Mahabir Singh And Ishwar Singh vs Union Of India And Ors.
2001 Latest Caselaw 1857 Del

JUDGMENT

D.K. Jain, J.

1. By these two writ petitions under Article 226 of the Constitution of India, the petitioners seek stay of the disciplinary proceedings initiated against them by virtue of two sets of memorandums, both dated 15 November 2000, till the trial in criminal cases lodged against them is completed.

2. Since the cases are interconnected and arise out of the same incident, resulting in the said proceedings against the petitioners, with the consent of counsel for the parties, both the cases are being disposed of finally by this common order.

3. Petitioner Mahabir Singh (in CWP 7572/00) was posed as Head Constable in Railway Protection Force (for short 'the RPF') and petitioner Ishwar Singh (in CWP 7601/00) was posed as Constable in the same Force at Ghaziabad post. The allegation against both is that though belonging to the RPF, on 3 February 1999, they impersonated as belonging to the Government Railway Police staff and extorted Rs. 70/- as illegal gratification and misappropriated certain belongings of a railway passenger at the Old Delhi Railway Station. They were apprehended by the local police personnel at the platform and an FIR was registered against them for committing an offence under Section 384/34 IPC. A challan was filed against both of them and they are facing trial in the criminal case.

4. Memorandums initiating disciplinary proceedings were issued to both of them by the Assistant Security Commissioner, RPF, Delhi. The articles of charge against Mahabir Singh reads as follows:

"Head Constable Mahavir Singh, S/o. Shri Bhagwan Singh of RPF post GZB is charged for gross negligence and serious misconduct in that.

1. On 3.2.1999 Head Constable Mahavir Singh in association with Constable Ishwar Singh of GZB post extorted Rs. 70/- and personal belongings of one passenger named Ram Sunder S/o. Shri Samarjit R/o Jaunpu (UP) at Railway Station, Delhi (Main.)

2. A Police case crime No. 66/99 Under Section 384 IPC by the SHO/Railway Station, Delhi (M) was registered against Hd. Const. which brought disrepute to the force. Thus, Constable Mahavir Singh is charged for (sic) discreditable conduct."

Similarly, memorandum of same construction, phraseology and effect was issued against Ishwar Singh.

5. The present petitions have been filed seeking stay of the disciplinary proceedings on the ground that the charges levelled against each in the disciplinary proceedings are identical to the criminal case and that holding of both the criminal and disciplinary proceedings simultaneously will cause serious prejudice to them. While issuing show cause to respondents, on 15 December 2000, departmental inquiry proceedings against Mahabir Singh were stayed, which interim order still continues to be in force.

6. The petitions are opposed by the respondents. In the affidavit filed in opposition it is stated that the petitioners are members of the RPF, an armed force of the Union, constituted under Section 63 of the Railway Protection Act, 1957 (for short 'the Act') for better protection and security of the railway property and it is incumbent upon all members of the Force to submit themselves to the requirements of the code of behavior as enshrined in Rule 146 of the Railway Protection Force Rules 1987 (for short 'the Rules'). It is pointed out that Head Constable Mahabir Singh, while posted at RPF post Ghaziabad was detailed on 3 February 1999 to perform duty in 0800 to 1600 hours shift at Ghaziabad. He was required to report for duty again in 0000 to 0800 hours shift on 5 February 1999. He, along with Constable Ishwar Singh of the Ghaziabad post, impersonated themselves as staff of Government Railway Police and went to platform No. 12 of Old Delhi Railway Station at about 2100 hours on 3 February 1999, when and where they were not supposed to be on duty. On the complaint of the victim to the local police on duty, Mahabir Singh was caught by Government Railway Police staff while Ishwar Singh escaped from the scene. It is stated that by including in such criminal act of extorting money from the passenger by impersonating themselves and by misusing their identity they caused and brought horrible disrepute to the RPF for which act they can face suspension under Section 9 of the Act. They are facing charges of gross negligence and discreditable conduct, for which departing proceedings have been initiated, and the same are entirely different from the charge framed in the criminal cases.

7. I have heard Mr. R.K. Singh, learned counsel for the petitioner and Ms. Anjana Gosain, learned counsel for the respondents, at some length.

8. The main contention of learned counsel for the petitioners is that since the subject-matter of the trial in the criminal case and the disciplinary proceedings is the same, simultaneous proceedings in both will cause prejudice to the petitioners inasmuch as they will have to disclose their entire defense in disciplinary proceedings, which should be stayed. Reliance in support is placed on the Supreme Court decisions in M. Paul Anthony v. Bharat Gold Mines Limited and Anr. , Delhi Cloth and General Mills Ltd. v. Kushal Bhan and Kusheshwar Dubey v. Bharat Coking Coal Limited and Ors. .

9. Ms. Anjana Gosain, learned counsel for the respondents on the other hand, has urged that the departmental proceedings have been initiated against the petitioners under the provisions of the Act read with Rules framed there under, for the discreditable conduct and for bringing disrepute to the Force, on account of registration of criminal cases against them under Section 384/34 IPC; the two proceedings namely, criminal case and the disciplinary proceedings cannot be said to be identical and, therefore, it is not a fit case where disciplinary proceedings should be stayed. It is submitted that the allegation against the petitioners is grave, which tends to tarnish the image of the entire Police Force and therefore it would be in the interest, both of administration and the petitioners that disciplinary proceedings are completed expeditiously so that if they are found not guilty, their honour is vindicated and if found guilty they are dealt with promptly according to law. To buttress the argument that the two proceedings are not identical learned counsel has pressed into service Rule 146 of the Rules, which lays down the code of behaviors for members of the force.

10. The short question which requires consideration is whether it would be desirable or advisable in the circumstances to stay the disciplinary proceedings against the petitioners, pending the criminal trial against them.

11. The question whether departmental proceedings and proceedings in criminal case, which are claimed to have been launched on the basis of the same set of facts, can be continued simultaneously or not has come up for consideration before the Courts umpteen times. Recently, in Bharat Gold Mines Case (supra) the same question again cropped up and while referring to some earlier cases and making extensive reference to the case of Kusheshwar Dubey (Supra) and State of Rajasthan v. B.K. Meena and Ors. , the Apex Court culled out the following broad principles which could be applied to a given situation:

"(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 an 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 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, the administration may get rid of him at the earliest."

12. After deducing the above points, the Court observed that there is a consensus of judicial opinion on the basic principle that proceedings in criminal cases and the departmental proceedings can proceed simultaneously as proceedings in criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. In the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the disciplinary authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff. The standard of proof required in the disciplinary proceedings is different than that required in the criminal case. While in the departmental proceedings, the standard of proof is one of preponderance of the probabilities, in a criminal case the charge has to be proved by the prosecution beyond reasonable doubt.

13. At this stage it would also be appropriate to refer to certain significant observations made by the Supreme Court in B.K. Meena's case (supra). The Court emphasised that staying of the disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of the case and that no hard and fast rule can be enunciated in that behalf. The only ground constituting a valid ground for staying the disciplinary proceedings is where the case is of grave nature involving complicated question of law and fact. The Court proceeded to add that the interest of administration and good governance demand that the disciplinary proceedings are concluded expeditiously so that undesirable elements are thrown out and any charge of misdemeanour is inquired into properly. The disciplinary proceedings are made "not really to punish the guilty but to get administrative machinery unsullied by getting rid of bad elements". The interest, both of the administration and the delinquent officer, lies in prompt conclusion of the disciplinary proceedings because if he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty he should be dealt with promptly in accordance with law. It is also not in the interest of administration that persons accused of serious misdemeanour should continue in office for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and dishonest.

14. Thus, the broad principles that emerge from these decisions are that disciplinary proceedings cannot be and should not be stayed as a matter of course; it is neither possible nor advisable to evolve a hard and fast, strait-jacket formula valid in all cases and of general application without regard to particularities of the individual situation and before deciding as to whether the disciplinary proceedings should be interdicted pending criminal trial, all the relevant factors for and against grant of stay should be tested on the touchstone of the principles extracted above keeping in view the circumstances of the case.

15. To appreciate the nature and the gravity of the charge in the departmental inquiry and in the criminal case, it would be appropriate to refer to some of the provisions contained in the Act and the Rules framed there under pertaining to the conduct of the members of the Force. As noted above, Rule 145.1 stipulates that: all members of the Force, irrespective of their ranks, shall submit themselves to the requirements of following code of behavior both on and off duty; it shall be incumbent upon them to respect the code of behavior and of an attitude of complete discipline and maintain it and any breach of these provisions on the part of any member of the Force, constitutes misconduct under the Railway Servants (Discipline and Appeal) Rules 1968. Rule 147 spells out various offences relatable to duties of enrolled members and violation thereof renders them liable for punishment under Section 9 of the Act, which provides for dismissal, removal etc., of the members of the Force from service. Entering or searching without lawful authority or reasonable cause any building or place or holding out any threat, inducement or promise not warranted by law or seizing vexatiously and unnecessarily property of any person are some of the illustrations given in the Rule, which constitute offences relatable to duties of the force and commission of any such act renders a member of the Force liable for punishment under Section 9 of the Act.

16. The charge against the petitioners in the criminal case herein is under section 384 IPC i.e. extortion. Whereas the disciplinary proceedings have been initiated against them on account of gross negligence and serious misconduct on their part which has allegedly brought disrepute to the entire Force. Both the petitioners were not supposed to be on duty at the Railway platform; they were not authorised by law to question or search any passenger, let alone taking into their possession any article belonging to any person. As members of the police force they are meant to protect life and property of the public and are required to maintain strict discipline. On the contrary, as the facts on hand, prima facie, would show, the petitioners attempted to use their authority to threaten the public for their personal greed for money. Such a conduct on the part of any police force cannot be tolerated and has to be nipped in the bud.

17. In my view, having regard to the nature of charges, the substratum of the disciplinary proceedings and the criminal case cannot be said to be similar or identical or that the charge against them in criminal case is of a grave nature, which would involve determination of complicated questions of fact and law or that even evidence in the disciplinary proceedings and the criminal case would be the same. The apprehension of the petitioners that their deposition in disciplinary proceedings will prejudice their trial in criminal case is misplaced. I feel that the instant case the nature and proof required in the criminal case would be different from that in the disciplinary proceedings and, therefore, even if the petitioners were acquitted in the criminal case, the disciplinary proceedings could still be legally continued.

18. For the foregoing reasons, I am of the view that both the petitions are devoid of any merit and are accordingly dismissed. It is clarified that observations made above are only for the purpose of disposal of these petitions and shall not be construed as expression of opinion on the merits of the allegations against the petitioners.

19. The interim stay of departmental proceedings granted on 15 December 2000 in Mahabir Singh's case stands vacated.