1. By way of instant writ petition under Article 226 of the Constitution of India, the petitioner being aggrieved by Charge Memorandum (Annexure P/1) dated 09.11.2022 issued by respondent No.4; whereby, the petitioner was subjected to same allegations which relates to the offence registered by Central Bureau of Investigation (CBI), thus running two parellel proceedings i.e. criminal and departmental for the same cause of action since contrary to settled principal of law as laid down in the matter of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., reported in (1999) 3 SCC 679, [LQ/SC/1999/333] are vitiated by patent illegality and unsustainable, therefore, deserve to be set aside.
2. Shorn of unnecessary details, the basic facts leading to the present controversy are as under:-
The petitioner was initially appointed as Assistant Central Intelligence Officer, Grade-II (General) under the Ministry of Home Affairs, Government of India, vide order dated 02.02.1999. The petitioner thereafter was appointed as Deputy Registrar and his services were confirmed w.e.f. 30th April, 2013 vide order dated 04.09.2013. The petitioner was sent on deputation to Indian Institute of Forest Management (An Autonomous Institute of Ministry of Environment, Forest and Climate Change, Government of India), Bhopal vide order dated 27.01.2017. The deputation period at the aforesaid institute was extended and approval was given by Under Secretary, Government of India, from the period 05.04.2020 to 04.04.2021 vide order dated 09.03.2020. On 14.09.2020, the petitioner was relieved from his parent department. Again, the petitioner was sent on deputation to All India Institute of Medical Science (AIIMS), Bhopal vide order dated 20.09.2020 as Deputy Director (Administration). On 25.09.2021, one case was registered against the petitioner by CBI in regard to demand of bribe of Rs.1 Lakh under Sections 7 and 13 of the Prevention of Corruption Act, 1988 vide Crime No.08/2021. In consequence of the aforesaid registration of FIR, the petitioner was placed under suspension. After placing the petitioner under suspension, a Charge Memorandum has been issued to him in context of departmental enquiry.
3. Alleging that the charges levelled in the departmental enquiry and the charges framed by the Court are on the same set of allegations and facts and the same set of evidences is required to be adduced in both the cases, running of parallel proceedings would cause great hardship and prejudice to the rights of the petitioner, therefore, in such circumstances, running parallel proceedings i.e. departmental enquiry and judicial proceedings are unsustainable.
4. The institution of disciplinary proceedings by the respondents without waiting for the fate of the judicial proceedings and appointment of one C.P. Singh, Joint Director (Legal) IIT, Kanpur as an Enquiry Officer who is of the same cadre as that to the petitioner, vitiates the whole enquiry. By way of present petition, the appointment of the Enquiry Officer and the Presenting Officer is also questioned on the basis of biasedness apart from challenge to the very departmental proceedings initiated over same set of evidence, statements, witnesses and material available on record on the ground that it greatly prejudices the cause of the petitioner, thus, he prayed for setting aside the departmental proceedings.
5. It has further been averred in the petition that appointment of the Enquiry Officer was objected to, by the petitioner before Disciplinary Authority vide letter dated 02.02.2023 but without any conclusion/outcome of the objection regarding appointment of the Enquiry Officer, they were turned down and the matter was proceeded with by the Enquiry Officer. Again, the petitioner had raised objection with regard to appointment of the Enquiry Officer which was also allegedly mechanically turned down and therefore, it was averred that the rejection of the change of Enqiury Officer mechanically shows the biased attitude of the Authority who had proceeded with the enquiring in flagrant violation of the principle of natural justice and fair play. Hence, this petition.
6. Counsel for the petitioner has vehemently made his submissions that since the charges as leveled in the charge-sheet and the criminal case are over the same set of allegations, therefore, the defence of the petitioner would be adversely prejudiced in either of the case which is taken up first, but instead of considering the aforesaid factual matrix, the request of the petitioner for not initiating the second parallel proceedings by way of departmental enquiry was turned down and the Enquiry Officer was appointed in pursuance to the Charge Memorandum. It has further been argued that running two parallel proceedings over the same set of allegations would prejudice the right of an employee as has been considered by the Hon'ble Supreme Court in the matter of Capt. M. Paul Anthony (supra). Similar view has been taken by the Hon'ble Supreme Court in the matter of Kusheshwar Dubey v. M/s Bharat Cooking Coal Limited & Ors., reported in AIR 1988 SC 2110 [LQ/SC/1988/188 ;] . It has also been argued by counsel for the petitioner that after receiving the charge-sheet of the departmental enquiry and appointment of the Enquiry Officer, non-acceptance of the request for change of Enqiury Officer amounts to violating the principle of natural justice and fair play which causes serious prejudice and has affected the rights of the petitioner adversely. Thus, contending that the Charge Memorandum (Annexure P/1) dated 09.11.2022 issued by respondent No.4 is without applying its mind and since it is based on false complaint without any proof, deserves to be set aside.
7. Per contra, Shri K.N. Gutpa, learned Senior Counsel alongwith Ms. Ayushi Pophli – counsel appearing on advance copy on behalf of respondents No.3 and 4 submitted that the present petition is based on irrelevant considerations as the charge in the departmental enquiry and charge in the criminal case are totally based on different considerations; in the criminal case, the petitioner was charged for committing an offence under Sections 7 and 13 of the Prevention of Corruption Act, 1988, while in the department enquiry, the charge was of a delinquency, which he had committed in discharge of his duties in demanding and accepting bribe and commission of grave misconduct in demanding and accepting the bribe. It has further been argued that from the Charge Memorandum, it would be evident that apart from the charges for demanding and accepting bribe, two other charges; one with regard to amassing disproportionate assets than the known source of his income and misrepresenting certain material information which resulted into his illegal selection on the post of Deputy Registrar for which he was not eligible; were also levelled. Some of the charges in the departmental enquiry were different from the charges which were framed by the Court, therefore, the contention of the petitioner that both the proceedings i.e. criminal and departmental are based on same set of facts, is misconcieved and cannot be countenanced, thus, prayed for dismissal of the present writ petition.
8. Heard counsel for the parties and perused the record.
9. At the outset, it may be apposite to take note of the charges which have been framed by the Court and the Articles of charge which was imputed against the petitioner in the departmental proceedings, the same are reproduced below respectively for ready reference:-
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Before Departmental Inquiry
Article-1
That the said Shri Dhirendra Pratap Singh, while on deputation to All India Institute of Medical Sciences, Bhopal (AIIMS Bhopal) and functioning on the post of Deputy Director (Administration) at AllMS Bhopal, allegedly demanded and accepted bribe of Rs. 1,00,000/- at about 3:00 PM on 25.09.2021 from a person named as Shri Ramchandra Marvya (Proprietor of Pradhan Mantri Jan Aushadhi Kendra, AIIMS Bhopal) for release of payments of all outstanding bills of M/s Pradhan Mantri Jan Aushadhi Kendra, AIIMS Bhopal, and was consequently caught redhanded by a team of CBI, ACB, Bhopal, who had laid a trap following receipt of a complaint made by the said Shri Ramchandra Marvya in this regard.
The said Shri Dhirendra Pratap Singh has thereby committed a grave misconduct of demanding and accepting bribe as a motive or for releasing the against all outstanding bills, an offence under Section 7 of the Prevention of Corruption Act, 1988. Shri Singh has, therefore, apparently violated Rule 2(1) of the Conduct Rules placed at Schedule 1 of the First Statutes of the Atal Bihari Vajpayee - Indian Institutes of Information Technology & Management, Gwalior, which requires that all employees shall maintain. integrity shall not adopt any unethical or unlawful practice.
Article-2
That the said Shri Dhirendra Pratap Singh, while working on the posts of Deputy Registrar and Joint Registrar at ABV-IIITM Gwalior and also while on deputation to All India Institute of Medical Sciences, Bhopal and functioning on the post of Deputy Director (Administration) at AIIMS Bhopal, during the periods from 01.01.2015 to 25.09.2021, had amassed disproportionate assets to the tune of Rs. 1,32,06,895, as discovered/unearthed by CBI, ACB, Bhopal subsequent to the arrest of the said Shri Dhirendra Pratap Singh, when he was caught red-handed while accepting illegal gratification of Rs. 1,00,000/- from complainant named as Shri Ramchandra Marvya.
On the basis of the seized documents and office records gathered by CBI, ACB, Bhopal, the disproportionate assets/illicit enrichment by the said Shri Dhirendra Pratap Singh during the check period from 01.01.2015 to 25.09.2021 was found to be of Rs. 1,32,06,895/- which was 87.32% of his known sources of income during the check period. As such, there appears a genuine apprehension that the said Shri Singh has amassed the aforesaid assets by indulging in unethical and unlawful practices.
The said Shri Dhirendra Pratap Singh has thereby committed a serious misconduct of amassing assets disproportionate to his known source of income, an offence punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. Shri Singh has, therefore, apparently violated Rule 2(1) of the Conduct Rules placed at Schedule 1 of the First Statutes of the Atal Bihari Vajpayee - Indian Institutes of Information Technology & Management, Gwalior, which requires all employees to maintain integrity and not adopt any unethical or unlawful practice.
Article-3
The said Shri Dhirendra Pratap Singh, while applying for the post of Deputy Registrar in response to Advertisement No. 9/2011 published by Atal Bihari Vajpayee - Indian Institutes of Information Technology & Management, Gwalior, had deliberately and with intent to fraudulently become eligible for the post, misrepresented in column No. 8.1 pertaining to Work Experience of his application dated 12.10.2011 showing inter alia that he had been working as Section Officer (Stores & Purchase) in AMPRI, Bhopal during the period from 09.03.2005 to till date (12.10.2011) in the Grade Pay of Rs. 5400 in Pay Band Rs. 15600- 39100, knowing fully well that from 09.03.2005 to 30.6.2010, he was placed in the Grade Pay of Rs. 4800 in Pay Band Rs. 9300-34800 and was, therefore, ineligible for the post.
The above grave misrepresentation of material information furnished by the said Shri Dhirendra Pratap Singh, resulted into his illegal selection for the post of Deputy Registrar for which he was not even eligible. This deviant act of the said Shri Dhirendra Pratap is not only a serious misconduct against the Institute but also prejudicial to good order and fair selection in public, given that by committing the above fraud he illegally usurped a post that was open for the eligible candidates at large.
For the above misconduct and fraud committed by the said Shri Dhirendra Pratap Singh, his services are liable to be terminated pursuant to the declaration made by Shri Singh in his aforementioned application itself
10. From bare perusal of the above charges framed against the petitioner in the departmental enquiry and by the Court, it would be evident that the charges framed by the Court are with regard to demanding and accepting bribe as a public servent from the complainant with an intention to perform any public duty or accepted as a reward for improper or dishonest performance of the public duty, whereas the Charge Memorandom issued against the petitioner in the departmental enquiry had been framed on the count of misconduct committed by him for demanding and accepting bribe as a motive for reward for releasing the payment againt all outstanding dues and secondly, there is also charge of serious misconduct of amassing disproportionate assets than the known source of his income to the tune of Rs.1,32,06,895/- as discovered/unearthed by CBI, ACB, Bhopal subsequent to the arrest of the petitioner which does not form part of the charges framed by the Court as also there is a charge of misrepresenting himself in column No. 8.1 of the application dated 12.10.2011 submitted while applying to the post of Deputy Registrar in response to the Advertisement No.9 of 2011 pertaining to 'Work Experience', which is totally foreign to the charges framed by the Court and can only be dealt with in the departmental enquiry. The facts which are noticed by this Court are required to be inquired in a discplianary enquiry and in the judicial proceedings indisputedly are based on different set of allegations and the set of evidence not based on the same facts and circumstances, thus, the very submission made by counsel for the petitoner loses its foundation.
11. It is pertinent to mention here that the scope of departmental enquiry and judicial proceedings has been dealt with by the Hon'ble Supreme Court in the matter of Depot Manager A.P. State Road Transport Corporation vs. Mohd. Yousuf Miya and Ors., reported in 1997 (2) SCC 699, [LQ/SC/1996/1982] the relevant para whereof is as under:-
“…The purpose of departmental enquiry and of prosecution are 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 3 1997(2) SCC 699 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 (sic 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 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental 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. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304−A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings.”
(Emphasis supplied)
and in regard to exposition of law, the Hon'ble Supreme Court has also dealt with in the matter of Ajit Kumar Nag v. General Manager (P), Indian Oil Corporation Limited, Haldia and Ors., reported in 2005 (7) SCC 764, [LQ/SC/2005/931] the relevant para whereof is as under:-
“As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other 4 2005(7) SCC 764 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.”
(Emphasis supplied)
12. Thus, this Court is in full agreement with the exposition of the law laid down by the Hon'ble Supreme Court, as it is very well settled that two proceedings; criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender and the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. It is also true that the degree of proof which is necessary for conviction is different from the degree of proof necessary to record the commission of delinquency. Even the Rule relating to appreciation of evidence in the two proceed; in criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by the Court of law whereas in the departmental enquiry, penalty can be imposed on a finding recorded on the basis of 'preponderance of probability’.
13. Hence, this Court holds that the charges levelled against the petitioner in the criminal case and departmental proceedings of which detailed reference has been made were based on different sets of facts and evidences having no nexus/co-relationship. The objections raised by the Petitioner with regard to appointment of Enquiry Officer and the Presideing Officer are concerned, except for bald allegations, no concrete averments were made, which could demonstrate that any prejudice would be caused to the Petitioner due to their continuining as Enquiry/Presenting Officer, this argument since has no force is hereby rejected.
14. Therefore, there is no sum and substance in the present writ petition and it is, accordingly, dismissed.
