Rajesh Chaudhary vs State Of U.P. And Another
2023 Latest Caselaw 6498 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 87
 

 
Case :- APPLICATION U/S 482 No. - 20253 of 2022
 
Applicant :- Rajesh Chaudhary
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ritukar Gupta,Siddharth Srivastava,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Mr. V.P. Srivastava, learned Senior Advocate, assisted by Mr. Ritukar Gupta, for the petitioner, as well as Mr. M.K. Singh Gaur, learned Additional Government Advocate, for respondent - State, and gone through the entire record.

2. The present petition under Section 482 CrPC has been filed for quashing of the charge-sheet dated 12.03.2020 filed in Crime/FIR No.0118 of 2011, under Sections 409, 419, 420, 467, 468, 471, 120-B and 34 IPC read with Section 13(2) Prevention of Corruption Act,1988 (hereinafter referred to as the "PC Act") lodged at Police Station Line Bazar, District Jaunpur, for quashing of the summoning order dated 18.06.2020 as well as for quashing of the entire proceeding of Sessions Trial No.407 of 2020 (State Vs. Rajesh Chaudhary), pending in the Court of Special Judge, P.C. Act, Court No. 3, Varanasi.

3. The said FIR was lodged on 24.01.2011 by S.K. Goyal, Executive Engineer, Public Works Department (hereinafter referred to as the "PWD"), Government of Uttar Pradesh, Jaunpur against the petitioner and four other persons, alleging therein that when the petitioner was posted from 26.09.2006 to 19.02.2009 in the Store of the Department, he was responsible for using and keeping the record of the stock; he was also responsible for the receipt and expense of the stock. The bitumen was purchased from 26.09.2006 to 19.02.2009 from Indian Oil Corporation and payment was made, however, on inquiry, it transpired that 569.39 metric tonns bitumen had been misappropriated by selling it in the market and as a result thereof, the State Government had suffered a loss to the tune of Rs.1,57,18,530/-.

4. The said offence was investigated and charge-sheet no. 04 of 2020 dated 12.03.2020 was filed against the petitioner, Dinesh Pandey and Dinesh Prakash Srivastava under Sections Sections 409, 419, 420, 467, 468, 471, 120-B and 34 IPC read with Section 13(2) P.C. Act.

5. The trial Court vide order dated 18.06.2020 had taken cognizance and summoned the petitioner and co-accused to face trial.

6. On behalf of the petitioner, Mr. V.P. Srivastava, learned Senior Advocate, submits that the applicant has been falsely implicated in the present case; initially, the FIR was lodged under Section 409 IPC only; the investigation was thereafter transferred to Economic Offences Wing (EWO) and thereafter charge-sheet had been filed under Sections 409, 419, 420, 467, 468, 471, 120-B and 34 IPC read with Section 13(2) PC Act. It is further submitted that there is no cogent and credible evidence against the petitioner and in departmental proceedings, pertaining to the present case, in which the charge-sheet was served upon the petitioner on 08.06.2010, punishment was awarded to him vide order dated 19.06.2013 of reversal to the lowest grade of pay of Assistant Engineer. The recovery of proportionate amount of Rs. 63,17,025/- from the petitioner was also ordered.

7. Against the said order dated 19.06.2013, wherein punishment of reversal to the lowest grade of pay of Assistant Engineer and recovery of proportionate amount of Rs. 63,17,025/-, the petitioner preferred Claim Petition No.1788 of 2013 before the State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal") and the punishment order was set-aside vide judgment and order dated 19.01.2017. Disciplinary authority was directed by the Tribunal to hold a fresh inquiry from the stage of filing of the reply to the charge-sheet.

8. The State Government subsequently, vide order dated 27.06.2017, directed fresh inquiry against the petitioner, as ordered by the Tribunal. In the fresh inquiry conducted pursuant to the order passed by the Tribunal dated 19.01.2017, the petitioner was found guilty for dereliction of duty only. The competent Authority recorded specific finding that there was no deficit of quantity of bituean and the State Government did not suffer any loss. The State Government, however, rejected the said inquiry report dated 23.07.2019 vide its order dated 14.10.2019 and ordered for a fresh inquiry.

9. The petitioner had challenged the said order dated 14.10.2019 of the State Government, ordering a fresh inquiry against him, by filing Writ Petition No.32015 (S/S) of 2019 before this Court at Lucknow. This Court, vide order dated 02.12.2019, passed in Writ Petition No.32015 (S/S) of 2019, quashed the Office Memorandum dated 14.10.2019 having held the same illegal, arbitrary and uncalled for. This Court further issued a writ of Mandamus, directing the disciplinary authority to take appropriate decision in the light of the inquiry report dated 18.07.2019 within four months from the date of production of certified copy of the order passed by this Court.

10. In compliance of the said directions issued by this Court, the State Government passed order dated 24.01.2020 and cancelled the Office Memorandum dated 14.10.2019. Since in the inquiry report dated 18.07.2019, out of four charges, one charge was found proved, the petitioner was given 15 days time to file his reply to the show-cause under Rule 19(4) of the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "Rules, 1999"). The petitioner filed his representation/objection dated 31.01.2020 and was given an opportunity of personal hearing on 08.07.2020.

11. After considering the reply and hearing the petitioner, the disciplinary authority vide order dated 16.07.2020 found the petitioner guilty of dereliction of duty under Rule-3 of the Uttar Pradesh Government Servant's Conduct Rules, 1956 and awarded a censure entry.

12. The said order dated 16.07.2020, awarding censure entry to the petitioner, was challenged by the petitioner before the Tribunal by filing Claim Petition No.883 of 2020. The said claim petition was allowed and order dated 16.07.2020 was set-aside vide judgment and order dated 13.07.2021 passed by the Tribunal.

13. On behalf of the petitioner, it is submitted by the learned Senior Advocate that when the competent authority found the petitioner only guilty for dereliction of duty and not for embezzlement/ misappropriation of the bitumen or loss to the Government, the continuation of the impugned proceeding against the petitioner would be an abuse of process of the Court. It is also submitted that even the censure entry has been quashed by the Tribunal vide order dated 13.07.2021, as mentioned above; the charge -sheet could be filed after 9 years from the date of lodging of the FIR; the allegations against the petitioner are totally vague and not supported by any evidence; when the petitioner has been exonerated in the departmental proceeding on merit on these very charges and there is a specific finding by the competent authority that there was no loss of material, the charge of committing criminal offence, for which the charge-sheet has been filed and cognizance has been taken, is unsustainable. It is further submitted that the order grating sanction for prosecution of the petitioner for offence under Sections 409, 419, 420, 467, 468, 471, 120-B and 34 IPC read with Section 13(2) PC Act appears to be without application of mind as in the departmental proceeding no such finding could be arrived at that the petitioner had committed any offence and, the only allegation which got proved, was of the dereliction of duty for which censure entry was awarded to him, but the same has already been set-aside. It is, therefore, submitted that the present petition may be allowed and the impugned proceeding may be quashed.

14. On the other hand, Mr. M.K. Singh Gaur, learned Additional Government Advocate, opposes the petition and, submits that the scope of criminal proceeding and departmental proceeding are different; in the departmental proceeding, the finding of guilt is based on preponderance of probabilities, whereas in the criminal proceeding, guilt is to be proved beyond reasonable doubt to hold a person guilty for an offence; the finding of the departmental proceedings are not binding upon the Court proceeding, which is a trained judicial mind, and has to examine the evidence to find the truth. It is further submitted that criminal proceeding cannot be quashed merely on the ground that in the departmental proceeding the petitioner was found guilty only for dereliction of duty and, other charges were not proved. It is further submitted that the competent authority, after taking into consideration the facts and circumstances, has granted sanction for prosecution of the petitioner and other accused vide order dated 03.04.2018. It is, therefore, submitted that the present petition, having no merit and substance, and is liable to be dismissed.

15. The Supreme Court in the case reported in (1996) 9 SCC 1 (P.S. Rajya Vs. State of Bihar) has held that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. The charge in the departmental proceedings and the criminal proceedings is one and the same and, if the charge could not get established in the departmental proceedings, to proceed in criminal proceeding against such person would not be justified. The Supreme Court has held that such a case can be brought under more than one head of guidelines laid down in Bhajan Lal's case for quashing of the criminal proceeding. If one compares the charge-sheet issued in the departmental proceeding and the police report, one would find that the charges are substantially one and the same. In the departmental proceeding, after analyzing the evidence, the competent authority has not found the charge proved against the petitioner except for dereliction of duty.

16. In view thereof, this Court deems it appropriate that continuation of the impugned proceeding against the petitioner would not be justified. Thus, the present petition is allowed. Consequently, the impugned proceeding is hereby quashed.

[D.K. SINGH,J.]

Order Date :- 1.2.2023 MVS/-