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Chakradhar Prasad Gantayat v/s Commissioner-cum-Secretary to Government of Odisha, Works Department

    W.P(C) No. 10919 of 2021

    Decided On, 02 December 2021

    At, High Court of Orissa

    By, THE HONOURABLE DR. JUSTICE B.R. SARANGI

    For the Petitioner: M/s. S.K. Dalai, Premananda Swain, Advocates. For the Respondents: J.P. Patnaik, Government Advocate.



Judgment Text

1. Against denial of promotion to the rank of Superintending Engineer (Civil), Level-II, the petitioner, who is working as Executive Engineer, R&B in the office of the Engineer-in-Chief (Civil), Nirman Soudha, Unit-V, Bhubaneswar, has approached this Court in the present writ petition.

2. The factual matrix of the case, in a nutshell, is that the petitioner, who has got brilliant academic career, having acquired Post Graduate Degree in Civil Engineering from I.I.T., Madras and also one and half years Post Graduate study in the International and Environment from Institute of Delft, Netherland, Europe, was appointed in the post of Assistant Engineer by following due procedure of selection. He was subsequently promoted to the post of Assistant Executive Engineer on 24.01.2002 and Executive Engineer on 10.11.2006. Accordingly, in the gradation list published for the post of Executive Engineers, he was placed at Sl. No. 118. But, unfortunately, a criminal case was lodged by the vigilance department vide FIR No. 42 dated 20.08.2010, while he was continuing as the Executive Engineer (R&B) Division, Bhubaneswar No.4. The final charge sheet was submitted by the vigilance department on 30.09.2014. Accordingly, T.R. Case No. 50 of 2014 was registered in the court of Special Judge (Vigilance), Bhubaneswar. For the selfsame allegation, a disciplinary proceeding was also initiated, vide office memorandum dated 11.07.2014, against three officers, namely Pitabas Sahoo, Assistant Engineer (R&B) Division No.4, Bhubaneswar, Sri Pramod Kumar Mishra, Junior Engineer (Civil), Bhubaneswar and the petitioner. The Chief Engineer, Building, Odisha, Bhubaneswar was appointed as the inquiry officer by the Government of Odisha, Works Department vide letter dated 19.12.2014. He conducted the inquiry and submitted the report on 26.06.2015, recommending that the delinquent officer, i.e. the present petitioner may be exonerated from all the charges levelled against him. Pursuant to the order dated 15.12.2015, opposite party exonerated all the three officers, i.e. Junior Engineer, Assistant Engineer and the petitioner from the charges levelled against them. As a consequence thereof, Shri Pitabas Sahoo, who was working as Assistant Engineer, was promoted to the rank of Deputy Executive Engineer and thereafter to the rank of Executive Engineer on 17.05.2016, whereas the petitioner was denied the benefit of promotion to the next higher rank, i.e. Superintending Engineer (Civil), Level-II, though his juniors were given promotion to the said post. The petitioner represented the authority for giving him promotion, as all the Executive Engineers from Sl. No. 119 to 152 of the gradation list had been promoted to the post of Superintending Engineer (Civil), Level-II except the petitioner. But no action was taken on the representation filed by the petitioner. Therefore, the petitioner approached this Court by filing W.P.(C) No. 18655 of 2019, which was disposed of vide order dated 14.10.2019 directing the opposite party to consider the representation and take a decision within a period of two months from the date of production of the certified copy of the order along with copy of the writ petition. On receipt of the copy of the order dated 14.10.2019, the opposite party, vide order dated 29.06.2020, disposed of the representation of the petitioner by holding that the claim of the petitioner for promotion to the rank of Superintending Engineer (Civil), Level-II merits no consideration till disposal of the vigilance case pending against him by taking note of the fact that the case of the petitioner was considered in Review DPC meeting held on 04.09.2018 and the findings of the committee was kept in sealed cover in view of G.A. Department office memorandum dated 18.02.1994 read with G.A. Department Circular dated 28.05.2012. Therefore, the petitioner approached this court in the present writ petition.

3. The present writ petition was disposed of vide order dated 22.03.2021 by the learned Single Judge with an observation that the petitioner cannot suffer for the long pendency of the vigilance proceeding and it is also not known when the vigilance proceeding initiated in the year 2010 will come to an end. Accordingly, the learned Single Judge directed the opposite party to give promotion to the petitioner to the rank of Superintending Engineer (Civil) Level-II by opening the sealed cover. However, the promotion of the petitioner, as per the direction of this Court, was subject to ultimate outcome in the vigilance proceeding. The learned Single Judge clarified that the promotion of the petitioner to the rank of Superintending Engineer (Civil) Level-II would not confer equity, in the event he ultimately lost the vigilance proceeding, and the entire exercise was directed to be completed within three weeks from the date of commutation of the direction. It was also clarified that upon promotion, the petitioner would be entitled to all consequential benefits.

4. The State opposite party preferred writ appeal bearing W.A. No. 519 of 2021 against the order dated 22.03.2021 passed by the learned Single Judge, mainly on the ground that the learned Single Judge passed the order on the very first day without giving any opportunity of hearing to the appellant to file a reply. It was also pleaded in the writ appeal that though the petitioner had earlier filed W.P.(C) No. 18655 of 2019, which was disposed of vide order dated 14.10.2019, but the order dated 29.06.2020 passed by opposite party pursuant to the direction of this Court dated 14.10.2019, was not challenged by the petitioner in the present writ petition. While disposing of the writ appeal vide order dated 19.08.2021, the Division Bench at Paragraphs-5, 6 and 7 observed as follows:

“5. Looking at the prayer in the said writ petition, the paper book of which is available before this Court, it is seen that there was only one prayer in the writ petition for a mandamus to be issued to the present Appellant to give the Opposite Party Ad Hoc promotion “to the rank of Executive Engineer (Civil) to the Superintend Engineer (Civil) (Level-II) with immediate effect”.

6. Apart from disputed facts there was the above factor which required to be brought on record by the Appellant before the learned Single Judge in a counter affidavit. Accordingly, this Court is of the view that the writ petition should not have been disposed of on the very first day without a reply from the State of Odisha. Therefore, without expressing any view on merits, on the above short ground, the impugned order of learned Single Judge is hereby set aside and W.P.(C) No.10919 of 2021 is revived for being heard afresh on merits by the learned Single Judge.

7. The following directions are therefore issued:

(i) The writ petition will be listed before learned Single Judge on 4th October, 2021. By 27th September, 2021 the present Appellant, i.e. State of Odisha should file its para-wise reply to the said writ petition. No further time will be granted for that purpose. By 4th October, 2021, if the reply has been filed by then, the Opposite Party, i.e. the writ petitioner should file his rejoinder before 4th October, 2021. Again no further time shall be allowed for this purpose.

(ii) Irrespective of the above, the learned Single Judge will proceed with the writ petition and endeavour to dispose it of on merits by a fresh order not later than 20th December, 2021. Both parties will cooperate with the learned Single Judge in adhering to the above time schedule and will not seek any unnecessary adjournment.”

5. On perusal of the aforesaid order, it appears that the Division Bench while remanding the matter has directed the learned Single Judge to proceed with the writ petition and to make an endeavour to dispose of the same not later than 20th December, 2021. The Division Bench has lost sight of the fact that the order dated 22.03.2021 was passed after giving opportunity of hearing to the counsel for the petitioner, as well as the counsel for the State, who was present in the Court. The Orissa High Court Rules prescribes that before filing of the case, a copy of the same has to be served in the office of learned Advocate General. The purpose of serving advance copy in the office of learned Advocate General is for enabling them to obtain necessary instructions and get themselves ready when the matter is listed for fresh admission. Therefore, the State opposite party is well aware of the filing of the case and the contents thereof. Instead of discharging their obligation to obtain instructions from the competent authority and address the Court at the time of admission, it is observed in many a cases, even though the orders are passed in presence of the learned counsel for the State and/or at times, on their agreement, the orders are passed, they are preferring writ appeals and the same are being entertained by the Division Bench, on the plea that at the very first day without giving opportunity to the State to file reply, the matters are being disposed of. This is absolutely a misleading contention raised by the State appellant before the Division Bench. As it has now become a day-to-day phenomenon on the part of the State counsels, to turn around and approach the Division Bench taking the plea that no opportunity to reply was given, instead of discharging their duties and obligations in conformity with law, even if orders are passed at the time of admission either for want of receiving instructions or on their agreement, which aspect should have been examined in proper perspective and thereafter the matter should have been adjudicated on merits, instead of remanding it to the learned Single Judge to dispose of the same within a stipulated time, with a specific direction to the parties to file counter and rejoinder within a particular time in view of the law laid down by the apex court in Roma Sonkar v. Madhya Pradesh State Public Service Commission, 2018 (II) OLR (SC) 483. In the said case, the apex Court has categorically ruled that the Division Bench in appeal arising out of order passed under writ jurisdiction exercises same jurisdiction, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Therefore, the learned Single Judge is not sub-ordinate to the Division Bench. In such circumstance, the Division Bench is to consider the writ appeal on merits instead of remitting the matter back to the learned Single Judge. But, in this case, the Division Bench, instead of deciding the writ appeal on merits, has remitted the matter back to the learned Single Judge with certain directions as contained in para-7 of the order itself. Therefore, adhering to the judicial discipline, this Court, in compliance of the order dated 19.08.2021 passed by the Division Bench, heard this matter afresh.

6. Pursuant to the direction given by the Division Bench in paragraph-7 of the writ appeal, the opposite party has filed its counter affidavit and the petitioner has also filed rejoinder affidavit within the time specified and accordingly steps have been taken to dispose of the writ petition within the time specified by the Division Bench.

7. Mr. S.K. Dalai, learned counsel for the petitioner contended that a criminal case was lodged by the Vigilance Department vide FIR No. 42 dated 20.08.2010 against the Junior Engineer and the contractor, while the petitioner was continuing as the Executive Engineer (R&B), Division and, as such, in the FIR, the name of the petitioner was not available, as he was in no way concerned in such dispute. The work had been allotted by the Junior Engineer under F2 agreement, which was prevailing at the relevant // 12 // point of time. But due to the defective investigation, in the charge sheet the petitioner and the Assistant Engineer came to picture. The investigation continued for a period of four years from 2010 and charge sheet was submitted in the year 2014. Consequentially, cognizance was taken on 13.11.2014, but trial has not yet commenced. On the self charges, a disciplinary proceeding was drawn up vide Memorandum dated 11.07.2014, which was concluded on 15.12.2014 exonerating the petitioner and others from the disciplinary proceeding. Therefore, it is contended that pendency of the vigilance case cannot stand as a bar to give promotion to the petitioner to the next higher post as he has been exonerated from selfsame charge in the disciplinary proceeding. Though the petitioner filed representation and this Court directed vide order dated 14.10.2019 passed in W.P.(C) No. 18655 of 2019 to consider the same, but the said representation was rejected relying upon G.A. Department office memorandum No. 3928 dated 18.02.1994 read with G.A. Department circular No. 11962 dated 28.05.2012. Since the petitioner was denied the promotion, the petitioner approached this Court by filing the present writ petition, which had been initially disposed of, vide order dated 22.03.2021, taking into consideration the ratio decided by the apex Court in Ashoo Surendranath Tewari V. The Deputy Superintendent of Police, EOW, CBI and others, (2020) 9 SCC 636: 2020 (II) OLR 736. Aggrieved by the order of the learned Single Judge, writ appeal was filed and as a consequence thereof the matter has been placed for re-hearing before this Court. He further contended that if the petitioner has been exonerated in the disciplinary proceeding and his case has been considered for promotion and kept in sealed cover, because of pendency of the vigilance case, he should not have been denied promotion, merely because pendency of the vigilance case.

Though reliance has been placed on various orders/ judgments of this Court as well as apex Court, but learned counsel for the petitioner in course of hearing, drew attention of this Court to the judgment of the apex Court in Ashoo Surendranath Tewari (supra); State of Odisha and others V. Somnath Sahoo, W.P.(C) No. 19909 of 2015 disposed of on 05.10.2016; State of Odisha V. Anil Kumar Sethi and others, W.P.(C) No. 22393 of 2015 disposed of on 26.04.2017 and P.S. Rajya V. State of Bihar, (1996) 9 SCC 1.

8. Mr. J. P. Patnaik, learned Government Advocate appearing for the State opposite party argued with vehemence that Bhubaneswr Vigilance P.S. Case No. 42 of 2010 has been filed under Section 13 (2) read with Section 13 (1)(c)(d) of the Prevention of Corruption Act, 1988 and under Sections 409/420/468/471/120-B of IPC against the petitioner and other co-accused officers and contractors who entered into a criminal conspiracy in order to show undue official favour to the contractor by way of making full and final payment towards execution of the work, i.e. “Construction of Barrier free modification work in Deaf & Dumb School, Unit-9 Bhubaneswar”, prior to the actual completion of work. In the criminal case, charge sheet was submitted on 30.09.2014 before the Special Judge, Vigilance, Bhubaneswar. Cognizance was taken by the Vigilance Court on 13.11.2014 and accordingly the petitioner, along with co-accused officials and the contractor, is facing trial for the criminal charges framed by the State Vigilance wing in the said Court. Disciplinary Proceeding under Rule-15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 was started against the petitioner, vide Works Department memorandum dated 11.07.2014, simultaneously along with the criminal proceeding. It is further contended that list of evidentiary documents and list of witnesses, basing upon which the charge sheet was submitted are not exactly the same as that of the list of documents and witnesses which are relied upon in the disciplinary proceeding to sustain the charges levelled against the delinquent officers, including the petitioner. In the disciplinary proceeding the Chief Engineer (Buildings), Odisha, Bhubaneswar was appointed as the Inquiry Officer and Executive Engineer, Bhubaneswar (R&B) Division-IV, Bhubaneswar was appointed as the Marshalling Officer, vide Works Department Office Order dated 19.12.2014. Accordingly the inquiry was conducted by the Inquiry Officer, who submitted the report exonerating the petitioner from the charges levelled in the disciplinary proceeding. According to him, exoneration of the petitioner in the disciplinary proceeding cannot entitle him to exonerate from the criminal proceeding initiated against him. As a consequence thereof, even though the petitioner’s case was considered for promotion, but it has not been given effect to and kept in sealed cover due to pendency of the vigilance case. It is further contended that no discrimination has been made against the petitioner in the matter of giving promotion to the next higher rank. In the DPC meeting held on 18.07.2014 for promotion of Assistant Executive Engineer to the rank of Deputy Executive Engineer, the case of Sri Pitabas Sahoo was kept in sealed cover due to disciplinary proceeding. However, in compliance to the order of the Tribunal in O.A. No. 2759 of 2015, Sri Pitabas Sahoo was promoted. Therefore, the petitioner’s case cannot be equated with that of Sri Sahoo. Authorities are well justified in not giving promotion to the petitioner because of the pendency of the vigilance case against him.

To substantiate his contention, he has relied upon the judgment of the apex Court in State of Rajasthan V. B.K. Meena, AIR 1997 SC 13; K.C. Sareen vs. CBI, Chandigarh, (2001) 6 SCC 584; and Eera Through Dr. manjula Krippendorf V. State (NCT of Delhi) and another, (2017) 15 SCC 133.

9. This Court heard Mr. S.K. Dalei, learned counsel for the petitioner and Mr. J.P. Patnaik, learned Government Advocate appearing for Stateopposite party by hybrid mode and perused the record. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission in compliance of order dated 19.08.2021 passed in W.A. No. 519 of 2021.

10. Indisputably, the petitioner, while working as Executive Engineer, was involved in a vigilance case. Though he was not named in the FIR, but subsequently he was implicated in the charge sheet, basing upon which, cognizance was taken. Simultaneously, a disciplinary proceeding was initiated against the petitioner, along with other coofficers, on the selfsame charges. Upon an inquiry being made, all the three officers, i.e. Junior Engineer, Assistant Engineer and Executive Engineer-petitioner herein, were exonerated from the charges of the disciplinary proceeding. In the meantime, the person, who was rendering the service as Assistant Engineer, has been promoted to the post of Executive Engineer, whereas, even though the petitioner is entitled to get promotion from the post of Executive Engineer to Superintending Engineer (Civil) Level-II, because of the pendency of the vigilance case, he has not been given promotion. Therefore, the moot question to be considered by this Court at this stage is, whether a person can be denied the benefit of promotion on the plea of pendency of the vigilance case, when from the selfsame charges levelled against him in the disciplinary proceeding, he has been exonerated?”

11. In order to answer the above question effectively, it is worthwhile to go through the charges levelled against the petitioner in the charge sheet dated 30.09.2014 submitted by the vigilance authority, which has been placed on record at page-34 of the brief, and the charges levelled against the petitioner in the disciplinary proceeding vide memo dated 11.07.2014 under Annexure-3 series, which includes the article of charges, statement of imputation and memo of evidence. On careful perusal of the same, it is evident that for the selfsame charges, disciplinary proceeding and the criminal proceeding had been initiated against the petitioner. Both vigilance proceeding and disciplinary proceeding had been initiated on the allegation of misappropriation of government money by the officials of R&B Division No. IV, Bhubaneswar without executing the work “Construction of Barrier free modification work in Deaf & Dumb School, Unit-9 Bhubaneswar”. Out of the two proceedings, criminal proceeding initiated by the vigilance department is pending, whereas disciplinary proceeding has been ended by exonerating the delinquents from the charges. The delinquent officers having been exonerated and their cases having been taken into consideration for promotion, and the delinquent Assistant Engineer having been promoted to the post of Executive Engineer, there is no valid and justifiable reason to keep the promotion of the petitioner in the sealed cover.

12. Needless to say, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. The apex Court in number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt, in that case also merely because a criminal case is pending, the petitioner cannot and could not have been denied the benefit of promotion though from the selfsame charges levelled against him in a disciplinary proceeding, he has been exonerated.

13. In P.S. Rajya (supra), the apex Court, at paragraphs-3, 17 and 23 of the judgment, held as follows:

“3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission.”

“17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it.”

23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs.”

14. In Radheshyam Kejriwal vs. State of West Bengal and another, (2011) 3 SCC 581, the apex Court at paragraph-26, 29 and 31 of the judgment held as follows:

“26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27)

“… I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined.”

29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.

31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case.”

15. After referring to various judgments, the apex Court in the said case, i.e. in Radheshyam Kejriwal (supra) further observed at paragraphs-38 and 39 as follows:

“38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.”

39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.”

16. On carefully examining the present factual position with the touchstone of the principle laid down in the above noted decision, particularly in para-38(vi) thereof, it is evident that on the selfsame allegation both the criminal prosecution and the disciplinary proceeding had been initiated against the petitioner. In the disciplinary proceeding, the petitioner has been exonerated on merits, as allegations were found to be not sustainable at all and the petitioner has been held innocent. Therefore, the criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlined principle being the higher standard of proof in criminal cases. Merely because the documents adduced and the witnesses examined in the disciplinary proceeding are not exactly same in the criminal proceeding, that itself cannot be a ground not to extend the benefit of promotion to the petitioner on the allegation of the pendency of the vigilance case against him. If it is considered from other angle, the criminal case was initiated in the year 2010, when the FIR was lodged, and as a consequence thereof charge sheet was filed on 30.09.2014. In the meantime, nearly 11 years have passed and many of the juniors have been marched over the petitioner, because of pendency of the vigilance case, though he has been exonerated from the charges in the disciplinary proceeding. Pendency of vigilance case ipso facto cannot deny the benefit of promotion to the petitioner, as because it is not known exactly when the vigilance case would be concluded by following due process of law. On account of the same, the petitioner should not be put to harassment denying the benefit of promotion admissible to him. The persons, who had been appointed along with the petitioner, now occupying the promotional post of Chief Engineer, whereas the petitioner is struggling in the post of Executive Engineer for years together in the name of pendency of vigilance case, though he has been exonerated from the charges leveled against him in the disciplinary proceeding, which had been

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initiated against him on the selfsame facts and circumstances. 17. In the case of B.K. Meena (supra), which was relied upon by the State, the apex Court held that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceeding, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed. There is no dispute with regard to the proposition laid down by the apex Court as mentioned in B.K. Meena (supra). Therefore, applying the same principle to the present case, if the petitioner has been exonerated from the charges in the disciplinary proceeding, merely because pendency of the vigilance case he should not have been deprived of getting his promotion. 18. The reliance was also placed on K.C. Sareen (supra) on behalf of the State-opposite party. The said case relates to Section 389 (1) of the Cr.P.C. and the apex Court held therein that power to suspend conviction should be exercised by appellate or Revisional court in very exceptional cases having regard to all aspects including ramification of such suspension. Therefore, the said case does not in any way helpful to the State. 19. Similarly, in Eera through Dr. Manjula Krippendorf (supra), which was relied upon by the State, the apex Court dealt with the case of Protection of Children from Sexual Offences Act, 2012. The said judgment is also not applicable to the present case, and the same is distinguishable from the present one. 20. In view of the factual and legal matrix, as discussed above, this Court is of the considered view that if the petitioner has been exonerated from the charges leveled against him in a disciplinary proceeding, which was initiated on the selfsame facts, merely because the vigilance case is pending, though the standard of proof in both the cases are different and even though the standard of proof in case of disciplinary proceeding is lower than the vigilance case, but that ipso facto cannot deny the petitioner the benefit of promotion, which has been kept in sealed cover. Consequentially, this Court directs the opposite party to open the sealed cover and extend the benefit of promotion to the petitioner, if he is otherwise entitled to get the same, with all consequential benefits with effect from the date his immediate junior has been given promotion to the next higher post. The above exercise shall be done within a period of three months from the date of communication of this judgment. 21. Resultantly, the writ petition is allowed and, there shall be no order as to costs.
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