Legal Advice

Stay of departmental inquiry during criminal prosecution 

Question: Can I seek a stay of departmental inquiry during criminal prosecution? The government has filed a criminal case against me on the complaint of a MLA. That MLA has asked a question in the assembly and made several allegations against me. The government took the cognisance of those allegations and initiated a departmental inquiry. Later on a criminal case has filed against me. Both cases have the same allegations. I want a stay of departmental inquiry during the pendency of criminal case. Please help!

Advise

The purpose of departmental inquiry and criminal prosecution is different. Punishing the delinquent officer for the offence he committed in the discharge of his duty is the basis principle behind the criminal prosecution. 

But in the departmental inquiry the basis purpose is to maintain discipline in the service. However, the allegations are the same in both proceedings but the purpose and effect of their result are different. 

You can request the government or appropriate authority to stay the disciplinary proceeding till the disposal of the criminal case if charges in the criminal proceedings are grave in nature. 

In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679] the Supreme Court has held that 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. 

You should bear in mind that if the criminal cas is getting delay the government can resume the departmental inquiry [Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry, (2005) 10 SCC 471]

There is no hard fast rule that when the department should stay the departmental inquiry until the disposal of criminal prosecution. These are the indicating factors for stay of disciplinary proceeding:

  • Early disposal of criminal case
  • Complexity of legal issue
  • Better appreciation of evidence
  • Serious effect of proceeding
  • Gravity of charge

You should move a representation to the concerned authority to stay the departmental proceedings until the disposal of criminal prosecution. But you cannot claim such a request as a matter of right. This is discretion of the government to accept or reject your representation. You can also request to change the inquiry officer.

Shivendra Pratap Singh

Advocate

High Court Lucknow