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TMI Blog2007 (1) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 'NOIDA'). Explanation was asked by Principal Secretary (Heavy Industries) of the Government of U.P. from Smt. Neera Yadav. On 2.2.1995 the then Chief Minister of U.P. observed that there was no need for any action in the matter. In November, 1995, a Memorandum was submitted by NOIDA Entrepreneurs Association- the petitioner in the present writ petition, requesting for enquiry by the Central Bureau of Investigation (in short the 'CBI') regarding the alleged irregularities in allotments and conversions in NOIDA. It appears at different stages Smt. Neera Yadav submitted her explanations. On 13.12.1996 a letter was written by the then Director CBI Sri Joginder Singh regarding information received from sources pertaining to alleged irregularities in the matter of allotments, conversions and regularization of plots in NOIDA. Taking into account the said letter the State Government constituted a Commission (hereinafter referred to as Justice Murtaza Hussain Commission). A report was submitted by the said Commission on 9.12.1997. In the report various details were given. On the basis of the report, the then Chief Secretary recommended departmental action in respect of specific findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of Anand Kumar/Subash Kumar within three months of their appointment as carpenter and junior clerk. 3 Allotment/conversion of the residential plot to Rajeev Kumar Dy. CEO and increase in area." On 25.2.1999 Smt. Neera Yadav filed a representation stating that in view of the criminal investigation, departmental proceedings should not proceed. On 1.5.1999 the State of U.P. filed an affidavit before this Court indicating that disciplinary action had been initiated against Smt. Neera Yadav and charge sheet had been issued on her on 26.5.1998. It was also stated therein that Smt. Neera Yadav had requested that since the matter was being inquired into by the CBI, departmental inquiry should be dropped. The State Government obtained the opinion of its Law department which found that the departmental inquiry was validly initiated, and further plea to keep the proceeding in abeyance was taking note of by referring to para 1.8 of the Vigilance Manual. On 8.7.1999 the Principal Secretary (Law) of the State took a stand that parallel inquiry should be avoided and that any action should be taken after completion of the CBI inquiry, on the basis of its report. On 22.7.1999 the then Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government should not have dropped disciplinary proceeding against Smt. Neera Yadav in the light of adverse findings against her in the report of the Judicial Commission as well as on the report of the CBI. The State of U.P. was asked to clarify as to under what circumstances the decision to drop the departmental proceeding was taken. The entire records relating to the decisions at different stages have been brought on record and a synopsis has also been filed referring to various letters/observations/findings at different points of time. The order dated 16th September, 2002 is the one the legality of which is questioned. The entire order needs to be quoted. The same reads as follows: "By the notification no. 86/N/96, dated 25 January 97 one man inquiry commission was constituted. The Commission inquired into the irregularities committed by Smt. Neera Yadav, lAS (1971), during her posting as Chief Executive Officer, Noida in allotment of plots and properties. On the basis of the report submitted by Hon'ble Mr. Justice Murtaza Husain Inquiry Commission it was decided to initiate departmental inquiry against Smt. Neera Yadav and by the order of Appointment Section -5 No. 930(l)/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the sake of argument that there was any infirmity, this Court can direct the proceedings to take off from the stage as it stood on 5.8.1999 when the Govt. of Uttar Pradesh had passed order for keeping the departmental proceeding in abeyance. This is in fact a re-iteration of the stand taken by the State Government. We are not only baffled but also perplexed at such a stand being taken by the State. This prima facie shows that the State Government is interested to protect Smt. Neera Yadav at any cost. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. (See: Tata Cellular v. Union of India (1994(6) SCC 651), and Teri Oat Estates (P.) Ltd. v. U.T. Chandigarh and Ors. (2004 (2) SCC 130). The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan and Others v. T. Srinivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) SCC 699) analysed the legal position in great detail on the above lines. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena and Ors. (1996 (6) SCC 417). There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. (1999 (3) SCC 679), this Court indicated some of the fact situations which would govern the question whether departmental proceedings should be kept in abeyance during pendency of a criminal case. In paragraph 22 conclusions which are deducible from various decisions were summarised. They are as follows: (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 id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the respondent is only a temporary government servant, the power being available under Rule 5(1) of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money." The standard of proof required in departmental proceedings is not the same as required to prove a criminal charge and even if there is an acquittal in the criminal proceedings the same does not bar departmental proceedings. That being so, the order of the State Government deciding not to continue the departmental proceedings is clearly untenable and is quashed. The departmental proceedings shall continue. Mr. K.T.S. Tulsi, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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