Pratap Kumar Ray, J. - (1.) HEARD the learned Advocates appearing for the parties.
(2.) ASSAILING the order dated 20th May, 2009 passed by the Stale Administrative Tribunal in OA No. 756 of 2009, this writ application has been filed. The impugned order reads such. "20.05.2009 For the Applicant: Mr. G.P. Banerjee, Id. Adv. For the respondent: Mr. P.Das, Id. Adv. Ld. Adv. representing the parties are present. Affidavit-of-service is filed. Let it be kept with the record. Heard the parties. Perused also available materials on record. By filing this application petitioner before us has prayed for quashing the 2nd show cause notice alleging mainly that the subject-matter of the departmental proceeding are identical with the criminal proceeding, pending against him for which there is no reason to allow the departmental authority to proceed with this departmental proceedings. Consequently, he has come up with the aforesaid prayer. This prayer, however, has been seriously opposed on behalf of the State respondent alleging that charge No.1, in any event, cannot be said to be identical with criminal proceeding, initiated against the petitioner. So, for such reason there is absolutely no necessity for staying this proceeding till conclusion of the criminal trial. Furthermore, as per the provision of section 20 of the Administrative Tribunals Act, Tribunal shall not ordinarily admit an application unless it is satisfied that applicant had availed of all the remedies available to him under the relevant service rules. So, no interference is necessary. We have given our anxious consideration with regard to the submissions made by the parties before us. Having heard the parties and upon perusal of the materials available, we find that the charges framed against the applicant are not identical with the criminal proceeding and further more the petitioner having failed to exhaust all available remedies, we are not inclined to admit this application before us at this stage of the proceedings before this Tribunal but in disposing of this application, we may direct the concerned authorities to allow the petitioner to submit his reply to the 2nd show- cause within a period of 15 days hence and thereafter to proceed in accordance with law with the aforesaid departmental proceedings against the petitioner and to complete the same as expeditiously as possible. With this, we dispose of this application. Plain copy. Sd/: P.K-Biswas . Chairman Sd/: S.S.Ahuja Member (A)" The writ petitioner has challenged the said order on the ground that as criminal proceeding is pending, the second show-cause notice in the departmental proceeding proposing punishment of dismissal from service should be kept in abeyance till the finality of the criminal proceeding. We are surprised to hear this submission. It is the settled legal position of law that departmental proceeding and the criminal proceeding are on different parameters and both may proceed simultaneously. The degree of consideration of evidentiary value of the witness concerned is also of different altitude, namely, in a criminal proceeding it requires strict proof with high degree but in the departmental proceeding the degree of consideration of the evidentiary value is in the angle of "preponderance of probability" and it deals with the conduct in the service in the anvil of misconduct alleged in departmental proceeding. In the departmental proceeding, the conduct of employee is the subject-matter of adjudication whereas in a criminal proceeding the adjudicatory periphery is consideration of criminal offence whether it committed or not. Reliance is placed to the judgement passed in the case Depot Manager, A.P. State Road Transport Corporation vs. Md. Yousuf Miya and Ors., reported in 1997(2) SCC 699 (a judgement of three-Judges Bench para.8). No technical rules of Evidence Act nor proof of fact or evidence as defined therein apply to departmental proceeding. Reliance is placed to the case B.C.Chaturbedi vs. Union of India, reported in 1995(6) SCC 749, (three-Judges Bench) as reported in Bank of India vs. T. Jogram, reported in 2007(7) SCC 236.
(3.) IT is true that sometime when on identical charge and identical set of witnesses, the departmental proceeding and the criminal proceeding both are initiated, there is scope for filing an application before the Enquiry Officer seeking stay of the departmental proceeding during pendency of criminal proceeding on the reasoning that departmental proceeding, if is not stayed, delinquent would be compelled to disclose his defence which he may take in the criminal trial and thereby he may suffer prejudice in criminal case. Considering that situation, the Enquiry Officer may stay the departmental proceeding till the finality of the criminal proceeding. Reliance may be placed to the judgement passed in the case State of Rajasthan vs. B.K. Meana, reported in 1996(6) SCC 417, wherein it is held that mere identical fact will not be a ground of stay of departmental proceeding. But in the instant case it appears that the writ petitioner participated in the enquiry proceeding by appearing before the Enquiry Officer and the enquiry report was finalised on adjudicating the proceeding. Thereafter at the time when second show-cause notice proposing punishment was served by directing him to file an answer, he after filing the reply thereof, moved the Tribunal for quashing the same on the ground of pendency of criminal proceeding. At this stage there is no question of disclosure of any evidence and suffering of prejedice because already he participated in the departmental proceeding and whatever evidence he disclosed for consideration of the Enquiry Officer, it was considered and proceeding culminated to the notice proposing punishment as second show-cause notice. It has been held by three Judges Bench in the case UCO Bank vs. Md. Yusuf Miya and Ors., reported in 1997(2) SCC 699, that the departmental proceeding is only for the purpose of deciding the conduct and the criminal proceeding is for punishment of offence. It has been considered therein by observing that adjudicatory process of the said two proceedings are completely different as in criminal proceeding strict proof is required to be considered whereas no rigid rule of evidence is followed in the departmental proceeding and the employer is required to follow the law laid down in the case Md. Yusuf (supra) as has been confirmed by the Apex Court ion the case State Bank of India vs. R.B. Sharma, reported in 2004(7) SCC 27. The only exception on the issue is the case of M.Paul Anthony vs. Bharat Gold Mines, Limited, reported in 1999(3) SCC 679, where the criminal proceeding was directed to be stayed till the finality of the criminal case where both the charges are identical including the list of witness; but in that case the situation considered was at the initial stage of departmental proceeding and not at the final stage of departmental proceeding alike this. However, the Apex Court held that the departmental proceeding in any circumstance should not be stayed when there is a charge under prevention of corruption and/or allegation against the Government employee relating to the corruption in the working field. Reliance is placed to the judgement of Kendriya Vidyalaya Sangathan vs. Srinivas, reported in 2004(7) SCC 442. In this case, the petitioner challenged the second show-cause notice before the learned Tribunal below.;