Madhya Pradesh High Court
Sandeep Kaushik vs The State Of Madhya Pradesh on 16 October, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.661/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 16th OF OCTOBER, 2023
WRIT PETITION No. 661 of 2023
BETWEEN:-
SANDEEP KAUSHIK S/O SHRI SURENDRA KUMAR
KAUSHIK, AGED ABOUT 29 YEARS, OCCUPATION:
CONSTABLE (UNDER SUSPENSION) POLICE LINE
CHHINDWARA M.P. VILLAGE BALIYANA POLICE
STATION IMT DISTRICT ROHTAK HARYANA
PRESENTLY RESIDING AT WARD NO. 12 NEAR
SHIV MANDIR PARK BASANT COLONY
CHHINDWARA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY SHANKAR RAIZADA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
HOME DEPARTMENT VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE, BHOPAL
DISTRICT BHOPAL (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE,
CHHINDWARA ZONE DISTRICT
CHHINDWARA (MADHYA PRADESH)
4. DEPUTY INSEPCTOR GENERAL OF POLICE,
CHHINDWARA RANGE DISTRICT
CHHINDWARA (MADHYA PRADESH)
5. SUPERINTENDANT OF POLICE,
CHHINDWARA DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE )
............................................................................................................................................
2 W.P. No.661/2023
This petition coming on for admission this day, the court passed the
following:
ORDER
This Petition under Article 226 of Constitution of India has been filed seeking following reliefs:
"7.1 To direct respondents not to proceed Departmental Enquiry during the pendency of the Criminal case.
7.2 To pass any other order or orders and direction or directions which this Hon'ble Court may deem just and proper in the facts and circumstances of the case.
7.3 To award cost of this petition.
7.4 To quash the order dt.21.12.22."
2. It is the case of petitioner that departmental charge sheet has been issued to petitioner. For similar charges, a criminal prosecution has been launched against petitioner by filing a criminal charge sheet. The witnesses in departmental enquiry as well as criminal trial are same therefore, there is every possibility of disclosure of defence of petitioner. Under these circumstances, it is prayed that further proceedings of departmental enquiry by stayed till criminal case is decided.
3. Heard the learned counsel for petitioner.
4. Earlier petitioner was placed under suspension but now his suspension has been revoked. On 21.10.2022, a departmental charge sheet has been issued to petitioner on following charges:
(i) During night patrolling, petitioner did not inform the senior officers regarding recovery of stolen articles from thieves, as a result he has demonstrated his mischievous behaviour as per Para 64(2)(4) of Madhya Pradesh Police Regulation Act.3 W.P. No.661/2023
(ii) In spite of recovery of stolen articles, petitioner did not act honestly and sincerely and did not deposit the stolen articles in Police Station, as result he violated Para 64(2)(3)(4) of Police Regulation Act.
(iii) After completing night patrolling, he did not mention about aforesaid fact in Rojnamcha Sanha as well as in duty certificate, as a result he violated Para 634 and 597 of Police Regulation Act.
(iv) By holding the post of Police Constable, petitioner by his criminal act has tarnished the image of Police in the assessment of general public and accordingly, he has violated Rule 3(1)(i)(iii) of Madhya Pradesh Civil Services (Conduct) Rules, 1965.
5. Petitioner has filed a copy of list of witnesses, which has been relied upon by the Department in departmental enquiry. It is the case of petitioner that a charge sheet has also been filed against petitioner for offence under Section 8 read with Section 20 of NDPS Act because 744 grams of Ganja was recovered from possession of petitioner apart from one Mangalsutra of gilt, which was the stolen property. Petitioner has filed a copy of FIR registered by Police Station Kundipura, District Chhindwara in crime No.340/2022. Although, it is the case of petitioner that Police after completing investigation, has filed charge sheet but petitioner has not filed the copy of charge sheet of criminal case. Although, it was submitted by counsel for petitioner during the course of arguments that witnesses in criminal case as well as witnesses in departmental enquiry are same but has not filed the copy of list of witnesses in criminal case. It is not out of place to once again mention that even copy of charge sheet has not been filed by petitioner. In writ petition, it has been mentioned by petitioner that list of witnesses of departmental charge sheet is same, who were examined by Department 4 W.P. No.661/2023 in preliminary enquiry and therefore, there is every possibility of causing prejudice to petitioner.
6. The aforesaid submission made by counsel for petitioner cannot be accepted. If any witness was examined by Department in preliminary enquiry, then it cannot be said that a departmental enquiry cannot be initiated.
7. Be that whatever it may be.
8. The crux of the matter is that charges levelled in departmental enquiry are distinguishable from allegations made in FIR in crime No.340/2022 registered by Police Station Kundipura, District Chhindwara. Petitioner is an accused in aforesaid crime, which has been registered under Section 8/20 of NDPS Act, whereas charges levelled in departmental charge sheet is that during night patrolling, petitioner has recovered stolen articles, which was the property of crime No.337/2022 registered at Police Station Kundipura, District Chhindwara but in spite of that neither any information was given to Police with regard to recovery of stolen articles nor the stolen articles were deposited in Police Station nor the said fact was mentioned in Police Rojnamcha Sanha. By stretch of no imagination it can be said that charges levelled in departmental charge sheet are identical to allegations made in FIR No.340/2022 registered at Police Station Kundipura, District Chhindwara. It is well established principle of law that departmental enquiry and criminal prosecution can go on simultaneously.
9. The Supreme Court in the case of Avinash Sadashiv Bhosale (Dead) Through LRs Vs. Union of India and others reported in (2012) 13 SCC 142 has held as under:-
"54. This Court recently reiterated the legal principle that departmental proceedings can be conducted 5 W.P. No.661/2023 simultaneously to the criminal trial in Karnataka SRTC v. M.G. Vittal Rao [(2012) 1 SCC 442 :
(2012) 1 SCC (L&S) 171] . In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows:
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."
10. The Supreme Court in the case of Stanzen Toyotetsu India Private Limited Vs. Girish V. and others reported in (2014) 3 SCC 636 has held as under:-
"16. 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 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 defence before the criminal court. Gravity 6 W.P. No.661/2023 of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. 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."
11. The Supreme Court in the case of State Bank of India and Others Vs. Neelam Nag and another reported in (2016) 9 SCC 491 has held as under:-
"13. We have heard the learned counsel for the parties at some length. The only question that arises for consideration is no more res integra. 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 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 a series of decisions."
12. The Supreme Court in the case of Shashi Bhushan Prasad v. CISF, reported in (2019) 7 SCC 797 has held as under :
"17. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal court has been examined by a three-Judge Bench of this Court in A.P. SRTC v. Mohd. Yousuf Miya. The relevant paragraph is as under: (SCC pp. 704-05, para 8) "8. ... The purpose of departmental enquiry and of 7 W.P. No.661/2023 prosecution are two different and distinct aspects. The 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. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, 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 officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceeding 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. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the 8 W.P. No.661/2023 departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
(emphasis supplied)
18. The exposition has been further affirmed by a three- Judge Bench of this Court in Ajit Kumar Nag v. Indian Oil Corpn. Ltd. This Court held as under: (SCC p. 776, para 11) "11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is 9 W.P. No.661/2023 totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of "preponderance of probability". Acquittal by the court of 10 W.P. No.661/2023 competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment1 in detail and needs no interference by this Court.
20. The judgment in M. Paul Anthony case on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under: (SCC p. 691) "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.
(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 11 W.P. No.661/2023 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."
13. The Supreme Court in the case of Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya, reported in (1997) 2 SCC 699 has held as under :
"8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The 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. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, 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 officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a 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. That the strict standard of proof or applicability of 12 W.P. No.661/2023 the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."
14. The Supreme Court in the case of Kusheshwar Dubey v. Bharat Coking Coal Ltd., (1988) 4 SCC 319 has held as under :
"6. In the Delhi Cloth & General Mills case it was pointed out by this Court: (SCR p. 230) "It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee v. Newsman's Printing Works this was the view taken by the Labour Appellate Tribunal. We 13 W.P. No.661/2023 may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
In Tata Oil Mills case Gajendragadkar, C.J., spoke for a three-Judge Bench thus: (SCR p. 562) "There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in Delhi Cloth and General Mills Ltd. v. Kushal Bhan it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case."
In Jang Bahadur case this Court said: (SCR p.137) "The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers."
7. The view expressed in the three cases of this Court 14 W.P. No.661/2023 seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straitjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline."
15. However, when the charges are identical in a criminal prosecution as well as in departmental enquiry, then Courts can stay the further proceedings of departmental enquiry for a certain period but the stay cannot be allowed to continue for indefinite period. Furthermore, the Court has to keep in consideration that criminal trial gets prolonged indefinitely and departmental proceedings cannot be suspended or delayed unduly and even where departmental proceedings have been stayed, they can be resumed even pending criminal proceedings.
16. This Court has already come to a conclusion that there is nothing on record to suggest that whether a charge sheet has been filed in a criminal case or not. Furthermore, a criminal case has been registered against petitioner for offence under Section 8/20 of NDPS Act, whereas he is being tried departmentally on the allegation that although he had 15 W.P. No.661/2023 recovered the stolen articles during night patrolling but neither the stolen articles were deposited in Police Station nor the said fact was mentioned in duty certificate as well as Rojnamcha Sanha. Since the charges levelled in departmental enquiry are substantially different from allegations made in FIR, this Court is of considered opinion that submission made by counsel for petitioner that defence of petitioner is likely to be prejudiced cannot be accepted.
17. It was next contended by counsel for petitioner that as per Rule 14 of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, after receiving reply to the charge sheet, if disciplinary authority is of the view that he is not satisfied with reply given by delinquent officer, then either it shall conduct the enquiry or after recording reasons, may appoint the Enquiry Officer. It s submitted that although an Enquiry Officer has been appointed but it has not been mentioned that he is not satisfied with reply submitted by petitioner.
18. Considered the submissions made by counsel for petitioner.
19. The appointment of Enquiry Officer by itself is sufficient to give an indication that disciplinary authority was not satisfied with reply given by petitioner. Therefore, appointment of Enquiry Officer cannot be quashed only on this ground. Furthermore, there is no allegation of mala fides against Enquiry Officer.
20. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
21. Accordingly, petition fails and is hereby dismissed.
22. Looking to serious nature of allegations, which have been levelled against petitioner, respondents are directed to positively conclude the departmental enquiry within a period of six months from today.
16 W.P. No.661/202323. The Registry of this Court is directed to send a copy of this order to Director General of Police, Bhopal/respondent No.2, Inspector General of Police, Chhindwara Zone, Chhindwara/respondent No.3, Deputy Inspector General of Police, Chhindwara Range, Chhindwara/respondent No.4 and Superintendent of Police, Chhindwara/respondent No.5 for necessary information and compliance.
(G.S. AHLUWALIA) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2023.10.18 18:09:46 +05'30'