Andhra Pradesh High Court - Amravati

Shaik Khasimvali, vs The State Of Andhra Pradesh, on 20 January, 2021

Bench: M.Satyanarayana Murthy

     THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

           WRIT PETITION Nos.24696 & 25379 OF 2020

COMMON ORDER:-


         These writ petitions are filed under Article 226 of the

Constitution of India seeking a writ of mandamus to declare the

action of respondent No.3, who is conducting oral enquiry in

C.Nos.08 and 09/PR-A8/2015 against these petitioners in

departmental enquiry proceedings issued by respondent No.2 on

28.04.2015 parallel to the criminal proceedings in S.C.No.201 of

2019 on the file of the learned VIII Additional District Judge,

Nellore as illegal, arbitrary and contrary to the principles of natural

justice and consequently, direct the respondents not to proceed

with the departmental enquiry proceedings against the petitioner

herein till conclusion of the criminal proceedings.

2. Heard Smt Y.L.Shivakalpana Reddy, learned counsel for the

petitioners, and the learned Government Pleader for Services-I

appearing for the respondents.

3. One Shaik Shahina, who is the wife of petitioner in

W.P.No.24696 of 2020 and sister-in-law of the petitioner in

W.P.No.25379 of 2020, passed away after two months of her

marriage by committing suicide, which is registered as a case in

Crime No.622 of 2014 of V Town Police Station, Nellore for the

offences punishable under Sections 304-B and 498-A read with 34

I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

After completion of investigation in the said crime, the prosecution

filed charge sheet before the learned V Additional Judicial

Magistrate of First class, Nellore, which is registered as P.R.C.No.1

of 2019 and it is committed to the Sessions Court. Subsequently,

disciplinary proceedings were initiated and the petitioners were

arrested. The petitioners were released on regular bail, reinstated

into service and posting also was given to them. Petitioners filed

O.A.No.4620 of 2015 against respondent No.2 seeking common

enquiry proceedings in disciplinary proceedings against them. The

O.A. was finally disposed of directing the respondents to conduct

common enquiry as per Rule 24 of the A.P.Cs (CC&A) Rules, 1961.

The charge sheet filed in the criminal case and committed to

the Sessions Court was registered as S.C.No.201 of 2019 and was

posted for framing charges on 23.12.2020. While things stood

thus, respondent No.3 issued radio messages to the superiors of

the petitioners to relieve them for attending oral enquiry along with

evidence and material witnesses on 01.12.2020 and 12.12.2020. If

the departmental proceedings are commenced, the defence of the

petitioners in the criminal case would be prejudiced. The offence is

grave in nature and the burden lies on the petitioners to rebut the

presumption under Section 113-B of the Indian Evidence Act, 1872

and the complicated question of law and fact involves in the

criminal case.

4. During hearing, Smt Y.L.Shivakalpana Reddy, learned

counsel for the petitioners, while reiterating the contentions that in

the event of allowing these petitioners to proceed with both

departmental proceedings and sessions case divulging their

defence, it would cause serious prejudice to these petitioners and

effect the defence and as the basis for charges in both the matters

is one and the same and the witnesses are also one and the same,

it is necessary to grant stay of departmental proceedings till

completion of trial in S.C.No.201 of 2019 on the file of the learned

VIII Additional District Judge, Nellore. She placed reliance on the

judgment in M/s.Stanzen Toyotetsu India P.Ltd., vs. Girish.V

and others [Un-numbered Civil Appeal Nos. of 2014] in support

of her contention.

5. Whereas learned Government Pleader for Services-I

appearing for the respondents opposed the petitions on the ground

that no charges are framed in S.C.No.201 of 2019 till date and

unless the basis for both charges in the sessions case and the

departmental enquiry is one and the same, the Court cannot grant

stay and placed reliance on the judgment in Karnataka Power

Transmission Corporation Limited, represented by Managing

Director (Admin. and HR) vs. Sri C.Nagaraju and another [Civil

Appeal No.7279 of 2019] in support of her contention and

requested to dismiss the petitions.

6. No doubt, the petitioners were arrayed as A-1 and A-3 in

S.C.No.201 of 2019 on the file of the learned VIII Additional

District Judge, Nellore and it is coming on for framing charges. It

is also not in dispute that the charge memo was served on these

petitioners in the departmental proceedings vide proceedings

C.No.8 and 9/PR-AB/2015/1, dated 28.4.2015, for imposing major

penalty and the charge is framed against these petitioners shown

in Annexure-I, which is as follows:

Against petitioner in W.P.No.24696 of 2020:-

"Grave misconduct in harassing and torturing his wife Sk.Shaheena for additional dowry resulting due to unbearable harassment she died in a questionable condition under suspicious circumstances. In the process he also involved as an accused vide Cr.No.622/2014 u/s.304(B) r/w.34 IPC of Nellore 5th Town PS."

Against petitioner in W.P.No.25379 of 2020:-

"Grave misconduct in harassing and torturing his sister-in- law Smt.Sk.Shaheena along with his brother ARPC 801 Sk.Khaseemvalli for additional dowry resulting due to unbearable harassment she died in a questionable condition under suspicious circumstances. In the process he also involved as an accused vide Cr.No.622/2014 u/s.304(B) r/w.34 IPC of Nellore 5th Town PS."

Annexure-II is the Statement of Imputations of Misconduct and

Misbehaviour. Annexure-III is the List of Prosecution Witnesses.

Annexure-IV is the List of Prosecution Documents relied on by the

prosecution, whereas in S.C.No.201 of 2019, no charges are

framed but only a copy of the charge sheet in P.R.C.No.1 of 2019

filed before the learned V Additional Judicial Magistrate of First

Class, Nellore is placed on record. The statement of the witnesses

recorded by the investigating agency shown in the Memo of

Evidence is not placed on record except the Telugu report, dated

19.11.2014. Proforma of charge sheet includes the entire material

like the statements recorded under Section 161(3) Cr.P.C. and the

documents collected during investigation. While framing charge

against an accused in a sessions case, the Court is required to go

through the entire material filed along with the proforma of charge

sheet and frame charges but as on date, based on the proforma of

charge sheet placed on record, without annexing the statement of

witnesses under Section 161(3) Cr.P.C. and the other documents

collected during investigation, it is difficult to conclude at this

stage that the material being relied upon by the prosecution in the

sessions case and in the departmental enquiry is one and the

same. If the documentary and the oral evidence contemplated to

be produced before the enquiring authority and the sessions case

is one and the same, the petitioners are bound to divulge the

defence being set up by them in the earliest case which would

certainly cause prejudice to them but as on date, no charges have

been framed against these petitioners and it is not known whether

the witnesses stated anything against these petitioners or not in

the previous statements recorded under Section 161(3) Cr.P.C.

Therefore, it is difficult to come to a conclusion at this stage that in

case the petitioners are allowed to face both the departmental

enquiry and prosecution in the sessions case, that would cause

prejudice to these petitioners' defence.

7. The law is well settled that if the basis for the charge both in

the departmental enquiry and the sessions case is one and the

same and the evidence in both the matters is one and the same,

then the accused are entitled to claim stay but right now, it is

difficult to accept this contention since no charges are framed and

the entire material filed along with the charge sheet is not placed

before this Court for perusal to come to such a conclusion. Even

in judgment in M/s.Stanzen Toyotetsu India P.Ltd., (referred

above), the Apex Court considered the decision of the Apex Court

in Capt.M.Paul Anthony v. Bharat Gold Mines Ltd.,1 where this

Court reviewed the case law on the subject to identify the following

broad principles for application in the facts and circumstances of a

given case:

"(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

(1999) 3 SCC 679

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 honor may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."

11. In HPCL v. Sarvesh Berry (2005) 10 SCC 471 the respondent was charged with possessing assets disproportionate to his known sources of income. The question was whether disciplinary proceedings should remain stayed pending a criminal charge being examined by the competent criminal Court. Allowing the appeal of the employer-corporation this Court held:

"A 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 a grave nature involving complicated questions of fact and law. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense 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."

8. Keeping in view the law declared in State of Rajasthan v.

B.K.Meena2, the Court concluded that there was no legal bar for

both proceedings to go on simultaneously, unless, there is a

likelihood of the employee suffering prejudice in the criminal trial.

What is significant is that the likelihood of prejudice itself is

hedged by providing that not only should the charge be grave but

even the case must involve complicated questions of law and fact.

Stay of proceedings at any rate cannot and should not be a matter

of course.

9. In the present case, even if the principles laid in the above

judgments are applied to the present case, it is for this Court to

come to such a conclusion since the material filed along with the

charge sheet i.e., statement of witnesses recorded by the

investigating agency under Section 161 (3) Cr.P.C. and other

documentary evidence collected during investigation is not placed

on record and apart from that, charges are not framed. Hence, it

is difficult for me to arrive at such a conclusion that the material

being relied upon by the prosecution in S.C.No.201 of 2019 and

the departmental authority is one and the same at this stage.

10. Though learned counsel for the respondent relied upon the

judgment, dated 16.9.2019, of the Apex Court in Karnataka Power

Transmission Corporation Limited's case (cited supra), the same

is not much helpful to the petitioner, however the Court held at

para No.13 as under:

".....It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that

1996 (6) SCC 417

produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court."

11. In any view of the matter, catena of perspective judgments

on this issue regarding simultaneous prosecution as well as

departmental enquiry, in Delhi Cloth and General Mills Ltd. Vs.

Kushal Bhan3's case, the Supreme Court considered the similar

question and held as under:

"Though ordinarily a departmental action is not initiated in regard to sub-judice matter, yet there is no provision of law which empowers Courts to stay departmental proceedings merely because a criminal prosecution of the same person is launched in a Court of Law. The object of departmental proceeding is to ascertain if the employee is a fit person to be retained in service and the object of the court trial is to see if the ingredients of the offence have been made out warranting conviction. In the instant case, the Supreme Court observed that often employers stay enquiries pending decision of the criminal courts and that is fair. But it could not be said that principles of natural justice require that an employer must wait for the decision at least of the trial Court before taking action against an employee. If the case is of grave nature or involves question of facts or law, which are not simple, it would be advisable for the employer to wait the decision of the trial Court, so that the defence of the employee in the criminal Court may not be prejudiced."

12. In the judgment in S.A.Venkataraman Vs. The State4, it is

held as follows:

"This question was set at rest by the Supreme Court in its judgment in the instant case. It was held that Article 20(2) refers to proceedings before a Court of law for an offence,

AIR 1960 SC 806

1958 Cr.L.J.254 SC

where there is prosecution and conviction. In a departmental proceeding, there is neither any prosecution nor any conviction by a Court of law. Therefore, a public servant who has been punished for an official misconduct in a departmental proceeding may still be subjected to a criminal prosecution if the misconduct alleged is also a criminal offence. Thus prohibition as contained in Art.20(2) of the Constitution in such a case is inoperative."

13. In view of the law declared by the Courts, undoubtedly,

when the offence allegedly committed by the petitioners herein is

grave in nature and in the event of divulging the defence in the

sessions case, certainly, it would have effect on the departmental

proceedings but at this stage, based on the material available on

record, I am unable to accept this contention for the reason that

the evidence collected during investigation is not placed on record

before this Court. Hence, I find no ground to grant the relief as

claimed in these petitions. However, it is left open to these

petitioners to renew their request after framing charges in Sessions

Case No.201 of 2019 pending on the file of the learned VIII

Additional District Judge, Nellore and file the entire material before