J 2022 SCC OnLine AP 2135 2022 6 ALD 258 2022 6 ALT Prashantpallav10 Gmailcom 20240724 175919 1 21

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Wednesday, July 24, 2024

Printed For: Mr. Prashant Pallav
SCC Online Web Edition: https://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2022 SCC OnLine AP 2135 : (2022) 6 ALD 258 : (2022) 6 ALT 465
In the High Court of Andhra Pradesh

(BEFORE RAVI NATH TILHARI, J.)
R. Subba Rao
Versus
Chief Vigilance Officer, the Cotton Corporation of
India
Writ Petition No. 19655 of 2011
Decided on August 25, 2022
The Judgment of the Court was delivered by
RAVI NATH TILHARI, J.:— Heard Sri. Adhitya Harsha Vardhan for
M/s. Pillix Law Firm representing the petitioner and Ms. K. Durga
Lavanya, learned counsel, representing Sri. M. Venkata Krishna Rao,
learned counsel for the respondent Nos. 1 to 3.
2. This writ petition under Article 226 of the Constitution of India
has been filed for the following relief:—
“It is therefore prayed that this Hon'ble Court may be pleased to
issue a writ, order or direction more particularly one in the nature of
writ of mandamus or any other appropriate writ declare the action of
the respondents in proceeding with the departmental enquiry in
pursuance of the Memorandum of Charges Dated 15-06-2010 before
conclusion of the criminal case pending against the petitioner before
Hon'ble Special Judge for CBI Cases, Visakhapatnam in C.C. No. 43
of 2010 as illegal, arbitrary and in violation of principles of natural
justice apart from being violative of Articles 14, 20 & 21 of
Constitution of India and consequently direct the respondents not to
proceed with the departmental enquiry against the petitioner till the
conclusion of the proceedings in C.C. No. 43 of 2010 pending on the
file of the Hon'ble Special Judge for CBI Cases, Visakhapatnam and
pass such other order or orders as this Hon'ble Court may deem fit
and proper in the interest of justice.”
3. The petitioner was appointed in the respondent Corporation
namely the Cotton Corporation of India Limited, Government of India
undertaking (in short “the Corporation”) as Junior Cotton Purchase
Officer on 03.12.1979 and worked in various places in the State of
Andhra Pradesh and retired on attaining the age of superannuation on
28.02.2011.
4. The Central Bureau of Investigation (for short “the CBI”),
Visakhapatnam had registered cases against the petitioner and his
family members in FIR R.C. No. 10(A)/2006-CBI, VSP for the alleged
-----------------------------------------------------------------------------------------------------------------------------------------------------------
possession of disproportionate assets and FIR R.C. No. 11(A)/2006 CBI,

VSP for Criminal Conspiracy, cheating and abuse of the official position,
both dated 17.06.2006. During investigation the petitioner is said to
have appeared, in which his statement was recorded and the CBI filed
charge sheet before the Court of Special Judge for CBI cases,
Visakhapatnam under Sections 13(2) read with 13(1)(e) of the
Prevention of Corruption Act, 1988 read with Section 109 of the Penal
Code, 1860 (for short, “the IPC”), 1860, upon which the Court had
taken cognizance and allotted CC. No. 43 of 2010, dated 17.09.2010.
5. The Corporation respondent No. 1 initiated the disciplinary
proceedings against the petitioner under the Cotton Corporation of
India Limited Conduct, Discipline and Appeal Rules, 1975 (in short,
“the Rules 1975”) and appointed the respondent No. 2, the Branch
Manager and disciplinary authority, as the Enquiry Officer vide
proceedings No. CCI/VIG/WGL/2358-2010 dated 12.04.2010. The
disciplinary authority issued a Memorandum of Charges dated
15.06.2010 to the petitioner, with a direction to submit a written
statement of his defence in answer to the charges, to which the
petitioner submitted reply on 18.07.2010 informing that the
petitioner's medical condition was not good and sought time till he
became medically fit. The petitioner was suspended vide order dated
22.11.2010 with immediate effect under Rule 20(i)(a) & 20(i)(b) of the
Rules, 1975. The respondent No. 2 vide order dated 30.01.2011
appointed the respondent No. 3 the Enquiry Officer to enquire into the
charges framed against the petitioner. The Presenting Officer was also
appointed.
6. It is the further case of the petitioner that the venue of the
departmental enquiry was changed from one place to another from time
to time of which, the petitioner was not aware. However, it is admitted
that Enquiry Officer sent summons through Special Messenger which
was received by the petitioner's son on 28.04.2011 and in response the
petitioner addressed a letter dated 01.05.2011 to the Enquiry Officer to
keep the enquiry in abeyance till disposal of the criminal cases. The
Enquiry Officer in the meeting dated 03.05.2011 requested the
respondent No. 2 to furnish the documents to the petitioner and fixed
24.05.2011 for further steps and thereafter the enquiry was posted for
07.06.2011 and again to 05.07.2011 for appearance of the petitioner
personally.
7. Challenging the departmental proceedings vide Memorandum of
Charges dated 15.06.2010, the present Writ Petition has been filed to
declare the same as illegal, arbitrary and in violation of the principles of
natural justice as also Articles 14, 20 and 21 of the Constitution of
India on the ground that before conclusion of the criminal case in C.C.
No. 43 of 2010, the same cannot be proceeded with.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
8. Vide interim order dated 16.09.2011 passed in W.P.M.P. No.

23763 of 2011 in the present petition, the interim stay of the
departmental proceedings until further orders was granted.
9. Sri. Adhitya Harsha Vardhan, learned counsel for the petitioner
submitted that the departmental proceedings and the criminal
proceedings initiated against the petitioner are based on same set of
facts and the charges framed in the criminal case are grave in nature
involving complicated questions of law and fact and if the petitioner is
asked to disclose his defence in the departmental proceedings,
prejudice would be caused to him; the witnesses are also same and
hence the simultaneous continuation of the departmental enquiry
proceedings to the criminal proceedings is liable to be set aside.
10. Sri. Adhitya Harsha Vardhan, has placed reliance on the
judgments in the cases of, State Bank of India v. Neelam Nag1 ,
Kusheshwar Dubey v. Bharat Coking Coal Ltd.2 , Rubina Bano v. State of
Chhattisgarh3 , G.M. Tank v. State of Gujarat4 , D. Ravi Babu v. Director
General of Police, AP5 .
11. Ms. K. Durga Lavanya, learned counsel, representing Sri. M.
Venkata Krishna Rao, learned counsel for the respondents submitted
that the charge levelled against the petitioner before the CBI Court is
with regard to the possession of the disproportionate assets to the tune
of Rs. 1,06,78,571/- (one crore six lakh seventy eight thousand five
hundred seventy one), whereas the charge in the disciplinary
proceedings is with regard to non-intimation of movable and
immovable properties in the name of the petitioner and his family
members which are undervalued and the charge is of misconduct; of
not maintaining absolute integrity and devotion to duty and
unbecoming of a public servant, under different rules of the Cotton
Corporation of India (Conduct, Discipline & Appeal Rules, 1975) (in
short ‘the Rules, 1975’).
12. Ms. K. Durga Lavanya further submitted that the pendency of
the criminal case is not a bar to conduct departmental enquiry. Both
the proceedings are entirely different, the standard of proof, the mode
of enquiry and the rules governing the enquiry and trial are different
and consequently the departmental proceedings deserves to be
concluded notwithstanding pendency of the criminal proceedings.
13. Ms. K. Durga Lavanya placed reliance on the judgments in the
cases of Lalit Popli v. Canara Bank6 , Ajitkumar Nag v. General Manager
(PJ), Indian Oil Corporation Ltd.7 .
14. Learned counsel for the respondent further submitted that
though the petitioner retired from service on attaining the age of
superannuation on 28.02.2011 but as per the service rules of the
Corporation, the disciplinary proceedings can continue and concluded
-----------------------------------------------------------------------------------------------------------------------------------------------------------
even after retirement of the delinquent employee.

15. It has not been disputed by the learned counsel for the
petitioner that after retirement of the employee, the departmental
proceedings can continue and be concluded under the Rules 1975 nor
any submission has been advanced on this aspect.
16. I have considered the submissions advanced by the learned
counsels for the parties and perused the material on record.
17. In view of the submissions advanced, the following point arises
for consideration:
Whether the departmental proceedings against the petitioner can
be continued and concluded during pendency of the criminal
proceedings against him?
18. The law on point of continuance and conclusion of the
departmental proceedings pending criminal proceedings is no more res
integra.
19. Recently, in K. Sridhar v. Andhra Pradesh State Road Transport
Corporation8 , this Court after considering the judgments of Hon'ble
Apex Court on the point, reiterated the settled legal position that the
disciplinary proceedings and the criminal proceedings may continue
simultaneously and pendency of the criminal proceedings is no legal
bar in conducting departmental proceedings. This Court further held
that the gravity of the charge is not by itself enough to determine the
question unless the charge involves complicated questions of law and
fact and even when the charge is found to be serious involving
complicated questions of law and fact and there is likelihood of the
prejudice to be caused to the delinquent employee in criminal
proceedings, the Court has to keep in consideration that the criminal
trials prolong indefinitely and the departmental proceedings cannot be
suspended or delayed unduly, and even where the departmental
proceedings have been stayed they can be resumed even pending
criminal proceedings.
20. It is apt to refer Paragraphs 14 to 23 of K. Sridhar (supra) as
under:—
“14. In Capt. M. Paul Anthony (Supra), the Hon'ble Apex Court, on
review of the case laws on the subject, identified the broad principles
for application in a given case. It is apt to refer paragraph No. 22 of
Capt. M. Paul Anthony (supra) as under:
“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,
administration may get rid of him at the earliest.”
15. In Stanzen Toyotetsu India Pvt. Ltd. (supra), the Hon'ble Apex
Court held as under in paragraphs 10 to 16:
“10. The relatively recent decision of this Court in Divisional
Controller, Karnataka State Road Transport Corporation v. M.G.
Vittal Rao9 , is a timely reminder of the principles that are
applicable in such situations succinctly summed up in the
following words:
“(i) There is no legal bar for both proceedings to go on
simultaneously.
(ii) The only valid ground for claiming that the disciplinary
proceedings may be stayed would be to ensure that the
defence of the employee in the criminal case may not be
prejudiced. But even such grounds would be available only in
cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily
delay the departmental proceedings. The interest of the
delinquent officer as well as the employer clearly lies in a
prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the
criminal trial, except where both the proceedings are based on
the same set of facts and the evidence in both the proceedings
-----------------------------------------------------------------------------------------------------------------------------------------------------------
is common.”
11. We may also refer to the decision of this Court in Capt. M Paul
Anthony (supra), where this Court reviewed the case law on the
subject to identify the following broad principles for application in
the facts and circumstances of a given case:
“(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
honor may be vindicated and in case he is found guilty,
administration may get rid of him at the earliest.”
12. In Hindustan Petroleum Corporation Limited v. Sarvesh
Berry10 the respondent was charged with possessing assets
disproportionate to his known sources of income. The question was
whether disciplinary proceedings should remain stayed pending a
criminal charge being examined by the competent criminal Court.
Allowing the appeal of the employer-corporation this Court held :
(SCC p.475, para 8)
“8… So, a 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 a grave nature
involving complicated questions of fact and law….. Under these
circumstances, what is required to be seen is whether the
departmental enquiry would seriously prejudice the delinquent in
his defense 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.”
(emphasis supplied)
13. It is unnecessary to multiply decisions on the subject for the
legal position as emerging from the above pronouncements and the
earlier pronouncements of this Court in a large number of similar
cases is well settled that disciplinary proceedings and proceedings in
a criminal case can proceed simultaneously in the absence of any
legal bar to such simultaneity. It is also evident that while
seriousness of the charge leveled against the employees is a
consideration, the same is not by itself sufficient unless the case also
involves complicated questions of law and fact. Even when the
charge is found to be serious and complicated questions of fact and
law that arise for consideration, the Court will have to keep in mind
the fact that departmental proceedings cannot be suspended
indefinitely or delayed unduly.
14. In Paul Anthony (supra) this Court went a step further to hold
that departmental proceedings can be resumed and proceeded even
when they may have been stayed earlier in cases where the criminal
trial does not make any head way.
15. To the same effect is the decision of this Court in State of
Rajasthan v. B.K. Meena11 , where this Court reiterated that there was
no legal bar for both proceedings to go on simultaneously unless
there is a likelihood of the employee suffering prejudice in the
criminal trial. What is significant is that the likelihood of prejudice
itself is hedged by providing that not only should the charge be
grave but even the case must involve complicated questions of law
and fact. Stay of proceedings at any rate cannot and should not be a
matter of course. The following passage is in this regard apposite:
(B.K. Meena case), SCC pp.422-23, paras 14-15)
“14……there is no legal bar for both proceedings to go on
simultaneously and then say that in certain situations, it may not
be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
disciplinary enquiry when a criminal case is pending on identical

charges. The staying of disciplinary proceedings, is a matter to be
determined having regard to the facts and circumstances of a
given case and that no hard and fast rules can be enunciated in
that behalf. The only ground suggested in the above questions 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. In our respectful
opinion, 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, has to be determined in each case taking into
consideration all the facts and circumstances of the case. While it
is not possible to enumerate the various factors, for and against
the stay of disciplinary proceedings, we found it necessary to
emphasize some of the important considerations in view of the
fact that very often the disciplinary proceedings are being stayed
for long periods pending criminal proceedings. 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 decisions referred to above.
15. … Indeed, in such cases, it is all the more in the interest of
the charged officer that the proceedings are expeditiously
concluded. Delay in such cases really works against him.”
(emphasis supplied)
16. Suffice it to say that while there is no legal bar to the
holding of the disciplinary proceedings and the criminal trial
simultaneously, stay of disciplinary proceedings may be an
advisable course in cases where the criminal charge against the
employee is grave and continuance of the disciplinary proceedings
is likely to prejudice their defense before the criminal Court.
Gravity of the charge is, however, not by itself enough to
determine the question unless the charge involves complicated
question of law and fact. The Court examining the question must
also keep in mind that criminal trials get prolonged indefinitely
especially where the number of accused arraigned for trial is large
as is the case at hand and so are the number of witnesses cited
by the prosecution. The Court, therefore, has to draw a balance
between the need for a fair trial to the accused on the one hand
and the competing demand for an expeditious conclusion of the
on-going disciplinary proceedings on the other. An early
-----------------------------------------------------------------------------------------------------------------------------------------------------------
conclusion of the disciplinary proceedings has itself been seen by

this Court to be in the interest of the employees.”
16. In Neelam Nag (supra), the Hon'ble Apex Court reiterated that
there is no legal bar to the conduct of the disciplinary proceedings
and criminal trial simultaneously. It was further held that, no
straightjacket formula can be spelt out and the Court has to keep in
mind the broad approach to be adopted in such matters on case to
case basis.
17. In Mohd Yousuf Miya (supra), the judgment upon which
learned standing counsel placed reliance, the Hon'ble Apex Court
held in paragraphs 7 and 8, as under:
“7. The rival contentions give rise to the question : whether it
would be right to stay the criminal proceedings pending
departmental enquiry?
This Court in Meena's case had elaborately considered the
entire case law including Kusheshwar Dubey's case relieving the
necessity to consider them once over. The Bench, to which one of
us, K. Venkataswami, J., was a member, had concluded thus:
“It would be evident from the above decisions that each of
them starts with the indisputable proposition that there is no legal
bar for both proceedings to go on simultaneously and then say
that in certain situations, it may not be ‘desirable’, ‘advisable’ or
‘appropriate’ to proceed with the disciplinary enquiry when a
criminal case is pending on identical charges. The staying of
disciplinary proceedings, it is emphasised, is a matter to be
determined having regard to the facts and circumstances of a
given case and that no hard and fast rules can be enunciated in
that behalf. The only ground suggested in the above decisions 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. In our respectful
opinion, 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, has to be determined in each case taking into
consideration all the facts and circumstances of the case. The
ground indicated in D.C.M. and Tata Oil Mills is not also an
invariable rule. It is only a factor which will go into the scales
while judging the advisability or desirability of staying disciplinary
proceedings. One of the contending consideration is that the
disciplinary enquiry cannot be-and should not be - delayed
unduly. so far as criminal cases are concerned, it is well-known
-----------------------------------------------------------------------------------------------------------------------------------------------------------
that they drag on endlessly where high officials or persons holding

high public officers are involved. They get bogged down on one or
the other ground, They hardly even reach a prompt conclusion.
That is the reality in spite of repeated advise and admonitions
from this Court and the High Courts. If a criminal case is unduly
delayed that may itself be a good ground for going ahead with the
disciplinary enquiry even whether the disciplinary proceedings are
held over at an earlier stage. The interests of administration and
good government demand that these proceedings are concluded
expeditiously. It must be remembered that undesirable elements
are thrown out and any charge of misdemeanour is enquired into
promptly. The disciplinary proceedings are meant not really to
punish the guilty but to keep the administrative machinery
unsullied by getting rid of bad elements. The interest of the
delinquent officer also lies in a prompt conclusion of the
disciplinary proceedings. If he is not guilty of the charges, his
honour should be vindicated at the earliest possible moment and
if he is guilty, he should be dealt with promptly according to law.
It is not also in the interest of administration that persons
accused of serious misdemeanour should be continued in office
indefinitely, i.e., for long periods awaiting the result of criminal
proceedings. It is not in the interest of administration. It only
serves the interest of the guilty and dishonest. While it is not
possible to enumerate the various factors, for and against the stay
if disciplinary proceedings, we found it necessary to emphasis
some of the important considerations in view of the fact that very
often the disciplinary proceedings are being stayed for long
periods pending criminal proceedings. 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 decisions referred to above.”
There is yet another reason. 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 Penal Code, 1860, 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.”
8. We are in respectful agreement with the above view. The
purpose of departmental enquiry and of prosecution are two
different and distinct aspects. The criminal prosecution is
launched for an offence in 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, 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 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 of 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 Evidence Act. The evidence required in

the departmental enquiry is not regulated by 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
304A and 338 IPC. Under these circumstances, the High Court
was not right in staying the proceedings.”
18. In A. Peddanna (supra), upon which the learned counsel for
the petitioner placed reliance, this Court held that the underlying
principle for and against the continuation of departmental and
criminal proceedings simultaneously is that irrespective of the
similarity or identity of the charge in both sets of proceedings, the
requirement of law is that the delinquent-employee must not be
required to reveal the defense, available to him in the criminal
proceedings, in the departmental proceedings.
19. Recently, in Pravin Kumar v. Union of India12 , the Hon'ble
Apex Court held that it is beyond debate that criminal proceedings
are distinct from civil proceedings. It is both possible and common in
disciplinary matters to establish charges against a delinquent official
by preponderance of probabilities and consequently terminate his
services. But the same set of evidence may not be sufficient to take
away his liberty under our criminal law jurisprudence. Such
distinction between standards of proof amongst civil and criminal
litigation is deliberate, given the differences in stakes, the power
imbalance between the parties and the social costs of an erroneous
decision. Thus, in a disciplinary enquiry, strict rules of evidence and
procedure of a criminal trial are inapplicable, like say, statements
made before enquiry officers can be relied upon in certain instances.
It was further held that the employer always retains the right to
conduct an independent disciplinary proceeding, irrespective of the
outcome of a criminal proceeding.
20. In G.L. Ganeswara Rao (supra), relied upon by the learned
standing counsel, the same principle of law as mentioned above has
been applied by a Division Bench of this Court.
21. Thus, it is well settled in law that the disciplinary proceedings
and criminal proceedings may continue simultaneously and
pendency of the criminal proceedings is no legal bar in conducting
the departmental proceedings, unless there is a statutory provision
barring the continuation of the disciplinary proceedings in such
circumstances.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
22. Crime is an act of commission, in violation of law or

misconduct of public duty. The departmental enquiry is to maintain
discipline in service and officials of the public service. In criminal
cases, strict rules of evidence are applicable. In departmental
proceedings, the rules of evidence do not strictly apply. The
delinquent employee is liable to be punished on proof of misconduct.
The disciplinary authority is under a statutory obligation to ensure
that the delinquent employee does not get any undue benefit
because of long pendency of criminal proceedings. It is, expedient
that the disciplinary proceedings are conducted and completed as
expeditiously as possible and the authority need not to await the
outcome of the decision of the investigating/prosecuting agency or
court trial.
23. There are no inflexible rules, in which the departmental
proceedings may be stayed pending trial in criminal case against the
delinquent officer, but, mainly what is required to be seen is whether
the departmental enquiry would definitely prejudice the defence of
the delinquent employee at a time in a criminal case if the charge in
the criminal trial is of grave nature involving complicated questions
of fact and law. If it is so, the stay of the disciplinary proceedings
may be a possible course. However, the gravity of the charge is not
by itself enough to determine the question, unless the charge
involves complicated question of law and fact. Even when the charge
is found to be serious involving complicated questions of fact and
law as also the likelihood of the prejudice to be caused to the
delinquent in criminal proceedings, the Court has to keep in
consideration that the criminal trials get prolonged indefinitely, and
the departmental proceedings cannot be suspended indefinitely or
delayed unduly and has to draw a balance between the need for a
fair trial to the accused delinquent on the one hand and an
expeditious conclusion of the on-going disciplinary proceedings on
the other as it is always in the interest of the employee and the
employer both because if the employee is not guilty, his honour
should be vindicated at the earliest possible and if he is guilty he
should be dealt with properly according to law as it would not be in
the interest of the administration to continue with such employee
awaiting the result of the criminal proceedings. Each case requires to
be considered in the back drop of its own facts and circumstances.”
21. In Lalit Popli (supra), upon which learned counsel for the
respondents placed reliance, the Hon'ble Apex Court has held that “it is
fairly well settled that the approach and objective in criminal
proceedings and the disciplinary proceedings are altogether distinct and
different. In the disciplinary proceedings the preliminary question is
whether the employee is guilty of such conduct as would merit action
-----------------------------------------------------------------------------------------------------------------------------------------------------------
against him, whereas in criminal proceedings the question is whether

the offences registered against him 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 are
conceptually different.” It has been held further that “in case of
disciplinary enquiry the technical rules of evidence have no application.
The doctrine of “proof beyond doubt” has no application. Preponderance
of probabilities and some material on record are necessary to arrive at
the conclusion whether or not the delinquent has committed
misconduct.”
22. In Ajitkumar Nag (supra), upon which also learned counsel for
the respondents placed reliance, the Hon'ble Apex Court held that “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 offender,
the purpose of enquiry proceedings is to deal with the delinquent
departmentally and to impose penalty in accordance with 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
hand, penalty can be imposed on the delinquent officer on a finding
recorded on the basis of “preponderance of probability”.”
23. In view of the settled law, the Court has to draw a balance
between the need for a fair trial to the accused on the one hand and an
expeditious conclusion of the ongoing disciplinary proceedings on the
other hand as it is always in the interest of the employee and the
employer both that the departmental proceedings be brought to an
expeditious conclusion at an early date in as much as if the employee is
not guilty, his honour should be vindicated at the earliest possible and
if he is guilty he should be dealt with properly according to law.
24. The charges framed against the petitioner vide the charge memo
in departmental enquiry, Ex.P1 show that he is charged for his acts
unbecoming of public servant in not intimating movable and immovable
properties; not maintaining absolute integrity and devotion to duty as
constituting misconduct under different rules i.e., Rule 4(1), (i)(iii),
(v), 13(i)(ii), 14, 16(i)(iii) and 18 etc. of the Rules 1975. The charge in
the departmental proceedings is different from the charges under
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Sections 13(2) read with Section 13(1) of the Prevention of Corruption

Act read with Section 109 IPC.
25. In Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry13 , the
criminal cases against the delinquent employee involved Section 13(1)
(e) of Prevention of Corruption Act, the Hon'ble Apex Court held that
the onus is on the accused to prove that the assets found were not
disproportionate to the ‘known sources of income’, which expression, as
per the explanation to Section 13 (1) of the Prevention of Corruption
Act 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. The Hon'ble
Apex Court held that, how the assets were acquired and from what
sources 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 specifically account for the
same.
26. In Hindustan Petroleum Corporation Ltd. (supra), the High Court
had stayed the departmental proceedings pending conclusion of the
criminal charge. The Hon'ble Supreme Court held that the High Court
was not justified in staying the departmental proceedings.
27. It is apt to refer Para Nos. 13 and 14 of Hindustan Petroleum
Corporation Ltd. (supra) as under:—
“13. 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.
14. 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, 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.”
28. On a specific enquiry made by the Court regarding the stage of
the criminal case, Sri. Adhitya Harsha Vardhan, learned counsel for the
petitioner submitted that in C.C. No. 43 of 2010, the wife of the
petitioner is also one of the accused, A2. Her application under Section
239 Cr.P.C for discharge being Crl.M.P. No. 2073 of 2017 in C.C. No. 43
of 2010 was rejected by order dated 13.04.2018 and challenging the
said order, she filed Crl.Rc. No. 2345 of 2018 in which on I.A. No. 1 of
2018 vide order dated 07.09.2018, the further proceedings in C.C. No.
43 of 2010 including the appearance of the petitioner therein i.e. A2,
has been stayed by this Court so far as that petitioner/A2 is concerned.
However, he further submitted that in view to the said interim order,
the entire criminal proceedings are held up and are not proceeding.
29. In Indian Overseas Bank, Anna Salai v. P. Ganesan14 the
question for consideration was whether pendency of a criminal case by
itself would be a sufficient ground for stay of the departmental
proceedings, the Hon'ble Apex Court laid down that the departmental
proceedings pending criminal proceedings does not warrant an
automatic stay. 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.
30. In Indian Overseas Bank (supra) wherein the respondents had
moved the High Court for quashing of the order taking cognizance of
offence against them in the criminal proceedings in which the criminal
proceedings were stayed, the Hon'ble Apex Court, most importantly,
held that in such a case even applying the principle laid down in Capt
M. Paul Anthony (supra), the judgment of the High Court which stayed
the departmental proceedings, could not be sustained.
31. In Indian Overseas Bank (supra), the Hon'ble Apex Court
referred the case of Hindustan Petroleum Corporation Ltd. (supra) in
which it was held that there can be no straitjacket 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 the delinquent official. He cannot be permitted, on
one hand, to 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. The Hon'ble Apex Court observed that in
Hindustan Petroleum Corporation Ltd. (supra), 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.
32. Here, it is apt to refer paragraph No. 26 in the case of Indian
Overseas Bank, Anna Salai (supra), wherein the Hon'ble Apex Court
observed and held as under:
“26. Reliance placed by Mr. Prakash on Hindustan Petroleum
Corpn. Ltd. [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605] 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)
“11. There can be no straitjacket 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 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.”
(emphasis supplied)
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.”
33. In Capt M. Paul Anthony (supra), the Honorable Apex Court laid
down that if the criminal trial 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 at an early date.
34. In view of the settled legal position that if a criminal case is
unduly delayed that may itself be a good ground for going ahead with
the disciplinary proceedings; as also that the delinquent official cannot
be permitted to prolong the criminal case on the one hand and at the
other hand to contend that the disciplinary proceedings be stayed on
the ground that the criminal case is pending, this Court does not find it
a case for stay on disciplinary proceedings on the ground of pendency
of the criminal proceedings, which are pending since 2010 without
making any progress in view of the fact that in Cr.R.C. No. 2345 of
2018 filed by the petitioner's wife, who is Accused No. 2, with the
petitioner in criminal case, there is stay of those proceedings, may be
with respect to Accused No. 2, but because of that, the entire criminal
proceedings have come to stand still, to the benefit of the petitioner as
well. The criminal trial under the circumstances would take long time
and the disciplinary proceedings cannot be stayed indefinitely awaiting
decision in criminal proceedings.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
35. The Court now proceeds to consider the judgments upon which
reliance is placed by the learned counsel for the petitioner.
36. In Neelam Nag (supra), upon which the learned counsel for the
petitioner placed reliance in support of his contention for deferment of
the disciplinary proceedings pending criminal proceedings, the Hon'ble
Apex Court, clearly held that the disciplinary proceedings cannot brook
any further delay which were already pending for more than 10 years in
that case. Learned counsel emphasized that the Hon'ble Apex Court
directed stay of the disciplinary proceedings and closure of recording
evidence of the witnesses cited in the criminal trial.
37. The principle of law as laid down by Hon'ble the Apex Court in
Neelam Nag (supra) is the same that the disciplinary proceedings
cannot be directed to be prolonged indefinitely and that there is no
legal bar to the conduct of the disciplinary proceedings and criminal
trial simultaneously.
38. In Neelam Nag (supra) while directing stay of the disciplinary
proceedings further direction was given that the criminal case shall be
decided expeditiously, not later than one year, by taking effective steps
and on day to day basis, with further direction that if the trial is not
completed within one year, the enquiry officer shall resume the
disciplinary proceedings and the protection given to the delinquent
employee shall stand vacated. In the present case, in view of the
interim order in Crl.Rc. No. 2345 of 2018 by this Court, any occasion for
this Court to issue any such direction to expedite the criminal
proceedings does not arise.
39. The learned counsel for the petitioner placed reliance in
Kusheshwar Dubey (supra) to contend that the criminal action and the
disciplinary proceedings being grounded upon the same set of facts and
therefore, the disciplinary proceedings should remain stayed and not be
proceeded with.
40. In Kusheshwar Dubey (supra) also the Hon'ble Apex Court held
that while there could be no legal bar for simultaneous legal
proceedings being taken yet there may be cases where it would be
appropriate to defer disciplinary proceedings awaiting criminal cases,
depending upon the facts and circumstances of a particular case for
which neither it was possible nor advisable to evolve a hard and fast,
straitjacket formula, valid for all cases and of general application
without regard to the particularities of the individual situation.
Therefore, the submission of the learned counsel for the petitioner
based on Kusheshwar Dubey (supra), that in all cases, where both the
proceedings are grounded on same set of facts the disciplinary
proceedings cannot be proceeded with, cannot be accepted as a
proposition of universal application.
41. In Rubina Bano (supra) upon which also reliance was placed by
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the learned counsel for the petitioner, the Chhattisgarh High Court held
that as the witnesses in the criminal case and the departmental
proceedings were similar, if not identical, in the interests of justice, it
was more appropriate if the evidence in the departmental enquiry was
deferred till the evidences or witnesses in the criminal case were
examined.
42. There is no dispute on the principle of law in Rubina Bano
(supra) but the question is of applicability of law to the facts of each
case. Here the criminal proceedings are installed for last more than
almost 12 years.
43. In G.M. Tank (supra), upon which, the learned counsel for the
petitioner placed strong reliance, the departmental proceedings and the
criminal case were based on identical and similar set of facts, the
charges were one and the same and the only witnesses examined by
the enquiry officer were the same as examined in the criminal case. The
criminal Court had come to the conclusion that the prosecution failed to
prove the guilt beyond reasonable doubt and acquitted the delinquent
by judicial pronouncement, after a regular trial and on hot contest. The
Hon'ble Apex Court held that under those circumstances, it would be
unjust and unfair and rather oppressive to allow the findings recorded
in the departmental proceedings to stand and that when there is an
honourable acquittal of the employee during the pendency of the
proceedings challenging the order of dismissal, the acquittal requires to
be taken note of.
44. Here, the charges in the departmental enquiry and criminal
proceedings are different. It is also not a case of acquittal in the same
set of facts on same charges and on the same evidence, nor a case of
recording a finding by a judicial pronouncement that the charge is not
proved, as, such a stage has yet not been reached.
45. In D. Ravi Babu (supra) upon which also reliance has been
placed by the learned counsel for the petitioner and in particular
paragraph-41, it was held by this Court that the cumulative effect of
the law declared by various courts and mandatory requirement in Police
Standing Order 150, was that it would be appropriate to grant stay of
all further proceedings including enquiry report till pronouncement of
judgment in criminal cases.
46. In D. Ravi Babu (supra), Order 150 of the Police Standing Order,
which is a special rule, dealt with the power of the authorities to
postpone the decision on the departmental enquiry till pronouncement
of judgment in criminal case which was held to prevail over the general
rule. In the present case, the police standing order is not applicable.
The petitioner is Junior Cotton Purchase Officer in a Corporation. The
judgment of this Court in D. Ravi Babu (supra) is therefore not
applicable. It is settled in law on which there is no dispute that if any
-----------------------------------------------------------------------------------------------------------------------------------------------------------
rule specifically provides that during pendency of the criminal

proceedings; the departmental proceedings be not initiated or be not
proceeded with or final order be not passed, then pursuant to the rule
position the departmental proceedings are to be stayed. But, that is not
the case here, as neither any rule to that effect is placed before this
Court nor the Police Standing Order 150 is said to be applicable.
47. In view of the law laid down by the Hon'ble Apex Court in
various judgments as discussed above, including Hindustan Petroleum
Corporation Ltd. (supra), Indian Overseas Bank, Anna Salai (supra) and
Capt. M. Paul Anthony's case (supra) and considering all the above
factors, the disciplinary proceedings in the present case cannot be
stalled till the conclusion of the criminal proceedings. Any stay of
disciplinary proceedings is not to be granted in a routine manner. It is
not a fit case for direction of stay of disciplinary proceedings till
decision of the criminal case; particularly when the criminal
proceedings are stalled for last 12 years without any progress.
48. For all the aforesaid reasons, the writ petition is dismissed. The
respondent Nos. 2 and 3 shall conclude the departmental proceedings
and pass final orders, after affording opportunity of hearing to the
petitioner, inconsonance with the applicable rules, as expeditiously as
possible and preferably within a period of six (06) months from the
date copy of this judgment is placed before them. The petitioner shall
cooperate in the departmental proceedings and if he fails to do so, the
respondent Nos. 2 and 3 shall be at liberty to complete the proceedings
even ex-parte, but with due observance of the prescribed procedure.
49. No order as to costs.
50. As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand closed.
———
1 CDJ 2016 SC 826
2 (1988) 4 SCC 319
3
2020 SCC OnLine CHH 1276
4 (2006) 5 SCC 446
5 2021 SCC OnLine AP 855 : (2021) 6 ALD 44
6 (2003) 3 SCC 583
7 (2005) 7 SCC 764
8
W.P. No. 8031 of 2021 decided on 04.07.2022
9 (2012) 1 SCC 442

-----------------------------------------------------------------------------------------------------------------------------------------------------------
10 (2005) 10 SCC 471
11 (1996) 6 SCC 417
12 (2020) 9 SCC 471
13 (2005) 10 SCC 471
14 (2008) 1 SCC 650
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.

J 2022 SCC OnLine AP 2135 2022 6 ALD 258 2022 6 ALT Prashantpallav10 Gmailcom 20240724 175919 1 21

Uploaded by

Copyright:

Available Formats

J 2022 SCC OnLine AP 2135 2022 6 ALD 258 2022 6 ALT Prashantpallav10 Gmailcom 20240724 175919 1 21

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

J 2022 SCC OnLine AP 2135 2022 6 ALD 258 2022 6 ALT Prashantpallav10 Gmailcom 20240724 175919 1 21

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Wednesday, July 24, 2024

In the High Court of Andhra Pradesh

possession of disproportionate assets and FIR R.C. No. 11(A)/2006 CBI,

8. Vide interim order dated 16.09.2011 passed in W.P.M.P. No.

even after retirement of the delinquent employee.

therefore, desirable to lay down any guidelines as inflexible rules

disciplinary enquiry when a criminal case is pending on identical

conclusion of the disciplinary proceedings has itself been seen by

that they drag on endlessly where high officials or persons holding

pending criminal proceedings, to repeat, should not be a matter of

from the standard point of Evidence Act. The evidence required in

22. Crime is an act of commission, in violation of law or

against him, whereas in criminal proceedings the question is whether

Sections 13(2) read with Section 13(1) of the Prevention of Corruption

conclusion can be arrived at, at an early date. If ultimately the

offence under Section 13(1)(e) read with Section 13(2) of the

rule specifically provides that during pendency of the criminal

2 (1988) 4 SCC 319

4 (2006) 5 SCC 446

5 2021 SCC OnLine AP 855 : (2021) 6 ALD 44

6 (2003) 3 SCC 583

7 (2005) 7 SCC 764

9 (2012) 1 SCC 442

10 (2005) 10 SCC 471

11 (1996) 6 SCC 417

12 (2020) 9 SCC 471

13 (2005) 10 SCC 471

14 (2008) 1 SCC 650

You might also like