w w w . L a w y e r S e r v i c e s . i n

Dinesh Kumar Sharma v/s Post Graduate Institute of Medical Education and Research, Chandigarh through Director & Others

Company & Directors' Information:- M G INSTITUTE OF EDUCATION PRIVATE LIMITED [Active] CIN = U80301DL2002PTC118047

Company & Directors' Information:- E-GRADUATE INSTITUTE INDIA PRIVATE LIMITED [Strike Off] CIN = U80302TN2003PTC051577

Company & Directors' Information:- M. S. INSTITUTE OF EDUCATION PVT. LTD. [Active] CIN = U80301DL2006PTC152100

Company & Directors' Information:- INSTITUTE OF EDUCATION AND RESEARCH [Active] CIN = U80904UP2012NPL048973

Company & Directors' Information:- P R EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129195

Company & Directors' Information:- V C EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129201

Company & Directors' Information:- R V EDUCATION INSTITUTE PRIVATE LIMITED [Active] CIN = U80903DL2004PTC129311

    O. A. No. 060/00428 of 2016 & M.A. No. 060/01559 of 2016

    Decided On, 02 February 2017

    At, Central Administrative Tribunal Chandigarh Bench

    By, MEMBER (A)

    For the Applicant: R. K. Sharma, Advocate. For the Respondents: Rajesh Garg, Senior Advocate with Surinder Kumar, Advocate.

Judgment Text

Sanjeev Kaushik, Member (J).

1. The applicant herein is aggrieved against memo dated 15.10.2015 and 7.5.2016 issued by respondent no.4 and letter dated 30.03.2016 issued by respondent no.3 whereby his request for staying departmental inquiry pending criminal case on the plea that if he discloses his defence in departmental proceedings then that will prejudice his defence in the criminal case. He has further sought issuance of a direction restraining the respondents from continuing the departmental proceedings initiated vide memo dated 26.03.2014 till conclusion of criminal case.

2. Facts, which led to filing of the O.A., are that the applicant initially joined Punjab State Warehousing Corporation (‘PSWC’ for short) on 25.09.1998 as Accountant on contract basis. Respondent no.1, Post Graduate Institute of Medical Education and Research (‘PGIMER’) issued advertisement in the year 2006 notifying post of Assistant Administrative Officer. The applicant applied for the same through proper channel. He was subjected to interview and was ultimately issued appointment letter on 12.05.2007. Thereafter, he submitted technical resignation on 21.05.2007 which was accepted by the department on 24.05.2007 and, thereafter, applicant submitted joining report with respondent PGIMER on 25.5.2007. In the month of August 2007 applicant submitted a representation go PGIMER for counting his past service rendered in PSWC. On 17.01.2008 a complaint was made by PGI Employees’ Union against the applicant to the Central Vigilance Commission, New Delhi, alleging that applicant had forged signature of the then District Manager Sh. Surinder Kumar on NOC which the applicant had submitted with the PGIMER. The Chief Vigilance Officer, PGIMER, submitted report to Director, CVC vide letter dated 11.10.2008. After being satisfied CVC closed the matter on 31.12.2008 and intimated that Commission is in agreement with the PGIMER’s advice for closure of the complaint. Despite the fact that matter has already been inquired into, another complaint was made by Employees Union, when they did not succeed in their ill motive against the applicant, to SP, CBI, Chandigarh, in the year 2010 which was also marked to PGIMER on 16.09.2010, which was replied to by PGIMER stating therein that they have already verified the matter and also conveyed report of CVC, New Delhi and complaint thereto on similar lines has already been closed. Despite there being a positive response from PGIMER, Vigilance Department of PGIMER issued memorandum against the applicant on 26.07.2014 and simultaneously an FIR No.87 dated 27.05.2014 has also been got registered by Director at Police Station, Sector 11, Chandigarh under Sections 420, 467, 468 and 371 of IPC against the applicant. He was arrested on 27.02.2015 and was released on bail on 10.03.2015 by District and Sessions Judge on 10.03.2015. Vide communicated dated 04.3.2015, applicant was placed under suspension w.e.f. 27.02.2015 when he was arrested in the Criminal Case. Challan in criminal case was presented on 07.07.2015 and thereafter supplementary challan was presented on 02.12.2015 and matter is sub-judice before Court of JMIC, Chandigarh. It is the case of the applicant that criminal and departmental proceedings have arisen from same incidence and same allegations are there on same incidence, therefore, pending criminal case, respondents cannot proceed in the departmental proceedings as it will prejudice his defence. By ignoring his request, the respondents vide order dated 14.02.2015 nominated Inquiry Officer and Presenting Officer and notice was issued to applicant on 30.04.2015 to appear before the Inquiry Officer. Immediately thereafter applicant stated to have submitted various representations requesting therein for staying of departmental proceedings pending criminal case but the same has been turned down. Hence this O.A.

3. In support of the above, Sh. R. K. Sharma, learned counsel for the applicant vehemently argued that impugned decision is contrary to settled law that where criminal case and departmental proceedings are in motion on same set of allegations, then the departmental proceedings are to be stayed till the conclusion of the criminal case. To buttress his statement, he placed reliance upon the judgment passed in case of Indian Overseas Bank, Anna Salai and Anr. vs. P. Ganesh and Others, 2008(1), RSJ 323, Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. And Anr. 1999 (3) SCC 679 and judgment dated 26.03.2014 passed by this Tribunal in case of Sanjay Thorpe vs. UOI & Ors. O.A. No.6977/CH/2013.

4. Respondents while resisting the claim of the applicant have also placed reliance on judgment in case of Indian Overseas Bank (supra) stating that there is no rule of automatic stay when criminal case on same set of facts is pending.

5. On merits, respondents have submitted that though earlier on the same set of facts CVC had dropped complaint against the applicant but this time they have decided to get the signature verified from Sh. Surinder Chaudhary, the then District Manager on the application form submitted by the applicant because they have received a complaint from the CBI in terms of audit para No.50 regarding improper/fraudulent appointment of the applicant. In support of their contention, Sh. Rajesh Garg, Sr. Advocate argued there is no straight jacket formula that once criminal as well as departmental proceedings on same of allegations are pending then departmental proceedings ought to be stopped or postponed till the conclusion of the criminal case, it has to be seen case wise.

6. We have heard learned counsel for the respective parties and have perused pleadings available on record. The question thus arose for our consideration is whether the respondent department be permitted to continue with the disciplinary proceedings which would essentially lead to violation of right to defence of the applicant who is facing prosecution in criminal case. This issue is no more res-integra. The question whether applicant should be compelled to disclose his defence in the domestic inquiry needs to be considered on the premise that as per admitted facts prosecution in the criminal case and departmental action initiated against applicant are found to be on the same set of allegations. What shall be fate of departmental proceedings in a case where the criminal case as well as disciplinary proceedings is based on the same charges and same evidence of witnesses was elaborately dealt with by their Lordships in the case of Capt. M. Paul Anthony (supra). Subsequent to that, following ratio laid down in the case of Capt. M. Paul Anthony (supra), jurisdictional High Court in CWP No.3726 of 2006, Jarnail Singh vs. State of Punjab & Ors. decided on 16.01.2007 has directed the department to keep the disciplinary proceedings in abeyance till conclusion of trial. Following the decision in above two cases, this Tribunal allowed various OAs which became subject matter before the Jurisdictional High Court in CWP No.9033 of 2013 UOI & Others vs. Central Administrative Tribunal & Ors. whereby jurisdictional high court laid down procedure for keeping departmental proceedings in abeyance till the delinquent will disclose his defence in criminal case, which reads as follows:

'[i] the Special Judge, CBI, Patiala shall decide the issue pertaining to framing of charges as early as possible but not later than 31.10.2013;

[ii] the Special Judge, CBI, Patiala shall determine the list of witnesses to be produced by the prosecution and shall fix a time-schedule for their examination within a reasonable period. The prosecution shall be required to adhere to the time-schedule that may be laid down by the learned Presiding Judge;

[iii] the Special Judge, CBI, Patiala shall make an endeavour to conclude the trial as early as possible and preferably within a period of one and half years;

[iv] no sooner respondent No. 2 or his co-employees take their defence plea in the criminal case, whether during the course of cross-examination of the prosecution witnesses and/or by leading defence evidence, the petitioners shall be at liberty to proceed with the departmental action as that would be a stage which shall cause no prejudice to respondent No. 2 or other delinquent officials.'

Co-ordinate Bench of this Tribunal in the case of Sanjay Thorpe (supra) has again reiterated what has been held by the Lordships and have held that there is no complete bar in proceeding simultaneously in departmental inquiry and criminal case as it is neither permissible nor prudentially correct to set a straight jacket formula, which will universally answer the question in the negative or affirmative. The law has to be applied to the facts of a given case. The principle of ratio decidendi also requires that the fact of the each case is to be considered in the light of what has already been held by their Lordship of the Hon’ble Supreme Court.

7. In the light of above, it is important to examine contents of the FIR lodged against the applicant and charge sheet served upon him. Perusal of both makes it clear that pith of substance of criminal and departmental proceedings are same i.e. the applicant has forged signature on the NOC issued by his earlier employer. Thus, it can be safely concluded that article of charge and allegations

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in challan are identical and disclosure of defence in departmental proceedings prior to disclosure of statement or defence in the criminal case will certainly prejudice right of the applicant in criminal case. Thus, following with the law laid down by jurisdictional high Court in case of UOI & Others vs. Central Administrative Tribunal & Ors. (supra), we allow this petition and direct the respondents not to force the applicant to disclose his defence in departmental proceedings till he discloses the same before the criminal court. It shall also be made clear that if the applicant lingers the criminal case where he has to disclose his defence first, then department is free to launch departmental proceedings further. As soon as applicant discloses his defence or cross examines the witnesses which are key witnesses and go to the root of the allegations levelled against him, the department will restart departmental proceedings. 8. With the above observations, the O.A. along with M.A. No.060/01559/2016 are disposed of. No costs.