Madhya Pradesh High Court
Raghuraj Singh Tomar vs The State Of Madhya Pradesh Thr on 19 June, 2017
1
W.P.No.6583/2016(S)
(Raghuraj Singh Tomar Vs. State of Madhya Pradesh)
19.06.2017
Shri Alok Katare, Advocate for the petitioner.
Ms Sudha Shrivastava, Panel lawyer for the
respondent/State.
I.A. No. 3699/17, an application for urgent hearing during summer vacation is taken up, considered and allowed for the reasons mentioned therein.
1. Writ as well as supervisory jurisdiction of this Court under Article 226/227 of the Constitution of India is invoked praying for the following reliefs:
(i) The impugned chargsheet Annexure P-1 may be quashed, or in alternative, it may be stayed till evidence is recorded in the criminal case.
(ii) Any other relief which this Hon'ble Court may deem fit in the circumstances of the case may also be granted.
(iii) Costs may also be awarded.
2. Learned counsel for the rival parties are heard on the question of admission as well as final disposal.
3. Learned counsel for the petitioner seeks quashment of the chargsheet Annexure P-1 alleging two charges as enumerated therein on the ground that foundational incident giving rise to the said charges in the disciplinary proceedings have also given rise to criminal prosecution of the petitioner in Crime No. 200/15 vide FIR dated 29.07.2015 P-4 alleging offences punishable u/S 365, 452, 323, 294 read with Sec 34 of IPC and therefore it is submitted by placing reliance on the decision of the Apex Court in the case Stanzen Toyotetsu 2 W.P.No.6583/2016(S) India P. Ltd. Vs. Girish V. and Ors. and State Bank of India and Ors. Vs.Neelam Nag reported in AIR 2016 SC 989 and AIR 2016 SC 4351 that because of the foundational incident, the nature of charges and the supportive evidence in both the proceedings being common, the disciplinary proceedings be quashed or stayed till final adjudication of criminal prosecution .
4. Learned counsel for the State controverting the above contention submits that nature of charges in both the proceedings are different. It is submitted that purpose sought to be achieved by the disciplinary proceedings is to find out as to whether any misconduct is committed and to punish if the same is found to be proved by imposing the penalty prescribed under the discipline Rules, while on the other hand the criminal prosecution seeks to ascertain the criminal intent behind the act, which if found proved, the accused is punished with appropriate punishment prescribed under IPC or other penal legislation as the case may be.
5. This Court may not enter into detailed factual discussion as the basic issue lies in a narrow compass and has since been decided by the Apex Court in number of decisions starting from Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. (1999) 3 SCC 679, State of Rajasthan Vs. B.K. Meena and 1996(6) SCC 417 and recent decisions rendered in the case of Stanzen Toyotetsu India P. Ltd. . and State Bank of India and Ors (supra).
6. The desirability and justifiability of withholding the progress of disciplinary proceedings during pendency of criminal trial when charges are common has been discussed in detail and while laying down the law laid down, the Apex Court has taken stock of nearly all its earlier decisions summed up in 3 W.P.No.6583/2016(S) para 8,9, 10, 11 and 12 in the case of State Bank of India Vs. Neelam Nag(supra) which are reproduced below for convenience and ready reference:
8. 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 straight jacket 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 series of decisions.
This Court in Karnataka SRTC Vs. M.G. Vittal Rao MANU/SC/1368/2011: (2012) 1 SCC 442 has summed up the same in the following words:
(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 stated 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.
4W.P.No.6583/2016(S) (IV) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on same set of facts and the evidence in both the proceedings is common.
9. The recent decision relied by the Appellant in the case of Stanzen (supra), has adverted to the relevant decisions including the case of M.G. Vittal Rao(supra). After adverting to those decisions, in paragraph 16, this Court opined 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 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 5 W.P.No.6583/2016(S) 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.
10. The Court then went on to examine the facts of that case and observed in para 18 as follows:
18. .......... The charge-sheet, it is evident from the record, was filed on 20.08.2011. The charges were framed on 20.12.2011. The trial Court has ever since then examined only three witnesses so far out of a total of 23 witnesses cited in the chargsheet. Going by the pace at which the trial Court is examining the witnesses, it would take another five years before the trial may be concluded. The High Court has in the judgment under appeal given five months to the trial Court to conclude the trial. More than fifteen months has rolled by ever since that order, without the trial going anywhere near completion. The disciplinary proceedings cannot remain stayed for an indefinitely long period. Such inordinate delay is neither in the interest of the Appellant Company nor the Respondents who are under suspension and surviving on subsistence allowance........
19. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three Courts below have exercised their discretion in favour of staying the ongoing disciplinary 6 W.P.No.6583/2016(S) proceedings, we do not consider it fit to vacate the said order straightaway. Interests of justice would, in our opinion, be sufficiently served if we direct the Court dealing with the criminal charges against the Respondents to conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope and trust that the trial Court will take effective steps to ensure that the witnesses are served, appear and are examined.
The Court may for that purpose adjourn the case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to cooperate with the trial Court for an early completion of the proceedings. We say so because experience has shown that the trials often linger on for a long time on account of non-availability of the defence lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this order, despite the steps which the trial Court has been directed to take the disciplinary proceedings initiated against the Respondents shall be resumed and concluded by the inquiry officer concerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the order.
7W.P.No.6583/2016(S)
11. Reverting to the facts of the present case, indisputably, the alleged misconduct has been committed as far back as May 2006. The FIR was registered on 5th December, 2006 and the charge- sheet was filed in the said criminal case on 6 th February, 2007. The contents of the chargsheet are indicative of involvement of the Respondent in the alleged offence. Resultantly, the criminal Court has framed charges against the Respondent as far back as 12th June, 2007. The trial of that case, however, has not made any effective progress. Only 3 witnesses have been examined by the prosecution, out of 18 witnesses cited in the chargsheet filed before the criminal Court. Indeed, listing of criminal case on 133 different dates after framing of charges is not solely attributable to the Respondent. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that at least 26 adjournments are directly attributable to the accused in the criminal case. That is not an insignificant fact. This is inspite of the direction given by the Division Bench on 28 th June, 2010 to the concerned criminal Court to proceed with the trial on day-to-day basis. The progress of criminal case since then, by no means, can be said to be satisfactory. The fact that the prosecution has named 18 witnesses does not mean that all the witnesses are material witness for substantiating the factum of 8 W.P.No.6583/2016(S) involvement of the Respondent introducing the co- accused for opening a new bank account, to misplace the clearing instruments relating to various customers or for the payment released to the undeserving customer causing huge financial loss to the bank. The charge in the criminal case is for offences under Sec 409, 34 of Indian Penal Code, one of criminal breach of trust by a public servant.
12. 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 large 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.
6.1 From the above, it is evident that pendency of a criminal trail arising out of same incident which gave rise to disciplinary proceedings cannot alone be sufficient to suspend the progress of disciplinary proceedings.
7. One of the relevant factors to be taken into account while dwelling into the said aspect is as to whether the nature of charges are based on complex questions of fact and law. In the instant case, the disciplinary proceeding is founded on two charges. The first being that the petitioner has tarnished the image of the police establishment by indulging in inhuman behaviour in the night intervening 20th and 21st July, 2015 with 9 W.P.No.6583/2016(S) Satyendra Singh and his family members thereby violating para 64(11) of the M.P. Police Regulations and Rule 3 of the M.P.Civil Service Conduct Rules 1965. The second charge in the disciplinary proceedings is of petitioner furnishing false information of sickness of his ownself and his wife by making a note in that regard in the Roznamcha thereby committing dereliction of duties and indiscipline and in the process violated para 64(ii) & (iv) of the M.P. Police Regulations. While on the other hand, the criminal prosecution is based on the allegation of uttering abusive words, causing minor injury, causing house tress-pass after preparing for hurt, assault and abduction to cause wrongful confinement.
7.1 From a bare perusal of the charges, it appears that there is some commonality between 1st charge of indulging in inhuman and uncivilized behaviour with Satyendra Singh and his family members in the night intervening 20 th and 21 of July,2015 and the allegations on which the criminal prosecution is based, but the said charge does not involve any complicated question of fact and law to compel this Court to stay the disciplinary proceedings to prevent prejudice visiting the petitioner by compelling him to disclose his defense in the disciplinary proceedings which may prejudice his right to remain silent in the criminal trial.
8. The nature of charges is simple and not complicated.
9. The Apex Court has also held that staying of disciplinary proceedings is neither in the interest of delinquent employee nor in the interest of the administration. The sooner the disciplinary proceedings culminate, the better it is for the delinquent employee to go back to the main stream and discharge his duties attached to his post instead of languishing 10 W.P.No.6583/2016(S) under suspension or with the sword of disciplinary proceedings hanging on the head for an indefinite period or till the criminal trial comes to an end. It is common knowledge that criminal dispensation system is not prompt where procrastination is not uncommon. In such a situation, it would be in the interest of petitioner as well as the administration for the disciplinary proceedings to come to an end as early as possible.
10. Before concluding, it is pertinent to mention that the charge no.2 in the disciplinary proceedings is not directly related to the charge in the criminal trial. The said second charge is of giving false information and making incorrect entries in the Roznamcha by the petitioner that he and is wife were unwell.
11. From the above, it is evident that petitioner in the given facts and circumstances and in the nature of charges alleged against him and also the fact that charge no.2 in the disciplinary proceedings is distinct and not common when compared with the charges and allegations in the criminal trial, is not entitled for the relief sought by him. The stay of disciplinary proceedings would not only be prejudicial to the petitioner, but also to the administration.
12. In view of the above, no case for interference is made out and the present petition deserves to be and is hereby rejected.
(Sheel Nagu) V. Judge 19/06/2017 sh/-