General administration department (GAD), Jammu and Kashmir, on Wednesday reviewed the issue regarding the conduct of departmental enquiry in general cases and in particular where prosecution stands sanctioned.
A circular issued by GAD stated that, “It has been observed that there is 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 conclusion of the criminal proceedings. However, this may not be correct appreciation of the rules governing departmental proceedings.”
The circular said that “the matter has been commented upon by the Apex Court in several 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.”
As per the circular, the Supreme Court in the case titled ‘State of Rajasthan versus BK Meena and Others’ has held that the approach and the objective in the criminal proceedings and the disciplinary proceedings are altogether distinct and different.
In the disciplinary proceedings, it said, 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 offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, 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 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.
“Thus, it is a 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,” the circular issued by the GAD said.
The GAD has, hence, 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,” it said.
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