Narad Tamrakar vs State Of Chhattisgarh
2021 Latest Caselaw 418 Chatt

                                              1


                                                                                    AFR

                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                  WPS No. 2653 of 2021

     Narad Tamrakar S/o Late Shri Mohar Sai Tamrakar Aged About 40 Years R/o
     Near IB Rest House , Janjgir, Police Station And Tahsil Janjgir , District
     Janjgir Champa Chhattisgarh.
                                                               ---- Petitioner
                                           Versus
     1.      State Of Chhattisgarh Through Its Secretary , Department Of Home/
             Police , Mahanadi Bhawan , Mantralaya , Police Station And Post
             Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh.
     2.      Inspector General Of Police (IGP) Office Of Inspector General Of
             Police , Bilaspur Range, Near Nehru Chowk, District Bilaspur
             Chhattisgarh
     3.      Superintendent Of Police (SP) Office Of Superintendent Of Police
             (SP), Janjgir Champa , District Janjgir Champa Chhattisgarh.

                                                                   ---- Respondents

     For Petitioner                    :      Mr. Abhishek Pandey, Advocate
                                              along with Ms. Deepika Sannat, Adv.
     For State                         :      Ms. Sunita Jain, G.A.

                           Hon'ble Shri Justice P. Sam Koshy
                                      Order on Board

21/06/2021

1. Aggrieved by the decision of the respondents in initiating a disciplinary

proceedings and also ordering for conducting of a departmental inquiry

the present writ petition has been filed.

2. The brief facts relevant for the adjudication of the present writ petition

is that the petitioner is working under the respondents as a Constable

(Trade). On 16.03.2020 an F.I.R. was lodged against the petitioner for

the offence punishable under Sections 506 & 509 (B) of Indian Penal

Code and Section 67(A) of the I.T. Act. Subsequently, the matter has

been put to trial and the charge-sheet also has been filed before the

concerned trial Court. Now the Department has vide charge-sheet

dated 05.03.2021 (Annexure P/3)) has been issued.

3. The counsel for the petitioner submits that perusal of the contents of

the charge-sheet and on perusal of the allegations leveled in the F.I.R.,

the contents are same. He further drew the attention of this Court to

the list of witnesses cited in the criminal case as also in the

departmental enquiry and submitted that the main witnesses before

the two proceedings also are the same. According to the petitioner,

since in the departmental enquiry the witnesses to be examined in the

criminal case are same and in case if their statements are recorded in

the departmental enquiry ahead of the evidence being recorded in the

criminal case, the very defense of the petitioner before the Criminal

Court would get disclosed and it may have an adverse baring to the

criminal case and which can also be detrimental to the interest of the

petitioner. He thus prayed for stay of the departmental enquiry pending

the criminal case. The counsel for the petitioner relied upon a couple of

orders passed by this Court in WPS No. 8018/2018 decided on

05.12.2018 and also in WPS No. 5252/2020 decided on 14.12.2020.

4. The State counsel on the other hand opposing the petition submitted

that a plain reading of the nature of allegations itself would show that

the charges leveled against the petitioner are quite serious and

squarely falls within the ambit of a misconduct under the service

regulations and therefore irrespective of the pendency of the criminal

case the disciplinary proceedings also simultaneously go on.

According to the State counsel, there is no embargo as such totally

prohibiting the two proceedings to go on simultaneously and it would

all depend upon the facts of each case and as such there cannot be a

straight jacket formula for staying the entire disciplinary proceedings.

The counsel for the State relied upon the judgment of the Hon'ble

Supreme Court in the case of "Divisional Controller, Karnataka

State Road Transport Corporation v. M.G. Vittal Rao" 2012(1) SCC

442 to support her contention.

5. As regards, the law as laid down by the Hon'ble Supreme Court which

is by now well settled proposition of law that there is no legal bar for

continuation of the two proceedings, one under the departmental

enquiry and other under the criminal trial. However, the Hon'ble

Supreme Court has repeatedly reiterated the fact that even though

there is no legal bar but in the event of the question of facts and the

nature of evidences to be adduced in the two proceedings are the

same. To avoid unnecessarily further complications, the departmental

enquiry should be deferred till the conclusion of the criminal case.

6. In the instant case, if we look into the allegations leveled against the

petitioner in the criminal case and the charges leveled against the

petitioner in the disciplinary proceedings, it would clearly reflect that

the allegations are the same that are leveled in the criminal case as

well. Perusal of the documents enclosed along with the writ petition,

particularly the F.I.R. and the list of witnesses in support of the

prosecution before the trial Court and the list of witnesses enclosed

along with the departmental charge-sheet for the departmental enquiry

would show that most of witnesses are common in the two

proceedings.

7. As early as in the case of Capt. M. Paul Anthony V. Bharat Gold

Mines Ltd. And Anr. 1999 3 SSC 679 the Hon'ble Supreme Court in

paragraph 22 had laid down certain guidelines and where it has been

specifically held that in the event if the issue involves complicated

question of law and facts, if the evidences are similar, if not identical, it

would be desirable to stay the disciplinary proceedings. For ready

reference paragraph No. 22 of the said judgment is reproduced here-

in-under:-

"22. 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."

8. A similar stand has again been taken by the Hon'ble Supreme Court in

the case of Stanzen Toyotetsu India Private Limited vs. Girish V. &

Ors (2014) 3 SCC 636 which has also been relied by the Counsel for

the petitioner. The aforesaid view of the Supreme Court has further

been reiterated again in the case of State Bank of India & Ors. vs.

Neelam Nag and Others reported in 2016 9 SSC 491. In all these

cases, the principle of law so far as stay of the departmental enquiry, in

the event of the nature of allegations and the witnesses remained the

same have not been diluted. The Courts have very emphatically held

that for stay of the departmental enquiry, there can be no straight

jacket formula which can be spelt out, it would all depend upon the

facts of each case.

9. This Court also in a recent writ petition of similar nature has relied

upon the judgments of the Hon'ble Supreme Court in the case of

Avinash Sadashiv Bhosle (Died) through LRs. vs. Union of India

(2012) 13 SCC 142 wherein the Hon'ble Supreme Court dealing with

the similar set of facts and issues has categorically held that the

departmental proceedings can go on simultaneously to the criminal

trial except where both the proceedings are based on the same set of

facts and the evidences in preceding case are common. The said

principle of law has been re-iterated by the Hon'ble Supreme Court in

many other decisions previously and subsequently in the case of State

Bank of India & Ors. vs. Neelam Nag and Others 2016 9 SSC 491.

10. A fact which needs to be kept in mind or that needs to be considered

at this juncture is the set of witnesses cited by the Department in the

departmental enquiry and the list of witnesses in the criminal case. A

perusal of the two in the present case would reveal that the list of

witnesses and evidences are similar and the nature of allegations in

the criminal case as also in the charge-sheet are also same. In again a

recent decision the Hon'ble Supreme Court in the case of Shashi

Bhushan Prasad vs. Inspector General of C.I.S.F in case no. C.A.

No. 7130/2009, decided on 01.08.2019 has categorically held that the

two proceedings can go simultaneously except where the witnesses

and the evidences are same which in the instant case appears to be

same.

11. Therefore, in the light of the aforesaid legal position as it stands for,

this Court is of the opinion that in the present case also keeping in

view the judgment of the Hon'ble Supreme Court referred to in the

preceding paragraphs, since the witnesses in the two proceedings are

similar if not identical, in the interest of justice it would be more

appropriate, if the evidences in the departmental enquiry is deferred till

the evidences or witnesses in the criminal case of those witnesses

who have been cited in the departmental enquiry, are examined, which

would include the recording of the statement of the delinquent himself

who should not be compelled to depose in the departmental enquiry

ahead of the evidence on behalf of the department in the criminal case

is completed. It is ordered accordingly.

12. Given the aforesaid facts and circumstances of the case and also

taking note of the judicial pronouncement as it stands, the present writ

petition if taken into consideration, it would reveal that for proving the

charges which have been leveled against the petitioner in the

departmental charge-sheet, the witnesses if not all, most of them

would be the same who are also the witnesses in the Criminal Court.

13. Under the circumstances, if the witnesses are permitted to be

examined in the disciplinary proceedings before they are examined in

the criminal Court, there is all likelihood of the evidences of the

petitioner being adversely affected. Since the most of witnesses are

common in the two proceedings and in case if the witnesses who are

common before the two proceedings are examined in the departmental

enquiry ahead of their statements being recorded in the criminal case,

undoubtedly the defense of the present petitioner (the accused in the

criminal case) would get disclosed and can have an adverse bearing in

the criminal case detrimental to the interest of the delinquent (the

petitioner).

14. For all the aforesaid reasons, this Court is of the firm view that the writ

petition as of now can be disposed of with a direction to the

respondent-authorities to ensure that the disciplinary proceeding

initiated against the petitioner be deferred till all the witnesses in the

departmental enquiry who are also witnesses in the criminal case, are

examined before the Trial Court in the criminal case against the

petitioner and to proceed further with the disciplinary proceedings

thereafter.

15. With the aforesaid observations the present writ petition stands

allowed and disposed of.

Sd/-

(P. Sam Koshy) Judge Ved