Madhya Pradesh High Court

Babu Singh Chauhan vs The State Of Madhya Pradesh on 12 July, 2021

Author: Gurpal Singh Ahluwalia

      THE HIGH COURT OF MADHYA PRADESH
                    W.P. No.10421/2021

 (Babu Singh Chauhan Versus The State of M.P. & Others)

Gwalior, dated 12.07.2021
       Mr. Dharmendra Singh Raghuwashi, learned

counsel for the petitioner.

     Mr. Deepak Khot, learned Government Advocate

for the State.

     This    petition   under   Article    226   of   the

Constitution of India has been filed seeking the

following relief:

     "(i) That, the impugned charge-sheet dated
12.04.2021

(Annexure P/1) be quashed or be directed to kept in abeyance till finalization of the criminal case of Crime No.397/2018 and 98/2019 of Police Station Kampoo, District-Gwalior (M.P.).

(ii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted."

It is submitted by the counsel for the petitioner

that the petitioner is working on the post of Sub-

Inspector (SAF) and at present he is under suspension

and attached with Police Training School Tighra,

District-Gwalior (M.P.). Anoffence under Sections 363

and 376 of the Indian Penal Code was registered

against the nephew of the petitioner. It is alleged that

the petitioner threatened the prosecution witnesses in

the said criminal case and accordingly a criminal case under Sections 195(a) and 506/34 of the Indian Penal

Code has been registered. Since the petitioner was

arrested and therefore, he was placed under suspension.

The Police after completing the investigation has filed

the charge-sheet. It is submitted that as per the

impugned charge-sheet, the Departmental Enquiry has

been initiated against the petitioner on the allegation

that from 14.12.2018 to 05.02.2019, he had threatened

and misbehaved with the family members of the

prosecutrix on whose complaint Crime No.397/2018

was registered and they were threatened to withdraw

the complaint which is in violation of Para 64(11) of

Police Regulations and Rule 3(1)(3) of the Madhya

Pradesh Civil Services (Conduct) Rules, 1965.

Another charge which has been leveled is that by

assisting his nephew Deepu @ Deepak Chouhan, who is

an accused in Crime No.397/2018, the petitioner has

misused his office and hence, violated Para 64 (2) of

the Police Regulations.

It is submitted by the counsel for the petitioner

that since the petitioner is facing trial on the

allegations that he had threatened the prosecution

witnesses to withdraw their complaint against his nephew Deepu @ Deepak Chouhan, therefore, the

criminal case pending against the petitioner is

identically same to the charges which have been

leveled against him in the Departmental Enquiry and

thus, the further proceedings of the Departmental

Enquiry may be kept in abeyance till the criminal trial

is finally disposed of. It is further submitted that in

case if the petitioner is compelled to face the

Departmental Enquiry then, it may prejudice his

defence in the criminal trial.

Per contra, the petition is vehemently opposed by

the counsel for the State. It is submitted that so far as

the degree of proof in criminal case is concerned, it is

quite different from the degree of proof which is

required in a Departmental Enquiry. It is submitted that

the Departmental Enquiry is decided on the basis of

preponderance of probabilities whereas the criminal

case is to be proved beyond reasonable doubt. Further,

it is submitted that it is incorrect to say that the

charges leveled against the petitioner are identical to

the criminal trial. It is submitted that in the

Departmental Enquiry, the petitioner has been charge-

sheeted on the allegations of violation of Police Regulations and the Madhya Pradesh Civil Services

(Conduct) Rules, 1965.

Heard the learned counsel for the parties.

Before considering the submissions made by the

counsel for the parties, this Court think it apposite to

consider the law governing the field.

The Supreme Court in the case of Shashi

Bhushan Prasad v. CISF, reported in (2019) 7 SCC

797 has held as under :

17. 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 A.P. SRTC v. Mohd. Yousuf Miya. The relevant paragraph is as under: (SCC pp. 704-05, para

8) "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 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 proceeding 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 304-A 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 v. Indian Oil Corpn. Ltd. This Court held as under: (SCC p. 776, para 11) "11. 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 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."

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 judgment1 in detail and needs no interference by this Court.

20. The judgment in M. Paul Anthony case on which the learned counsel for the appellant has placed reliance was a case where a question arose for consideration as to whether the departmental proceedings and proceedings in a criminal case on the basis of same sets of facts and evidence can be continued simultaneously and this Court answered in para 22 as under: (SCC p. 691) "22. 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, the administration may get rid of him at the earliest."

The Supreme Court in the case of Depot

Manager, A.P. SRTC v. Mohd. Yousuf Miya, reported

in (1997) 2 SCC 699 has held as under :

8. We are in respectful agreement with the above view.

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 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 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings.

The Supreme Court in the case of Kusheshwar

Dubey v. Bharat Coking Coal Ltd., (1988) 4 SCC 319

has held as under :

6. In the Delhi Cloth & General Mills case it was pointed out by this Court: (SCR p. 230) "It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Bimal Kanta Mukherjee v. Newsman's Printing Works this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced."

In Tata Oil Mills case Gajendragadkar, C.J., spoke for a three-Judge Bench thus: (SCR p. 562) "There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in Delhi Cloth and General Mills Ltd. v. Kushal Bhan it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case."

In Jang Bahadur case this Court said: (SCR p.

137) "The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers."

7. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait- jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.

The Supreme Court in the case of Avinash

Sadashiv Bhosale v. Union of India, reported in

(2012) 13 SCC 142 has held as under :

54. This Court recently reiterated the legal principle that departmental proceedings can be conducted simultaneously to the criminal trial in Karnataka SRTC v. M.G. Vittal Rao. In this case, making reference to almost all the previous precedents, this Court has reiterated the legal position as follows: 54.1. There is no legal bar for both proceedings to go on simultaneously.

54.2. The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.

54.3. Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.

54.4. Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. 54.5. In our opinion, the principles culled out by this Court would be a complete answer to all the submissions made by Mr Jain.

55. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120-B, 420, 467, 468, 471 and 201 of the Penal Code. The proof of criminal charges depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant along with other persons. In the departmental proceedings, the basic charge was that the appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a bank officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct.

If the facts of the present case are considered

then, it is clear that in criminal trial, the petitioner is

being tried for threatening the prosecution witnesses to

withdraw their complaint against his nephew Deepu @

Deepak Chouhan whereas, the charges leveled in the

charge-sheet are for violation of Police Regulations

and of the Madhya Pradesh Civil Services (Conduct)

Rules, 1965. It is a trite law that in a criminal case, the

prosecution has to prove the allegations beyond

reasonable doubt whereas, in a Departmental Enquiry

the strict degree of proof is not applicable and it can be

decided on preponderance of probabilities. Further, no