IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWPOA No. 3156/2020
Reserved on: 2.8.2021
.
Decided on : 5.8.2021
Mohan Lal .....Petitioner
Versus
State of H.P. & ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
r No
Whether approved for reporting?1
For the Petitioner: Mr. Diwan Singh Negi, Advocate.
For the respondent: Mr. Ashok Sharma, A.G. with Mr. Rajinder
Dogra, Sr. Addl. A.G., Mr. Vinod Thakur,Mr.
Hemanshu Misra, Mr. Shiv Pal Manhans,
Addl. A.Gs., and Mr. Bhupinder Thakur,
Dy.A.G.
(Video Conferencing)
_____________________________________________________________________
Justice Tarlok Singh Chauhan, J.
The instant petition has been filed for grant of following substantive relief:
"that the respondents may kindly be directed to quash and set aside the final enquiry report (Annexure A3) as well as the subsequent show case notice dated 4.1.2017 (Annexure A7) w.r.t. the departmental enquiry conducted against the applicant and further be directed to keep the departmental proceedings in abeyance till the final disposal of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 31/01/2022 22:49:05 :::CIS 2
criminal case registered against the applicant under FIR .
No. 7 of 2013 which is pending before the Ld. Special Judge (Forest) Shimla."
2 The petitioner was initially appointed as Constable in Himachal Pradesh Police Department on 23.2.1982 and was thereafter promoted as Head Constable in November 1990 and Assistant Sub Inspector in October 2007.
3 The allegations against the petitioner are that on 15.6.2013 one Mr. Ajay Kumar filed a complaint before the State Vigilance & Anti Corruption, Bureau (SV & ACB) alleging therein that his vehicle bearing registration No. HR12R3064 was borrowed by his cousin Sunil Kumar for visiting Rampur and Shimla. When Sunil Kumar along with his friend Yogesh Kumar was coming back from Rampur, they were apprehended by Sainj Police in ND&PS case. It was alleged that on 30.3.2013, Ajay Kumar received a telephonic call from Sunil Kumar informing that the police had impounded the vehicle. The Incharge of Police Post, Sainj, i.e. the petitioner, demanded Rs.1 lac for release of the vehicle or else he would also be made accused in the case. On 31.3.2013, Ajay Kumar along with his friend contacted the petitioner and paid a sum of Rs.95,000/ at Sainj, but the ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 3 vehicle was not released. The petitioner was again demanding a .
sum of Rs.50,000/ which was to be paid to the witness of the case. On 8.6.2013 and 12.6.2013, Ajay Kumar had made telephonic calls to the petitioner, which were recorded by him. On 14.6.2013, Ajay Kumar had a telephonic conversation with the petitioner and the petitioner asked him to come to Shimla.
4 The further allegations are that since the complaint disclosed prima facie a cognizable offence, therefore, a criminal case vide FIR No. 7/2013, dated 15.6.2013 under Sections 7 & 13(2) of the Prevention of Corruption Act was registered at Police Station SV &ACB, Shimla against the petitioner while he was posted in Shimla District. Accordingly, the SV & ACB constituted a trap party and the petitioner was apprehended by the SV & ACB while accepting bribe amounting to Rs.40,000/. The petitioner was arrested on 15.6.2013 and remanded to police custody till 19.6.2013. Thereafter the petitioner was bailed out by this Court on 12.7.2013. On account of arrest of the petitioner in the aforesaid FIR, he was placed under suspension on 25.6.2013 and the departmental proceedings were initiated against him. He was served with a charge sheet for charges of misconduct on account of receiving bribe of Rs.40,000/ and ultimately, after ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 4 perusing the enquiry report, respondent No.3 served upon the .
petitioner a show cause notice dated 4.12.2017 to the effect that why not his services be dismissed. Hence, the writ petition.
5 The respondents have contested the petition on the ground that the act of demanding and accepting the bribe by the petitioner is not only a criminal misconduct, but also is a departmental misconduct. During the course of departmental enquiry, due opportunity was afforded to the petitioner to defend himself, but the charges levelled against him were proved, therefore, the impugned show cause notice was rightly served upon the petitioner.
6 We have heard the learned counsel for the parties and have also gone through the material placed on record.
7 It is more than settled that the object of criminal trial is to inflict appropriate punishment on offender which purpose of enquiry proceedings is to deal with delinquent departmentally and to impose penalty in accordance with the services Rules. The degree of proof necessary to convict offender is different from the degree of proof necessary to record commission of delinquency.
Rule relating to appreciation of evidence in two proceedings is also not similar.
::: Downloaded on - 31/01/2022 22:49:05 :::CIS 58 In criminal law, burden of proof is on prosecution to .
prove guilt of the accused beyond reasonable doubt, whereas in departmental enquiry, penalty can be imposed on a finding recorded on the basis of "preponderance of probability".
9 The Hon'ble Supreme Court has gone to the extent to hold that even acquittal by court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from liability under disciplinary jurisdiction.
10 In this regard, it shall be apposite to refer to the decision of the ThreeJudge Bench of the Hon'ble Supreme Court in Shashi Bhushan Prasad vs. Inspector General, Central Industrial Security Force and ors., (2019) 7 SCC 797, wherein it was observed as under:
7. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others3. The relevant para is as under:
8...The purpose of departmental enquiry and of prosecution are 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. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 6 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 3 1997(2) SCC 699 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 questions of fact and law. Offence generally implies infringement of public (sic 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 Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 7 standard point of the Evidence Act. The evidence required in .
the departmental enquiry is not regulated by the Evidence Act. 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 a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings." (Emphasis supplied)
18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others 4, this Court held as under: "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 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 ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 8 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", he cannot be convicted by a court of law. In a departmental enquiry, on the other 4 2005(7) SCC 764 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". 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." (Emphasis supplied)
19. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that 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 an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. 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. Even 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, he cannot be convicted by a ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 9 Court of law whereas in the departmental enquiry, penalty can .
be imposed on the delinquent on a finding recorded on the basis of 'preponderance of probability'. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.
11The petitioner in the instant case is being charged for demanding and accepting bribe, which is not only a criminal misconduct, but also a departmental misconduct.
12 As observed above, since the approach and objective in the departmental proceedings are entirely different from the criminal proceedings, therefore, the departmental proceedings cannot be kept in abeyance till the disposal of the criminal case.
13 That apart, this Court in CWPOA No. 4264/2020, titled as Lajender Singh Pathania vs. State of H.P. & ors., decided on 14.7.2020, has categorically held that ordinarily a writ petition or even an original application filed against mere show cause notice would not be maintainable.
14 In coming to this view, this Court has relied upon the judgment of the Hon'ble Supreme Court in Union of India and others Versus Jain Shudh Vanaspati Ltd. and another, ::: Downloaded on - 31/01/2022 22:49:05 :::CIS 10 (1996) 10 SCC 520, Special Director and another Versus .
Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and Union of India and another Versus Kunisetty Satyanarayana, (2006) 12 SCC 28.
15 Since the petitioner has every right to file his reply to the show cause notice, which in turn, is required to be considered by the employer in accordance with law, this Court cannot substitute the views of the employer and evaluate the relative merits of the case at this stage.
15 In view of aforesaid discussion, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
5.8.2021 Judge
(pankaj)
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