Allahabad High Court
Sonu Bharti vs State Of U.P. And 3 Others on 24 March, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 2592 of 2022 Petitioner :- Sonu Bharti Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pravin Kumar Tiwari,Dharmendra Kumar Chaubey Counsel for Respondent :- C.S.C. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Pravin Kumar Tiwari, learned counsel for the petitioner and Mr. Pranav Ojha, learned Standing Counsel for the State-respondents.
2. This writ petition has been filed interalia for the following reliefs:-
"A) Issue a writ, order or direction in the nature of certiorari quashing the departmental proceedings initiated against the petitioner in pursuance of the departmental charge sheet dated 12.01.2022 issued by the respondent no.4 (Annexure no.3 to the writ petition).
B) issue a writ, order or direction in the nature of mandamus directing the respondents to stay the further departmental disciplinary proceedings initiated against the petitioner in pursuance of the departmental charge sheet dated 12.01.2022."
3. Brief background of the case as is reflected that the petitioner was posted as Constable at Police Chauki-Mehrauli, P.S.-Lar, District-Deoria. First Information Report was lodged on 13.05.2020 against the petitioner and three others, under Sections 389 & 120B IPC and Section 7 of the Prevention of Corruption Act, 1988 and the same was registered as Case Crime No.101 of 2020 at P.S. Lar, District-Deoria with the allegations that the petitioner along with others were demanding and taking money from truck drivers for passing from that area. Charge sheet in the criminal case has been submitted on 18.01.2021.
4. Learned counsel for the petitioner submits that on the basis of charge sheet against the petitioner, the respondent no.4 has passed order dated 12.01.2022 for initiating departmental proceedings against the petitioner and charge sheet/memo has been filed by respondent no.4. Learned counsel for the petitioner further submits that departmental proceedings has been initiated against the petitioner on the same set of facts and evidence as that in the criminal case.
5. Learned counsel for the petitioner further submits that on one hand the petitioner is facing criminal proceedings and on the other hand departmental proceedings have been initiated against him relying upon the same set of facts and evidence, therefore, the departmental proceedings should be kept in abeyance till the conclusion of criminal case.
6. He further submits that the petitioner has not been convicted in the criminal case, hence without conclusion of the criminal case, the departmental proceedings cannot be initiated for the same set of facts and evidence. The criminal case and departmental proceeding are based on same set of fact and same evidence, as such continuance of departmental inquiry, is not at all justifiable and consequentially directive be issued for withholding departmental proceeding till criminal trial is not over. For this preposition, he has placed reliance on Regulation 492 and 493 of U.P. Police Regulations as well as judgment of Hon'ble Apex Court in the cases of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. Reported in 1999 (3) SCC 679 and State Bank of India vs. R.B. Sharma reported in 2004 (7) SCC 27 as well as the judgment of this Court in the case of Dhirendra Kumar Tiwari vs. State of U.P. and Ors. passed in Writ-A No.2705 of 2012 decided on 16.01.2012.
7. On the other hand, learned Standing counsel contended that there is no bar in simultaneous proceeding i.e. criminal proceeding and departmental proceeding can go on simultaneously as area of both departmental proceeding and criminal prosecution are altogether different and as such there is no occasion for staying departmental proceedings hence such writ petition be dismissed.
8. After hearing the arguments advanced by both the parties, it would be appropriate to analyze the relevant part of the judgments, settled proposition of law as well as the relevant regulations in this regard. In the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. reported in 1999 (3) SCC 679, the Apex Court after taking into consideration various other judgments has held that after taking into account various earlier judgments has held that departmental proceedings and proceedings in criminal case can proceed simultaneously, as there is no bar in their being conducted simultaneously, though separately. It has been further held that if the departmental proceedings and criminal case are based on similar set of facts and charges in criminal case against delinquent employees is of grave nature which involves complicated questions of fact and law, it would be desirable to stay the departmental proceedings till conclusion of criminal case. Whether complicated questions of fact and law are involved or not will depend upon the nature of the offence, and the case lodged against the employee on the basis of evidence and material collected during the investigation or as reflected in the charge sheet, and these facts are not to be considered in isolation but due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. Thus, if complicated questions of fact and law are involved, and departmental proceedings and criminal case are based on identical and similar set of facts, only then it is desirable to stay the departmental proceedings, but the said facts are not to be considered in isolation. Paragraph 22 of the judgment being relevant is being quoted below:
"22. The conclusions which are deducible from the various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in 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 charge in criminal case against delinquent employees 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 criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and complicated questions of fact and law are involved in that case will depend upon the nature of the offence, the nature of case launched against the employee on the basis of evidence and material collected against him during the 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 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 pendency of 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, administration may get rid of him at the earliest."
9. The judgment in the case of Capt. M. Paul Anthony (Supra) has been followed in the case of State Bank of India and others Versus R.B. Sharma reported in 2004 (7) SCC 27. Relevant paragraphs 7,8 and 11 are being quoted below:-
"7. It is a fairly well stetted position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of fact and the evidence in both the proceedings is common.
8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. 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 question of fact and law. Offense generally implies infringement of public 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 Indian Evidence Act, 1872 (in short " the Evidence Act"). Converse is the case of departmental enquiry. The inquiry 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. 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 question of fact to be considered in each case depending on its own facts and circumstances.
11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed.
There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending."
10. If departmental proceedings and criminal case are based on similar set of facts and charges in criminal case against delinquent employee is of grave nature which involves complicated question of fact and law, it would be desirable to stay the departmental proceedings till conclusion of criminal case. Whether complicated question of fact and law are involved or not will depend upon the nature of the offence, and the case lodged against the employee on the basis of evidence and material collected during the investigation or as reflected in the charge sheet. Thus it is clear that departmental proceeding can proceed, as there is no bar and only when nature of charge in criminal case are grave and complicated question of fact and law are involved, then departmental proceedings can be stayed and further also in contingency when departmental enquiry would seriously prejudice delinquent in his defence at the trial, and even these facts cannot be considered in isolation to stay departmental proceeding but due regard will have to be given to the fact that departmental proceedings cannot be unduly delayed.
11. There is a consensus of judicial opinion on a basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. Basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. In the departmental proceedings, the factors operating in the mind of the Disciplinary Authority may be many, such as enforcement of discipline, or to investigate the level of integrity of delinquent or other staff. The standard of proof required in those proceedings is also different from that required in a criminal case. While in departmental proceedings, the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt.
12. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry.
13. In a judgment of a three judge Bench of the Court in the case of State of Haryana vs. Rattan Singh, reported in (1977) 2 SCC 491 set out the principles which govern a disciplinary proceedings as follows:-
"4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence -- not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
(emphasis supplied)
14. These principles have been reiterated in subsequent decisions of this Court including State of Rajasthan vs. B K Meena reported in (1966) 6 SCC 417; Krishnakali Tea Estate vs. Akhil Bharatiya Chah Mazdoor Sangh reported in (2004) 8 SCC 200; Ajit Kumar Nag vs. Indian Oil Corporation Ltd. reported in (2005) 7 SCC 764; and CISF vs. Abrar Ali reported in (2017) 4 SCC 507.
15. In Karnataka Power Transmission Corporation Ltd. vs. C. Nagaraju, this Court has held that the two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the delinquent employee 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 are established, and if established, what sentence should be imposed upon him.
16. The issue as to whether disciplinary proceedings can be held at the time when the delinquent employee is facing the criminal trial, has also been considered from time to time. In State of Rajasthan Vs. B.K. Meena & Ors. reported in AIR 1997 SC 13, the Hon'ble Supreme Court while dealing with the issue observed as under:-
"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 only ground suggested in the above decisions as constituting 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............One of the contending considerations 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 or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion..........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 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 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........"
17. While deciding the said case a very heavy reliance has been placed upon the earlier judgment of the Supreme Court in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd Yousuf Miya & Ors., reported in AIR 1997 SC 2232, wherein it has been held that both proceedings can be held simultaneously unless the gravity of the charges demand staying the disciplinary proceedings till the trial is concluded as the complicated questions of fact and law are involved in that case.
18. A similar view has been reiterated by the Apex Court in the case of Kendriya Vidyalaya Sangathan & Ors. Vs. T. Srinivas, reported in AIR 2004 SC 4127. A Three-Judge Bench of the Hon'ble Supreme Court in the case on Krishnakali Tea Estate Vs. Akhil Bhartiya Chah Mazdoor Sangh & Anr. reported in (2004) 8 SCC 200 reconsidered all earlier judgments and reiterated the same view, as the approach and the objective of the criminal proceedings, and the disciplinary proceedings are distinct and different. There can be no bar in carrying on the criminal trial and criminal proceedings simultaneously.
19. Much reliance has been placed on Regulations 492 and 493 of of U.P. Police Regulations. The two Regulations mentioned are set out below:-
"492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to reexamine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
Thus. (a) if the accused has been convicted and sentenced to rigorous imprisonment,l no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should be wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is though desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act .(2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the caused to show cause why any particular penalty should not be inflicted on him (ii) record anything the accused Officers has to urge against such penalty without allowing him to dispute the findings of the Court. and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officers which is relevant to (1) and (2) above..
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court mot be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness:"
20. Bare perusal of Regulations 492 and 493 would go to show that whenever a police officer has been judicially tried, the Superintendent must await the decision of the judicial appeal, if any, before deciding whether further departmental action is necessary. Regulation 493 mentions that it will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial and the finding of the Court on these facts must be taken as final. Division Bench of this Court in the Case of Kedar Nath Yadav Vs. State of U.P. reported in 2005(3) E.& C 1955, while considering these very Regulations, has taken the view, that even after enforcement of 1991 Rules, these two Regulations continue to hold the field. Both these Regulations occupy different field i.e. wherein Police Officer has been judicially tried and after judicial trial is over, and consequently will not come to the rescue of petitioner.
21. Reliance has been placed on the judgment of this Court in the case of Virendra Kumar Sharma Vs. State of U.P. 2002(3) UPLBEC, for the preposition that, when charges are engaging attention of criminal trial or police investigation, departmental enquiry cannot proceed on same charges. Said decision has been rendered, in context of the mandate provided for in Rule 104 of U.P. Rajya Sahkari Bhoomi Vikas Bank Employees, Service Rules, 1976, which specifically prohibits departmental enquiry against a charge which is sub-judice in judicial enquiry or trial.
22. Argument has also been advanced, that disciplinary proceeding in the present case, is in fact second enquiry on same facts and same charges, as such same is legally not permissible. Reliance in this connection has been placed on judgment of this Court, in the case of Ram Nath Singh Vs. State of U.P. reported in 2002(3) UPLBEC 2463. Arguments advanced are clearly devoid of substance, as in the present case, at no point of time any departmental enquiry has been held in the past, wherein petitioner has been exonerated, and too the contrary for the first time, for his alleged misconduct, petitioner is being asked to appear and face enquiry. Judgment cited is totally out of context and will not come to the rescue of petitioner.
23. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, therefore, no interference is required by this Court in the departmental proceedings being carried out against the petitioner.
24. However, it is open to the disciplinary authority to conclude the departmental proceedings, strictly in accordance with law, at the earliest possible preferably within a period of three months from the date of production of certified copy of this order before the disciplinary authority.
25. With the aforesaid observations and directions, this writ petition is disposed of.
(Manju Rani Chauhan, J.) Order Date :- 24.03.2022 Jitendra/-