Tej Singh vs Union Of India & Ors.
2010 Latest Caselaw 5162 Del

 *     IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                   W.P.(C) No.3391/2010 & CM No.6805/2010

                                       Date of Decision: 12th November, 2010

       TEJ SINGH                                        ..... Petitioner
                          Through Mr. H.S.Dahiya, Adv. with Ms. Anita
                                  Sharma, Adv.

                     versus

       UNION OF INDIA & ORS.                     ..... Respondents

Through Mr. Sanjeev Sachdeva, Adv. with Mr. Vibhu Verma, Adv. for UOI

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Yes Digest?

GITA MITTAL, J (Oral)

1. The writ petitioner has challenged the action of the respondents in

directing a departmental inquiry against him on ground of arbitrariness and

illegality. It has further been contended that the disciplinary proceedings have

been commenced on charges which are the subject matter of a criminal case

pending in a court of law and for this reason, the disciplinary inquiry cannot be

proceeded against.

2. The petitioner is a serving constable with the Central Industrial Security

Force (hereinafter referred to as `CISF') in the CISF Unit, Special Security

Group, Greater Noida, Uttar Pradesh. A criminal case bearing FIR No.56 was

registered by the police station Sadar, Khanna, District Ludhiana, Punjab on

13th March, 2010 under Section 380 of the Indian Penal Code against the

petitioner. This case was registered with regard to an incident which occurred

on 28th February, 2010 in which a service weapon being an AK-47 rifle bearing

Butt No.151 which had been issued to one constable Krishan Kumar, was found

missing. The matter is stated to be pending trial before the Judicial Magistrate

First Class at Khanna, Punjab. The petitioner remained in judicial custody in

this case for twelve days and was admitted to bail on the 26th March, 2010.

3. In respect of the same incident, the respondents have issued a charge

memorandum on the 14th April, 2010 levelling the following charge against the

petitioner:-

"That CISF No.912292290 Constable/GD Tej Singh of CISF Unit SSG, Greater Noida, U.P. While deployed at CISF, SSG Unit, outpost Libra (Punjab) for the security of Hon'ble Shri S.S. Libra, MP, Lok Sabha failed to maintain high degree of discipline. On 28.02.2010 at about 2110 hrs after completion of his "B" shift duty, he took AK-47 rifle Butt No.151 which was laying un attended on the bed of Constable Krishan Kumar on his own with a malafide intention and threw it outside the SSG camp Libra outpost camp premises on the night of 28.02.2010, the said weapon was later on found in a Dry Well of Libra Village on 08.03.2010 at about 1730 hrs with the help of Local Police. Thus, he has exhibited and act of gross indiscipline, mischief, misconduct and dereliction of duty which has tarnished the image of the Force in the eyes of public and made himself unfit to be a member of the Armed Force like CISF. Hence the Change."

4. The petitioner had denied the charge in his reply dated 23 rd April, 2010.

It is his contention that the post incharge was biased against him on the issue

of sanctioning of outpass. Such pass had been wrongly denied to the

petitioner on the 28th February, 2010 despite his dire need thereof. It is even

the petitioner's case in the writ petition that he was aggrieved by the denial of

the pass on the ground that another Constable Krishan Kumar who had

performed similar duty as the petitioner as well as one Constable Shish Ram

were sanctioned outpass on 27th February, 2010. It is the case of the petitioner

that he had hot exchanges with the post incharge in this behalf.

5. On a consideration of the petitioner's response, an order dated 1 st May,

2010 was issued by the disciplinary authority appointing an inquiry officer to

inquire into the said charge. The petitioner made a representation to the

Inspector General of the CISF Headquarters contending that a departmental

inquiry in respect of the same charge which was the subject matter of a

criminal trial, was illegal. This representation has been rejected by a

communication dated 26th June, 2010. Aggrieved by the action of the

respondents in proceeding with the disciplinary action, the petitioner filed the

present writ petition before this court.

6. On a prima facie consideration of the matter, on the 12th August, 2010 we

had directed that till the next date of hearing, though the respondents may

continue with the inquiry proceedings against the petitioner, no final order shall

be passed.

7. It appears that the inquiry officer has since completed the inquiry and has

submitted a report dated 21st July, 2010. This report has been served upon the

petitioner under cover of a letter dated 26th July, 2010 and the petitioner has

been called upon to make a representation against the same. The petitioner

has placed a copy of the inquiry report before us along with his rejoinder.

8. The respondents have vehemently contested the writ petition contending

that the charge against the petitioner in the two proceedings as well as the

standard of proof which would apply in the two proceedings is different. It has

been contended that even if the charge of theft which is laid against the

petitioner in the criminal case is not made out, still he would be found culpable

for the charge of dereliction of duty with which he has been charged in the

disciplinary proceedings.

9. It is noteworthy that both parties have placed reliance on the

pronouncement of the Apex Court which is reported at (1999) 3 SCC 679

Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr. Before

proceeding to examine the facts of the case, the principles laid down by the

Supreme Court on the issue of departmental inquiries and criminal proceedings

on same charges, deserve to be considered. In Capt. M. Paul Anthony Vs.

Bharat Gold Mines Ltd. & Anr., the Supreme Court has laid down the

applicable principles which read as follows:-

" 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."

10. It is apparent from the above that there is no prohibition to departmental

proceedings and proceedings in a criminal case proceeding simultaneously

though separately. The Supreme Court has held that only if the charges in the

criminal case and the departmental proceedings against the delinquent

employee are of a grave nature and involve complicated questions of law and

fact, it would be desirable to stay a departmental proceedings till the

conclusion of the criminal case.

11. The consideration by this court of the facts placed before us would

therefore depend upon the nature of the offences and the nature of the case

which has been commenced against the petitioner.

12. We find that at the same time, the Supreme Court has repeatedly also

cautioned that in a case raising an issue as has been raised by the petitioner,

due regard has to be given to the fact that the departmental proceedings

cannot be unduly delayed.

13. Learned counsel for the petitioner has vehemently contended that there

is no evidence against the petitioner other than a statement attributed to him

in the preliminary inquiry which cannot be relied upon to base a finding of guilt

with regard to the charges on which disciplinary inquiry has been conducted.

This submission has to be noted only for the sake of rejection. The petitioner

has received the inquiry report and is stated to have made a representation of

the same. It is stated before us that the petitioner has raised this very

objection in his representation to the disciplinary authority as well. This inquiry

report as well as his contentions in the representation which he has made

against the same would require to bear the scrutiny by the disciplinary

authority who is seized of the matter. In view of the order of stay dated 12 th

August, 2010 passed by us, it is an admitted position that the disciplinary

authority has not taken a final view in the matter. Therefore, it would not be

proper for us to comment on this contention of the petitioner and we leave the

matter, including the said objection, to the scrutiny and examination of the

disciplinary authority who would pass appropriate orders on this contention of

the petitioner as well.

14. So far as the nature of charges with which the petitioner is charged is

concerned, we find that the respondents have not conducted the disciplinary

proceedings on the contention that the petitioner is guilty of theft of the service

weapon. On the contrary, the charge against the petitioner on which the

inquiry is being conducted is the allegation that the petitioner has exhibited an

act of gross indiscipline, mischief, misconduct and dereliction of duty which has

tarnished the image of the force in the eyes of the public.

15. So far as the burden of proof in establishing the charge of theft under

Section 380 of the Indian Penal Code which is pending before the court of

Judicial Magistrate First Call is concerned, the prosecution would be required to

establish the allegations and ingredients of the offence beyond reasonable

doubt. On the other hand, the allegations of dereliction of duty, the material in

support of which has been placed in the inquiry which already stands

concluded, has to be tested and examined on the standard of preponderance of

probability. This well settled legal position does not need any further

elaboration.

16. Learned counsel for the respondents has submitted that even in the writ

petition, the petitioner has submitted that because of jealously over the

issuance of outpass to constable Krishan Kumar, the petitioner was nurturing a

grouse against him. These issues are to be considered by the concerned

authorities.

17. We have also been informed that so far as the criminal case is concerned,

only charges have been framed against the petitioner and the trial is yet to

commence.

18. We are also informed that disciplinary proceedings against other persons

against whom the same charges were levelled with regard to the same

incidence, the disciplinary action stands completed.

19. On a consideration of the charge and the allegation against the

petitioner, we are not satisfied that the instant case involves any such

complicated questions of law or facts which would render it desirable that the

departmental proceedings be stayed till the conclusion of the criminal case.

20. In view of the above, we are satisfied that stay of the disciplinary

proceedings would be unwarranted and the ensuing delay in finalisation thereof

would be opposed to the interests of justice.

For all the foregoing reasons, we find no merit in this writ petition which

is hereby dismissed. The interim order dated 12th August, 2010 shall stand

vacated.

We make it clear that nothing herein contained is an expression of

opinion on the merits of any issue relating to the merits of the case or the

grounds of challenge of the petitioner with regard to the inquiry which has been

conducted against him. The disciplinary authority shall proceed in the matter

uninfluenced by any observation herein contained.

GITA MITTAL, J

J.R. MIDHA, J November 12, 2010 aa