Sanjay Kumar Sen vs State Of Chhattisgarh
2021 Latest Caselaw 2193 Chatt

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                                                                      NAFR
             HIGH COURT OF CHHATTISGARH AT BILASPUR

                           WPS No. 4683 of 2021
Sanjay Kumar Sen S/o Gopi Chand Sen, Aged About 36 Years R/o. Ward
No. 06, Shahid Ashfaque Ullas Nagar, Akaltara, Tahsil Akaltara, District
Janjgir Champa Chhattisgarh
                                                            ---- Petitioner
                                  Versus
1.    State Of Chhattisgarh Through Its Secretary, Agriculture Department,
      Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur
      (Chhattisgarh)
2.    Director, Directorate Of Agriculture, 2nd Floor, Indrawati Bhawan,
      Atal Nagar, Nawa Raipur, District Raipur Chhattisgarh
3.    Joint Director, Agriculture, Bilaspur Division, Bilaspur, District
      Bilaspur Chhattisgarh
4.    Sub Divisional Officer, Agriculture, Pamgarh, District Janjgir Champa
      Chhattisgarh
5.    Deputy Director, Agriculture, Vikas Awam Kisan Kalyan Tatha Jaiv
      Prodyogiki Vibhag, Janjgir, District Janjgir Champa Chhattisgarh
6.    Station House Officer, Police Station Akaltara, District Janjgir
      Champa Chhattisgarh
                                                         ---- Respondents

For Petitioner                       :     Mr. Punit Ruparel, Advocate.
For State                            :     Mr. Amrito Das, Additional A.G.




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

07/09/2021

1. Though the petitioner has made multiple reliefs in the present writ

petition, during the course of hearing, the learned counsel for the

petitioner confines his writ petition, so far as the challenge to

Annexure P/3 dated 31.07.2021 that is an amended charge-sheet

issued to the petitioner.

2. The primary contention of the petitioner to challenge the same is that

for the same set of facts and allegations, the petitioner is already

facing a criminal case for the offences punishable under Sections

376 & 506 of the Indian Penal Code. According to the petitioner, in

the event if the petitioner is made to lead his evidence before the

departmental enquiry, there is a possibility of his defense being

disclosed ahead of the evidence being recorded in the criminal case.

The further contention of the petitioner is that even in the charge-

sheet and the list of witnesses cited, the main witnesses are

common for the two proceedings, which would also have an adverse

impact in the criminal case, if the petitioner is made to lead the

evidence before the departmental enquiry ahead of the evidence in

the criminal case.

3. Plain perusal of the FIR registered against the petitioner as also the

charge-sheet issued in the departmental enquiry, it establishes the

fact that the charges leveled in the FIR as also the charge-sheet

issued in the departmental enquiry are intrinsically connected and for

establishing the said charge the witnesses to be examined on behalf

of either side would be the same witnesses, if not all, many of the

witnesses would be the same.

4. As of now, the law so far as simultaneous proceedings of criminal

case and departmental enquiry is by now well settled, where it has

been repeatedly held that the two proceedings can go on

simultaneously, however in the event if there is a direct nexus to the

two proceedings then the departmental enquiry proceedings should

be deferred or stayed to the extent of the evidence being recorded in

the criminal case.

5. The learned counsel for the petitioner relied upon the decision of the

Hon'ble Supreme Court in the case of "Stanzen Toyotetsu India

Private Limited v. Girish V. & Others" (2014) 3 SCC 636 and also

the case of "State Bank of India & Others. v. Neelam Nag and

Others" (2016) 9 SCC 491 in support of his contention.

6. Per contra, the counsel appearing for the respondents submits that

now that the petitioner having been released on bail, he can fully

participate in the departmental enquiry and can take whatever

defence he intends to. The counsel appearing for the respondents at

the same time referring to 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

submitted that the law so far as simultaneous proceedings of

criminal case and departmental enquiry is by now well settled,

wherein the Hon'ble Supreme Court has repeatedly reiterated that

the departmental enquiry and the criminal case can go on

simultaneously, therefore under the circumstances, the departmental

enquiry in the instant case also does not need to be stalled at this

juncture. The contention of the respondent counsel is that there is a

possibility that the conclusion of the criminal case may take long

time, which may ultimately affect the departmental enquiry and

would also have an adverse impact so far as the discipline in the

Department is concerned.

7. From the contentions put forth by the counsel appearing on either

side what clearly reflects is that the allegations against the petitioner

both in the FIR lodged against him and also in the charge-sheet that

has been issued to him in the departmental enquiry, both are in

respect of the same alleged involvement of the petitioner in the

alleged act of theft along with other accused persons. The list of

witnesses cited in the two proceedings also would reveal that many

of the witnesses cited are common and these common witnesses

are the main witnesses for both the proceedings. Keeping this fact, it

would now be relevant to take note of the legal position as it stands.

8. 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.

9. 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.

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

Mines Ltd. And Anr." (1999) 3 SCC 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 hereinunder:-

"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."

11. 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" (2016) 9 SCC 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

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

held 7 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.

12. 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 SCC 491.

13. 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.

14. 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.

15. 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 getting adversely affected. Since 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).

16. 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 some of the main witnesses in the two

proceedings are similar if not identical, in the interest of justice it

would be more appropriate, if the evidences of common witnesses in

the departmental enquiry is deferred till the evidences of witnesses

in the criminal case of all those witnesses who have also 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 in the criminal case is completed. It is ordered accordingly.

17. For all the aforesaid reasons, this Court is of the firm view that in the

aforesaid legal position as it stands, the writ petition as of now can

be disposed of directing the respondent authorities to ensure that the

departmental enquiry initiated against the petitioner as of now may

be proceeded only with the witnesses who are not common in the

two proceedings i.e. in the departmental enquiry and the criminal

case. However as regards the witnesses who are common in both

the proceedings, their evidences which is to be recorded in the

departmental enquiry, shall be recorded only after their evidence/

statement is recorded in the criminal case, wherein the petitioner is

an accused for the offence under Section 376 & 506 of the IPC.

18. With the aforesaid observations, the present writ petition at this

juncture stands allowed and disposed of.

Sd/-

(P. Sam Koshy) Judge Ved