1. An order dated 3rd May, 2005 passed by the Enquiry Officer rejecting the petitioner's applications for stay of the departmental enquiry proceeding till the disposal of the criminal cases, viz., English Bazar, P.S Case Nos. 84 of 2004 and 85 of 2004 both dated 21st February, 2004, is under challenge in this writ petition at the instance of a delinquent employee being the petitioner herein.

2. The delinquent employee is the Chief Judicial Magistrate at Malda. A departmental proceeding for holding an enquiry against the petitioner has been initiated under the West Bengal Judicial Services (Discipline and Appeal) Rules, 2002 on imputation of the following two sets of articles of charges framed against him which are as follows:—

Annexure-1

Statement of Article of Charge framed against the petitioner.

Article of Charge No. I

It is alleged that the petitioner, a member of West Bengal Higher Judicial Service while posted as Chief Judicial Magistrate, Malda in the District of Malda allegedly trespassed on 20th February, 2004 at night into the room at Flat No. 25.B, Maheshmati Rental Housing Estate, Malda in occupation of Smt. Susmita Bhattacharjee, a lady Deputy Magistrate at Malda allegedly in an intoxicated state.

Such allegations, if proved would show that the petitioner is guilty of misconduct and the petitioner's such act is unbecoming of a Judicial Officer.

Article of Charge No. II

It is alleged that the petitioner on the same day and about the same time after entering into the room of Smt. Susmita Bhattacharjee allegedly outraged modesty of Smt. Bhattacharjee, a lady Deputy Magistrate on Probation at Malda.

Such allegation, if proved would show that the petitioner is guilty of misconduct involving moral turpitude and such act is unbecoming of a Judicial Officer.

Article of Charge No. III

It is alleged that the petitioner, on the same day at day time in the chamber of Gurupada Mondal, Civil Judge (Senior Division)-cum-Assistant Sessions Judge, Malda, made same indecent proposal to Smt. Bhattacharjee to the effect that the petitioner wants to come to her Flat and to spend the evening with her alone and it is alleged that she declined the proposal of the petitioner.

Such allegation, if proved would show the petitioner's misconduct and the same are unbecoming of a Judicial Officer.

Article of Charge No. IV

It is alleged that the petitioner, on the same date at night knocked at the window pane of room of Smt. Debarati Ghosh, another lady Deputy Magistrate, Malda who was the resident of the Flat No. 15.A, Maheshmati Housing Rental Estate, Malda and the petitioner were allegedly found to come from the dark passage by the side of her house and the petitioner was allegedly found loitering in front of her verandah and the allegations, if proved would show the misconduct of the petitioner and the said acts are becoming of a Judicial Officer.

Article of Charge No. V

It is alleged that the petitioner, on the same date at day time had been to the chamber of Sri Gurupada Mondal, Civil Judge (Senior Division)-cum-Assistant Sessions Judge, Malda and allegedly asked Smt. Debarati Ghosh to come to the flat of the petitioner in the same Housing Estate so that the petitioner can give some beauty tips including facial and the petitioner tried to be too personal and Smt. Ghosh is annoyed with the behaviour of the petitioner and even though she tried to ignore the petitioner, the petitioner was very much persistent.

Such allegation if proved, would show that the petitioner is guilty of misconduct and the said acts are unbecoming of a Judicial Officer.

Annexure II

Statement of imputations of misconduct, moral turpitude and acts unbecoming of a Judicial Officer in support of articles of charge framed against the petitioner.

Imputation in respect of Article of Charge No. I

That the petitioner who is a member of West Bengal Higher Judicial Service while posted as C.J.M, Malda in the District of Malda trespassed at night of 20.2.2004 into the room of Flat No. 25.B, Maheshmati Rental Housing Estate, Malda in occupation of Smt. Susmita Bhattacharjee, a lady Deputy Magistrate at Malda under influence of liquor and petitioner's such act complained of amounts to misconduct and the same is unbecoming of a Judicial Officer.

Imputation in respect of Article of Charge No. II

That the petitioner a member of West Bengal Higher Judicial Service while posted as C.J.M, Malda at about 09.50 p.m on 20.02.2004 knocked at the door of Smt. Susmita Bhattacharjee, a lady Deputy Magistrate on probation, Malda immediately after opening the door the petitioner entered into her room forcibly and hugged her. She smelt liquor smell coming from the petitioner's mouth. She tried to raise shout but the petitioner pressed her throat to choke her voice. She desperately gave the petitioner hard push. Finally she managed somehow to push the petitioner out of her room and locked the door. Such acts complained of show that petitioner outraged modesty of Smt. Susmita Bhattacharjee and petitioner's such acts complained of amount to misconduct involving moral turpitude and is unbecoming of a Judicial Officer.

Imputation in respect of the Articles of Charge No. III

That the petitioner while posted as C.J.M, Malda in the District of Malda on 20.02.2004 at day time had been to the chamber of Sri Gurupada Mondal, Civil Judge (Senior Division)-cum-Assistant Sessions Judge, Malda and made some indecent proposal to Smt. Susmita Bhattacharjee, a lady Deputy Magistrate on probation at Malda by saying that the petitioner wanted to come to her flat and to spend the evening with her alone and Smt. Bhattacharjee at last flatly refused. Petitioner's such act complained of amounts to misconduct, moral turpitude and unbecoming of a Judicial Officer.

Imputation in respect of Articles of Charge No. IV

That the petitioner, on 20.02.2004 at night knocked at the window pane of room of Smt. Debarati Ghosh, a lady Deputy Magistrate, Malda who was the resident of Flat No. 15.A, Mahesmati Housing Rental Estate, Malda and the petitioner were found loitering in front of her verandah and the allegations, if proved, would show the misconduct of the petitioner and the said acts are unbecoming of a Judicial Officer.

Imputation in respect of Articles of Charge No. V

That the petitioner had been to the chamber of Shri Gurupada Mondal, Civil Judge (Senior Division)-cum-Assistant Sessions Judge, Malda on 20.2.2004 at day time and requested Smt. Debarati Ghosh, another lady Deputy Magistrate, Malda to come to the flat of the petitioner in the same Housing Estate so that the petitioner can give some beauty tips including facial and the petitioner tried to be too personal and Smt. Ghosh was annoyed with the petitioner's behaviour and even though she tried to ignore the petitioner, the petitioner was very persistent.

3. Such allegation, if proved, would show that the petitioner is guilty of misconduct and the said acts are unbecoming of a Judicial Officer.

4. Simultaneously with this disciplinary proceeding, two criminal proceedings have been initiated on the basis of the complaints lodged by the said Smt. Susmita Bhattacharjee and Smt. Debarati Ghosh, respectively, with the local police station.

5. The complaint of Smt. Susmita Bhattacharjee against the petitioner is as follows:

On 20 February, 2004 Smt. Bhattacharjee with her colleague Smt. Debarati Ghosh went to the chamber of the Assistant Sessions Judge, Malda in connection with their Court training in the District and Sessions Judge Office. At about 1 p.m while the complainant were in the chamber of Shri Gurupada Mondal, the Assistant Sessions Judge, the petitioner made some indecent proposal for spending the evening with her alone at her flat. In spite of the best effort of Shri Mondal to divert the said issue, the petitioner could not be restrained as he persisted with the said idea though the complainant flatly refused his proposal.

6. Further on the same day at about 9.50 p.m the calling bell of the flat of the complainant rang but since the eyehole of the door was damaged, the complainant enquired about the identity of the person who pushed the bell and in response thereto the complainant heard the voice of the petitioner who requested her to open the door. Immediately after opening the door the petitioner entered her room and forcibly hugged her with intention to outrage her modesty and molestation. The complainant tried to shout but then he grabbed her throat. Somehow the complainant managed to push the petitioner off out of her room and telephone her colleague Smt. Debarati Ghosh who told the complainant that she had seen the petitioner some time back loitering around her flat on the outside. Thereafter Smt. Ghosh came to the flat of Smt. Bhattacharjee and both of them went upstairs and met Sri Amitava Sengupta, Thereafter, after being apprised of the said situation Sri Sengupta informed the matter to the District Magistrate, Malda.

7. On the very next date, i.e, on 21 February, 2004 at about 20.15 hours a written complaint was lodged by the said lady Deputy Magistrate with the local Police Station. Thereafter, the Investigating Officer after holding an investigation submitted chargesheet No. 120/04 dated 18 April, 2004 under sections 448/354 IPC against the accused petitioner.

8. Another criminal case was also initiated against the petitioner on a similar written complaint made by Smt. Debarati Ghosh. In the said complaint it was alleged that on 20 February, 2004 while Smt. Ghosh along with her colleague Smt. Bhattacharjee were in the chamber of Sri Gurupada Mondal, Assistant Sessions Judge, an indecent proposal was made by the petitioner who disclosed that he wish to give her a few beauty tips on her facial and the like. Chargesheet has also been submitted against the petitioner being No. 121/04 dated 18 April, 2004 under sections 354/511 IPC.

9. Thus, if the background of the set of facts leading to the initiation of the disciplinary proceeding as well as criminal cases as aforesaid, is considered, it goes without saying that both the said disciplinary proceeding and the Criminal cases are based on similar and identical set of facts and/or complaints.

10. It is no doubt true that there is no bar to proceed simultaneously with the departmental enquiry and the trial of the criminal cases unless the charge in the criminal trial is of grave nature involving complicated question of fact and law. The approach, the standard of proof, the extent of the fact to be established for proving misconduct in a disciplinary proceeding are completely different from those in the criminal proceeding. Offence in a criminal proceeding generally implies infringement of public, as distinguished from mere private rights punishable under criminal law.

11. When trial for criminal offence is conducted, it should be in accordance with the proof of the offence as per the evidence as defined under the provisions of the Evidence Act. The nature of enquiry in the departmental proceeding is definitely different from that of the criminal cases. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct as defined under the relevant statutory rules or law. The strict standard of proof or applicability of the Evidence Act stands excluded in the departmental proceeding. The enquiry in a departmental proceeding relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. These are the distinctive features of the nature of enquiry of the criminal cases as well as of the departmental proceeding.

12. Thus, if the aforesaid distinctive features of the nature of enquiry in a criminal charge as well as in the departmental proceeding are considered, then this Court has no hesitation to hold that the approach, the standard of proof, the extent of the facts to be established for proving misconduct are different from those in the criminal proceedings. As such, two proceedings can be proceeded with simultaneously. However, certain exceptions are there as has been laid down by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Limited, reported in AIR 1999 SC 1416, wherein the Hon'ble Supreme Court indicated some situations where the departmental proceeding should be kept in abeyance during pendency of a criminal case. The relevant paragraph of the said decision, is set out hereunder:

“22. The conclusions which are deducible from various of 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 chargesheet.

(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.

(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.”

13. Thus, I find that one of the considerations for stay of the departmental proceeding is that if the departmental proceedings and the criminal cases are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of grave nature which involves complicated question of law and fact it would be desirable to stay the departmental proceeding till the conclusion of the criminal cases.

14. Here in the instant case, I find from the order impugned that the Enquiry Officer held that though the charges against the delinquent officer are of grave nature but the said charges do not involve determination of complicated question of law and fact and as such, the departmental proceeding cannot be stayed till the conclusion of the criminal case.

15. Let me consider how far the Enquiry Officer is justified by refusing to stay the departmental proceeding during the pendency of the criminal trial in the facts of the instant case.

16. I need not repeat the nature of the charges against the petitioner herein both in the disciplinary proceeding as well as in the criminal cases. Charges are no doubt very serious and grave in nature as the complaint is against a Judicial Officer involving moral turpitude.

17. The time consuming factor in the criminal case very often stand in the way of stay of the disciplinary proceeding. Now the Court has to strike a balance between the two situations.

18. While considering the propriety of the order impugned, this Court cannot be oblivious about the time factor for disposal of the criminal cases which normally takes longer time for its disposal. Delayed disposal of the criminal cases consuming longer time might result in the disappearance of evidence or witnesses on whom the employer might rely. The importance of discipline may also suffer at the cost of such stay. The employer also cannot be compelled to carry with it an employee whom the employer does not want to retain for his involvement in such offences relating to moral turpitude. Normally employer has no control over the conduct of the proceeding in the criminal cases and as such, the departmental proceeding cannot be stayed particularly when it is found that the delinquent employer responsible for causing the delay in the trial of the criminal proceeding.

19. These are the principles which have been enunciated by the Hon'ble Supreme Court in its various decisions which are as follows:

(i) AIR 1997 SC 2232 (Depot Manager, A.P.S.R.P Corporation v. Mohd. Yousuf Miya),

(ii) AIR 1999 SC 1416 (Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.),

(iii) AIR 2004 SC 4127 (Kendriya Vidyalaya Sangathan v. T. Srinivas).

20. In the instant case, I find from the record that the criminal cases are at the stage of recording the evidence of the de facto-informant complainants. In G.R Case No. 361 of 2004, 7 July, 2005 was the date fixed for further cross-examination of Smt. Bhattacharjee, the P.W 1. In the other criminal case being G.R Case No. 362 of 2004, 17 May, 2005 was the date fixed for taking evidence of the de facto-informant complainant but none of the prosecution witnesses turned up and the said case was adjourned till 7 July, 2005 for recording evidence of the prosecution witnesses.

21. Thus, it is apparent that the petitioner is not responsible for the delay in the trial of the said criminal cases.

22. The set of facts which gave rise to initiation of the disciplinary proceeding as well as the criminal proceeding against the petitioner are no doubt same and identical. Determination of the departmental proceeding as well as of the criminal cases is dependent upon the same set of oral evidences of the respective parties. Allegation involving moral turpitude cannot be proved by documentary evidences. List of witnesses filed in the departmental proceedings as well as in the criminal proceedings which are annexed to this writ petition show that the vital witnesses are mostly common in both the departmental proceeding as well as in the criminal trial.

23. In such circumstances, the defence of the petitioner in the criminal case is very much likely to be disclosed prejudicially to the interest of the petitioner if the parallel enquiry in the departmental proceeding is allowed to be continued.

24. In this regard, I also find support from the decision of the Hon'ble Supreme Court in the case of State Bank of India v. R.B Sharma, reported in AIR 2004 SC 4144, which was relied upon by the learned Advocate appearing for the petitioner wherefrom it appears that the Hon'ble Supreme Court in Paragraph 7 of the said decision has held as follows:

“7. It is fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common.”

25. Reference may also be made in this regard to the Division Bench decision of this Court in the case of Bhaskar Mondal… v. Uco Bank & Ors.…, reported in 2002 (2) CLT 574, wherein the Division Bench of this Hon'ble Court in Paragraph 14 of the said decision held as follows:

“14. Thus, it appears that the scope of the departmental enquiry and the proof are different. This may also be one of the factors for deciding as to whether both the proceedings involved complicated questions of fact and law. In any event, the Criminal Court is not supposed to go into the question, which would be relevant to be gone into in the departmental proceeding. Having regard to the facts of this case, it is definitely outside the scope of the appropriateness, desirability or propriety on account of non-involvement of complicated questions of law and fact. At the same time, the question that would be gone into in the departmental proceedings would not be relevant for the criminal proceedings. The approach, the standard of proof, the extent of the facts to be established for proving misconduct are different from those in the criminal proceedings. As observed earlier, the facts and the law, as it appears, does not involve any complicated question, though the charges might be grave. The matter would have been different, if the proof of the allegations were dependent mostly on oral evidence, or it were an allegation based on transactions, acts or omissions unconnected with the discharge of duties and function of the employee relating to moral turpitude etc. But when the proof relates mostly on records and documents and is within the purview of the discharge of duties and functions as an employee, it assumes a different complexion than the criminal charges. Therefore, the Court has to examine the extent, to which the complications are related. Unless as held in the said decisions all the tests are satisfied and that the evidences are not in variance, the factor of desirability etc. will apply. In case of any variance in the evidence and all the tests are not satisfied the factor of desirability will not apply.”

26. If the said principle is applied in the instant case, this Court has no hesitation to hold that since the petitioner has been charged with a complaint involving moral turpitude, the departmental proceeding should remain stayed at least till the conclusion of the recording of the evidences of the respective parties in connection with the said criminal cases being G.R Case No. 361 of 2004 and G.R Case No. 362 of 2004 both pending before the learned Sub-Divisional Judicial Magistrate, Malda.

27. Considering the nature of the charges against the petitioner as indicated above, this Court also feels that the departmental proceeding should not be delayed for an unknown duration.

28. Accordingly, I direct the learned S.D.J.M, Malda to conclude the aforesaid criminal cases positively within a period of six months from the date of communication of this order without granting any adjournment to either of the parties and if necessary by holding day-to-day trial.

29. The learned SDJM, Malda is also directed to intimate the Enquiry Officer of the disciplinary proceeding as well as to the Registry of this Hon'ble Court immediately after the conclusion of the recording of the evidences of the respective parties, so that the hearing of the disciplinary proceeding can be resumed by the hearing officer immediately thereafter.

30. The enquiry of the disciplinary proceeding will thus remain stayed till such communication is received from the learned S.D.J.M, Malda regarding the conclusion of recording the evidences of the parties in the manner, as aforesaid.

31. I make it clear that the disciplinary proceeding need not be stayed till the disposal of the criminal trial, as the question involved in the criminal proceedings though grave in nature but does not involve determination of complicated question of law and fact. Thus, stay of the disciplinary proceeding upto the conclusion of the recording of evidence of the parties is granted only to avoid disclosure of defence of the petitioner in the criminal trial in the said parallel proceeding.

32. The impugned order thus stands set aside. The writ petition thus stands allowed without, however, any order as to costs.

33. The Registry is directed to send a copy of this order to the S.D.J.M, Malda immediately.

34. Urged xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.

Jyotirmay Bhattacharya, J.:

Writ petition allowed.

A.D