S. Durga Prasad v. Central Board of Trustees Employees Provident Fund Organisation

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` **==> picture [167 x 13] intentionally omitted <==** ``` AGAINST THE ORDER OA 252/2022 DT 8/3/2023 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ``` ## **`PETITIONER/S:`** ``` S. DURGA PRASAD AGED 58 YEARS S/O.SEBASTIAN, REGIONAL PROVIDENT FUND COMMISSIONER, GR.1, ZONAL OFFICE, EMPLOYEES PROVIDENT FUND ORGANIZATION, BHAVISHYA NIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004, RESIDING AT EPF QUARTERS, THIRUVANANTHAPURAM, PIN - 695004 BY ADVS. BABU S. NAIR SMITHA BABU P.A.RAJESH SHAMSEERA. C.ASHRAF JINU ANTONY HANAN ASHARAF ``` ## **`RESPONDENT/S:`** ``` 1CENTRAL BOARD OF TRUSTEES EMPLOYEES PROVIDENT FUND ORGANIZATION, REPRESENTED BY ITS CHAIRMAN, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, 14, BHIKAJI CAMA PLACE, NEW DELHI, PIN – 110066 ``` ``` O.P.(CAT).No.41/2023 ``` -:2:- ``` 2CENTRAL PROVIDENT FUND COMMISSIONER AND SECRETARY TO THE CENTRAL BOARD OF TRUSTEES EMPLOYEES PROVIDENT FUND ORGANIZATION, MINISTRY OF LABOUR AND EMPLOYMENT, GOVERNMENT OF INDIA, 14, BHIKAJI CAMA PLACE, NEW DELHI, PIN - 110066 3ASWINI KUMAR GENERAL MANAGER (RETD), (VIGILANCE), BHEL/ENQUIRY OFFICER, FLAT NO.J 153, DLF, THE SKY COURT, SECTOR 86, GURUGRAM, GURGAN DISTRICT, HARIYANA, PIN – 122004 BY ADV RAJASIMHAN A ``` ``` THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(CAT).No.41/2023 ``` -:3:- ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.`** ``` ----------------------------------------- O.P.(CAT).Nos.41/2023 ``` ``` ----------------------------------------- ``` ``` Dated this the 10[th] day of January, 2024 ``` ## **J U D G M E N T** ``` A.Muhamed Mustaque, J. ``` ``` This original petition was filed challenging an order of the Central Administrative Tribunal (CAT) declining to stay disciplinary proceedings pending criminal proceedings in the original application filed by the petitioner. ``` ``` 2. The petitioner while working as Regional Provident Fund Commissioner Grade-I in the Regional Office Chennai, was alleged to have been caught red handed in a trap laid by CBI. Three criminal cases are pending against the petitioner before XIII Additional Special Court for CBI Cases, Chennai. On the same set of allegations in the criminal case, three charges were laid against the petitioner. Article of charge-I relates to ``` ``` O.P.(CAT).No.41/2023 ``` ## -:4:- ``` acceptance of bribe of Rs.14.5 lakhs, Article-II relates to non- intimation of acquisition of immovable property, Article-III relates to non-intimation of huge financial transaction; and Article-IV relates to non co-operation with departmental investigation. The main witnesses in this departmental proceedings are CBI investigation officer, Shri K.Madhusudanan and another CBI Officer Syed Bazlullah. These material witnesses are required to prove the charges in the departmental proceedings as well as in criminal cases. The case of the petitioner is that if the investigation officers are examined, including the Inspector of police who laid the trap, that will prejudice the criminal case in which the petitioner is accused. ``` ``` 3. The Central Administrative Tribunal held that no stay of disciplinary proceedings is warranted as any further delay will cause prejudice to the establishment. ``` ``` 4. The problem in this case essentially arose out of the fact that witnesses to be examined in criminal and departmental proceedings and the documents that have to be proved in both the proceedings against the petitioner are one and the same. Law on ``` ``` O.P.(CAT).No.41/2023 ``` -:5:- ``` this point is clear. In Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. And another [(1999) 3 SCC 679], the Apex Court laid down the law as follows: ``` ``` 22. The conclusions which are deducible from various decisions of this Court referred to above are: ``` ``` (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. ``` ``` (ii) If the departmental proceedings and the criminal case are based on 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. ``` ``` (iii) 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 offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. ``` ``` (iv) 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. ``` ``` O.P.(CAT).No.41/2023 ``` -:6:- ``` (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the 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. ``` ``` 5. According to us, situation in the present case is covered by sub clause (ii) of para 22 of the above judgment. Article of charges I to III cannot be proved without examining the investigation officers and other witnesses to be examined in the criminal cases. When the substantial article of charges in departmental proceedings have to be proved through investigation officers and other witnesses in criminal cases, it cannot be said that no prejudice will be caused to the petitioner, who is accused in the criminal cases. The official respondents have no case that there are other witnesses to be examined who can independently prove the memo of charges. If the disciplinary authority has to rely on the material witnesses in criminal cases to prove article of charges, it is appropriate that the departmental proceedings are stayed till the criminal proceedings are over. Accordingly, we set aside the impugned ``` ``` O.P.(CAT).No.41/2023 ``` -:7:- ``` order and we order that, till the conclusion of the criminal proceedings, the departmental proceedings shall be kept in abeyance. ``` ``` The original petition is allowed. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE, JUDGE ``` ``` Sd/- SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` ``` O.P.(CAT).No.41/2023 ``` ## -:8:- ## **`APPENDIX OF OP (CAT) 41/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A5`|`TRUE COPY OF THE MEMORANDUM OF CHARGES`| ||`NO.VIG.XI(1)2016/37 DATED, 4-1-2022`| |`Annexure A1`|`TRUE COPY OF THE CHARGE SHEET FILED BY THE`| ||`CBI IN C.C.NO.21/2017 DATED, 29-12-2016`| |`Annexure A2`|`TRUE COPY OF THE CHARGE SHEET FILED BY THE`| ||`CBI IN C.C.NO.6/2018 DATED, 8-2-2018`| |`Annexure A3`|`TRUE COPY OF THE CHARGE SHEET FILED BY THE`| ||`CBI IN C.C.NO.57/2018 DATED, 22-11-2018`| |`Annexure A4`|`TRUE COPY OF THE CIRCULAR NO.08/07/2018`| ||`DATED, 1-7-2018`| |`Annexure A6`|`TRUE COPY OF THE LETTER DATED, 11-1-2022`| |`Annexure A7`|`TRUE COPY OF THE LETTER DATED, 13-1-2022`| |`Annexure A8`|`TRUE COPY OF THE LETTER DATED, 24-1-2022`| |`Annexure A9`|`TRUE COPY OF HTE E-MAIL DATED, 24-1-2022`| ||`ISSUED BY THE CHIEF VIGILANCE OFFICER`| ||`(CVO)`| |`Annexure A10`|`TRUE COPY OF THE LETTER DATED, 31-1-2022`| |`Annexure A11`|`TRUE COPY OF THE APPEAL PETITION DATED, 4-`| ||`4-2022`| |`Annexure A12`|`TRUE COPY OF THE ORDER VIG.XI(1)/2016/650`| ||`DATED, 15-3-2022`| |`Annexure A13`|`TRUE COPY OF THE ORDER VIG.XI(1)/2016/649`| ||`DATED, 15-3-2022`| |`Annexure A14`|`TRUE COPY OF THE E-MAIL DATED, 12-4-2022`| |`Annexure A15`|`TRUE COPY OF THE COMMUNICATION DATED, 22-`| ||`6-2022`| |`Annexure A16`|`TRUE COPY OF THE ORDER IN`| ||`O.A.NO.21/136/2018 & MA NO.21/203/2019`| ||`DATED, 3-6-2019`| |`Annexure A17`|`TRUE COPY OF DEPOSITION TENDERED BY`| ||`SANCTIONING AUTHORITY (DR. V.P. JOY)`| |`Annexure A18`|`TRUE COPY OF THE DEOSITION OF NILENDU`| ||`MISHRA DATED, 22-9-2022`| |`Annexure A19`|`TRUE COPY OF THE RETUN OF ASSET AND`| ||`LIABILITIES AS ON 31-3-2015 FILED BY THE`| ||`APPLICANT`| |`Exhibit P1`|`A TRUE COPY OF THE ORIGINAL APPLICATION`| ||`FILED BY THE PETITIONER AS`| ||`O.A.NO.180/00252/2022 OF THE CENTRAL`| ``` O.P.(CAT).No.41/2023 ``` ## -:9:- ``` ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED, 14-5-2022 Exhibit P2A TRUE COPY OF THE M.A.NO.488/2022 IN O.A.NO.252/2022 DATED, 23-6-2022 FILED BY THE PETITIONER BEFORE THE CAT, ERNAKULAM Exhibit P3TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN M.A.NO.488/2022 IN O.A.NO.252/2022 DATED, 14-7-2022 Exhibit P4A TRUE COPY OF THE INTERIM ORDER PASSED IN M.A.NO.488/2022 IN O.A.NO.252/2022 OF THE C.A.T, ERNAKULAM DATED, 28-7-2022 Exhibit P5A TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS BEFORE THE C.A.T., ERNAKULAM IN O.A.NO.252/2022 DATED, 14-7- 2022 Exhibit P6TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER BEFORE THE C.A.T., ERNAKULAM DATED, 14-5-2022 Exhibit P7A TRUE COPY THE MISCELLANEOUS APPLICATION NO.907/2022 DATED, 5-10-2022 Exhibit P8TUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN M.A.NO.907/2022 IN O.A.NO.252/2022 DATED, 6-1-2023 Exhibit P9A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER IN M.A.NO.907/2022 IN O.A.NO.252/2022 Exhibit P10TRUE COPY OF THE NOTES OF ARGUMENTS SUBMITTED BY THE PETITIONER DATED, 20-2- 2023 Exhibit P11A TRUE COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.180/00252/2022 DATED, 8-3- 2023 ```