Madhya Pradesh High Court
Brijendra Kumar Dwivedi vs South Easterncoalfields Limited on 10 February, 2023
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 10 th OF FEBRUARY, 2023
WRIT APPEAL No. 685 of 2022
BETWEEN:-
BRIJENDRA KUMAR DWIVEDI S/O SHRI CHHOTELAL
DWIVEDI, AGED ABOUT 57 YEARS, OCCUPATION:
CLERK GRADE II, SOUTH EASTERN COALFIELDS
LIMITED, DHANPURI OPEN CAST MINE, POST OFFICE
SANJAY KOYLA NAGAR, DISTRICT ANUPPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI K.C. GHILDYAL - SENIOR ADVOCATE WITH SHRI SHRIKANT
MISHRA - ADVOCATE)
AND
1. SOUTH EASTERN COALFIELDS LIMITED,
THROUGH ITS CHAIRMAN CUM MANAGING
DIRECTOR, SEEPAT ROAD, BILASPUR
(CHHATTISGARH)
2. THE DIRECTOR (PERSONNEL), SOUTH EASTERN
COALFIELDS LIMITED, SEEPAT ROAD, BILASPUR
(CHHATTISGARH)
3. THE GENERAL MANAGER, SOHAGPUR AREA,
SOUTH EASTERN COALFIELD LIMITED, POST
OFFICE DHANPURI, DISTRICT SHAHDOL
(MADHYA PRADESH)
4. THE SUB AREA MANAGER, DHANPURI OPEN
CAST MINE, SOUTH EASTERN COALFIELD
LIM ITED , POST OFFICE DHANPURI, DISTRCT
SHAHDOL (MADHYA PRADESH)
5. THE COLLIERY MANAGER DHANPURI, OPEN
CAST MINE, SOUTH EASTERN COALFIELD
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 2/17/2023
11:19:49 AM
2
LIM ITED , POST OFFICE DHANPURI, DISTRICT
SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANOOP NAIR - ADVOCATE)
This appeal coming on for admission this day, Hon'ble Shri Justice
Vishal Mishra passed the following:
ORDER
Assailing the order dated 19.05.2022 passed by the learned Single Judge in dismissing the Writ Petition No.10152 of 2022, the petitioner is in appeal.
2. It was the case of the writ petitioner that he was working on the post of Clerk Grade-II in the respondent No.1 Company and was posted at Dhanpuri Open Cast Mine. An FIR was got registered against the petitioner and others for the offence under Sections 379, 414, 420, 487, 468, 471 and 120-B of the Indian Penal Code vide Crime No.152 of 2021 at Police Station Chachai, District Anuppur. He was arrested by the police on 17.06.2021 and he was released on bail on 24.08.2021. He was placed under suspension vide order dated 29.05.2021 and a charge-sheet was issued to him. On 04.06.2021, an amended charge-sheet was issued to the petitioner. On 15.06.2021, the suspension of the petitioner was revoked and he was reinstated in service. The departmental enquiry proceedings initiated against the petitioner are pending.
3. It is the case of the petitioner that on one hand the authorities got an FIR registered against the petitioner, the prosecution has been drawn against him and he is virtually on trial and on the other hand, departmental enquiry proceedings are initiated against him for the same cause of action and on the same set of facts and circumstances, which is not permissible in view of the law laid down by the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited and another, reported in 1999(3) SCC 679 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 2/17/2023 11:19:49 AM 3 wherein it is categorically held that if on the same set of facts, criminal proceedings are being initiated, the departmental proceedings should be kept in abeyance. He has also placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Delhi Clothes and General Mines Limited vs. Kushal Bhan reported in AIR 1960 SC 806. The learned writ court has not taken note of the aforesaid aspect and merely relying upon a judgment dated 07.04.2022 passed by the Division Bench of this Court in the case of Binod Kumar Mandal vs. South Eastern Coalfields Limited and others (Writ Appeal No.324 of 2022) has dismissed the writ petition. The learned writ court has failed to consider the judgment passed in the case of Capt. M.Paul Anthony (supra) and has passed the order impugned herein, which is per se illegal. The defence in the criminal case and the defence taken by the petitioner in the departmental enquiry is one and the same and, therefore, if the proceedings of the departmental proceedings are not stayed, then the same will cause a great harm and loss to the petitioner. He prays for a short direction to the authorities to stay the proceedings of the departmental enquiry pending against the petitioner.
4. The learned counsel appearing for the respondents has vehemently opposed the contentions and supported the impugned order pointing out the fact that the controversy has been to put to rest by the Hon'ble Supreme Court recently in the case of Union of India and others Vs. Dalbir Singh reported in (2021) 11 SCC 321 wherein, it was considered that in a criminal case the strict rules of evidence and the strict proposition of proving of a guilt of an accused is required, whereas in the departmental enquiry the authorities can proceed only on the basis of preponderance of probability. He has also placed reliance upon a judgment passed by the Division Bench of this Court in the case of Binod Kumar Mandal (supra) wherein placing reliance upon the judgments of the Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 2/17/2023 11:19:49 AM 4 Hon'ble Supreme Court in large number of cases, the appeal was dismissed. Under these circumstances, he has prayed for dismissal of the writ appeal.
5. Heard learned counsels for the parties and perused the record.
6. Undisputed facts are being that with respect to offence registered against the petitioner, a departmental enquiry as well as a criminal case is registered and both the proceedings are continuing against the petitioner. The criminal case is based upon strict rules of evidence and the prosecution is required to hold the guilt of an accused beyond any reasonable doubt, whereas in the cases of departmental enquiry proceedings, the same are based upon preponderance of probability. Recently in the case of Dalbir Singh (supra), a clarification has been given by the Hon'ble Supreme Court that both the proceedings are different and can run parallel. 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 Hon'ble Supreme Court while dealing with the case of Dalbir Singh (supra) has also taken into consideration the judgment in the case of M.Paul Anthony (supra) and has held as under:-
"25. held that 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. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "Âœbeyond reasonable doubt"Â, 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"Â. It was held as under:
'Âœ11. 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 Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 2/17/2023 11:19:49 AM 5 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 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"Â, 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 "Âœpreponderance of probability"Â. 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.
26............"The purpose of departmental inquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offense 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 inquiry 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 the criminal cases against the delinquent officer.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 2/17/2023 11:19:49 AM 6Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When the trial for a criminal offense is conducted it should be in accordance with proof of the offense as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short '˜the Evidence Act']. The converse is the case of departmental inquiry. 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 inquiry would seriously prejudice the delinquent in his defense 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."
7. In the case of Stanzen Toyotetsu India (P) Ltd. v. Girish V. reported in (2014) 3 SCC 363, the Hon'ble Supreme Court has considered the similar controversy and has held that in absence of any legal bar not to proceed with the departmental proceedings and the criminal proceedings, both can run simultaneously. Therefore, the law with respect to continuation of the departmental proceedings as well as criminal proceedings parallelly is settled by the Hon'ble Suprme Court. Under these circumstances, no relief can be extended to the petitioner. The writ court has rightly considered all the aspects of the matter and has passed the impugned order, which does not call for any interference in the present writ appeal.
8. The writ appeal sans merit and is accordingly dismissed. No order as to costs.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 2/17/2023 11:19:49 AM 7 (RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
sj
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 2/17/2023
11:19:49 AM