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CONSTABLE 252 CP DHARMENDRA KUMAR @ DHARMENDRA SINGH & ANR. versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Constable 252 Cp Dharmendra Kumar @ Dharmendra Singh & Anr. v. State Of U.P. And Others - WRIT - A No. 25862 of 2007 [2007] RD-AH 10575 (11 June 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 25862 of 2007

Constable 252 Civil Police Dharmendra Kumar

@ Dharmendra Singh and another

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Petitioner have approached this Court for following reliefs:

"i) Issue a writ, order or direction in nature of certiorari  toquash the impugned departmental charge sheet dated 30.12.2006 (Annexure No. 2 to the writ petition), issued to the petitioner No. 1 and departmental charge sheet dated 30.12.2006 (Annexure No. 3 to the writ petition), issued to the petitioner No. 2;

ii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper on facts and circumstances of the  case.

Iii) Award cost of the petition to the petitioners as against the  respondents."

Brief background of the case, as disclosed in the writ petition, is that the petitioners have taken Chhotey alias Ajendra for presenting him before the Court of  Special Judge, Gangster Act, Batreilly, and while petitioners were returning, the accused Chhotey @ Ajendra is said to have jumped from running train along with handcuffs and rope from the custody of petitioners. Petitioners have contended that they tried to chase the accused their level best, but all was in vain, and ultimately, F.I.R. was lodged on 29.09.2006 against Chhotey @ Ajendra. Petitioners were suspended on 25.02.2007 and claim that they have been reinstated thereafter. Petitioners have contended that criminal case is on going and they have been served with charge-sheet dated 30.12.2006 under Rule 14 (1) of the U.P. Police  Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 for carelessness, on account of which accused Chhotey @ Ajendra fled away. Petitioners have contended that charges in the criminal case as well as in departmental proceedings are based on identical set of facts and till conclusion of criminal case, departmental proceedings may be kept in abeyance, as the defence of petitioners in criminal case may not be prejudiced.

Learned Standing Counsel, on the other hand, contended that there is no bar and proceedings  i.e. criminal proceedings and departmental proceedings  can go on simultaneously, as the area of both departmental proceedings  and criminal proceedings are altogether different, as such there is no occasion for staying the departmental proceedings, and the writ petition is liable to be dismissed.

After respective arguments have been advanced, the judgment of Hon'ble Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. Reported in AIR, 1999 SC 1416 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."

The judgment in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. 1999 ( 3) S.C.C. 679 (Supra) has been followed in the case of State Bank of India and others Versus R.B. Sharma 2004 (7) S.C.C. 27 . 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. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending."

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.

Hon'ble Apex Court in paragraphs 13 and 14 of its judgment in the case of Chairman-cum-M.D. T.N.C.S. vs. K. Meerabai, reported in J.T. 2006 (1) SC 445, did not approve the view of High Court while concluding that both the criminal case in the court of C.J.M. and departmental enquiry were based on identical facts and charges. Paragraphs 13 and 14 being relevant are quoted below:

"13. We are unable to countenance the view and impression taken by the learned single Judge. In our view, the single Judge has misdirected herself in reaching the erroneous conclusion that both the criminal case in the court of C.J.M. and departmental enquiry were based on identical facts and charges.

14. She has lost sight of the fact that the criminal case instituted against the respondent in the court of C.J.M. was in respect of the offence under Section 409 I.P.C. (criminal breach of trust) and falsification of accounts punishable under Section 477A I.P.C., whereas respondent herein was charged in respect of departmental enquiry for her failure to maintain prescribed records for issue of a stock and for swindling the Corporation in collusion with the other members of the staff through mis-appropriation of stock and cash of the Corporation thereby causing huge loss to the Corporation to the tune of more than Rs. 9.00 lacs."

In the present case, it may be true that  departmental proceedings and criminal case are based on identical and similar set of circumstances, but they are distinct and independent. No complicated question of law or fact or involved. In these circumstances, prayer made cannot be accorded.

Consequently, writ petition lacks substance and the same is dismissed.

11.06.2007

SRY.                      


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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