S. Saghir Ahmad, J.@mdashThese two petitions raise a common question of law and are, therefore, being disposed of by this common judgment.
2. Brij Bhushan Dwivedi, who is petitioner in writ petition No. 5035/83 is Upper Division Assistant in the Lucknow office of Khadi and Village Industries Commission. On 17381 FIR (Annexure 1) was lodged against the petitioner at the police station concerned, under Section 409/420/467 and 468 of the Indian Penal Code, on the basis of which a criminal case was registered against the petitioner. After necessary investigation, a charge sheet has been submitted against the petitioner and now the criminal case is pending in the court of Chief Judicial Magistrate, Lucknow.
3. It may be stated that the petitioner had surrendered in court on 6481 and was released on bail on 14481. By an order dated 2581 (Annexure 2), the petitioner was placed under suspension with effect from 6481, the date of his arrest. This order was passed in terms of Regulation 30 of the Khadi and Village Industries Commission Employees (Conduct, Discipline and Appeal) Regulations, 1961.
4. The Commission has also initiated departmental proceedings against the petitioner and charge sheet has been issued to him. The petitioner has prayed that the suspension order (Annexure 2) and the charge sheet issued in departmental proceedings may be quashed and, in any case, the departmental proceedings may be stayed till the disposal of the criminal case pending against him.
5. Sushil Kumar Srivastava, who is petitioner in writ petition No. 4041/84 is Senior Accountant in the U.P. State Mineral Development Corporation Ltd., Lucknow (hereinafter called, the Corporation). On 7884, FIR under Section 409/467/468 was lodged at the police station, Hazratganj, Lucknow against the petitioner by Hira Lal Agarwal, Manager (Finance) of the Corporation on the basis of which a criminal case No. 126/84 has been registered against the petitioner. The petitioner surrendered in court and was released on bail on 2684. The petitioner, in the meantime, was suspended by an order dated 7284 (Annexure 2). The departmental proceedings have also been initiated against the petitioner and a charge sheet dated 17484 has been issued in which the charges mentioned are the same as are to be considered by the criminal court in criminal case No. 126/84. The petitioner gave an application (Annexure 3) to the Managing Director of the Corporation requesting him to stay the disciplinary proceedings till the disposal of the criminal case but the application was rejected on 7784. The petitioner has accordingly prayed that the suspension order dated 7284 (Annexure 2) may be quashed and the opposite parties may be directed by a writ of mandamus to stay the departmental proceedings till the disposal of criminal case.
6. A Bench of this court by its order dated 16884 had directed the writ petition to be disposed of finally alongwith writ petition No. 5034 of 1983 and that is how the cases are before us for hearing.
7. We have heard the learned counsel for the parties.
8. Brij Bhushan Dwivedi, as stated earlier, is an employee of the Khadi and Village Industries Commission (for short, Commission). The Commission, in exercise of the powers conferred by Section 27 of the Khadi and Village Industries Commission Act, 1956 (61 of 1956), has made Khadi and Village Industries Commission Employees (Conduct, Discipline and Appeal) Regulations, 1961. It is provided by Regulation 30 that an employee who is arrested on a criminal charge shall be considered as under suspension from the date of his arrest. The authority which can pass an order of suspension has been indicated in Regulation 23. It is provided by Regulation 24 that the suspended employee shall receive the subsistence allowance, which shall not exceed 50% of his basic salary and allowances during the period of suspension. The order of suspension is appealable, under Regulation 34, to the authority to which the authority which may or is deemed to have made the order of suspension is immediately subordinate.
9. The impugned orders of suspension have been challenged on the ground that the provisions contained in Regulation 30 are bad as they do riot provide for the maximum period of suspension and, therefore, an employee can Continue to be treated under suspension even after the ultimate decision and his acquittal from the criminal case. We are not impressed by this submission. Since the suspension under Regulation 30 rests on the criminal charge, it is obvious that the suspension would come to an end on the conclusion of the criminal Case. It has been made explicit in Regulation 31 itself that an employee who is convicted of a criminal offence shall be liable to be dismissed from the date of the judgment/order. It is further provided that the employee, on his acquittal, would be reinstated in service. The suspension, therefore, is coterminus with the criminal trial and consequently the provisions cannot be said to be arbitrary or oppressive in character. The order of suspension cannot, therefore, be set aside on the ground urged on behalf of the petitioner.
10. Learned counsel for S.K. Srivastava, who is petitioner in the writ petition No. 4041 of 1984, has stated that the Corporation in respect of its employees has adopted the rules applicable to the employees of the State Government and has not made separate Rules. If that be so, the petitioner''s case would be governed by the provisions of Rule 49A of the U.P. Civil Services (Classification, Control and Appeal) Rules which contain a specific provision for suspending an employee on account of his arrest on a criminal charge or on account of the pendency of investigation, enquiry or trial in a criminal case. The suspension order cannot, therefore, be quashed in this case as well.
11. The next question on which the learned counsel for the parties have made their submissions rather at length relates to the stay of departmental proceedings during the pendency of the criminal trial.
12. Public employment is a matter of status. When a person joins government service or is employed by any other authority or Corporation, he becomes amenable to the disciplinary control of the employer. His activities as an employee can be regulated by the employer either by means of executive/administrative orders or by service rules. A breach of the administrative or executive instructions or service rules or, for that matter, any conduct of the employee which has a bearing on his character as such, may form the subject matter of disciplinary action against him. The disciplinary action is normally held in accordance with the procedure prescribed by the departmental Rules and such procedure, necessarily, has to be in consonance with the principles of natural justice. But the employer while conducting the departmental enquiry is not bound by the technical rules of evidence contained in the Evidence Act or by the procedure prescribed in the Code of Civil Procedure.
13. A trial in a court of law is not the same thing as a departmental enquiry or domestic trial. The courts of law have to function strictly in accordance with the procedure prescribed by law and that too within the scope of their jurisdiction. They have to follow the substantive and the procedural law, the evidence, be it oral or documentary, has to be produced in accordance with law and the courts are bound to observe the rules of evidence contained in the Evidence Act. The fact that the trial in a court of law is to be held in accordance with the procedural and substantive law, is by itself a sufficient guarantee for a fair trial. The standard of proof required in the two proceedings i.e. (i) before the criminal court, and (ii) before the enquiry officer in a departmental trial, is also not the same. In State of Andhra Pradesh v. Sreerama Rao AIR 1953 SC 1723 (1725V the Supreme Court rejected the contention that the standard of proof in the two proceedings is identical.
14. The rule relating to appreciation of evidence in the two proceedings is also not identical as observed by the Gujarat High Court in Chasasing (Sic) Vaghela v. S.D. Mehta, AIR 1966 Guj 223 : �In a criminal trial, the court invariably proceeds on the presumption that accomplice evidence is suspect and shall not be acted upon without an independent corroboration in material particulars. An enquiry officer is not bound by any such rule.� In S. A. Venkataraman v. Union of India AIR 1954 SC 375, it has been held that Article 20(2) of the Constitution would apply where there has been �prosecution and punishment�. The words �prosecuted and punished� are to be taken not distributively so as to mean �prosecuted� or �punished�. Both the factors must coexist in order that the clause may be attracted.
15. The question whether the departmental proceedings based on the same charges which are the subject matter of a criminal trial in a court should be stayed till the decision of the criminal case or should be allowed to continue simultaneously with the proceedings in the criminal court, is to be decided in the above background and in the light of a large number of judicial pronouncements.
16. In Delhi Cloth Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806, it has been laid down as under :
�It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Sri Bimal Kant Mukherjee v. Messers Newsman''s Printing Works, 1956 Lab AC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.�
17. In the above case the respondent who was the employee of the Delhi Cloth Mills was being prosecuted for an offence under Section 379 Indian Penal Code for having stolen the bicycle belonging to the Head Clerk of the Mill. This bicycle was recovered from the Railway Station cycle stand at the instance of the respondent who took the police there and picked out the stolen bicycle from amongst 50/60 bicyles standing there. In the meantime, the departmental proceedings were also initiated against him but the respondent did not participate in those proceedings on the ground that a criminal case was pending against him and that he would not produce any defence till the matter was decided by the court. The domestic enquiry was completed against him and he was dismissed from service. The Mill applied for approval of the order of dismissal under Section 33(2) of the Industrial Disputes Act, 1947. In the meantime, the respondent was acquitted by the criminal court on the ground that the case against him was not free from doubt. The tribunal then refused to approve the order of dismissal and it was at this stage that the matter came up before the Supreme Court where it was urged on behalf of the Delhi Cloth Mills that it was not bound to wait for the result of the trial in the criminal court and that it had legally proceeded to complete the domestic enquiry and passed the order of punishment. It was in these circumstances that the Supreme Court laid down the law quoted above. The Supreme Court laid down the following guidelines :
(a) if the case is of a grave nature ; or
(b) involves questions of fact and law which are not simple ;
it would be advisable for the employer to await the decision of the trial court, so that defence of the employee in the criminal case may not be prejudiced.
18. In Bhagat Singh v. State of Punjab, AIR 1960 SC 1210, it was laid down that Sections 29 and 35 of the Police Act nowhere exclude departmental enquiry. If a police officer commits an offence under the Police Act, then he has to be tried by a First Class Magistrate. That does not mean that departmental enquiry cannot be held with respect to a matter where it is also possible to prosecute a police officer under the Police Act. This view was also expressed in State of U.P. and others v. Harish Chandra Singh, AIR 1969 SC 1020. In Jang Bahadur Singh v. Baij Nath Tewari, AIR 1969 SC 30, it was laid down that an enquiry by a domestic tribunal in exercise of its power in good faith into the charges of misconduct against an employee does not amount to attempt of court merely because an enquiry into the same charges is pending before a civil or criminal court. The Supreme Court also observed that the employee was free to move the court for an order restraining the continuance of the disciplinary proceedings. The Supreme Court in Sardar Pratap Singh v. State of Punjab, AIR 1964 SC 72, observed that it was in the discretion of the government either to launch criminal prosecution or to start the departmental proceedings.
19. The Delhi Cloth Mills case (supra) was followed in J.K. Cotton Spinning and Weaving Co, v. Its Workmen, 1965(2) Labour Law Journal 153(SC) wherein it was laid down that the employer need not wait for the criminal proceedings to end before initiating the departmental proceedings. This was again the case of theft where the employee was being prosecuted under Section 380 Indian Penal Code. The departmental proceedings which were initiated simultaneously with the criminal case, were held as ex parte as the employee had written to the enquiry officer that he would produce his defence before the Magistrate before whom the criminal case was pending and that the enquiry may be adjourned till the disposal of the criminal case.
20. The Supreme Court, however, appears to be emphatic in Tata Oil Mills Co. Ltd. v. Its Workmen, AIR 1965 SC 155, in laying down as under :
(i) It is desirable that if the incident giving rise to a charge framed against the workmen in a domestic enquiry is being tried in a criminal court, the employer SHOULD (emphasis supplied) stay the domestic enquiry pending the final decision of the criminal case ;
(ii) it would be particularly appropriate to adopt such course where the charge against the employee is of a grave character.
(iii) it would be unfair to compel the employee to disclose defence which he may take before the criminal court;
(iv) to say that domestic enquiry may be stayed pending criminal trial is very different from saying that if an employer proceeds with the domestic enquiry in spite of the fact that the criminal trial is pending, the enquiry for that reason alone is vitiated and the conclusion reached in such an enquiry is either bad in law or malafide.
21. The question whether a departmental enquiry should be stayed pending conclusion of the criminal case came up for consideration before the Jammu & Kashmir High Court in Sardar Harbans Singh v. The Transport Commissioner and another (AIR 1966 J&K 73. Murtaza Fazal Ali, J. (as he then was) held that a prayer made by the employee for staying departmental enquiry in such circumstances cannot be said to be unreasonable. The Supreme Court decisions in Delhi Cloth Mills v. Kushal Bhan (supra), Tata Oil Mills Co. Ltd. v. Workmen (supra) and Jang Bahadur Singh v. Baij Nath Tewari (supra) were not noticed but the law which was laid down by Murtaza Fazal Ali J, was fully in consonance with the Supreme Court decisions. It was laid down as under :
�It would thus appear that while the department is not debarred from holding departmental enquiry, it has to exercise its discretion 5'' the following manner. If no criminal prosecution is launched against the petitioner it can certainly go ahead with the departmental enquiry against the petitioner. If, however, a criminal prosecution is launched against the petitioner, then the department can hold the departmental enquiry only after the conclusion of the trial of the case. The fact that the petitioner is acquitted in the criminal case will not be any bar to the holding of departmental enquiry or to the Head of Department coming to a conclusion contrary to the one arrived at in the criminal court.�
22. It will be useful at this stage to refer to another Supreme Court decision in Corporation of the City of Nagpur and another v. Ramchandra and others, 1981 (2) SLR 274, in which the law laid down was not different from the decision rendered by Murtaza Fazal Ali, J. in the case of Sardar Harbans Singh (supra). In the case of Corporation of the City of Nagpur (supra) the petitioner was supervising the constructions of Jaswant Stadium. During the course of the construction, 7 persons died and 8/9 persons received injuries. On account of which a criminal case under Section 304 Indian Penal Code was registered against the petitioner, who was placed under suspension. Since the departmental proceedings had also been initiated simultaneously with the initiation of the petitioner''s prosecution, the Supreme Court laid down as under :
(i) The Magistrate should dispose of the criminal case expeditiously;
(ii) in case of acquittal, whether or not the departmental proceedings are to continue is to be decided by the department after taking into consideration the nature of findings recorded by the criminal court ;
(iii) normally where the accused it acquitted honourably and is completely exonerated of the charges against him, it would not be expedient to continue the departmental proceedings on the same Charges ;
(iv) merely because the accused has been acquitted by the criminal court does not mean that the power of the authority concerned to proceed with the departmental enquiry has Come to an end.
23. The Supreme Court accordingly directed in that case that if the accused was acquitted of the charge under Section 304A IPC, the suspension order passed against him would be revoked he would be reinstated in service and full salary would be paid to him if it was at all intended to continue the departmental proceedings against him. It was also provided that he would continue to be paid full salary during the pendency of the departmental proceedings.
24. The Madras High Courts in Sheikh Kasim v. Superintendent of Post Offices, AIR 1965 Mad 502, on a consideration of various authorities including the Supreme Court decision in Delhi Cloth Mills Ltd. (supra) and State of Andhra Pradesh v. Shreerama Rao (supra) laid down three principles but this decision was reversed in a Letters Patent Appeal by a judgment reported in 1975 (1) Labour Law Journal 378.
25. The Gujarat High Court in Moti Singh v. S. D. Mehta (supra) has referred the decision of the Madhya Pradesh High Court in Qamarali Wahid All v. State of Madhya Pradesh, AIR 1959 MP 46, in which it was laid down that the departmental enquiry on the same charges on which a criminal trial resulted in the acquittal of the delinquent employee would not be proper. The Gujarat High Court held that Article 22(2) of the Constitution of India would not operate as a bar to the departmental proceedings after the conclusion of the criminal trial resulting in acquittal. It was pointed out that an officer initiates departmental enquiry for the purposes of satisfying himself as to whether, in fact, the delinquent is guilty of any misconduct or delinquency which requires to be dealt with in the interest of Public administration. He does not hold the departmental enquiry to find out whether the findings recorded by the criminal court were right or wrong.
26. This court in Bhagwat Charan v. State of Uttar Pradesh and others, 1973 (2) SLR 238, held that if a person was honourably acquitted of the charges in criminal case, the departmental proceedings on the same charges would not be competent.
27. The three principles set out by Madras High Court in Shaik Kasim v. Suptd. of Post Offices (supra) were adopted by the Rajasthan High Court in Jagdish Prasad Khatri v. State of Rajasthan and others, 1980 (1); SLR 225 it was also laid down that disciplinary proceedings and criminal prosecution can proceed simultaneously and that only in cases of grave nature or involving complicated question of fact and law, it would be advisable to wait for the verdict of the criminal court.
28 The Gujarat High Court in Champaklal Bhudarlal v. J.B. Jhala 1980 (2)SLR 724, without noticing the Supreme Court''s decisions laid down that no straightjacket formulae can be propounded or enunciated and it can never be said that a departmental enquiry is incompetent merely because it does not fall under one straightjacket formula or another. It may be pointed out that in this case it was contended that an employee can be departmentally tried only when criminal prosecution ended in acquittal of the employee on technical grounds z. e. when the requisite sanction was not obtained, when the prosecution witnesses had remained absent and the request for adjournment to enable the prosecution to examine the witnesses was refused or; the charge was defective or where the case was based on circumstantial evidence and the employee was acquitted by extending to him the principle of �benefit of doubt�. The other cases in which it has been held that departmental proceedings can still be initiated against the employee or if initiated need not be stayed till the disposal of the criminal case and each and every departmental proceedings are not liable to be stayed on account of the pendency of the criminal trial are : 1963 Labour & Industrial Cases 53(65), A. Rangarajan and another v. State of Madras, 1967 (1) MLJ 146 (147); Moulindra Singh v. The Deputy Commissioner and others, 1973 Lab 1C 1564; Rama P. C. No. 468 v. Superintendent of Police, Kolar and another, AIR 1967 Mysore 220.
29. The Calcutta High Court in Rajendra Kumar Paul v. Union of India, 1976 (2)SLR 295, laid down that if an employee has been acquitted in a criminal case, a charge sheet for disciplinary action based on the same allegations as in the criminal case cannot be issued. Similarly, the Delhi High Court in Kundan Lal v. Delhi Administration 1976 (1)SLR 133, has held that any delay in initiating the departmental proceedings based on charges which are the subject matter of criminal prosecution resulting in employee''s acquittal, was not permissible.
30. In D.D. Sehgal v. Punjab National Bank, 1981 (2) SLR 411, the Punjab and Haryana High Court stayed departmental proceedings, as a criminal case was already pending against the delinquent employee. It was also felt by the Punjab and Haryana High Court that the question of law involved in the case were not simple.
31. Having carefully considered the above referred case Taw on the said material questions we express our views summed up as follows :
(i) Criminal prosecution and departmental proceedings on identical charges can continue simultaneously.
(ii) The decision rendered in the criminal case is not binding on the Enquiry Officer who conducts disciplinary proceedings. Similarly, findings recorded in the departmental proceedings are not binding on the court as neither is the appellate authority of the other.
(iii) Normally on an honourable acquittal of the employee by the criminal court, the departmental proceedings, in deference to the findings recorded by the court, are not initiated but if the acquittal is based on technical ground or the employee concerned is given a benefit of doubt, the departmental proceedings on the same charges can still be initiated and if already pending can be concluded uninfluenced by the order of discharge or acquittal recorded in the ''criminal case on the said grounds.
(iv) The departmental and the criminal proceedings can be initiated simultaneously against the delinquent employee and he can also be put under suspension pending enquiry or contemplated disciplinary proceedings as per rules, and that the disciplinary proceedings can also be continued and concluded without waiting for the conclusion of the criminal case against the employee on the same charges provided the case does not involve complicated questions of fact and law, or that the ultimate decision in the departmental proceedings would necessarily not to be based entirely on the result in the criminal case itself.
(v) If the case involves complicated questions of fact and law and the matter is pending in the criminal court, where the employee is to face his trial, the departmental proceedings, as the Supreme Court says should be stayed.
32. When can a case be said to involve complicated questions of fact and law and what exactly is the meaning of the phrase �complicated questions of fact and law� has not been denned by any of the aforesaid judgment of the Supreme Court or the High Court.
33. The word �complicated� means �difficult of solution or analysis�. Section 100 and 110 of the Code of Civil Procedure speak of substantial question of law. The Supreme Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR 1962 SC 1314) has laid down that the proper test whether a question is a substantial question of law would be whether the question is of general public importance and whether it directly and substantially affects the rights of the parties. If so, whether it is an open question i.e. a question not yet decided by the Supreme Court, Privy Council or Federal Court or it was not free from difficulty or calls for discussion of alternative view. This court in Jwali and others v. Babu Lal and another, AIR 1958 Alld. 564, laid down that words �substantial question of law� used in Proviso to Section 20(1) of the Workmen''s Compensation Act should be given a wider construction than what is attributed to it under Section 110 of the Code of
Civil Procedure. ''''
34. There may be some difference in the meaning of the phrase �substantial question� and �complicated question� but help can nevertheless be taken from the meaning given to the phrase �substantial question of law ''by the Supreme Court in the case referred to above in understanding the meaning, of phrase �substantial question�. It can, therefore, be laid down that complicated question of law would be the question which has not yet been settled by the Supreme Court or in regard to which there was a difference of opinion so that the question was still debatable.
35. The authority of limited jurisdiction has been advisedly held not to have jurisdiction to try the complicated questions of law and fact. In this background and in view of the decision of the Supreme Court in the case referred to earlier, we find it to be well settled that if there was complicated question of taw involved in a case, the Enquiry Officer should better stay the disciplinary proceedings and await the decision of the criminal case pending in a case. The position with regard to complicated question of fact cannot be different nor it can be exhaustively defined and cumulated m any straight jacket formula. Whether the complicated questions of fact are involved in a given case would depend upon the facts of the case.
36. Coming to the instant cases, the petitioners in both the cases are on trial in criminal cases pending against them under various sections of the Indian Penal Code including Section 409. A charge sheet has also been issued to them. While in the case of Sushil Kumar Srivastava it has not at all been shown as to how complicated questions of law and fact were involved in the departmental proceedings pending against him, Brij Bhushan Dwivedi who is the petitioner in the other connected writ petition has claimed on the basis of the charge sheet issued to him that the very nature of the charges indicated that complicated questions of fact are involved. It has pointed out that the details of embezzlement given in the charge sheet involve the determination of the question relating to the procedure for operating the bank accounts, the accounting system and individual responsibility of each person including the Cashier, the Peon, the Superintendent and the Drawing and Disbursing Officer. We are not impressed by this argument. The petitioner has only been served with a charge sheet and the departmental proceedings have not progressed to any definite stage. The petitioner is yet to make his submissions before the enquiry Officer and the question and the question whether complicated questions of fact and law are involved would depend upon the defence set up by the petitioner. The complicated questions of law and fact, therefore, though not involved at this stage may become involved at any subsequent stage of the disciplinary proceedings but till those questions can precisely be said to be involved, the departmental proceedings cannot be stayed.
37. For the reasons stated above, we are of the opinion that the petitions lack merit and are, therefore, dismissed. There will be no order as to costs.
(Petitions dismissed)
