I.A. Ansari, J.@mdashThis application made, under Article 226 of the Constitution of India, by the petitioner, who is Deputy Director of School
Education (under suspension), Tawang District, Tawang, raises two important questions, namely, (i) whether appointment of Respondent. No. 2
(who is informant of Tawang Police Station Case No. 21/2000 u/s 409/120(B) IPC lodged against the petitioner) as Enquiry Officer in the
departmental proceedings drawn against the petitioner on the same/similar facts, which have given rise to the police case aforementioned, is legal,
proper, justified and/or valid and (ii) whether, during pendency of Tawang Police Station Case No. 21/2000 aforementioned, departmental
proceedings drawn against the petitioner can be allowed to proceed.
2. Since a large number of legal battles and departmental proceedings have preceded the filing of this writ petition, it is but natural that facts,
necessary for disposal of this writ petition, are somewhat cumbersome in nature. In a narrow compass, however, petitioner''s case may be put as
follows :
The petitioner joined as Assistant Director (Material) in the State Resource Centre for Adult Education under the Directorate of Education, at
Itanagar, on 12.10.89. Since his appointment, the petitioner has been subjected to frequent and premature transfers, he has been involved in false
criminal cases and departmental proceedings, he has been unjustly placed under suspension and denied promotion. Left with no alternative, the
petitioner instituted Civil Rule No. 2533 of 1993 and on the basis of the judgment and order dated 6.9.1994, passed therein, the petitioner was
promoted, but his harassment by way of subjecting him to premature transfers has continued. When the petitioner was sought to be prematurely
transferred from his present post of Deputy Director of School Education, Tawang, to Bomdila, to act as Principal of Higher Secondary School at
Bomdila, the petitioner made a representation, dated 2.8.2000, which was forwarded to the Government by the respondent No. 2. As the
Government did not respond to the petitioner''s representation aforementioned, he instituted Writ Petition (c) No. 4330 of 2000 and vide order,
dated 9.8.2000, passed in this case, petitioner''s transfer was stayed. Having come to know of the stay order passed in the said writ petition, the
respondent No. 2 became hostile to the petitioner and lodged a complaint, vide his letter No. TC-45(PT)/2000, dated 7.9.2000, addressed to the
Superintendent of Police, Tawang District, Tawang, implicating the petitioner on false accusation of misappropriation/over-drawal of money, which
resulted into registration of Tawang Police Station Case No. 21/2000 (corresponding-to GR Case No. 23/2000) u/s 409/120(B) of the Indian
Penal Code against the petitioner. Notwithstanding the pendency of the petitioner''s application for pre-arrest bail made before this Court, he was
arrested by the police in connection with the case aforementioned, but was subsequently enlarged on bail by order, dated 27.11.2000, passed by
learned Judicial Magistrate, First Class, Tawang, Arunachal Pradesh. In the meanwhile, however, the petitioner was placed under suspension by
an order bearing No. SEDN/41 /93/PT, dated 13.11.2000, which was communicated to the petitioner vide Memo No. SEDN/41/93/PT, dated
15.11.2000, but for several months, thereafter, neither disciplinary proceeding was initiated, nor was the petitioner paid subsistence allowance. In
the past also, when the petitioner was, similarly, involved in disciplinary proceedings, his subsistence allowance was not paid to him for a long
period and the petitioner had to approach this Court seeking direction(s) for obtaining his subsistence allowance. Though the petitioner prayed for
revoking his suspension by submitting applications, dated 12.12.2000 and 3.1.2000, the same was not revoked and it was only after the petitioner
submitted a reminder thereto by his letter, dated 10.4.2001, that by Memorandum No. SEDN/41/93/PT, dated 9.4.2001, issued by the
Respondent No. 1, the petitioner was given notice of a departmental proceeding drawn against him and was accordingly served with article of
charges, statements of imputations, etc. In the meanwhile, police had already submitted, on 31.12.2000, charge-sheet against the petitioner, in
Tawang Police Station Case No. 21 /2000 aforementioned. Moreover, after the issuance of the Memorandum, dated 9.4.2001 aforementioned,
Tawang police examined, on 19.4.2001, the respondent No. 2 as a prosecution witness/ informant of the case and submitted, on 19.4.2001 itself,
a supplementary charge-sheet against the petitioner. Immediately upon being served with the Memorandum, dated 9.4.2001, aforementioned, the
petitioner vide his letter, dated 30.4.2001, requested the respondent No. 1 to furnish copies of the documents relied upon and listed in Annexure-
III to the said Memorandum, but the copies thereof were not furnished to the petitioner and he had to submit, under such constraints, the written
statement of his defence vide his letter, dated 3.5.2001. In his written statement, the petitioner stated, inter alia, that on the same/similar set of facts
a criminal case, as aforesaid was pending against the petitioner, he was, on account of the pendency of the criminal case, handicapped and not in a
position to effectively represent himself in the departmental proceedings inasmuch as he was unable to disclose his defence and he could not have
been compelled to disclose his defence until before the trial of the criminal charge(s), on the same allegations as were made in the departmental
proceedings, was over. This apart, despite the fact that the respondent No. 2 was the informant of Tawang Police Station Case No. 21/2000
aforementioned, which was lodged against the petitioner, the Chief Secretary to the Government of Arunachal Pradesh vide his order No.
SEDN/41/93/PT, dated 4.7.2001, appointed the respondent No. 2 as Enquiry Officer to enquire into the charges formulated against the petitioner.
The petitioner vide his representation, dated 20.7.2001, objected to the appointment of respondent No. 2 as Enquiry Officer. Though the
petitioner was granted station leave permission by the State Government for a period of 40 days from 17.12.2001 to 27.1.2002 for the purpose of
enabling him to hold consultations with his legal advisers in connection with the Writ Petition (C) No. 4330 of 2000 aforementioned and also for
enabling him to visit his home town, Gorakhpur, to attend to some domestic work, the respondents No. 2, being hostile to the petitioner, fixed
28.12.2001 for holding enquiry against the petitioner. The petitioner claims that left with no other alternative, he has, now, approached this Court
seeking redress of his grievances.
3.1 have heard Mr. T. C. Khetri, learned counsel for the petitioner, and Mr. R.H. Nabam, learned Addl. Senior Govt. Advocate who has
appeared on behalf of the State respondents.
4. Before entering into the merit of this writ petition, it needs to be noted that this Court vide order, dated 20.12.2001, passed in this case, stayed
further progress of the departmental proceedings drawn against the petitioner and the same accordingly stands stayed.
5. It is also worth noticing, at the very outset, that though the respondents have contested this case, they have not filed any affidavit-in-opposition.
Situation thus, this Court has to proceed treating the statements of facts averred in the writ petition and also in the additional affidavit of the
petitioner as admitted facts. A reference may be made, in this regard, to the case of Smt. Naseem Bano Vs. State of U.P. and others, . This
position is, in fact, not disputed by the learned counsel for the respondents.
6. Shorn-off the lengthy details of the case placed by the petitioner, the essential facts, which surface unscathed, are that a departmental
proceeding stands drawn against the petitioner for allegedly misappropriating diverse sums of money, while functioning as Deputy Director of
School Education, Tawang. With regard to the same/similar allegation of misappropriation, the respondent No. 2, admittedly, in his capacity as
Deputy Commissioner, Tawang, vide his letter, dated 7.9.2000 (Annexure-C to the writ petition) lodged a written complaint to the Superintendent
of Police, Tawang, which resulted into registration of Tawang P.S. Case No. 21/2000 under Sections 409/ 120(B) IPC aforementioned against
the petitioner and upon investigation, the respondent No. 2 has been cited as a witness/ informant by the police in the charge-sheet filed by the
police.
7. In the face of the above admitted facts, there can be no escape from conclusion that the respondent No. 2, however honest he may be, is,
indeed, an important and interested witness on behalf of the prosecution and in such a situation, making him Enquiry Officer to enquire into the
truthfulness and/or correctness of the allegations, which he (respondent No. 2) had himself, admittedly, made/ complained of, can, by no stretch of
imagination, be regarded as a fair and just appointment. In fact, despite petitioner''s protest to the appointment of the respondent No. 2 as Enquiry
Officer, the authority concerned appears to have remained rigid and maintained studded silence, which, to say the least, is the positive sign of being
not. only insensitive, but also highly unfair to the petitioner.
8. Coupled with the above, insistence of the respondents to continue to proceed with the departmental enquiry, without awaiting disposal of the
criminal case, is contrary to, and in disregard of, well settled position of law that when the criminal action and the disciplinary proceedings are
founded upon the same set of facts, the disciplinary proceedings shall be kept stayed/suspended until the criminal action comes to an end. I am
guided to adopt this view from the law laid down in the case of Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, , wherein the Apex
Court has, while laying down the law on the subject, observed as follows :-
The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous
proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal
case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether
in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial
consideration and the Court will decide in the-given circumstances of a particular case as to whether the disciplinary proceedings should be
interdicted, pending criminal trial.........
In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the
disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court''s order of injunction which had
been affirmed in appeal.
The appeal is allowed and the order of the High Court is vacated and that of the trial court as affirmed in appeal is restored. The appellant shall be
entitled to costs. Hearing fee is assessed at Rs. 2000."" (emphasis is applied by me)
9. In view or the fact that the departmental proceeding drawn against the petitioner is substantially on the same set of facts as those on which rest
the criminal case launched against the petitioner, it will be, undoubtedly, wholly unfair to force the petitioner to disclose his defence in the
departmental proceeding until the criminal trial is over. When viewed from this angle, there remains no room for doubt that the disciplinary
proceeding drawn against the petitioner ought to have been kept stayed/deferred/suspended until decision of the criminal trial.
10. In fact, Mr. Nabam has not been able to assign any reason as to why the respondent No. 2 was made the Enquiry Officer in the disciplinary
proceedings aforementioned and as to why the State Government has insisted on maintaining the respondent No. 2 as Enquiry Officer despite the
fact that the respondent No. 2 was the one, who had lodged the complaint with the police against the petitioner alleging misappropriation of
Government funds by the petitioner. Mr. Nabam has also not been able to justify as to why the disciplinary proceeding was insisted to be
continued during the pendency of the criminal case aforementioned, which involve the same set of facts/witnesses/documents as the departmental
proceeding, particularly, when the petitioner had made it clear that he was unable to project his defence effectively in the departmental proceeding
on the ground that the criminal case was pending against him on the same set of facts.
11. In the result and for the reasons discussed above, this writ petition succeeds. The Impugned orders dated 6.7.2001 and 14.12.2001
(Annexure-F and Annexure-L respectively to the writ petition) are hereby set aside and quashed and the departmental proceeding drawn against
the petitioner is directed to be kept in abeyance until conclusion of the criminal trial arising out of Tawang P.S. Case No. 21/2000 aforementioned.
Lest the pendency of the criminal trial delays the finalisation/disposal of the departmental proceeding, the learned Judicial Magistrate, Tawang, who
is in seisin of Tawang P.S. Case No. 21/2000 aforementioned, is hereby directed to expeditiously disposal of the case in accordance with law.
12. Send forthwith a copy of this judgment and order to the learned Judicial Magistrate, First Class, Tawang, aforementioned.
13. With the above observations and directions, this writ petition shall stand disposed of.
14. No order as to costs.
