Allahabad High Court
Dharmendra Kumar vs State Of U.P. Thru. Addl. Chief ... on 30 August, 2022
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 5453 of 2022
Petitioner :- Dharmendra Kumar
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Dept. Home Lko And 2 Others
Counsel for Petitioner :- Preeti Shukla (Tiwari),Abhishek Mishra,Anurag Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Anurag Shukla, learned counsel for the petitioner and Sri Sandeep Sharma, learned Additional Chief Standing counsel appearing for the opposite parties.
2. By means of the present writ petition the petitioner has challenged the orders dated 6.9.2021 and 1.8.2022 whereby disciplinary proceedings have been initiated against the petitioner for being absent from duty without prior approval/permission on 29.8.2021 and also involving himself in an incident leading to registration of criminal case No.178 of 2021 under Sections 304, 323, 504 IPC and thereby harming the reputation of the police department.
3. Learned counsel for the petitioner, at the outset, submits that after filing this writ petition the suspension order dated 6.9.2021 has been revoked by the opposite parties and consequently the petitioner does not wish to press prayer No.1 as it has already been invoked and, therefore, prayer No.1 is dismissed as not pressed.
4. As regards to challenge to the disciplinary proceedings it is submitted that for the same cause of action the first information report in case crime No.178 of 2021 under Sections 304, 323, 504 IPC has already been registered against the petitioner and the matter is under investigation and on the same facts charge sheet dated 6.7.2022 has been given to the petitioner which has been annexed as Annexure No.2 which is being impugned in the present proceedings. It is noticed that the charges leveled against the petitioner is that on 28th August, 2021 without prior approval and permission he had remained absent and entered into altercation and fight during this period where criminal case was registered under Sections 304, 323, 504 IPC. In this matter a preliminary inquiry was conducted by Assistant Commandant, 32nd Battalion PAC, Lucknow where the petitioner has been found to be prima facie guilty of unauthorized absence and also for harming the reputation of the department.
5. In support of his submissions the petitioner has relied upon the case of Captain M. Paul Anthony Vs. Bharat Gold Mines Ltd. and another, 1993 (3) SCC 679, the relevant para 22 of which is quoted as under:-
"The conclusions which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a 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 the charge in the criminal case against the delinquent employee 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 the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during 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 the 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 the pendency of the 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."
6. From the aforesaid it is noticed that Supreme Court has held that the proceedings in a criminal case as well as disciplinary proceedings can proceed simultaneously and there is no bar while in clause (ii) it has been stated that in case the departmental proceedings and the criminal case are based on identical on similar set of facts and the charge in the criminal case against the delinquent employee 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 the criminal case. Petitioner has relied upon clause 2 of the said judgment.
7. It is noticed that in a criminal case till date no charges have been framed against the petitioner and it is premature at this stage to come to conclusion that charges in departmental proceedings and the criminal case are identical. Even otherwise the charges in departmental inquiry pertain to his unauthorized absence which definitely cannot be a charge in criminal case. On bare perusal of the allegations in the F.I.R. as well as charge sheet given to the petitioner in departmental proceedings it is noticed that the allegations in criminal case is quite distinct from the charges leveled in departmental inquiry and it cannot be said that the charges in departmental proceedings and the criminal case are based on identical and similar set of facts. The charge in the departmental proceedings pertains to harming the reputation of the department which has been leveled considering that the petitioner is a police officer and he entered into altercation and fight during his service. This cannot be a charge in the criminal trial as it does not amount to an offence and, therefore, the contention of the petitioner is clearly misconceived and is not covered by the judgment in the case of Capt. M. Paul Anthony (supra).
8. In light of the above, this Court does not find any merit in submission of the petitioner that the departmental proceedings may be stayed in view of the judgment quoted hereinabove.
9. Learned counsel for the petitioner, at this stage, submits that he has given a representation to the opposite parties on 18.7.2022 taking various pleas against continuation of the departmental proceedings. He further submits that he may be permitted to file fresh application in this regard. It is, therefore, directed that in case such an application is given, the competent authority shall consider and decide the same expeditiously in light of the observations made by this Court and in accordance with law.
10. Subject to aforesaid observations the petition is disposed of.
Order Date :- 30.8.2022 (Alok Mathur, J.)
RKM.
