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Departmental Enquiry, An Obstacle Or Aid In Criminal Trail

Recently Andhra Pradesh High Court passed a judgment in Subba Rao vs Vigilance Officer, Cotton Corporation of India[1] on the issue of departmental enquiry with the ongoing criminal trial. The judgment passed by Justice Ravi Nath Tilhari cleared the dimensions of this less addressed topic. Departmental enquiry is mostly initiated simultaneously with the criminal trial hence it becomes very important to know the procedure of conducting these trails and enquiry.

It can be argued by the accused that carrying the departmental enquiry with the criminal trial can make him/her the victim of prejudice. The questions raised in both can be of similar nature which can be very hectic for an accused to deal with. So should the court intervene in this and put a temporarily stay in the departmental enquiry.

An organisation or department has all rights reserved to conduct its own independent enquiry which is headed by an officer of that department

In the said case, the petition was filed under article 226 alleging that the departmental enquiry initiated against the petitioner is arbitrary and violative of principle of natural justice. This enquiry which is simultaneously going on with the criminal trial in the high court is violating the rights under article 14, 20, and 21 of the Indian constitution.

The case summary would analyse whether a departmental enquiry can be put on hold and if yes, what are the conditions for putting it on hold.

Facts of the case
The petitioner was appointed at cotton corporation of India on the post of junior cotton purchase officer. The Central Bureau of Investigation (CBI) filed a case against the petitioner and his family for possession of undeclared assets and misusing the power of the post for the cheating and criminal conspiracy under the section 13(1)e and 13(2) of prevention of corruption act, 1988[2].

The respondent 1 which is the officer of cotton corporation department initiated a departmental enquiry against the accused by appointing respondent 2 that is branch manager as the investigating officer. The disciplinary authority ordered the petitioner to submit a written statement in his defence but the petitioner submitted that his medical condition is not good and hence he is unable to submit for now. The authority appointed respondent 3 for investigating the charges against the petitioner.

Further the petitioner submitted that the place of investigation was changed again and again for which he was not aware, however the respondent submitted that it was duly informed to the petitioner about the change of place of inquiry. The petitioner finally filed petition alleging that the departmental enquiry is of arbitrary nature.

  • Whether departmental enquiry can be concluded during the pendency of a criminal trial.

Arguments by petitioner
The learned council of the petitioner Sri Adhitya Harsha Vardhan submitted before the court that the departmental enquiry and criminal proceedings against the petitioner are dealing with the same facts and questions. The charges against the petitioner are grave in nature and involves complicated questions of law and he would be subjected to prejudice if he disclosed his defence in the departmental enquiry, also the set of witness are same hence the departmental enquiry should be set aside while the continuation of criminal trial.

The reliance was placed on the cases:
  • State Bank of India & Others v. Neelam Nag[3],
  • Rubina Bano v. State of Chhattisgarh[5],
  • Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd and Others[4],
  • G.M.Tank v. State of Gujarat and Others[6],
  • D.Ravi Babu v. Director General of Police, AP and Others[7].
 Arguments by respondent
The learned council of the respondent submitted before the court the charge on the petitioner is different in the departmental enquiry and criminal trial. He argued that the charge by CBI is of having possession of the disproportionate assets of Rs.1,06,78,571/- and in the departmental enquiry it is of non-disclosure of moveable and immovable property on the name of family member of the petitioner and non-maintenance of faithfulness and integrity towards the duty, also violating the rules of cotton corporation of India.

He submitted before the court that the criminal proceedings cannot be a bar on the departmental enquiry. the mode of departmental enquiry is entirely different to that of the criminal trial. He further placed reliance on:
  • Lalit Popli v. Canara Bank and others[8],
  • Ajitkumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd7[9].
The hon'ble high court held that departmental enquiry can be carried out simultaneously and the criminal proceedings would have no bar on it. The criminal trial and departmental enquiry both have very different nature. The court went further saying that departmental enquiry can only be set aside temporarily and only in special circumstances where the question of law is in grave in nature and there is likely to be prejudice of accused.

The court also have to keep in mind that departmental enquiry cannot be kept on hold for long. It was mentioned that in the case of Capt. M. Paul Anthony[10]

Following points were laid down:
  • Departmental enquiry and criminal trial can proceed simultaneously and there is no legal bar in conducting them in their conduction simultaneously.
  • If the disciplinary proceedings and criminal trail are based on same facts and question and the offence of accused is grave in nature which involves complicated law of question then the departmental enquiry can be put on hold until the result of criminal trial comes.
  • Whether the charge is grave in nature and involves complicated law of question, will depend of nature of offence and the nature of evidence collected against the accused.
  • Is the criminal case is not getting disposed duly on time then the departmental enquiry can be resumed and if the accused found not guilty than his/honour should be established and if found guilty then the department may get rid of him as soon as possible.

In the case of Transport Corporation v. M.G. Vittal Rao it was rightly mentioned that:
  • The only valid reason for the stay on departmental enquiry is only on the defence of the employee on the ground of prejudice of his/her case also these ground would be available in the cases involving complex question of fact and law.
  • This defense should be not used in unnecessarily delaying the departmental proceedings.

Even when the charge are found to be grave in nature and involves complicated questions of law and there are chances of prejudice, then also the court has to keep in mind that the trial doesn't get prolonged indefinitely causing a suspension or delaying unduly of departmental enquiry, as its not in the favor of employee and employer to delay the departmental enquiry because if the employee is not guilty than his honor should be vindicated at the earliest possible and if he is guilty than he should be dealt properly according to the law and it would not be interest in of the employer to continue with such kind of employee awaiting for the results of criminal trial.

It was said in the judgment that there is a difference in nature of departmental enquiry and criminal trail. A crime is act or commission in violation of law or of omission of public duty and therefor a trial is conducted whereas departmental enquiry is conducted to restore and maintain discipline in services.

The approach and objective in the criminal proceedings and departmental enquiry are entirely different. In the disciplinary proceedings the moto is to determine whether the respondent is guilty of such conduct as would merit his removal from the service or lesser punishment whereas in the criminal trial the question is whether the offence registered under the Prevention of Corruption Act and Indian Penal code is established and what punishment should be given.

Hence it would not be in desirable to lay down any specific rules to lay down a stay on departmental enquiry. The criminal trail is conducted based on the evidence according to the Evidence Act whereas in departmental enquiry the conduct is monitored according to the relevant statutory rules. In case of disciplinary enquiry the doctrine of 'proof beyond doubt' has no application.

In criminal trial the burden of proof is on prosecution and unless he establish reasonable doubt against the accused, the accused cannot be convicted whereas on the other hand in department if there is finding of 'preponderance of probability', the accused officer can be fined. According to section 13(1) of prevention of corruption act, the accused have to prove in the court of law that the assets are not disproportionate to the declared source of income but there is not question of disclosing the defense in the departmental enquiry.

In the judgment of Pravin Kumar vs. Union of India[11] it was rightly said that the department is has all rights to conduct an independent disciplinary enquiry irrespective of the outcome of the criminal trial in the court. In the case of Neelam Nag it was said that if the criminal proceedings are not completed in 1 year then the enquiring officer shall continue the enquiry and the protection given to accused shall be terminated.

Hence because of all these reasons the writ petition is dismissed and the departmental enquiry may proceed further in this case.

End Notes:
  1. R. Subba Rao vs The Chief Vigilance Officer, High Court Of Andhra Pradesh, 25 August 2022, 19655 (India) XXXX.
  2. prevention of corruption act, No 49, 9 September 1988 (India), XXXX.
  3. State Bank Of India vs Neelam Nag, Supreme Court of India, 11 May 2018, 4715 (India) XXXX.
  4. Kusheshwar Dubey vs Bharat Coking Coal Ltd. & Ors, supreme court of India, 6 September 1988, 3129 (India) XXXX.
  5. Rubina Bano v. State of Chhattisgarh, chhattisgarh high court, 17 December 2020, 4728 (India) XXXX.
  6. G.M. Tank vs State Of Gujarat & Anr, Supreme Court of India, 10 May 2007, 2582 (India) XXXX
  7. D. Ravi Babu v/s Director General of Police, A.P., HIGH COURT OF ANDHRA PRADESH, 1 April 2021, 23315 (India) XXXX.
  8. on Lalit Popli v. Canara Bank and others, supreme court of india, 18 February 2003, 3961 (India) XXXX.
  9. Ajit Kumar Nag vs General Manager (Pj), Indian Oil, calcutta high court, 6 February 2004, 4544 (India) XXXX
  10. Capt.M. Paul Anthony vs Bharat Gold Mines Ltd., calcutta high court, 18 January 2018 (India) XXXX.
  11. Pradeep Kumar Singh vs Union Of India & Anr., Delhi high court, 14 December 2011, 8231 (india) XXXX.

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