Important Points
1. There is no bar for conducting simultaneous two parallel proceedings, one by way of disciplinary proceedings and other is Criminal Court. But, if the facts and evidence in both the proceedings are same 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.
2. Non-payment of subsistence allowance to a suspended employee is an inhuman act which can be likened to slow-poisoning The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employees.
3. On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt.

Headnote:(i) Service Law - Department enquiry-Simultaneous disciplinary proceedings and criminal proceedings-Permissibility of-No bar for simultaneous proceedings - However, if departmental proceedings and Criminal case are based on identical set of facts and evidence are same without there being on iota of difference departmental proceedings cannot be proceeded with.
       Held :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.
        (Para 21)
       In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of ‘gold bearing sand’. It was on this basis that criminal case launched against him. On the same set of facts, constituting the raid and recovery, departmental proceedings were initiated against the appellant as the “recovery” was treated to be a ‘misconduct’. On the service of the charge sheet, the appellant raised an objection that the departmental proceedings may be stayed as the basis of these proceedings was the raid conducted at his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case may be awaited, but his request was turned down. The request made a second time for that purpose also met the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant’s appeal against the order by which he was placed under suspension. The order of the High Court had no effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of the departmental proceedings on that ground was acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charges and was dismissed from service. (Para 22)
       As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, ‘the raid conducted at the appellant’s residence and recovery of incriminating articles therefrom. The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant, and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the “raid and recovery” at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings, to stand. (Para 33)
       Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case. (Para 34)
       Held consequently : In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1987, we would not direct any fresh departmental inquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified as Rs. 15,000/-. (Para 35)
       (ii) Service Law-Suspension-Subsistence allowance-Duty of employer-Non-payment of subsistence allowance is an inhuman act-Act of non-payment of subsistence allowance can be likened to slow-posioning-Provision for payment of subsistence allowance is only to secure no-violation of right to life of employee-Non-payment of subsistence allowance may vitiate departmental proceedings.
       Held : To place an employee under suspension is an unqualified right of the employer. This right is conceded to the employer in service jurisprudence everywhere. It has even received statutory recognition under service rules framed by various authorities, including Govt. of India and the State Governments. (See : For example, Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules. Even under the General Clauses Act, this right is conceded to the employer by Section 16 which, inter alia, provides that power to appoint includes power to suspend or dismiss. (Para 25)
       The order of suspension does not put an end to an employee’s service and he continues to be a member of the service though he is not permitted to work and is paid only Subsistence Allowance which is less than his salary. (Para 26)
       Service Rules also usually provide for payment of salary at a reduced rate during the period of suspension. (See: Fundamental Rule 53). This constitutes the “Subsistence Allowance”. If there is no provision in the Rules applicable to a particular class of service for payment of salary at a reduced rate, the employer would be liable to pay full salary even during the period of suspension. (Para 27)
       Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by “suspension syndrome” and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee’s trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of `Subsistence Allowance’, so that the employee may sustain himself. If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisioning as the employee, if not permitted to sustain himself on account of non-payment of Subsistence Allowance, would gradually starve himself to death. (Paras 28 & 29)
       On joining Govt. service, a person does not mortgage or barter away his basic rights as a human being, including his fundamental rights, in favour of the Govt. The Govt., only because it has the power to appoint does not become the master of the body and soul of the employee. The Govt. by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of the State Policy. The employee, on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like Instrumentalities of the Govt. or Statutory of Autonomous Corporations etc., is regulated by the terms of contract of service or Service Rules made by the Central or the State Govt. under the Proviso to Article 309 of the Constitution or other Statutory Rules including Certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee. The provision for payment of Subsistence Allowance made in the Service Rules only ensures non-violation of the right to life of the employees. (Para 30)
       Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated. (Para 32)

Judgement Key Points

Key Points from the Legal Document:

There is no absolute legal prohibition against conducting both departmental disciplinary proceedings and criminal cases simultaneously. However, if both proceedings are based on the same set of facts and evidence, and the criminal charge is of a grave nature involving complex legal and factual questions, it is advisable to stay the departmental proceedings until the criminal case is resolved (!) .
When proceedings are based on identical facts, the criminal case's outcome can significantly impact the departmental process. If the criminal case results in acquittal or the proceedings are unduly delayed, the departmental proceedings may be invalidated or require reconsideration, especially if the employee has already been acquitted by a court of law (!) (!) .
The standard of proof differs between criminal and departmental proceedings. Criminal cases require proof beyond a reasonable doubt, whereas departmental inquiries are based on a preponderance of probabilities. Therefore, an acquittal in a criminal court does not automatically conclude the departmental proceedings, but it raises questions about the fairness and validity of the departmental findings if they are based on the same evidence (!) (!) (!) .
If the facts and evidence in both proceedings are identical, and the criminal case has resulted in an acquittal, continuing with departmental proceedings may be unjust and unfair. In such circumstances, it is appropriate to halt or reconsider the departmental process to prevent injustice (!) (!) .
The non-payment of subsistence allowance during suspension is a serious violation of natural justice and fundamental rights. It can be likened to slow-poisoning, as it adversely affects the employee’s right to life and dignity. Payment of subsistence allowance is essential to ensure the employee's basic livelihood during suspension (!) (!) (!) (!) .
An employee’s basic rights, including fundamental rights such as the right to life, are not surrendered upon employment with the government or other public sector entities. The provision of subsistence allowance during suspension is a safeguard to uphold these rights and ensure humane treatment (!) (!) .
Conducting proceedings without providing subsistence allowance, especially when the employee is ill or unable to attend due to financial hardship, violates principles of natural justice and fairness. Such violations can vitiate the entire disciplinary process and lead to the proceedings being set aside (!) (!) .
The right to suspend an employee is unconditional and recognized under service rules and statutes. Suspension does not terminate the employment but restricts the employee from working, with the employer obligated to pay subsistence allowance unless rules specify otherwise. Failure to pay this allowance during suspension is considered inhumane and can have legal repercussions (!) (!) (!) (!) .
An employee’s fundamental rights, including the right to life and dignity, are protected and cannot be waived or bartered away upon employment. The employment relationship is governed by contractual and statutory rules that uphold these rights, including provisions for humane treatment during disciplinary proceedings (!) .
When proceedings are based on the same facts, and the employee has been acquitted in a criminal case, continuing with departmental proceedings or dismissals based on the same evidence is unjust. In such cases, reinstatement and compensation are warranted, especially if the employee has suffered prolonged hardship or injustice due to prior proceedings (!) (!) .
The timing and circumstances of proceedings, such as delays or the employee’s illness, are relevant factors in determining whether proceedings should be stayed or resumed. Courts may consider the overall fairness, the impact of delays, and the rights of the employee when deciding on the continuation or stay of disciplinary actions (!) (!) .
The decision to proceed with disciplinary actions should be balanced with considerations of natural justice, fairness, and the specific facts of each case, including the gravity of charges and the progress of criminal proceedings. Unjust proceedings or violations of rights can lead to the quashing of disciplinary measures and orders for reinstatement with back wages (!) (!) .

These key points emphasize the importance of fairness, natural justice, and the need to consider the specific circumstances of each case, especially when proceedings are based on the same facts or involve fundamental rights violations.

Judgment

S. Saghir Ahmad, J.-Leave granted.

2. Whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously is a question which crops up perennially in service matters and has once again arisen in this case in the following circumstances.

3. Bharat Gold Mines Ltd. (Respondent No. 1) is a Govt. undertaking at Kolar Gold Fields in Karnataka, where the appellant was appointed as a Security Officer on 31-10-1983. On 2nd of June, 1985, a raid was conducted by the Superintendent of Police at the house of the appellant from where a mining sponge gold ball weighing 4.5 grams and 1275 grams of ‘gold bearing sand’ were recovered. Thereafter, on the same day, a First Information Report was lodged at the Police Station and a criminal case was registered against the appellant, who was placed under suspension on 3.6.1985. The next day, namely, on 4th of June, 1985, a charge-sheet was issued proposing a regular departmental inquiry with regard to the recovery of the above articles from his house. On 11th of June, 1985, the appellant made a representation to the Disciplinary Authority denying the representation to the Disciplinary Authority denying the allegations made against him in the charge sheet and pleaded that the entire episode was a concoction. He prayed that the departmental proceedings initiated against him may be dropped or may, in the alternative, be postponed till the conclusion of the criminal proceedings against him on the basis of the First Information Report lodged against him at the Police Station on 2.6.1985. The representation was rejected on 19.6.1985 and the appellant was informed that the disciplinary proceedings would be held against him on 1.7.1985.

4. In the meantime, the appellant filed Writ Petition No. 10842 of 1985 in the Karnataka High Court for a direction to restrain the respondents from proceeding with the disciplinary inquiry till the conclusion of the criminal case as the appellant’s defence was likely to be prejudiced. This Writ Petition was disposed of by the High Court on 19.8.1985 and a direction was issued to the respondents to consider and dispose of the appellant’s appeal filed against the order of suspension but liberty was given to the respondents to defer the disciplinary proceedings if it was found expedient so to do. The respondents did not defer the departmental proceedings and continued the proceedings which the appellant could not attend on account of his ill-health and financial difficulties which compelled him to shift to his home-town in Kerala. The respondents were informed by a number of letters supported by medical certificates about his illness with a request for staying the departmental proceedings and await the result of the criminal case. But the Inquiry Officer rejected the request and recorded his findings on 10.5.1986 holding the appellant guilty. These findings were accepted by the Disciplinary Authority and by order dated 7th June 1986, the appellant was dismissed from service.

5. On 3rd of February, 1987, judgment in the criminal case was pronounced and the appellant was acquitted with the categorical findings that the prosecution had failed to establish its case. This judgment was communicated by the appellant to the respondents on 12.2.1987 with a request that he may be reinstated, but respondents, by their letter dated 3.3.1987, rejected the request on the ground that the appellant had already been dismissed from service on the completion of the departmental inquiry which was conducted independently of the criminal case and, therefore, the judgment passed by the Magistrate was of no consequence.

6. The order of dismissal passed by the respondents was challenged in a departmental appeal which was rejected by the Appellate Authority on 22.7.1987.

7. It was, at this stage, that the appellant approached the High Court through a Writ Petition under Article 226 of the Constitution challenging th

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1999 Supreme(SC) 398

Cases Referred (12)