S.I. Ramesh Kumar vs Commissioner Of Police And Ors.
2001 Latest Caselaw 1886 Del

JUDGMENT

Khan, J.

1. Petitioner, SI in Delhi Police, is seeking stay of disciplinary proceeding initiated against him in view of pending criminal prosecution arising out of the same incident. Was such stay liable to be granted is the question.

2. Petitioner had approached Tribunal for this but his OA No. 2523/2001 was dismissed by impugned order after it found that no complicated question of law was involved in the criminal prosecution.

3. Petitioner's office was raided by CBI upon a complaint of demanding bribe. His two constables were arrested but he escaped. On search, two country made pistols and one knife was recovered from his almirah. CBI lodged FIR under Section 7 and 13(2) of POC Act and under Section 25/27 of Arms Act against him which is pending trial and in which prosecution has cited about 20 witnesses. Meanwhile, disciplinary proceedings were initiated against him charging him of misuse of official premises by order dated 2.11.2000 which he is trying to ward off.

4. Petitioner's case is that both the criminal case and departmental proceedings arising out of the same incident and involving a similar set of facts and witnesses could not proceed simultaneously which prejudice his defense and cause irreparable loss and injury to him. Support for this is drawn from the Supreme Court judgment judgment in Capt. M. Paul Anthony v. Bharat Gold Mines Limited and Anr., and respondent's circular dated 31.8.1999 which according to him provided a bar against taking disciplinary proceedings during pendency of criminal prosecution.

5. Respondents' stand, however, is that though two proceedings arose out of the same incident but these involve different charges and only three out of 20 witnesses were common who were responsible police officials. It is explained that petitioner was facing criminal prosecution for keeping illegal weapons and departmental action for misconduct of misusing the official premises.

6. The issue whether or not disciplinary proceedings were liable to be stayed during the pendency of criminal prosecution is no more res integra and has been dealt with by the Supreme Court in detail in its several judgments. The Court had laid broad parameters for this to be made applicable in a given case.

7. As it is, there is no legal bar for taking simultaneous proceedings against a delinquent employee and yet there may be cases where parallel departmental proceedings could cause prejudice to him. But it all depend on the facts and circumstances of the case and where it was found that such prejudice was likely to be caused, departmental action warranted to be stayed. The test evolved by the Supreme Court in its judgments postulate a grant of stay where the charge against the delinquent in the criminal case was grave and involved complicated questions of fact and law. In other words disciplinary proceedings were not liable to be stayed as a matter of course, but there was no impediment in staying such proceedings where the delinquent was facing a grave charge in the criminal prosecution which also involved complicated questions of fact and law and was likely to cause prejudice to his defense in the criminal case.

8. It becomes unnecessary to refer to several Supreme Court Judgments on the issue and to quote from these to bring out the difference in the nature of two proceedings and the circumstances in which the departmental action was liable to be stayed. This is more so because the Apex Court had capsuled the whole legal position on the issue in Paul Anthony's case (supra) laying down thus:-

"(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 are 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."

9. Tribunal has, on applying this, taken the view in the present case that neither the charge in the criminal prosecution faced by petitioner was grave nor was any complicated question of fact and law involved therein. We accordingly find no scope to take a different view in the matter.

10. Petitioner's reliance on the judgment of the Supreme Court in Paul Anthony's case is also misplaced and does not advance his case any way. In Paul Anthony's case, the two proceedings taken against the delinquent employee involved same set of facts and common evidence and what is important is that he was acquitted by the criminal court on the basis of same evidence which was before the departmental inquiry. It was in these circumstances that Supreme Court found that findings of the criminal court could not be allowed to be defeated in the departmental action. But, in the present case, only on out of 20 witness has been examined in the criminal case and of these three are common who are police officials. Therefore, it could not be said that any prejudice was likely to be caused to petitioner if the departmental action against him was not stayed.

11. Apart from this, it does not appear to us that charge in the two proceedings against petitioner was the same. Because he is charged of demanding bribe and keeping illegal weapons in the criminal case and of misconduct of misusing the official premises in the departmental action. The two charges, therefore, by no logic could be said to be identical warranting any stay of the departmental action so as to avoid any prejudice being caused to him. Nor was any common evidence involved in the two proceedings. Therefore, even though both proceedings arose out of the same incident and by and large there was the same set of facts, this could not be said to be identical on all fours to merit any grant of stay of disciplinary proceedings.

12. Petitioner's second plank that respondents were bound to stay the disciplinary proceedings under Circular dated 31.8.99 also does not bear scrutiny. Relevant portion of the circular on which he placed whole log of the reliance is reproduced hereunder:-

" Therefore, keeping in view of the position mentioned above, it has been decided that in the case where parallel D.E. has been ordered in the Crl. Case, D.E. can be held in abeyance in the interest of natural justice till the conclusion of Crl. Case. As regards POC Act cases, the D.E. may not be initiated till the finalization of the Crl. Case and after the decision of Crl. Case, it may be decided whether a D.E. is to be held or not keeping in view the provisions of Rod Delhi Police (Punishment & Appeal) Rules 1980. The decision in this regard should be taken by the disciplinary authority itself instead of making any reference to this HQ as the provision of Rule 12 of Delhi Police (Punishment & Appeal) Rules 1980 is very clear in this regard."

13. It is seen that this circular was issued in the face of Supreme Court judgment in Paul Anthony's case and in view of the difficulties experienced by disciplinary authority in procuring requisite documents in POC Act case. It accordingly provided in this background that it would be desirable to hold disciplinary proceedings in abeyance and such proceedings may not be held in POC Act cases till the conclusion of criminal case. It, however, left it to disciplinary authority to take a decision in the matter which by itself goes to show that departmental action was not to be stayed in all events and circumstances during the pendency of a criminal prosecution and that it was for the disciplinary authority to take a decision in the matter. In other words, it cannot be said or held that the provisions of this circular made it obligatory for disciplinary authority to stay disciplinary proceedings during the pendency of the criminal case.

14. In the present case, neither disciplinary authority nor Tribunal had found it desirable to stay the departmental action. We are not, therefore, in a position to substitute our view in the matter. This writ petition accordingly fails and is dismissed.