Sudhir Agarwal, J. - (1.) THE short grievance raised by the petitioner in this writ petition is that in respect to the charges, on which departmental enquiry is being conducted against him, a criminal proceeding has also been initiated and, therefore, so long as the criminal proceeding is going on, the authorities cannot proceed with the departmental enquiry and, therefore, a writ of mandamus has been sought for staying the pending departmental enquiry. Reliance is placed on the Apex Court's decision in Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd. and another 1999 (3) SCC 679.
(2.) IN my view, the submission is thoroughly misconceived. The Apex Court, in the Capt. M. Paul (supra) has clearly held that the departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question as to whether during the pendency of criminal proceeding, the departmental proceeding should be stayed depends upon the facts and circumstances of the individual case. IN Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that the procedure followed in both the cases as well as the subject matter of the departmental enquiry and criminal proceeding has different scope and it cannot not be said that when a criminal proceeding is going on a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed. The same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. and others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of INdia and others Vs. Naman Singh Shekhawat 2008 (4) SCC 1. Referring to Capt. M. Paul Anthony (supra), recently the Apex Court in Managing Director, State Bank of Hyderabad and another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that the legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously has been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case. Similarly, in the case of Noida Entrepreneurs Assn. Vs. NOIDS and others JT 2007 (2) SC 620, the Court has reproduced the following conclusion deducible from various judgments as noticed in para-22 of the judgment in Capt. M. Paul Anthony (supra), namely: "(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 involved 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, the administration may get rid of him at the earliest."
(3.) A similar view has also been taken in Indian Overseas Bank Vs. P. Ganesan and others AIR 2008 SC 553 and the Court held that where a prayer is made that so long as criminal proceedings are going on, departmental proceeding may not be proceeded, the Court must record a finding that the non grant of stay on departmental proceeding would not only prejudice the delinquent officer, but the matter also involve a complicated question of law. Noting of that sort has been shown by the learned Counsel for the petitioner in the case in hand. Moreover, no final order has been passed in the departmental proceeding and only a show cause notice has been issued to the petitioner. Therefore, in my view, even otherwise, the writ petition is pre-mature.;