Allahabad High Court
Jai Prakash, Constable 0604516888 . vs State Of U.P.Thru Principal Secretary & ... on 1 February, 2013
Author: Tarun Agarwala
Bench: Tarun Agarwala
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - A No. - 4773 of 2013 Petitioner :- Jai Prakash, Constable 0604516888 . Respondent :- State Of U.P.Thru Principal Secretary & Ors. Petitioner Counsel :- Surendra Kumar Mishra Respondent Counsel :- C.S.C. Hon'ble Tarun Agarwala,J.
The petitioner has filed the present writ petition for the quashing of the order dated 09th January, 2013, whereby his application for staying the departmental disciplinary proceedings till the conclusion of the criminal proceedings was rejected by the authority concerned. The facts leading to the filing of the present writ petition is that the petitioner is a constable and, a criminal case under Section 376 has been initiated against him, which is pending before the appropriate Court. On the other hand, a disciplinary proceeding has been initiated against the petitioner on the charges that the petitioner on the pretext of given false assurance to marry Rajni Devi had illicit relationship with her and also made demand of dowry and had also taken objectionable pictures of her.
The contention of the petitioner is that the departmental proceedings and criminal proceedings which are continuing simultaneously are based on identical or similar set of facts, and therefore, it would be appropriate that the departmental proceedings should be stayed till the disposal of the criminal case. In this regard, the petitioner has relied upon an decision of the Supreme Court in Hindustan Petroleum Corporation Vs. Sarvesh Berry (2005) 5 ESC 1993 as well as a decision of the Supreme Court in Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd. and other (1999) 3 SCC 679.
Having heard the learned counsel for the petitioner at some length, the Court finds that the position of law is well settled, namely, that the departmental proceedings and the criminal proceedings can go on simultaneously, except where a departmental proceeding and a criminal proceeding are based on the same set of facts and evidence and where the witnesses are common in the said cases, the Court has to decide taking into account the said features of the case as to whether simultaneously continuance of both the proceedings would be appropriate and proper or not.
In Abhay Raj Singh Vs. Bank of Baroda and another 2005 (2) UPLBEC 1802, the Court held that:-
" it is well settled principle of law that the degree of proof required in a departmental enquiry is vastly different than the degree of proof required to prove a criminal charge. In the departmental enquiry the findings can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The material or the evidence in the two proceedings may or may not be the same and, in some cases, at least, material or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceeding. The Rules relating to the appreciation of the evidence in the two enquiries may also be different. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both the cases are entirely distinct and different.
The law is well settled that the Inquiry Officer can come to a different conclusion than arrived at by a Criminal Court and that it is immaterial whether the charges were identical or the witnesses were the same, as long as the power exercised by the Criminal Court and the inquiry under the relevant law and the service law and the distinct and separate. There is no bar for holding a disciplinary proceeding during the pendency of the trial though the basis may be one and the same. It is for the disciplinary authority to decide as to whether in a given case it should keep the domestic enquiry pending till the outcome of the criminal trial or not."
In Captain M. Paul Anthony's case (Supra) one of the ground where departmental proceedings could be kept in abeyance is:-
" 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."
In Hindustan Petroleum Case (Supra), the Supreme Court held:-
" that the purpose of departmental enquiry and of prosecution is 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."
In the light of the aforesaid, there leaves no scope for doubt that there is no bar for simultaneous proceedings being taken against the delinquent employee in the form of a criminal action and also in the form of a disciplinary proceedings unless the charges are extremely serious and grave requiring judicial administration in preference to the verdict in domestic enquiry proceedings.
In the instant case a criminal action and disciplinary proceedings are not grounded upon the same set of facts though to some extent, it could be overlapping. In the opinion of the Court, the purpose of the two proceedings are quite different. The object of the departmental proceedings is to ascertain whether the petitioner is required to be retained in service or not. On the other hand, the object of the criminal prosecution is to find out whether the offence in the penal statute has been made out or not. Therefore, in the opinion of the Court the area covered by the two proceedings are distinct and different and are not identical. The object of both the proceedings are different. Whereas the departmental proceedings are taken to maintain discipline in the service, the criminal proceedings is initiated to punish a person for committing an offence violating any public duty.
In G.M Tank Vs. State of Gujarat and Others 2006 (5) SCC 446 the Supreme Court held that where departmental proceedings and criminal case are based on identical and similar set of facts and the charges in a departmental case against the applicant and the charges before the Criminal Court are one and the same, in which case, the departmental proceedings would be stayed till the disposal of the criminal case.
The Supreme Court in the aforesaid case has clearly stated that where the case is of a grave nature and involves questions of fact and law, in that event, it would be advisable for the Authority to await the decision of the criminal Court. In the instant case, no complicated questions of fact or law is involved nor any evidence has been filed by the petitioner before this Court to show as to how the petitioner would be prejudiced in the continuance of the departmental proceedings. Nothing has been shown by the petitioner as to how the proceedings in a criminal trial would be prejudiced in the event the domestic enquiry was not stayed.
In the light of the aforesaid, this Court does not find any error in the impugned order.
Dismissed.
Order Date :- 1.2.2013 Sanjeev (Tarun Agarwala,J.)