1. The only question involved in the present writ petition is that whether during pendency of prosecution, the departmental proceedings can be stayed or not?

2. The brief facts giving rise to the present petition are that:

3. The petitioner was serving as unarmed Police Constable with the respondent authorities. He was having Saving Account having Number 01190020686 in the State Bank of Saurashtra and he had availed the facility of ATM Card. It is the case of the petitioner that on 08.03.2003, the ATM card was lost and accordingly vide communication dated 08.03.2003, he immediately informed the bank regarding loss of ATM Card. An amount to the tune of Rs.36,900/-was withdrawn by some one on 11.03.2003 from Rajkot and Ahmedabad though the bank balance of the petitioner on 08.03.2003 was only Rs.2426.40 paisa in his account. The departmental proceedings were instituted vide charge sheet dated 04.12.2003 for the charges alleged therein that without permission of his higher Officer, the petitioner had remained absent unauthorisedly and during that period, he had withdrawn aforesaid amount by his ATM Card unauthorisedly.

4. Learned advocate Mr. Nirav Thakkar appearing on behalf of the petitioner has vehemently submitted that the facts of the criminal proceeding as well as departmental proceedings are common and hence, the departmental proceedings are required to be stayed. HE has contended that the Criminal Trial is yet to commence. He has further stated that if at this stage the departmental proceedings are allowed to continue then serious prejudice to be caused to the criminal proceeding, since all witnesses are common in both the proceedings and it would come in his way in the departmental proceedings. He has further submitted that it might be that the bank might have been involved in the present offence. Reliance is placed by learned advocate for the petitioner on the judgment of Division Bench rendered in the case of (M/s.) Kotecha Ceremics Vs. Union of India & Another, reported in (1991) 1 G.L.H. U.J. 1, for the proposition of law that if the allegations made in the show cause notice to the delinquent were based on the allegations made by the complainant in the criminal complaint, are same then it is advisable that the departmental proceedings may be stayed. He has further submitted that the Division Bench has further held that if the disciplinary proceedings are commenced and continued against the delinquent, there will be serious prejudice caused to him as he has to disclose his defence which he proposed to take up at the trial.

5. Learned AGP Mr. Chintan Dave appearing on behalf of the respondent State, has contended that there is no embargo to proceed with the departmental inquiry against the delinquent during the pendency of criminal prosecution. He has placed reliance on the order dated 09.09.2002 passed in Special Civil Application no.5376 of 2002, wherein in the identical set of facts, the court has permitted the departmental inquiry to be proceeded during pendency of trial.

6. Learned AGP has submitted that in the present case, charges levelled against the present petitioner in departmental proceedings as well as criminal proceeding are in fact identical and hence stay of departmental proceedings during pendency of criminal proceeding is not justified and departmental proceedings may be allowed to proceed further.

7. Heard the learned advocates for the respective parties as well as perused the entire records of the present writ petition.

8. A perusal of charge sheet dated 04.12.2003, issued to the petitioner in the departmental proceedings will reveal that the petitioner is confronted with two charges; (1) the petitioner had misused his Debit Card and withdrawn amount of Rs.36,900/- from ATM, though his bank balance was Rs.2426.40 paisa; (2) unauthorised absence of the petitioner from 01.03.2003 to 29.03.2003 without informing his superior. The departmental proceedings are held under the Bombay Police (Disciplinar