Himachal Pradesh High Court
Shubham Thakur vs State Of Himachal Pradesh And Others on 14 October, 2020
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
1
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1418 of 2020
Reserved on :12.10.2020
.
Date of decision: 14.10. 2020
Shubham Thakur ...Petitioner
Versus
State of Himachal Pradesh and others ...Respondents
______________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Ms. Jyotsna Rewal Dua, Judge
Whether approved for reporting1 :YES
For the Petitioner: Mr. K.B. Khajuria, Advocate
For the Respondents: Mr. Ashok Sharma, Advocate General,
with Mr. Ranjan Sharma, Vinod Thakur,
Mr. Vikas Rathore, Mr. Shiv Pal
Manhans, Additional Advocate Generals,
with Mr. Bhupinder Thakur, Ms. Seema
Sharma and Mr. Yudhbir Singh Thakur,
Deputy Advocate Generals.
Through Video Conferencing
_____________________________________________________ _
Jyotsna Rewal Dua, J.
Petitioner, a Constable, seeks abeyance of the departmental proceedings initiated against him till the final decision of the criminal case arising out of FIR No. 66 of 2020 1 Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 2registered against him at Police Station Ghumarwin, District Bilaspur, H.P.
2. Petitioner was appointed as a Constable in Police .
Department and was posted in 4th India Reserve Battalion, Jangal Beri, District Hamirpur. On 03.07.2019, he was deployed for duty at BCP Sansari Nala, District Chamba. During the leave period of petitioner, on 16.04.2010, an FIR No. 66 of 2020 was registered against him under Section 188 of the Indian Penal Code and Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act at Police Station Ghumarwin, District Bilaspur for possessing 1.00 gms. of Heroin. Petitioner was released under the provisions of Section 41-A of the Code of Criminal Procedure.
Considering that petitioner, an employee of law enforcement agency, was found involved in an illegal activity tentamounting to grave mis-conduct, unbecoming of a police officer, therefore, he was placed under suspension and regular departmental inquiry under Police Rules was ordered against him on 17.04.2020. Summary of Allegations in the departmental inquiry was served upon him on 24.04.2020. Immediately thereafter, instant petition has been preferred by the petitioner.
::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 33. Learned counsel for the petitioner argued that in the facts and circumstances of the case, pending criminal trial, the departmental inquiry initiated against the petitioner is liable to be .
stayed. Learned counsel further submitted that challan in the criminal case arising out of FIR No. 66 of 2020 has been presented before the competent Court on 24.08.2020. Witnesses in the criminal case would be the same as in the disciplinary proceedings.
The disciplinary proceedings and the criminal case are based upon same set of facts, allegations and evidence. The entire defence of the petitioner would, therefore, be prejudiced in case disciplinary proceedings are not stayed during the pendency of the criminal case.
4. Learned Additional Advocate General opposed the prayer of the petitioner and submitted that the Departmental Proceedings have been initiated against the petitioner and Summary of Allegations have been issued as per the provisions contained in Chapter XVI of Punjab Police Rules 1934, applicable to the State of Himachal Pradesh for violation of Service Rules.
This is meant for maintaining discipline and efficiency in the disciplined force, like the Police, whereas criminal proceedings ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 4 against the petitioner have been initiated for violation of law laid down by the Statute. Further, it was urged that there is no legal bar to simultaneous holding of both, criminal and departmental .
proceedings, as the two proceedings operate in different fields, have different approach and objectives and require different degrees of proof. Therefore, the departmental inquiry initiated against the petitioner vide Order dated 17.04.2020 is not required to be kept in abeyance.
5. The issue as to whether the departmental inquiry needs to be stayed till the completion of criminal trial or till the recording of statements of witnesses in the criminal case has already been adjudicated by this Court in CWP No. 474 of 2020, decided on 26.06.2020. It would be appropriate to reproduce the relevant para from the judgment as under :-
"7(ii). Having noticed the rival contentions, we now examine the legal position. Hon'ble Apex Court in Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806, observed that very often employers stay enquiries pending decision of criminal trials. However, it cannot be said that the principles of natural justice require an employer to mandatorily wait for the decision of the criminal trial Court before taking action against an employee. However, if the case was of grave nature and involved complicated questions of facts and law, it would be advisable for the employer to await decision of the trial Court, so that the defence of the employee in the criminal case is not prejudiced. Somewhat similar was the ratio in Tata Oil Mills Co. Ltd. v. Workmen, AIR 1965 SC 155. Both the above decisions and in fact the entire case law on the point was reviewed in State of Rajasthan Versus B.K. ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 5 Meena and others, (1996) 6 SCC 417, wherein it was observed that there is no legal bar for simultaneous holding of criminal trial and disciplinary proceedings. Stay of disciplinary proceedings has to be measured with regard to facts of each case. No hard and fast rule can be enunciated in this regard. Prejudice to defence in the criminal case by continuation of disciplinary proceedings may be a good ground for .
staying the latter, but then again it can be done in cases of grave nature involving complicated questions of fact and law. 'Advisability', 'desirability' or 'propriety' has to be determined in each case in the given facts. The ground indicated in Delhi Cloth and General Mills Ltd. and Tata Oil Mills Co. Ltd., supra, is not an invariable rule.
It is only a factor, which will go into the scales while judging the desirability of staying the disciplinary proceedings. Another relevant consideration would be that disciplinary enquiry cannot be and should not be delayed unduly as the criminal cases drag on for long period. In case a criminal case is unduly delayed, it may itself be a good ground for going ahead with the disciplinary enquiry. Relevant para from the judgment is extracted hereinafter:-
"14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can enunciated in that behalf. The only ground suggested in the above decisions as constitution a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be delayed unduly. So far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 6 or persons holding high public offices involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the .
disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above."
Entire case law including the above judgments was considered in Capt. M. Paul Anthony Versus Bharat Gold Mines Ltd. and another, (1999) 3 SCC 679.
Following conclusions were culled out after discussion of all the facets on the point under consideration:-
"22. The conclusions which are deducible from various 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.::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 7
(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 charge-sheet.
(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."
The legal position was reiterated in Avinash Sadashiv Bhosale (Dead) Versus Union of India and others, (2012) 13 SCC 142, in following manner:-
"54.1. There is no legal bar for both proceedings to go on simultaneously. 54.2. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
54.3. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
54.4. Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. 54.5. In our opinion, the principles culled out by this Court would be a complete answer to all the submissions made by Mr. Jain.
55. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 8 departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120-B, 420, 467, 468, 471 and 201 of Indian Penal Code. The proof of criminal charges was depended upon prosecution producing proof beyond reasonable doubt .
relating to the culpability of the appellant along with other persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct.
56. It must be emphasised that Bank officials act as trustees of funds deposited by the public with the Bank. They have an obligation to earn the trust and confidence of not only the account-holders but also the general public. The standard of integrity required of the Bank officials, particularly the cashiers, accountants, auditors and the Management at all levels, is like the Caesar's wife, they must be above suspicion. Mr. Bhosale failed to maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the aforesaid submissions of Mr. Jain."
Thus, it has been clearly held that there is no embargo of simultaneous but separate holding of departmental and criminal case proceedings. It would be desirable to stay the departmental proceedings till the conclusion of criminal case, in case both are based on identical and similar set of facts and the charge in the criminal case is of grave nature involving complicated questions of law and fact.
However, whether the charge in the criminal case is grave and involves complicated questions of fact and law or not will depend upon the nature of offence and nature of case launched against the employee on the basis of evidence and material collected against him during investigation. Apart from these factors, due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. In case the criminal case does not proceed or the disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of pendency of criminal case, can always be resumed and proceeded with.
Also in State of Rajasthan Versus B.K. Meena and others, (1996) 6 SCC 417, it was observed by the Hon'ble Apex Court that approach and objective in the ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 9 criminal and disciplinary proceedings are altogether distinct and different. The question determined in the disciplinary proceedings is whether the conduct of the respondent merits imposing punishment to him under the applicable service laws, whereas in the criminal proceedings, the question always is as to whether the offences registered against the delinquent employee (here under the Prevention of .
Corruption Act) is established and if established, what sentence should be imposed upon him. The standard of proof, mode of enquiry and the rules governing the enquiry and trial in both the proceedings are entirely distinct. Paragraph 17 of the judgment is reproduced herein-below:-
"17. There is yet another reason. 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 criminal proceedings the question is whether the 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 if the criminal case gets unduly delayed."
The difference between criminal prosecution and departmental enquiry was also elaborated in Hindustan Petroleum Corporation Ltd. and others Versus Sarvesh Berry, (2005) 10 SCC 471, while reiterating that there is no bar for simultaneous proceeding of the two. It was observed therein that criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. Crime is an act of commission in violation of law or of omission of public duty. Offence generally implies infringement of public duty as distinguished from mere private rights punishable under criminal law. Whereas the departmental enquiry is to maintain discipline in the service and efficiency of public service. The enquiry in the departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. The strict standard of proof for applicability of ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 10 Evidence Act stands executed. It would be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not desirable to lay down any guidelines as inflexible rules, in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent. Each case required to be considered in the backdrop of its own facts and circumstances. After .
noticing the principles culled out in Capt. M. Paul Anthony case in the facts of this case, it was observed by the Hon'ble Apex Court as under
"14. That being the position, the High Court was not justified in directing stay of the departmental proceedings pending conclusion of the criminal charge. As noted in Capt. M. Paul Anthony case where there is delay in the disposal of a criminal case the departmental proceedings can be proceeded with so that the conclusion can be arrived at, at an early date. If ultimately the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the employer may get rid of him at the earliest." (emphasis supplied ) Learned counsel for the petitioner tried to differentiate instant case by relying upon State Bank of India and others Vs. Neelam Nag and another (2016) 9 SCC 491, and submitted that in the aforesaid case Hon'ble Apex Court had stayed the disciplinary proceedings pending criminal trial, therefore, on the same analogy, disciplinary proceedings deserve to be stayed in the instant case as well. We have gone through the judgment passed by Hon'ble Apex Court, in para 13 whereof it has been held that 'it is well settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously.
However, no straitjacket formula can be spelt out and the Court ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 11 has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in series of decisions.' .
The Hon'ble Supreme Court thereafter referred Karnataka SRTC Vs. M.G. Vittal Rao (2012) 1 SCC 442, Stanzen Toyotetsu India (P) Ltd. Vs. Girish V., (2014) 3 SCC 636. Para 14 of the judgment reproduced the principles summed up in Karnataka SRTC's case as under :-
"(i) There is no legal bar for both the proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common."
From, the above, it is evident that even in the case relied upon by the learned counsel, Hon'ble Apex Court reiterated and reaffirmed the well settled principles that disciplinary and criminal proceedings can be conducted simultaneously. It is not desirable to unnecessarily delay the departmental proceedings. It is only where case involves complex questions of law and fact that disciplinary ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 12 proceedings may be stayed during a criminal trial. Whether the nature of charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, .
will depend upon nature of offence, nature of case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
Due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. In Neelam Nag's case (supra), Hon'ble Apex Court acceded to the contention of the appellant that pendency of criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent. It would be appropriate to extract the relevant paragraph hereinafter :-
"18. In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period; and in larger public interest, the order as passed in Stanzen's case be followed even in the fact situation of the present case, to balance the equities."
However, in the peculiar facts of the case, the disciplinary proceedings in that case were stayed for a period of one year, pending criminal trial of a public sector bank employee ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 13 involved in offence of breach of trust and embezzlement, on the basis of arrangement in Stanzen's matter keeping in view the directions already passed in the matter by the High Court as well .
as Memorandum of Settlement involved in the case. In fact, this judgment does not afford any help to the petitioner, rather it affirms the same principles enunciated by the Hon'ble Apex Court in series of precedents as quoted in Gian Chand Thakur's case (supra).
In the instant case, disciplinary proceedings have been initiated against the petitioner. The Enquiry Officer has issued Summary of Allegations to him on 24.04.2020 as per provisions of Chapter XVI of Punjab Police Rules as applicable to State of Himachal Pradesh. The departmental action has been taken for breach of discipline and mis-conduct. Petitioner is a member of disciplined force. We have already held in Gian Chand's case (supra) that in such like situation, the departmental proceedings initiated against the petitioner will only examine and determine as to whether his act and conduct amounted to misconduct as per the mandate of applicable service rules and whether such act has rendered the petitioner liable for imposition of any penalty under ::: Downloaded on - 14/10/2020 20:21:25 :::HCHP 14 the service rules. The allegations against the petitioner in the departmental enquiry are to be proved on preponderance of probabilities on the basis of documents and witnesses, whereas, .
charges in the criminal case are to be proved on the basis of witnesses and evidence to be led during trial, but beyond all reasonable doubts. The object and approach of two proceedings are altogether different. Degree of proof required in these two proceedings is also different. Present is not a case where departmental proceedings deserve to be stayed till the conclusion of criminal trial.
No other point was urged.
Hence, we find no merit in the instant writ petition and the same is accordingly dismissed. Pending applications, if any also stand dismissed.
Tarlok Singh Chauhan,
Judge
14th October, 2020 (K) Jyotsna Rewal Dua,
Judge
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