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Simultaneous action of prosecution in a court and initiation of departmental proceedings.

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Simultaneous action of prosecution in a court and initiation of departmental proceedings criminal case unless the charge in the criminal trial is of grave nature involving

Text of the circular

RBE No.128/2007

GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD)

No. E(D&A) 2007 RG6-29 New Delhi, 9 / 10 /2007

The General Manager(P) All Indian Railways and Production Units etc.

(As per standard list).

Sub:

Simultaneous action of prosecution in a court and initiation of departmental proceedings.

…..

A copy of Department of Personnel and Training’s O.M. No.

11012/6/2007-Estt. A dated 1.8.2007 on the above subject is sent herewith.

The contents of the above O.M. may please be brought to the notice of all concerned authorities on your Railway for their information and guidance.

Corresponding instructions on the Railways with reference to O.M.s dated 7.6.55 and 4.9.64 mentioned in Para 1 of the O.M. dated 1.8.2007, are contained in Board’s letters No. E 54 RG6-32 dated 23.11.55 and No. E(D&A) 64 RG6-30 dated 28.10.64.

2.

Please acknowledge receipt.

Sd/- (Harish Chander) Dy. Director Estt. (D&A)III Railway Board

No.11012/6/2007-Estt.A Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training North Block, New Delhi

Dated the 1* August, 2007

OFFICE MEMORANDUM

Subject:- Simultaneous action of prosecution in a court and initiation of departmental proceedings.

The undersigned is directed to refer to the M.H.A. O.M. No. 39/30/54-Ests.

dated the 7" June, 1955 and No. 39/8/64-Ests. dated the 4" September, 1964, on the above subject which state that prosecution should be the general rule in all cases which are found fit to be sent to Court and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds and that in such cases, departmental action should not precede prosecution. References are being received in this Department seeking clarification as to whether departmental action can also be taken, where the same matter has been taken up in a court of competent jurisdiction for prosecution of the Government servant concerned.

2. What may be deduced from the above instructions is that in serious cases involving offences such as bribery/corruption etc., action should be launched for prosecution as a matter of course. The Hon’ble Supreme Court had held in their various judgements, the important ones being, State of Rajasthan Vs. B.K. Meena & Others(1996 6 SCC 417), Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited (1999 3 SCC 679), Kendriya Vidyalaya Sangathan & Others Vs. T. Srinivas (2004 (6) SCALE 467) and Noida Entrepreneurs Association Vs. Noida (JT 2007 (2) SC 620), that merely because a criminal trial is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. The approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against the Government servant are established and if established, what sentence can be imposed on him. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of the serious charges leveled against him may have to be considered by the Competent Authority to proceed with departmental action.

3. However, if the charge in the criminal case 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. This will depend upon the nature of offence and the evidence and material collected against the Goverment servant during investigation or as reflected in the charge-sheet. If the criminal case does not

proceed or its disposal is being unduly delayed, the departmental proceedings, even i

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