Hari Krishan vs State Of H.P. & Ors
2021 Latest Caselaw 3571 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                                                   CWPOA No. 3924/2020
                                                   Reserved on: 2.8.2021




                                                                                      .
                                                   Decided on : 5.8.2021





    Hari Krishan                                                                 .....Petitioner





                                          Versus

    State of H.P. & ors.                                                         ....Respondents





    Coram:

    The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
    The Hon'ble Mr. Justice Satyen Vaidya, Judge.
                                 r                    Yes
    Whether approved for reporting?1

    For the Petitioner:                     Mr. T. S. Chauhan, Advocate.

    For the respondent:                     Mr. Ashok Sharma, A.G. with Mr. Rajinder
                                            Dogra, Sr. Addl. A.G., Mr. Vinod Thakur,Mr.


                                            Hemanshu Misra, Mr. Shiv Pal Manhans,
                                            Addl. A.Gs., and Mr. Bhupinder Thakur,
                                            Dy.A.G.




                                            (Video Conferencing)
    _____________________________________________________________________





                        Justice Tarlok Singh Chauhan, J.

The instant petition has been filed for grant of

following substantive reliefs:

"a. that the departmental enquiry initiated by respondent No.3 may be kept in abeyance during the pendency of the criminal appeal.

b. that Annexure A­3, i.e. show cause notice dated 16.2.2018, whereby departmental proceedings are

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

contemplated against the applicant, may be quashed and

.

set aside.

2 The petitioner was recruited as Constable in

Himachal Pradesh Police Department in the year 1984. He joined

his services on 31.7.1986 in 1 st Battalion, Junga and thereafter

his services were allocated to the Superintendent of Police,

Sirmaur at Nahan. It was averred that during the posting of the

petitioner in District Sirmaur, r one false case was registered

against him vide FIR No. 1/14, dated 28.1.2014 by the Police

Station, State Vigilance and Anti­Corruption Bureau, Sirmaur at

Nahan under Sections 7 and 13(2) of the Prevention of

Corruption Act and thereafter, the departmental proceedings

were simultaneously initiated against the petitioner. Mr.

Bhupinder Singh Bragta, SDPO Rajgarh was appointed as an

Inquiry Officer and final inquiry report was submitted by him to

the Superintendent of Police, Sirmaur at Nahan on 12.8.2014.

Since the criminal case was pending against the petitioner,

hence, the departmental proceedings were kept in abeyance.

3 The criminal case was concluded and the learned

Special Judge, Nahan, vide judgment dated 3.1.2018 convicted

and sentenced the petitioner to undergo rigorous imprisonment

for a period of three years and to pay a fine of Rs.20,000/­ under

.

Section 7 and rigorous imprisonment for four years and to pay a

fine of Rs.25,000/­ under Section 13(2) of the Prevention of

Corruption Act.

4 Thereafter, the petitioner preferred a criminal appeal

before this Court against the judgment dated 3.1.2018, wherein

vide order dated 2.2.2018, the sentence was suspended.

r The

petitioner brought to the notice of respondent No.3 about the

factum of suspension of sentence, however, he proceeded further

with the departmental enquiry and on 16.2.2018, a show cause

was issued to the petitioner for imposing penalty. Hence, the

instant petition.

5 The respondents have contested the petition, wherein

a number of preliminary objections have been raised. Out of

these, one of the main objections is that there is no legal bar to

conduct a departmental enquiry when criminal case has been

registered against an employee. The approach and objective in

the criminal proceedings and the disciplinary proceedings are

altogether distinct and different as the two proceedings operate

in different fields and have a different objective and degree of

proof. It is further averred that the strict burden of proof required

to establish guilt in a criminal court is not required in

.

disciplinary proceedings and preponderance of probabilities is

sufficient.

6 We have heard the learned counsel for the parties and

have also gone through the material placed on record.

7 It is more than settled that the object of criminal trial

is to inflict appropriate punishment on offender, which purpose

of enquiry proceedings is to deal with delinquent departmentally

and to impose penalty in accordance with the services Rules. The

degree of proof necessary to convict offender is different from the

degree of proof necessary to record commission of delinquency.

Rule relating to appreciation of evidence in two proceedings is

also not similar. In criminal law, burden of proof is on

prosecution to prove guilt of the accused beyond reasonable

doubt, whereas in departmental enquiry, penalty can be imposed

on a finding recorded on the basis of "preponderance of

probability".

8 The Hon'ble Supreme Court has gone to the extent to

hold that even acquittal by court of competent jurisdiction in a

judicial proceeding does not ipso facto absolve delinquent from

liability under disciplinary jurisdiction.

9 In this regard, it shall be apposite to refer to the

.

decision of the Three­Judge Bench of the Hon'ble Supreme Court

in Shashi Bhushan Prasad vs. Inspector General, Central

Industrial Security Force and ors., (2019) 7 SCC 797,

wherein it was observed as under:­

7. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge Bench of this Court in Depot Manager

A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya

and Others3. The relevant para is as under:

8...The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The

criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or

for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act

of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain

discipline in the service and efficiency of public service.

It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down 3 1997(2) SCC 699 any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed

simultaneously with departmental enquiry and trial of

.

a criminal case unless the charge in the criminal trial is

of grave nature involving complicated questions of fact and law. Offence generally implies infringement of

public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the

evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to

conduct or breach of duty of the delinquent officer to

punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands

excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the

delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that

invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in

public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be

seen is whether the departmental enquiry would

.

seriously prejudice the delinquent in his defence at the

trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts

and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338,

IPC. Under these circumstances, the High Court was not right in staying the proceedings." (Emphasis supplied)

18. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others 4, this Court held as under: "As far as acquittal of the appellant by a criminal

court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise

permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from

exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are

entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is

different from the degree of proof necessary to record the

.

commission of delinquency. The rule relating to appreciation of

evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the

prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other 4 2005(7) SCC 764 hand, penalty can be imposed on the delinquent officer on a finding

recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary

jurisdiction of the Corporation. We are, therefore, unable to

uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside." (Emphasis

supplied)

19. We are in full agreement with the exposition of law laid down

by this Court and it is fairly well settled that two proceedings criminal and departmental are entirely different. They operate in

different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on an

offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be convicted by a Court of law whereas in the departmental enquiry, penalty can

be imposed on the delinquent on a finding recorded on the basis

.

of 'preponderance of probability'. Acquittal by the Court of

competent jurisdiction in a judicial proceeding does not ipso facto absolve the delinquent from the liability under the disciplinary

jurisdiction of the authority. This what has been considered by the High Court in the impugned judgment in detail and needs no interference by this Court.

10 The petitioner in the instant case is being charged for

demanding and accepting bribe, which is not only a criminal

misconduct, but also a departmental misconduct.

11 Above all, the petitioner has already been convicted by

the learned trial court, meaning thereby, the petitioner has

already disclosed his defence and no prejudice would therefore be

caused to him at this stage in case he faces the departmental

enquiry.

12 The very object of staying the departmental enquiry

where an employee is already facing a criminal trial is to ensure

that he is not prejudiced before the criminal court so as to

compel him to disclose his defence in the departmental enquiry,

but here, as observed above, the petitioner has already been

convicted. Therefore, there is no question of there being any

prejudiced caused to him.

13 Similar reiteration of law can be found in the

.

judgments rendered by the learned Division Bench of this Court,

of which one of us (Justice Tarlok Singh Chauhan, J.) was a

member, in CWP No. 1418/2020, titled as Shubham Thakur

vs. State of Himachal Pradesh & ors., dated 14.10.2020 and

CWP No. 474/2020, titled as Gian Chand Thakur vs. State

of H.P. & ors., dated 26.6.2020.

14 In view of the aforesaid discussions, we find no merit

in the instant petition and the same is accordingly dismissed, so

also the pending application(s), if any, leaving the parties to bear

their own costs.

                                             (Tarlok Singh Chauhan)
                                                     Judge





                                                 (Satyen Vaidya)
    5.8.2021                                          Judge





     (pankaj)