Mohan Lal vs State Of H.P. & Ors
2021 Latest Caselaw 3573 HP

            IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

                                                   CWPOA No. 3156/2020
                                                   Reserved on: 2.8.2021




                                                                                      .
                                                   Decided on : 5.8.2021





    Mohan Lal                                                                    .....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                   No
    Whether approved for reporting?1

    For the Petitioner:                     Mr. Diwan Singh Negi, 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 relief:

"that the respondents may kindly be directed to quash and set aside the final enquiry report (Annexure A­3) as well as the subsequent show case notice dated 4.1.2017 (Annexure A­7) w.r.t. the departmental enquiry conducted against the applicant and further be directed to keep the departmental proceedings in abeyance till the final disposal of the

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

criminal case registered against the applicant under FIR

.

No. 7 of 2013 which is pending before the Ld. Special

Judge (Forest) Shimla."

2 The petitioner was initially appointed as Constable in

Himachal Pradesh Police Department on 23.2.1982 and was

thereafter promoted as Head Constable in November 1990 and

Assistant Sub Inspector in October 2007.

3 The allegations against the petitioner are that on

15.6.2013 one Mr. Ajay Kumar filed a complaint before the State

Vigilance & Anti Corruption, Bureau (SV & ACB) alleging therein

that his vehicle bearing registration No. HR­12R­3064 was

borrowed by his cousin Sunil Kumar for visiting Rampur and

Shimla. When Sunil Kumar along with his friend Yogesh Kumar

was coming back from Rampur, they were apprehended by Sainj

Police in ND&PS case. It was alleged that on 30.3.2013, Ajay

Kumar received a telephonic call from Sunil Kumar informing

that the police had impounded the vehicle. The Incharge of Police

Post, Sainj, i.e. the petitioner, demanded Rs.1 lac for release of

the vehicle or else he would also be made accused in the case. On

31.3.2013, Ajay Kumar along with his friend contacted the

petitioner and paid a sum of Rs.95,000/­ at Sainj, but the

vehicle was not released. The petitioner was again demanding a

.

sum of Rs.50,000/­ which was to be paid to the witness of the

case. On 8.6.2013 and 12.6.2013, Ajay Kumar had made

telephonic calls to the petitioner, which were recorded by him. On

14.6.2013, Ajay Kumar had a telephonic conversation with the

petitioner and the petitioner asked him to come to Shimla.

4 The further allegations are that since the complaint

disclosed prima facie a cognizable offence, therefore, a criminal

case vide FIR No. 7/2013, dated 15.6.2013 under Sections 7 &

13(2) of the Prevention of Corruption Act was registered at Police

Station SV &ACB, Shimla against the petitioner while he was

posted in Shimla District. Accordingly, the SV & ACB constituted

a trap party and the petitioner was apprehended by the SV &

ACB while accepting bribe amounting to Rs.40,000/­. The

petitioner was arrested on 15.6.2013 and remanded to police

custody till 19.6.2013. Thereafter the petitioner was bailed out by

this Court on 12.7.2013. On account of arrest of the petitioner in

the aforesaid FIR, he was placed under suspension on 25.6.2013

and the departmental proceedings were initiated against him. He

was served with a charge sheet for charges of misconduct on

account of receiving bribe of Rs.40,000/­ and ultimately, after

perusing the enquiry report, respondent No.3 served upon the

.

petitioner a show cause notice dated 4.12.2017 to the effect that

why not his services be dismissed. Hence, the writ petition.

5 The respondents have contested the petition on the

ground that the act of demanding and accepting the bribe by the

petitioner is not only a criminal misconduct, but also is a

departmental misconduct. During the course of departmental

enquiry, due opportunity was afforded to the petitioner to defend

himself, but the charges levelled against him were proved,

therefore, the impugned show cause notice was rightly served

upon the petitioner.

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.

8 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".

9 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 the delinquent

from liability under disciplinary jurisdiction.

10 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.

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.

12 As observed above, since the approach and objective

in the departmental proceedings are entirely different from the

criminal proceedings, therefore, the departmental proceedings

cannot be kept in abeyance till the disposal of the criminal case.

13 That apart, this Court in CWPOA No. 4264/2020,

titled as Lajender Singh Pathania vs. State of H.P. & ors.,

decided on 14.7.2020, has categorically held that ordinarily a

writ petition or even an original application filed against mere

show cause notice would not be maintainable.

14 In coming to this view, this Court has relied upon the

judgment of the Hon'ble Supreme Court in Union of India and

others Versus Jain Shudh Vanaspati Ltd. and another,

(1996) 10 SCC 520, Special Director and another Versus

.

Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440 and

Union of India and another Versus Kunisetty

Satyanarayana, (2006) 12 SCC 28.

15 Since the petitioner has every right to file his reply to

the show cause notice, which in turn, is required to be

considered by the employer in accordance with law, this Court

cannot substitute the views of the employer and evaluate the

relative merits of the case at this stage.

15 In view of aforesaid discussion, 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)