Central Administrative Tribunal - AhmedabadRajnish Kumar Tiwary vs Employees Providend Fund Organisation ... on 13 September, 2022:: 1 ::                O.A./262/2022\n\n\n\n\n          CENTRAL ADMINISTRATIVE TRIBUNAL\n                    AHMEDABAD BENCH\n             OA No.262/2022 with MA No.315/2022\n            Dated this the 13th day of September, 2022\n\n                                          Reserved On: 08.09.2022\n                                       Pronounced On: 13.09.2022\n\nCORAM:\nHon'ble Mr. Justice Rameshwar Vyas, Member (J)\nHon'ble Dr. A.K. Dubey, Member (A)\n\n\nRajnish Kumar Tiwary\nAged about 45 years\nSon of Late Sitaram Tiwary\nResiding at B-29, Bhakti Tenament\nNr. Sun Pharma Compound\nAtladra Vadodara 390 012.\nWorking As:\nEnforcement Officer/Accounts Officer,\nBhavishya Nidhi Bhavan,\nR.K.Desai Marg,\nGhod Dod Road, Surat - 395 001.                ...........Applicant\n\n(By Advocate : Shri A.L.Sharma)\n\n\n      VERSUS\n\n1.    Union of India\n      Represented by Secretary\n      Government of India\n      Ministry of Labour & Employment,\n      Mansingh Road, Nirman Bhawan\n      New Delhi - 100 011.\n\n2.    Chairman, Central Board of Trustee\n      Employees' Provident Fund Organisation\n      Ministry of Labour\n      Government of India, Head Office\n      Bhawishya Nidhi Bhawan\n      14, Bhikaji Cama Palace\n      New Delhi - 110 066.\n\n3.    The Disciplinary Authority\n      Central Provident Fund Commissioner\n      Employees' Provident Fund Organisation\n      Bhavishya Nidhi Bhavan\n                                  :: 2 ::              O.A./262/2022\n\n\n\n\n       Bhikaji Cama Palace\n       New Delhi - 110 066.\n\n4.     Regional Provident Fund Commissioner-I\n       Employees' Provident Fund Organisation,\n       Bhavishya Nidhi Bhavan\n       Ram Chowk, Ghod Dod Road,\n       Surat - 395 001.\n\n5.     The Inquiry Officer\n       Assistant Provident Fund Commissioner\n       Bhavishya Nidhi Bhavan\n       R.K.Desai Marg,. Ghod Dod Road,\n       Surat - 395 001............................... Respondents\n\n(By Advocate : Ms. Nisha Parikh)\n\n\n                                ORDER\n      Per : Hon'ble Mr Justice Rameshwar Vyas, Member (J)1.     In this OA, the applicant has prayed for issuance of the\n       direction against the respondents to keep in abeyance the\n       disciplinary proceedings dated 19.04.2022 initiated against him\n       by the respondent No.4 till the completion of the Criminal Case\n       No.27/2019 pending against him lying before the Special\n       Judge, CBI Court, Ahmedabad.2.     The brief facts of the case are as under :-(i)    While the applicant was working as an Enforcement Officer at\n       Employees Provident Fund Organization, Regional Office,\n       Vadodara, one Shri Naimish Amin, Partner of M/s. Allyssum\n       Infra filed the complaint on 09.01.2019 against the applicant\n       alleging that he had demanded bribe of Rs.30 lakhs from him\n       for clearing a notice issued against M/s. Allyssum Infra. After\n       obtaining verification report, regular criminal case was\n       registered in CBI, ACB, Gandhinagar on 09.01.2019 against the\n       applicant underSection 7of the Prevention of Corruption Act,\n       1988 and after investigation, charge sheet No.5 was filed\n                                  :: 3 ::                O.A./262/2022\n\n\n\n\n        against the applicant in the court of Special Judge, Court No.7,\n        CBI cases, Ahmedabad underSection 7of the Prevention of\n        Corruption Act, 1988 on 27.06.2019 (Annexure A/1).(ii)    For the aforesaid alleged act of the applicant, departmental\n        enquiry was also initiated against him vide Memorandum\n        dated 24.03.2022 Annexure A/2 under Rule 10 of EPF (Staff)\n        (CC&A) Rules, 1971. The substance of misconduct was set out\n        in the Statement of Articles of Charges and Statement of\n        imputation of misconduct together with list of documents to\n        sustain the charges and list of witnesses Annexure A/2 to which\n        the reply dated 06.04.22 was filed by the applicant Annexure\n        A/3 wherein it was prayed that proposed disciplinary\n        proceedings should be kept in abeyance till the Criminal case\n        was pending.     However, on 02.06.2022, the Inquiry Officer\n        was appointed to inquire into charges framed against the\n        applicant.(iii)   Aggrieved by the action on the part of the respondent Nos.2 to\n        5, the present Original Application has been filed by the\n        applicant with aforesaid prayer3.      Respondent Nos.2 to 5 have filed reply to the OA and opposed\n        the grant of prayer made in the OA.4.      Heard learned counsel for both sides and perused the material\n        available on record.5.      Learned counsel for the applicant while relying on the judgment\n        dated 16.6.2021 of the Hon'ble High Court of Chhattisgarh at\n        Bilaspur in the case of Shashank Sharma v/s. State of\n        Chhattisgarh & Ors. submits that conducting the departmental\n        proceedings simultaneously with criminal trial would adversely\n        affect the defence of the applicant. Majority of the departmental\n        witnesses are also witnesses in the criminal case filed against\n        him. If the departmental inquiry is not kept in abeyance, then\n                               :: 4 ::                 O.A./262/2022\n\n\n\n\n     the applicant shall be prejudiced in defending criminal case\n     pending against him the counsel submits the charges against the\n     applicant are of serious nature involving complicated question\n     of law and facts.6.   He further submits that on receipt of memorandum of charges,\n     he immediately made representation to the competent authority\n     twice i.e. on 28.3.2022 and 06.04.2022. Without considering\n     the reply to modified the charge sheet dated 19.4.2011, the\n     Inquiry Officer, as also Presenting Officer came to be appointed\n     vide order dated 02.06.22 Annexure /8 and the order\n     dated02.06.22 Annexure 9 respectively The charges levelled\n     against him invites major penalty of dismissal from service if\n     proved. As per his contention, if the applicant is not protected,\n     then it will cause great hardship to the applicant, which cannot\n     be compensated in terms of money. Learned counsel for the\n     applicant prays to keep in abeyance the departmental\n     proceedings initiated against applicant and in the alternative; he\n     prays to stay the departmental proceedings till the prosecution\n     witnesses are examined in criminal case pending before Special\n     Judge, CBI Court, Ahmedabad.7.   On the other hand, learned counsel for the respondents submits\n     that as per the judgment of the Hon'ble Supreme Court relied\n     upon by the applicant, as also Office Memorandum of\n     Government of India filed by the learned counsel for the\n     respondents, there is no bar in law to proceed simultaneously\n     under the departmental proceedings and under criminal case.\n     She further submits that in case, the department is directed to\n     wait till decision of the criminal case, the purpose of the\n     departmental enquiry shall be frustrated as after a long period of\n     time, witnesses would not be available for the department in the\n     enquiry.:: 5 ::                 O.A./262/20228.    Having heard the rival submissions made by the learned\n      counsel for both the parties and on perusal of the material\n      available on record, this Tribunal is of the opinion that there is\n      no legal bar for both proceedings to go simultaneously. In the\n      case of Divisional Controller, Karnataka State Road Transport\n      Corporation v/s. M.G. Vittal Rao, (2012)1 SCC 442 Hon'ble\n      Apex Court had summed up the law in following words:"(i) There is no legal bar for both proceedings to go on\n              simultaneously.(ii) The only valid ground for claiming that the disciplinary\n              proceedings may be stayed would be to ensure that the\n              defence of the employee in the criminal case may not be\n              prejudiced. But even such grounds would be available only in\n              cases involving complex questions of facts and law.(iii) Such defence ought not to be permitted to unnecessarily\n              delay the departmental proceedings. The interest of the\n              delinquent officer as well as the employer clearly lies in a\n              prompt conclusion of the disciplinary proceedings.(iv) Departmental Proceedings can go on simultaneously to\n              the criminal trial, except where both the proceedings are\n              based on the same set of facts and the evidence in both the\n              proceedings is common."9.In another case ofCaption M.Paul Anthony v/s Bharat Gold\n      Mines Ltd.,(1999) 3 SCC 679, the Hon'ble Apex Court held\n      that if criminal case does not proceed or its disposal is being\n      unduly delayed, the departmental proceeding, even if they are\n      stayed on account on the pendency of the criminal case, can be\n      resumed and proceeded with so as to conclude them at an early\n      date.10.   In another case i.e. HPCL v/s. Sarvesh Berry, (2005) 10 SCC\n      471, the Hon'ble Apex Court held that there would be no bar to\n      proceed simultaneously with the departmental enquiry and trial\n      of a criminal case unless the charge in the criminal trial is of a\n      grave nature involving complicated questions of fact and law.\n      Under the circumstances, what is required to be seen is whether\n      the departmental enquiry would seriously prejudice the\n                                :: 6 ::                 O.A./262/2022\n\n\n\n\n      delinquent in his defence at the trial in a criminal case. It is\n      always a question of fact to be considered in each case\n      depending on its own facts and circumstances.11.   Coming to the facts of the present case, it is not in dispute that\n      after filing of the charge sheet under the provision ofSection 7of the Prevention of Corruption Act, 1988, the departmental\n      enquiry was also initiated by issuing the Charge Memorandum\n      and Statement of Articles of charges framed against the\n      applicant. The witnesses as mentioned in the charge sheet\n      almost find place in the list of witnesses of the criminal case.\n      The charges involved against the applicant are also serious in\n      nature. We agree with the contention of the learned counsel for\n      the applicant that charges level against the applicant involves\n      complex question of facts and law. This Tribunal is of the\n      considered opinion that in case of the departmental enquiry is\n      permitted to continue then defence taken by the applicant can\n      be used against him in the criminal case which will be\n      prejudice his defence.12.   We know that the criminal case tends to longer. If the trial in\n      the criminal case is not completed within a reasonable time,\n      then the departmental inquiry cannot be kept pending\n      indefinitely. The purpose behind the departmental enquiry is\n      different from the purpose of initiation of the criminal case\n      against a person.13.   In view of the above circumstances, the departmental enquiry\n      initiated against the applicant may be kept in abeyance only for\n      a period of time and not indefinitely. In the result, while partly\n      allowing the OA, the respondent Nos.2 to 5 are directed to keep\n      in abeyance the departmental proceedings initiated against the\n      applicant for a period of two years or till examination of those\n      prosecution witnesses who are also            witnesses   in the\n      departmental enquiry, whichever is earlier. After that the\n                               :: 7 ::                 O.A./262/2022\n\n\n\n\n     department shall be at liberty to resume the disciplinary\n     proceedings against the applicant. The applicant is directed to\n     cooperate with the criminal trial. The department may also\n     request to the trial court to examine the witnesses in question on\n     priority basis for which the applicant shall have no objection.\n     MA No.315/2022 is also treated as disposed of.(A.K.Dubey)                           (Rameshwar Vyas)\n      Member (A)                             Member (J)\n\n\n\n\nnk