Allahabad High Court
Mool Chand Singh vs State Of U.P. And 2 Others on 2 August, 2021
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 6405 of 2021 Petitioner :- Mool Chand Singh Respondent :- State of U.P. and 2 Others Counsel for Petitioner :- Nitin Chandra Mishra Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri Nitin Chandra Mishra, learned counsel for the petitioner and Shri Suryabhan Singh, learned Standing Counsel for State respondents.
2. Petitioner has rushed to this court for following reliefs:-
"a To issue a writ, order or direction in the nature of certiorari quash the departmental proceedings against the petitioner in respect of charge-sheet dated 19.02.2021;
b. To issue a writ, order or direction in the nature of mandamus commanding and restraining the respondents from proceeding further with the departmental enquiry proceedings against the petitioner in respect of charge-sheet dated 19.02.2021 till the final decision/outcome of Case Crime No.620 of 2020 dated 11.11.2020.
c. To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to follow the procedure prescribed under Rules 1999 as has been laid down by this Hon'ble High Court vide judgement dated 12.03.2013 in Civil Misc. Writ Petition No.13420 of 2013.
d. To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to pass any adverse order/final order against the petitioner without seeking prior approval from this Hon'ble Court in the departmental inquiry proceedings/charge-sheet dated 19.02.2021;
e. To issue any other appropriate order deemed appropriate in the facts and circumstances of the matter."
3. Brief background of the case, as is reflected from the record, is that petitioner has been performing and discharging his duty as Constable (Civil Police) at Police Line, District Saharanpur. Thereafter, he was transferred and posted to Police Station Katra, District Shahjahanpur. The first information report has been lodged by the Inspector of Special Operations Group against 7 persons including the petitioner on 11.11.2020 and the same has been registered as Case Crime No.620 of 2020 under Sections 419, 420, 467, 468, 471, 120-B IPC and 7/9 Prevention of Corruption Act, Police Station Banda, District Shahjahanpur. On the same day i.e. 11.11.2020 the Superintendent of Police, District Shahjahanpur has placed the petitioner under suspension on the basis of the said FIR. In the said first information report, investigation has been carried out and charge sheet has been submitted on 07.1.2021.
4. Petitioner's submission is that departmental charge sheet has also been issued to him under Rule 14(1) of Uttar Pradesh Police Officer of Subordinate Ranks, (Punishment and Appeal) Rules, 1991 on 19.2.2021 to which the petitioner has submitted his reply on 07.4.2021. Thereafter, the petitioner has been reinstated in service on 15.4.2021 during the pendency of the departmental enquiry. Petitioner's further submission is that criminal charges as well as departmental charges are identical and based on similar set of the fact, and in view of this, departmental proceeding may be stayed till conclusion of criminal case.
5. It is contended that the petitioner is compelled to undergo departmental proceedings on identical evidence and witnesses, which will prejudice him irreparably. It is stated that it is trite law that if the criminal proceedings and disciplinary proceedings are based upon the identical charge, the disciplinary proceeding cannot continue simultaneously as it would hamper the outcome of the criminal trial. In the present case, identical charges have been framed and the same witnesses were mentioned in both the proceedings i.e. criminal and civil cases and the evidences/ statements in one proceedings would have an adverse effect on another proceedings. If the petitioner is compelled to disclose his defence in the disciplinary proceedings at this stage, his entire defence in the criminal trial would be opened and he will be seriously prejudiced. The subject matter of departmental enquiry, apart from being an offence under Section 7 of the Police Act, 1861 (in short "the Act 1861") also constituted a cognizable offence, therefore, disciplinary proceedings could not be held nor any punishment order could be passed without complying with the provisions of Regulation 486 of the Police Regulations. It is held by Hon'ble Supreme Court and this High Court that Regulations 486 and the other Regulations contained in Chapter XXXII of the U.P. Police Regulations have statutory force. In the event of a charge sheet being filed in a criminal court in respect of a cognizable criminal offence, which is also an offence under Section 7 of the Act 1861, the departmental action against such police officer will have to await the decision in the judicial trial, as otherwise, the very object of the aforesaid provisions would be defeated.
6. It is also stated that the initiation of inquiry against the petitioner is also in teeth of Paras 492 and 493 of U.P. Police Regulations. From bare perusal of the Regulations 492 and 493 would go to show that whenever a Police officer has been judicially tried, then the Superintendent must await the decision of the judicial trial, if any, before deciding whether further departmental action is necessary.In support of his submissions, he has placed reliance on the judgment dated 28.9.2016 passed by Lucknow Bench of this Court in bunch of writ petitions with leading Service Single No.936 of 2015 (Sanjay Rai v. State of U.P. & Ors.), the order dated 3.2.2017 passed in Writ-A No.22248 of 2016 (Ramesh Chaubey v. State of U.P. & Ors.). He has also placed reliance on the judgement and order dated 12.3.2013 passed in Writ Petition No. 13420 of 2013 (Constable 060680701 Somendra Singh vs. State of Uttar Pradesh and others) wherein the Court has proceeded to dispose of the writ petition with following observations:-
"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.
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. 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.
Whether disciplinary enquiry is to continue at all or not, and whether result of criminal trial is to be awaited, is to be decided, by the authority-in-charge of disciplinary matter, keeping in view over all fact and situation as prevailing on the spot, and said issues will have to be answered the parameter provided for. Request of petitioners be considered within next eight weeks from the date of receipt of certified copy of the order.
With these observations, writ petition is disposed of."
7. Learned counsel for the petitioner contended with vehemence that in the present case, 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 the judgment of Hon'ble Apex Court in the case Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. 1999 (3), S.C.C. 679 and 2004 (7) S.C.C. 27 State Bank of India Versus R.B. Sharma.
8. Per contra, learned Standing Counsel has vehemently opposed the writ petition on the pretext that in the present matter, the chargesheet has been submitted in the concerned court and thereafter the departmental proceeding has been drawn and chargesheet has also been served upon. In support of his submissions, he has also placed reliance on the judgment dated 16.4.2019 passed in Writ-A No.5818 of 2019 (Prakash Ram Arya v. State of U.P. & Ors.), wherein the Court, after taking into consideration of the judgment rendered by Hon'ble Apex Court in M Paul Anthony Capt v. Bhatat Gold Mines Ltd, By the order dated 11.11.2020 the Superintendent of Police, District Shahjahanpur has placed the petitioner under suspension on the basis of the said FIR, has dismissedthe writ petition. For this preposition, he has placed reliance on the judgment of Hon'ble Apex Court in the case Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. (supra) and State Bank of India Versus R.B. Sharma. 's case (supra). Lastly he has placed reliance on the judgment passed by this Court in Writ Petition No.2266 of 2010 (S/S) (Sarvesh Kumar Singh v. State of U.P. & Ors.) dated 20.12.20212 (para 10). As such, it is contended that no interference is required in the matter.
9. After the respective arguments have been advanced, the judgment of Hon'ble Apex Court in the case of Capt. M. Paul Anthony (supra) is being looked into. In the aforementioned judgment the Hon'ble Apex Court, 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."
10. The judgment in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. (supra) has been followed in the case of State Bank of India and others Versus R.B. Sharma (supra). 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."
11. Principles laid down above are clear and categorical that there is no bar in simultaneous separate proceeding of criminal case as well as departmental proceeding. Further, 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.
12. Under Sub Rule (4) (a) of Rule 8 of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal ) Rules, 1991, the punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape is dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment. Thus major penalty of dismissal as provided for under Rule 4 of of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal ) Rules, 1991 in the matter of intentionally or negligently allowing a person in police custody or judicial custody to escape is a rule, and punishing authority, for reasons to be recorded can award lesser punishment. Section 223 of I.P.C. deals with duties of public servant legally bound to keep in confinement any person charged with or convicted of any offence, negligently suffers such person to escape from confinement is to be awarded punishment with imprisonment of two years. Section 224 deals with resistance or obstruction by person to his lawful possession. Here both in departmental proceeding and in criminal trial being negligent is the essence of action taken against petitioner, but parameters of both the proceedings are entirely different, as criminal prosecution is launched for an offence for violation of duty the offender owes to the society, whereas departmental enquiry is to maintain discipline in the service.
13. 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, 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 not 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."
14. 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 proceeding, 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. 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.
15. Considering the aforesaid facts and circumstances of the case, the writ petition is disposed of with direction to the competent authority to decide the issue, as to whether disciplinary enquiry is to continue at all or not, and whether result of criminal trial is to be awaited, keeping in view overall fact and situation as prevailing on the spot, in the light of judgements rendered in Sanjay Rai's case (supra) and Somendra Singh's case (supra) within a period of two months from the date of receipt of copy of the order.
Order Date :- 2.8.2021 RKP