court  and before the Departmental Enquiry Committee being identical  the appellants could not have initiated  a parallel proceedings  which would prejudice the defence of the appellants. He  submitted the facts and the material that would be relied upon in  the departmental enquiry would be the same upon which the  prosecuting agency before a criminal court would also rely upon,  hence, the respondent will be compelled to disclose his defence in  advance which would seriously prejudice his case before the  criminal court. The learned counsel also relied upon the very  same judgments on which reliance was placed by the learned  counsel for the appellant in support of his contention, reference to  which has been made herein above.  A reading of M.Paul Anthony’s case (supra) it is noted that  there is consensus of judicial opinion on the basic principle that  proceedings in a criminal case and departmental proceedings can  go on simultaneously, however this court noticed that certain  exceptions have been carved out to the said basic principle.  In State of Rajasthan vs. B.K.Meena & Ors. (supra), this  court held:  "The only ground suggested in the  decisions of the Supreme Court as  constituting a valid ground for staying the  disciplinary proceedings is that "the defence  of the employee in the criminal case may not  be prejudiced". This ground has, however,  been hedged in by providing further that this  may be done in cases of grave nature  involving questions of fact and law. It means  that not only the charges must be grave but  that the case must involve complicated  questions of law and fact. Moreover,  ’advisability’, desirability’, or propriety, as  the case may be, of staying the departmental  enquiry has to be determined in each case  taking into consideration all the facts and

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circumstances of the case. Stay of disciplinary  proceedings cannot be, and should not be, a  matter of course. All the relevant factors, for  and against, should be weighed and a decision  taken keeping in view the various principles  laid down in the Supreme Court’s decisions."                                     (Emphasis supplied)  From the above, it is clear that the advisability, desirability  or propriety, as the case may be, in regard to a departmental  enquiry has to be determined in each case taking into  consideration all facts and circumstances of the case. This  judgment also lays down that the stay of departmental  proceedings cannot be and should not be a matter of course.  In the instant case, from the order of the tribunal as also  from the impugned order of the High Court, we do not find that  the two forums below have considered the special facts of this  case which persuaded them to stay the departmental proceedings.  On the contrary, reading of the two impugned orders indicates  that both the tribunal and the High Court proceeded as if a  departmental enquiry had to be stayed in every case where a  criminal trial in regard to the same misconduct is pending.  Neither the tribunal nor the High Court did take into  consideration the seriousness of the charge which pertains to  acceptance of illegal gratification and the desirability of  continuing the appellant in service inspite of such serious charges  levelled against him. This Court in the said case of State of  Rajasthan (supra) has further observed that the approach and the  objective in the criminal proceedings and the disciplinary  proceedings is altogether distinct and different. It held that 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 are established and, if established, what sentence  should be imposed upon him. The court in the above case further  noted that the standard of proof, the mode of enquiry and the  rules governing the enquiry and trial in both the cases are distinct  and different. On that basis, in the case of State of Rajasthan the  facts which seems to be almost similar to the facts of this case  held that the tribunal fell in error in staying the disciplinary  proceedings. We think the above ratio of law laid down by this Court  applies aptly to the facts of the present case also. It is also to be  noted that in Capt. M.Paul Anthony case (supra), this court has  accepted the principle laid down in Rajasthan case (supra) As stated above, in the case in hand, both the tribunal and  the High Court proceeded as if a departmental enquiry and a  criminal trial could not proceed simultaneously, hence, they  stayed the departmental enquiry which by itself, in our opinion, is  contrary to the principles laid down in the above cited cases. We are of the opinion that both the tribunal and the High  Court proceeded on an erroneous legal principle without taking  into consideration the facts and circumstances of this case and  proceeded as if the stay of disciplinary proceedings is a must in  every case where there is a criminal trial on the very same  charges, in this background it is not necessary for us to go into  second question whether atleast charge No.3 by itself could have  been permitted to be decided  in the departmental enquiry as  contended alternatively by the learned counsel for the appellant. For the reasons stated above, this appeal succeeds. The  impugned order of the tribunal and the High Court are set aside.  The appeal is allowed.