2007 Supreme(SC) 52

2007(2) Supreme 1046
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Dr. Arijit Pasayat, C.K. Thakker and Lokeshwar Singh Panta, JJ.
NOIDA Entrepreneurs Assn.—Appellants
versus
NOIDA & Ors.—Respondents
Writ Petition (Civil) No. 150 of 1997
With
W.P. (Civil) No. 529 of 1998
Decided on 15-1-2007
Counsel for the Parties :
For the Appearing Parties : Rajeev Dhawan (A.C.), Dipankar P. Gupta, Rakesh Dwivedi, K.T.S. Tulsi, Ashok H. Desai, L.N. Rao, Sr. Advocates, Dayan Krishnan (A.C.), Nikhil Nayyar (A.C.), E.C. Vidya Sagar, Ms. Manjula Gupta, M.D. Pandeya, P. Parmeswaran, R.S. Suri, Vinay K., Ajay Dhaiya, Shivinder Diwedi, Ms. Sangeeta Kumar, Vijay Kumar, Gorab Librahan, K. Sultan Singh, Manish K. Sanyal, M.S. Yadav, Raj Kamal, Abhisth Kumar, Ravi Prakash Mehrotra, Ms. deepti Mehrotra, Garvesh Kabra, Ajay K. Agrawal, Ms. Alka Agrawal, Ms. Anamika Agrawal, K.B. Rohtagi, Sunil Malhotra, Ms. Aparna Rohtagi Jain and Mahesh Kasana, Advocates.

IMPORTANT POINT
The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings.

Headnote:SERVICE LAW—Disciplinary Proceedings—Decision to drop—Difference between a departmental enquiry and criminal proceedings—Allegations relating to irregularities in allotments and conversion of land in New Okhla Industrial Development Authority (NOIDA)—State Government constituted a Commission, Justice Murtaza Hussain Commission—On basis of its report, departmental action was recommended in respect of specific findings against respondent, IAS, posted as Chief Executive Officer, NOIDA—Enquiry initiated by the Vigilance department in matters relating to which the Commission had not given any clear finding—State Government decided to get the matter inquired into by the Vigilance department of the State—Supreme Court directed that the matter should be investigated by the CBI—State Government initiated departmental proceeding against respondent—Respondent filed a representation stating that in view of the criminal investigation, departmental proceedings should not proceed—Government of State passed an order keeping the disciplinary proceedings in abeyance till CBI enquiry was over—State Government decided not to take departmental action/initiate prosecution in relation to the recommendations in the report of the CBI—Whether decision of the State Government is justified—(No)—Departmental proceedings shall continue.

       Held : We are not only baffled but also perplexed at such a stand being taken by the State. This prima facie shows that the State Government is interested to protect Smt. Neera Yadav at any cost. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness.(Paras 8 and 9)

       The purpose of departmental enquiry and of prosecution is 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 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 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 Indian Evidence Act 1872 (in short 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. Under these circumstances, what is required to be seen is whether the department 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. (Para 10)

       There can be no straight jacket 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 delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.(Para 12)

       The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue.(Para 15)

       Mr. K.T.S. Tulsi, learned counsel for Smt. Neera Yadav stated that an appropriate motion shall be made before the departmental authorities to keep the proceedings in abeyance till conclusions of the criminal proceedings. If such prayer is made, the same shall be considered in the light of the principles set out by this Court in Hindustan Petroleum Ltd.’s case and Uttaranchal Road Transport Corpn.’s case.(Para 16)