Criminal Proceedings And Disciplinary Enquiry Can Go On Simultaneously: Andhra Pradesh High Court

Furthermore, Justice Ravi Nath Tilhari observed that the charges framed against the petitioner in the departmental proceedings were different from the charges in criminal proceedings under Section 13(1) of the Prevention of Corruption Act read with Section 109 IPC. In addition, there was no question of any disclosure of defence in the departmental proceedings as in Section 13(1) of the Prevention of Corruption Act, the onus was on the accused to prove that the assets found were not disproportionate to the known source of income.

Brief Facts of the Case

The petitioner was appointed in the respondent Corporation namely the Cotton Corporation of India Limited as Junior Cotton Purchase Officer in 1979 and retired on attaining the age of superannuation on 28.02.2011.

The CBI had registered cases against the Petitioners and his family members for alleged possession of disproportionate assets and FIR for Criminal Conspiracy, cheating and abuse of official position in 2006.

The Corporation initiated the disciplinary proceedings against the petitioner under its Conduct Rules. The petitioner had requested for the enquiry to be kept in abeyance till disposal of the criminal cases. But the departmental proceedings continued. The present writ petition has been filed on the ground that before conclusion of the criminal case, the departmental proceedings cannot be proceeded with.

Mr. Adithya Harshavardhan, counsel for the petitioner submitted that the departmental proceedings and criminal proceedings against the petitioner were based on same set of facts and the charges framed in the criminal case were grave in nature and if the petitioner was asked to disclose his defence in the departmental proceedings, prejudice would be caused to him.

Ms. Durga Lavanya, counsel appearing for respondent submitted that the charge before CBI court was with regard to possession of disproportionate assets to the tune of Rs. 1 crore and the disciplinary proceedings was with regard to non-intimation o movable and immovable properties in the name of petitioner and his family members which were undervalued and the charge was of misconduct.

Issue

Whether the departmental proceedings against the petitioner can be continued and concluded during pendency of criminal proceedings against him?

Findings of the Court

Justice Ravi Nath Tilhari relied on the recent judgment in K. Sridhar v. Andhra Pradesh State Road Transport Corporation (2021) in which the AP High after considering various judgments of Apex Court, reiterated that disciplinary and criminal proceedings can continue simultaneously and pendency of the criminal proceedings is no legal bar for conducting departmental proceedings.

In another recent case, in Pravin Kumar v. Union of India (2020), the Supreme Court held that the employer retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding. Furthermore, strict rules of evidence and procedure of a criminal trial are inapplicable to disciplinary enquiry.

With regard to prejudice, in Hindustan Petroleum Corporation Limited v. Sarvesh Berry (2005) the Hon'ble Supreme Court held that in Section 13(1) of the Prevention of Corruption Act, the onus was on the accused to prove that the assets found were not disproportionate to the known source of income. Therefore, there was no question of any disclosure of defence in the departmental proceedings.

In respect of undue delay in criminal proceedings, in Indian Overseas Bank, Anna Salai v. P. Ganesan (2008), the Hon'ble Apex Court relied on Hindustan Petroleum Corporation (supra) to hold that:

"There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted, on one hand, to prolong the criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending."

In view of the settled legal position that if a criminal case was unduly delayed that may itself be a good ground for going ahead with disciplinary proceedings as also that the delinquent official could not be permitted to prolong the criminal case on one hand and at the other hand to contend that the disciplinary proceedings be stayed on the ground that the criminal case is pending.

For all the aforesaid reasons, the writ petition was dismissed.

Case Title: Subba Rao v. Enquiry Officer, Cotton Corporation of India & Ors.

Citation :2022 LiveLaw (AP) 121