A question is raised whether an employee can be subjected to disciplinary inquiry for the same set of facts for which a criminal proceeding is also contemplated or instituted. Primarily any misconduct attributable to a public servant in a service matter has civil consequences and should be dealt with according to service rules and provisions for applicable for subjecting him to a departmental enquiry which may or may not result into a punishment under the rules but any punishment imposed upon an employee under the service rules has the consequences on the prospects of his employment. But at the same time, a misconduct committed by an employee has the element of criminal force as well presuming that an employee has committed some embezzlement which is of course misconduct under the Service Rules as he has not maintained total devotion and integrity to his duties and is liable to be dealt with as per service rules but embezzlement is a criminal offence also for which the proceeding under the criminal law can be instituted against the employee.
This issue invited the attention of the Hon’ble Supreme Court in a number of cases and in the case of State of Rajasthan v. B.K. Meena (1996) 6 SCC 417, the Hon’ble Supreme Court laid down the principle that in grave cases the enquiry should be permitted to be completed as expeditiously as possible otherwise the administration would be jeopardized and considered the question whether it would be right to stay criminal proceeding pending a departmental enquiry.
It was observed by Hon’ble K. Venkataswamy J.,
“it would be evident from the above decision that each of the proceedings starts with the undisputed proposition that there is no legal bar for both proceedings to go on simultaneously and further opined that in certain situations it may not be desirable, advisable or appropriate to proceed with the disciplinary inquiry when a criminal case is pending on identical charges. The stay of a disciplinary proceeding is a matter to be determined having regard to the facts and circumstances of a given case and with no hurt and offence can be enunciated in that behalf. The only ground suggested in the above decision as a valid ground for staying the disciplinary proceeding is that the defense of the employee in the criminal case may not be prejudiced. This ground has been added in by providing further that this may be done in case of grave nature involving questions of fact and law and not only the charges must be grave but the case must involve complicated questions of law and fact. Moreover, advisability, desirability, and propriety have to be determined in each case on the basis of its facts and circumstances.”
One of the contending considerations is that disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned it is well known that they drag endlessly when high officials or persons holding high public offices are involved. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry. The interest of administration and good governance demands that these proceedings are concluded expeditiously and it is not in the interest of administration. It only serves the interest of the guilty. A full bench of the Hon’ble Supreme Court in the case of Depot Manager, A.P.S.R.T.C. v. Mohd. Yusuf Miyan and others, (1997) 2 SCC 699 held that there is no bar to proceed simultaneously with the departmental enquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law. This issue was again considered in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd and Anr (1999) 3 SCC 679 and the Hon’ble Supreme Court laid down the following five parameters to help make a decision regarding the conduct of both proceedings
- Departmental Proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
- If the departmental proceedings and the criminal case are based on an identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
- 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 the offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during the investigation or as reflected in the charge sheet.
- 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.
- If the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings even if were stayed on account of 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.
As per the guidelines laid down by the Supreme Court, it is permissible to conduct the departmental proceeding as well as the criminal proceeding simultaneously on the same charges. The legal position in this regard was further crystallized by the Hon’ble Supreme Court in the case of State of Rajasthan v. B.K. Meena (supra) and it was settled that the approach and objective in the criminal proceeding and disciplinary proceeding are altogether distinct and different. On one hand in the disciplinary proceeding, the question is whether the employee is guilty of such conduct which may merit his dismissal or imposition of any other punishment as per service rules, as the case may be, but in the criminal proceeding, the question is whether an offence attributed against the employee, if established, would warrant punishment under the criminal law.
No doubt, the Hon’ble Supreme Court has settled through a catena of judgments that the standard of proof, procedure of enquiry and the Rules governing disciplinary proceeding are altogether different from the standard of proof, mode of trial and the provisions governing the criminal act in disciplinary proceeding and an employee may be punished on mere preponderance of probability in a departmental proceeding whereas to establish the charge against him under the criminal law the employee has to be proved guilty beyond doubt, on these premises the legal proposition was settled that stay of disciplinary proceeding during pendency of criminal proceeding should not be a matter of routine but has to be considered decision based upon the facts that the evidences in departmental and criminal proceedings are same and identical as well as based upon similar set of facts and the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact but similarity in evidence, the facts of the charges are the issues which have to be considered only after the charges have been framed int the criminal case and the chargesheet has been issued in the departmental proceeding. The Hon’ble Supreme Court in the case of State Bank of India v. Neelam Nag 2016 9 SCC 491 again had the occasion to consider this issue and again propounded that there is no legal bar to the conduct of the disciplinary proceeding and criminal trial simultaneously. It was stressed that the court has to keep in mind the broad approach to be adopted in such matters on case to case basis and pendency of the criminal case against the delinquent employee cannot be the sole basis to suspend the departmental proceeding for an indefinite period. The balance has to be drawn between the need for a fair trial to the accused on one hand and in an ongoing disciplinary proceeding on the other hand. The Hon’ble Supreme Court itself has stressed upon the need for the conclusion of the disciplinary proceeding expeditiously and the criminal liability of an employee cannot be overlooked simply for the reason that for the same set of charges, the disciplinary proceeding is also instituted against him. As such simultaneous departmental and criminal proceedings are not double jeopardy.