Madhya Pradesh High Court
Ghanshyam Das Ahirwar vs The State Of Madhya Pradesh on 20 March, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH :
JABALPUR.
Writ Petition No.17836/2014
Ghanshyam Das Ahirwar
Vs.
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Manoj Sharma, learned counsel for the petitioner.
Shri Deepak Awasthy, learned Govt. Advocate for
respondents.
ORDER
(20.03.2015) The petitioner, a Police Head Constable, has approached this Court, seeking stay of the departmental enquiry initiated against him, during the pendency of the criminal trial launched against him under the Prevention of Corruption Act. It is contended by the petitioner that on a complaint made by one Laxman Patel son of Mathura Prasad Patel, Crime No.127/2014, was registered in the Police Station Jaisingh Nagar for offences under Sections 294 and 324 of the Indian Penal Code. The petitioner was made Investigating Officer of the said Crime. While the investigation was being conducted by the petitioner, said Laxman Patel tried to get the name of two more accused persons included in the First Information Report (hereinafter referred to as the FIR for short). Since the FIR was not recorded by the petitioner, he refused to oblige said Laxman 2 Patel. On account of the aforesaid malafide reasons, said Laxman Patel made a complaint in the Special Police Establishment of Lokayukt relating to demand of bribe against the petitioner where Crime No.333/2014 was registered. The petitioner was arrested, was later on released, but treating the petitioner under suspension on account of such registration of Crime, he was communicated an order on 20.7.2014.
2: Soon thereafter, on account of certain preliminary enquiry conducted by the Sub Divisional Officer (P) Rahatgarh, a charge sheet was issued to the petitioner on 6.9.2014. Allegations were made that the investigation of the aforesaid Crime No.127/2014 was not properly done by the petitioner. It is contended that the defence of the petitioner in the departmental enquiry is that he has been falsely ropped in the departmental enquiry on account of the alleged complaint made by said Shri Laxman Patel. The same defence would be available to the petitioner in the criminal prosecution. However, criminal prosecution will take time and in case the departmental enquiry is permitted to continue, the defence of the petitioner would be exposed. In terms of the law laid down by the Apex Court in various cases, it is contended that the departmental enquiry which is in fact, based on the criminal charge levelled against the petitioner, should be stayed till conclusion of the criminal trial. The reliefs in this respect claimed in the writ petition read as follow :-
"(i) To call for the entire record pertaining to the instant controversy from the possession of the respondents for its kind perusal.
(ii) This Hon'ble Court may kindly be pleased to direct the respondentds authorities not 3 to proceed the departmental enquiry as contemplated vide Annexure-P-1 during the pendency of the criminal trial as has been initiated vide Annexure-P-2.
(iii) Any other order/orders, direction/directions may also be passed.
(iv) Cost of the petition may also kindly be awarded."
3: On service of the copy of the writ petition and upon service of the notice, a return has been filed by the respondents contending inter alia that the criminal charge against the petitioner is totally different i.e. in respect of demand of bribe and that being so, it has no relation whatsoever with respect to the service misconduct alleged against the petitioner in the departmental enquiry. The charge levelled against the petitioner in the departmental enquiry is about his improper functioning as Investigating Officer of Crime No.127/2014 and not recording of the statements of the witnesses though available on the spot and negligence of discharge of duty, which is a serious misconduct in terms of the provisions of para 62-A and 64(3) of the M.P. Police Regulations (hereinafter referred to as the Regulations for brevity). Whether the investigation was properly done or not of the aforesaid Crime case by the petitioner and whether any lapses were committed by the petitioner in the said discharge of his duties as Investigating Officer, are required to be examined in the departmental enquiry. The criminal prosecution is in respect of demand of bribe or gratification as prescribed under Section 7 and consequential commission of offence under Section 13(2) of the Prevention of Corruption Act and is not based on the findings to be recorded in the departmental enquiry, therefore, there is no question of exposer of the defence of 4 the petitioner. In view of the well settled law pronounced by the Apex Court, the stay of the departmental enquiry in relation to the service misconduct of the petitioner, during pendency of the criminal prosecution, is not necessary. Such a relief claimed in the writ petition is not to be granted to the petitioner and the petition is liable to be dismissed.
4: After giving thoughtful consideration to the rival submissions of learned counsel for the parties and after going through the records as also the law, such a relief claimed by the petitioner cannot be granted. The charge levelled against the petitioner in terms of the charge sheet dated 6.9.2014 in departmental enquiry No.32 of 2014 reads thus :-
fo-tka-dza- 32@2014 e/;izns'k iqfyl foHkkx foHkkxh; ifji`PNk vkjksi i= vipkjh dk uke%& iz- vkj- 751 ?ku';kenkl vfgjokj rRdk- Fkkuk tSlhuxj gky fuyafcr j- ds- lkxjA ekeys dk laf{kIr fooj.k ,oa os rF; ,oa ifjfLFkfr;ka] tks izdj.k ds fujkdj.k esa fopkj esa j[kuk vko';d gks 'kh"kZd of.kZr vipkjh iz-vkj- 751 ?ku';kenkl vfgjokj Fkkuk tSlhuxj esa rSukr FkkA Fkkuk tSlhuxj ds vi-dz- 127@14 /kkjk 294] 324 rkfg dh foospuk ds nkSjku lafnX/k] lafu"Bk ds foijhr ,oa fof/kfo:) d`R;kpj.k iznf'kZr djus ij fuyafcr fd;k tkdj jf{kr dsUnz lkxj lEc) fd;k x;k ,oa vuq'kklfud ifjf/k esa izkjafHkd tkap vuq-vf/k- iqfyl jkgrx< dks vknsf'kr dh xbZA 5 mijksDr laca/k esa ek= vuq'kklfud ifjf/k esa vuq-vf/k- iqfyl jkgrx< }kjk lEikfnr tkap esa ladfyr] nLrkosth ,o ekSf[kd lk{; ds vk/kkj ij ik;k x;k fd vU; ds vfrfjDr vipkjh iz-vk- 751 ?ku';kenkl vfgjokj }kjk vi-dz- 127@14 dh foospuk ds nkSjku ?kVukLFky thou iVsy dh nqdku ds ikl gksus ds vuqdze esa] bl p'enhn lk{kh ds dFku fyfic) ugha fd;s u gh izFke lwpuk i= esa vafdr vkjksih dh fxjQrkjh ds iz;kl fd;s vkSj u gh vU;
lkf{k;ksa ds dFku fyfic) djus ds iz;kl fd;s x;s ,oa u gh ds'k Mk;jh ipkZ ys[k fd;k x;k lkFk gh izdj.k ds fujkdj.k esa :fp u ysdj inh; nkf;Roksa ds fuoZgu esa lafnX/k lafu"Bk iznf'Zkr djuk] fof/k fo:) d`R;kpj.k djrs gq, drZO; ds izfr ?kksj ykijokgh] mnklhurk iznf'kZr fd;k x;kA vr% eSa lfpu dqekj vrqydj] iqfyl v/kh{kd lkxj vipkjh iz-vkj- 751 ?ku';kenkl vfgjokj rRdk- Fkkuk tSlhuxj gky fuyafcr jf{kr dsUnz lkxj ds fo:) fuEu fyf[kr vkjksi ij foHkkxh; tkap vkjksi i= tkjh djrk gwa%& (nks"kkjksi.k) 1- vipkjh iz-vkj- 751 ?ku';kenk vfgjokj }kjk Fkkuk tSlhuxj esa inLFkkiuk ds nkSjku Fkkuk tSlhuxj ds vi-dz- 127@14 /kkjk 294] 324 rkfg dh foospuk ds nkSjku p'enhn lk{kh ds dFku fy, ,oa vU; lkf{k;ksa ds rRijrk ls dFku fyfic) djus ds iz;kl u dj] ds'k Mk;jh dk ipkZ ys[k dj] izdj.k ds fujkdj.k esa :fp u ysrs gq,] inh; nkf;Roksa ds fuoZgu esa ?kksj ykijokgh] mnklhurk] lafnX/k ,oa lafu"Bk ds foijhr fof/kfo:) d`R;kpj.k djrs gq, iqfyl jsX;qy's ku ds iSjk 62&v ,oa 64(3) ds izko/kkuksa dk mYya?ku djukA (lfpu dqwekj vrqydj) iqfyl v/kh{kd lkxj 6 &iqv@lkxj@LVsuks@fotka@ 32 @14 fnukad& 5&6@09@2014 izfrfyfi%& 1- jf{kr fujh{kd lkxj okLrs vks-ch- gsrqA 2- jf{kr fujh{kd lkxj lacaf/kr mDr vipkjh dks vkjksi i= layXu nLrkost dh izfr;ka iznk; dh tkdj ikorh f}rh; izfr ij izkIr dj ikorh vfHkys[k bl dk;kZy; dks vfoyac fHktok;sA 3- vipkjh fuya-iz-vkj- 751 ?ku';kenkl vfgjokj dks jf{kr fujh{kd lkxj ds ek/;e ls mijksDr vkjksi ls lacaf/kr vfHk;kstu lk{kh x.k ,oa nLrkostksa dh lwph rFkk nLrkostksa esa mYysf[kr lwfp vuqlkj nLrkostksa dh Nk;kizfr;ka layXu izsf"kr dh tkdj vis{kk dh tkrh gS fd] vki vkjksi i= dk mRrj lkr fnol esa vfuok;Z :i ls izLrqr djrs gq,] fuEukafdr fcUnqvksa ds laca/k esa Hkh Li"V :i ls ys[k djsa fd %%& v- D;k vkids fo:) yxk;s x;s vkjksi vkidks Lohdkj gSa\ c- D;k vki Lo;a mifLFkr gksdj izdj.k dh lquokbZ pkgrs gSa\ layXu %% mijksDrkuqlkjA iqfyl v/kh{kd] lkxj 5: From a perusal of this charge, it is clear that improper procedure adopted by the petitioner or lapses committed by the petitioner in the investigation is the charge in the aforesaid departmental enquiry. Since the petitioner was not only the Investigating Officer of the crime aforesaid, but a police employee as well, he was required to comply with the provisions of the Regulations in the matter of making investigation. The charge against the petitioner in the departmental enquiry is purely and simply in respect of his service misconduct and nothing is reflected from the charge 7 that the same is levelled against the petitioner on account of his involvement in the offence of demand of bribe registered by the Special Police of Lokayukt.
6: The allegations made in the criminal prosecution was that when complainant Laxmi Patel was being interrogated, a demand of bribe was made to include the name of certain other persons as accused. It is categorical allegation made in the FIR that demand of bribe was made by the petitioner from the said complainant when it was pointed out that only one accused is named in the FIR, whereas there were others also present, who have committed the offence and assaulted the complainant. Such a complaint was registered, the complainant was given a voice recorder. One of the Constable was sent with him, and when he met the petitioner the demand of bribe was again made. Such conversation was recorded in the voice recorder which was produced before the Superintendent of Police of Lokayukt and the offence in that respect was registered. The independent witnesses were called and in their presence, the conversation recorded in the voice recorder was reduced in writing and transcript was prepared. As prima facie commission of offence under Section 7 of the Prevention of Corruption Act was made out, the crime was registered against the petitioner. The said investigation is still going on, but the challan has not been filed by the Police.
7: If both the charges and the acts are taken together, it would be clear that misconduct of not investigating the Crime No.127/2014 is not the essential part of the investigation launched by the Police of Special Police of Lokayukt in Crime No.333/2014, it has though a reflection that the complainant in the said case is the very same 8 person, who has lodged the FIR in Crime No.127/2014, but the facts are totally different. The allegations made in the service misconduct or for that matter in the departmental enquiry are with respect to not performing the duties properly in conducting the investigation whereas in Crime case the charge is that of demand of bribe or gratification. How the defence of the petitioner would be exposed in case he is required to submit his reply or explanation in the departmental enquiry or to show that he has properly investigated the aforesaid Crime No.127/2014, is not clear. Therefore, the analogy which is tried to be drawn by learned counsel for the petitioner showing similarity in the charges, is not acceptable. Even otherwise, punishment for not investigating a Crime case properly would be based on whatever evidence available and proof relating to improper investigation or lapses of discharge of duties by the petitioner. Whereas, in the criminal case specific proof is to be produced that any demand of bribe was made by the petitioner from the complainant.
8: The analogy of law laid down by the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And another [(1999) 3 SCC 679] has held that the departmental enquiry is not to be stayed merely because of pendency of the criminal prosecution of the employee. The service misconduct as no relation whatsoever with the criminal prosecution though the allegation may be based on one incident or otherwise. This analogy further specifically laid down in the case of Indian Overseas Bank Annasalai and another Vs. P. Ganesan and others [(2008) 1 SCC 650], where after appreciating the law laid down on earlier occasion, the Apex Court has held thus :-
9"18. Legal position operating in the field is no longer res integra. A departmental proceedings pending a criminal proceedings does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter.
19. In Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, while holding that the employer should not wait for the decision of the criminal court before taking any disciplinary action against the employee and such an action on the part of the employer does not violate the principle of natural justice, observed :-
"3... We 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 wait the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."
The same principle was reiterated in Tata Oil Mills Co. Ltd. vs. The Workmen.
20. In State of Rajathan vs. B.K. Meena this Court held: (SCC p.422, para 14) "14...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 be enunciated in that behalf. 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 10 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case."
21. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another also deserves to be noticed. This Court therein held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Court summarized its findings as under (SCC p.691, para 22) "22. (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 the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, 11 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.
22. The issue came up for consideration yet again in T. Srinivas where this Court while analyzing B.K. Meena and Capt. M. Paul Anthony held that (Srinivas case, SCC p. 446, para 10) :
"10. From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course."
23. The High Court, unfortunately, although noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non stayed of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also the matter involves a complicated question of law.
24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to 12 the bank which was not the subject matter of allegations in a criminal case, the departmental proceedings should not have been stayed."
9: In view of the aforesaid guiding principle laid down by the Apex Court, if the allegation of criminal prosecution launched against the petitioner and the required proof of the same is tested, it would be clear that recorded proof of demand of bribe would be the basic evidence against him. The same is required to be tested under the strict law of evidence. Whereas in the departmental enquiry, the required proof would be action taken by the petitioner in course of investigation of crime case of which he was the Investigating Officer. Thus, there is no question of disclosure of defence of petitioner, which he is required to take in the criminal prosecution, if departmental enquiry initiated against him is not stayed. This being not an exceptional case, this Court is not required to invoke its extra ordinary writ jurisdiction in such a case.
10 : In view of the aforesaid, there is no substance in the writ petition, which fails and is hereby dismissed.
(K.K. TRIVEDI) Judge A.Praj.