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Criminal and Department Proceedings Can Go Together: Kashmir Govt

Srinagar, Dec 12: Criminal and department proceedings can be held simultaneously except in cases where the Court has specifically restrained the Government from undertaking departmental proceedings, governor administration said in a circular issued here regarding the departmental inquiry.

The government said there was lack of clarity regarding initiation of departmental proceedings in cases where criminal proceedings have either been sanctioned or the proceedings in the criminal case has been stayed by a Higher Forum, with tendency being to await the conclusion of the criminal proceedings. “However, this may not be a correct appreciation of the rules governing departmental proceedings. The matter has been commented upon by the Apex Court in plethora of judicial pronouncements and the Apex Court has held that there is no legal bar in simultaneous conduct of departmental proceedings along with the criminal proceedings.

According to GNS, the Supreme Court in the case titled: ‘State of Rajasthan Vs Sh. BK Meena and Others” has held as under: “..the approach and the objective in the criminal proceedings and the disciplinary proceedings is 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 mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration with the criminal case gets unduly delayed..

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The Apex Court in the another titled ‘State Bank of India and Others Vs Neelam Nag’ held as under- ‘: … suffice it to say that while there IS no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of the disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defense before the Criminal Court. The gravity of the charge is, however, not by itself enough to determine the question unless the charge involves the complicated question of law and act. the Court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees. (emphasis supplied),.

In view of the settled legal position that the criminal proceedings and department proceedings can be held simultaneously except in cases where the Court has specifically restrained the Government from undertaking departmental proceedings.

“In view of the above, it is impressed upon all Departments to initiate departmental proceedings in all such criminal cases where the criminal proceedings have been initiated and the alleged criminal act amounts to act(s) of misconduct and as such attracts the provisions of Jammu and Kashmir Civil Services (Classification, Control And Appeal) Rules, 1956. The departments should accordingly, take recourse and strictly adhere to aforesaid Rules of 1956 wherever Departmental Enquiry in such case(s) has to be initiated.” (GNS)

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