The central legal point established in the judgment is the desirability of staying the departmental proceeding if it is based on identical and similar facts as the criminal case, until the conclusion of the criminal case.

JUDGMENT

Arindam Sinha, J. - Mr. Banerjee, learned advocate appears on behalf of applicant/appellant while Mr. Das, learned advocate appears on behalf of respondents. Submission at the Bar is that the appeal can be taken up for hearing and disposal on papers available and dispensation of all formalities. Mr. Das waives service of notice of appeal.

2. Mr. Banerjee draws attention to communication dated 14/15th September, 2015 made by respondent employer on revoking order of suspension. He relies on extract therefrom as below.

"Keeping in view the above, your suspension is hereby revoked w.e.f. 15/09/2015. The charges levelled against you under Clause 26.1, 26.2 and 26.33 as mentioned in the charge-sheet vide No.PARB-AO/PERS/O-6, 15/1213 dated 1/3.8.2015 will remain in force and pending till final decision/judgment of the Hon'ble Special (CBI) Court, Asansol, Burdwan."

He submits, above was basis for interim order dated 29th June, 2017, whereby respondents were at liberty to proceed with the departmental enquiry but were not to pass final order without leave of Court. He submits, this was because on the same set of facts, relating to same allegations, departmental proceeding was launched with criminal proceedings already underway. Hence, prayer in the writ petition for stay of departmental proceeding, initiated in connection with CBI criminal case. The first Court, in such circumstances, erred in finding that the writ petition had lost its force on his client having participated and allowed the enquiry to continue, since there was no appeal preferred against said interim order. Witness action has commenced in the criminal proceeding. He relies on view expressed by a learned single Judge of this Court in Dibakar Das vs. Registrar General, Appellate Side, High Court, (2006) 2 CalHN 48 that on the fact of the criminal cases being at stage of recording evidence, it became apparent that petitioner (accused in the criminal proceedings) is not responsible for delay in the trial.

3. He submits, the first Court did not correctly appreciate judgment of Supreme Court in Capt. M.Paul Antony vs. Bharat Gold Mines Ltd., (1999) 3 SCC 679 . The first Court did not appreciate that since the facts and evidence in both the proceedings are same, distinction easily drawn between departmental proceeding and criminal case on basis of approach and burden of proof, cannot be made applicable. The departmental proceeding could not have been allowed to proceed to final order in disposing of the writ petition, as done by impugned order.

4. Mr. Das submits, pursuant to impugned order there was issued final order dated 2nd March, 2021 dismissing appellant from service. Mr. Banerjee submits, his client has not yet received it. Mr. Das submits further, there is distinction between subject matter of the departmental proceeding and the criminal case. He refers to impugned order to submit, the first Court noticed this distinction. Following from impugned order is set out below.

"It is clear from the submissions of the learned counsel for the applicant ECL that there is also a charge of being absent from his post without leave. This is not the subject matter of the criminal proceedings."

He relies on judgments of Supreme Court:

i) Sashi Bhushan Prasad vs. Inspector General, Central Industrial Security Force, (2019) 7 SCC 797 , paragraphs 17 to 19 and 21. He submits, this decision is applicable on facts being that, according to him, subject matter of the two proceedings are different.

ii) State of Rajasthan vs. B.K. Meena, (1996) 6 SCC 417 , paragraphs 11, 14 and 15. He submits, the first Court correctly evaluated the situation on desirability, whether advisable or appropriate and propriety, to dispose of the writ petition and allow the disciplinary proceeding to continue. The proceeding has culminated in aforesaid order of dismissal from service. There should be no interference.

5. Final order dated 2nd March, 2021 could not have been part of the writ petition. We h