S. K. MAL LODHA, J - (1.) IN this petition, the petitioner has obtained a rule from this Court calling upon the respondents to show cause why a writ of prohibition, or any other appropriate writ, order or direction should not be issued under Art. 226 of the Constitution prohibiting them from proceeding with the departmental enquiry and from removing the petitioner from his service until the disposal of the criminal case, pending against him.
(2.) THE petitioner was appointed as a Lower Division Clerk in the office of the Executive Engineer, National Highway, Udaipur by a Government order dated March 26, 1955 and he was confirmed on that post with effect from July 10, 1964. He was promoted to the post of Upper Division Clerk by the order dated February 4, 1966. He joined on that post on February 5, 1966 and, thereafter, continued to work as such. On September 16, 1971, he was suspended by the Superintending Engineer, P. W. D. ( B & R), Circle II, Udaipur (respondent No. 3 ). He was served with a charge-sheet under r. 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 on May 17, 1972. THE statement of charges, framed against the petitioner was submitted with the writ petition as Ex. 1/2. Four charges were levelled against the petitioner, which are as under: "charge I: That the said Shri Jagdish Prasad while functioning as Store Keeper, P. W. D. (B & R) Banswara during the period from 27-1-70 to 20-9-71 allowed 9 (nine) bundles of steel bars to be taken from P. W. D. (B & R) Store Banswara without any proper indent or authority as indicated in paras one to three of the statement of allegations. CHARGE II: That during the aforesaid period and while functioning in the aforesaid office, the said Shri Jagdish Prasad left the head quarters on 24-8-71 without obtaining prior permission and did not join his duties upto 20-9-71 inspite of communication of refusal of leave. He also kept the keys of some store rooms with him as indicated in para IV & V. of the statement of allegations. CHARGE III : That during the aforesaid period and while functioning in the aforesaid office, the said Shri Jagdish Prasad kept the Government steel in the P. W D. Stores without regular entry in the quantity accounts of the Stores as indicated in para six of the statement of allegations. CHARGE IV : That Shri Jagdish Prasad, while functioning as Store keeper P. W. D. (B & R), Banswara during the period from 27-1-70 to 20-9-71 issued the iron bars less in quantity against the indents for various works and the bars as illegally saved were not brought to accounts in the books. Shri Jagdish Prasad is, therefore, charged for issuing less bars illegally and not accounting the same in the books of P. W. D. Stores. " The only charge, which is relevant for the disposal of this writ petition, is that while working as a Store Keeper at Banswara from January 27, 1970 to September 20, 1971, the petitioner allowed nine bundles of steel bars to be taken away from P. W. D. (B & R), Banswara without any proper indent or authority in a truck by Birdichand. The petitioner has also stated that F. I. R. was lodged initially against Birdichand on August 21, 1971 at Police Station, Banswara. The allegation against the petitioner in the criminal case is that he has committed an offence of theft in respect of nine bundles of steel bars numbering 68, which is punishable under section 379, I. P. C. The aforesaid criminal case is pending against the petitioner. Meanwhile, the department also initiated the Departmental Enquiry and examined 8 witnesses. The Enquiry Officer submitted his report on July 7, 1975. On receipt of the report, the Superintending Engineer (Disciplinary Authority) issued a show cause notice to the petitioner dated January 12, 1979, which was served on January 15, 1979 to the effect that why he should not be removed from service. For quashing the show cause notice, dated January 12, 1979, the petitioner has submitted this writ petition. Reply to the writ petition dated February 14, 1979 was submitted on February 15, 1979. It is opposed on various grounds. To this reply, a rejoinder was filed by the petitioner. Thereafter, reply to the rejoinder was submitted on behalf of the respondents on February 27, 1979. The only contention raised by the learned counsel for the petitioner is that in all fairness, the departmental enquiry, pending against the petitioner, should be stayed until the conclusion of the trial of the criminal case. In this, connection, he submitted that if the departmental enquiry is allowed to be concluded and the petitioner is removed from service, then his defence in the criminal case will be prejudiced and this is bound to effect the decision of the criminal case. In support of his submission, learned counsel placed strong reliance on Delhi Cloth & General Mills vs. Kushal Bhan (1) and Tata Oil Mills vs. Workmen (2 ).
(3.) LEARNED Deputy Government Advocate submitted that the trial of the criminal case and the departmental enquiry both can proceed simultaneously and there is no bar in doing so, for, the judgment rendered in the criminal case is not binding in the departmental enquiry and so also the order of the Enquiry Officer or Disciplinary Authority is not binding in the criminal case. He further submitted that the Chief Engineer P. W. D. (B&r) Jaipur had issued instructions on the basis of the Government circular (Ex. R4) datad September 11, 1978 wherein the Government issued the direction as a matter of policy that where a criminal case is pending against an employee, and the Departmental enquiry, in the matter of same charge is also pending, there is no impediment in completing the departmental enquiry before the conclusion of the trial in a criminal case. In view of the rival contentions, the question that arises for my consideration is whether the respondents are bound to wait for the result of the trial in the criminal case and as such should not proceed with the departmental enquiry against the petitioner. In Delhi Cloth Mill's case (supra), it was observed : - "it is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. After considering Shri Bimal Kanta Mukherjee vs. Messrs Newman's Printing Works (3), it was further observed : "we may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced. The present, however is a case of a very simple nature and so the employer cannot be blamed for the course adopted by him. In the circumstances, there was in our opinion no failure of natural justice in this case. . . . . . " It will be useful to quote para 9 from the decision reported in Tata Oil Mill's case (supra) : "but to say that domestic enquiries may be stayed pending criminal trial is very different from anything (sic) that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or mala fide. In fairness, we ought to add that Mr. Menon did not seek to justify this extreme position. Therefore, we must hold that the Industrial Tribunal was in error when it characterised the result of the domestic enquiry as mala fide partly because the enquiry was not stayed pending the criminal proceedings against Raghavan. We accordingly hold that the domestic enquiry in this case was properly hold and fairly conducted and the conclusions of fact reached by the Enquiry Officer are based on evidence which he accepted as true. That being so, it was not open to the Industrial Tribunal to reconsider the same questions of fact and come to a contrary conclusion. " Parallel enquiries by domestic tribunal and court in respect of a misconduct of an employee, came to be considered by their Lordships of the Supreme Court in Jang Bahadur Singh vs. Baijnath (4 ). In para 3 of the report, it was observed : , "the issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The intention and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its law ful power. " It was held in that case that an authority holding an enquiry in good faith in exercise of the powers vested in it by statutory regulations is not guilty of contempt of court, merely because a parallel enquiry is emminent or pending before a court. ;