Can departmental proceedings be initiated simultaneously with criminal case?

[Anonymous]

If a government servant is facing a criminal case which is pending for trial in the court, can he be subjected to a departmental proceedings exactly on the same charges simultaneously? Will it not affect the defence of the public servant adversely if both the proceedings are conducted simultaneously?

[Dr. Ashok Dhamija]

As per the guidelines laid down by the Supreme Court, it is possible to simultaneously conduct department proceedings and the criminal proceedings on the same charges.

In this regard, the legal position has been explained by the Supreme Court in the case of State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : AIR 1997 SC 13, wherein it was held that the approach and the objective in the criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, 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 the offences registered against him 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 should not be a 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.

It was further held by the Supreme Court that the indisputable proposition is that there is no legal bar for the criminal prosecution and the departmental proceedings to go on simultaneously but in certain situations, it may not be ‘desirable’, ‘advisable’ or ‘appropriate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rules can be enunciated in that behalf. The only ground constituting a valid ground for staying the disciplinary proceedings is that “the defence of the employee in the criminal case may not be prejudiced”. This ground is, however, hedged in by further proviso that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ‘advisability’, ‘desirability’ or ‘propriety’, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. One of the contending considerations is that the disciplinary enquiry cannot be – and should not be – delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from the Supreme Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and dishonest. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down by the Supreme Court in various decisions.

Recently, in the case of SBI v. Neelam Nag, (2016) 9 SCC 491 : AIR 2016 SC 4351, the Supreme Court reiterated these observations by holding that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straitjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case-to-case basis. In the peculiar facts of the case, the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period.

It was held that the ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But, such defence ought not to be permitted to unnecessarily delay the departmental proceedings. A balance has to be drawn between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by the Supreme Court to be in the interest of the employees. 

[Note: Some contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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