Madhya Pradesh High Court
Jaypal Singh Rathore vs The State Of Madhya Pradesh on 16 February, 2022
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF FEBRUARY, 2022
WRIT PETITION No. 3622 of 2022
Between:-
1. JAYPAL SINGH RATHORE S/O ROOP SINGH
RATHORE , AGED ABOUT 33 YEARS, OCCUPATION:
WORKING AS S.I.POSTED AT RESERVE CENTRE
BURHANPUR DRP LINE, BURHANPUR (MADHYA
PRADESH)
2. RAM PRASAD TRIPATHI S/O SHRI SURYPAL
TRIPATHI , AGED ABOUT 56 YEARS, OCCUPATION:
ASI POSTED AT RESERVE CENTRE BURHANPUR
R/O DRP LINE BURHANPUR, DISTRICT-
BURHANPUR, M.P. (MADHYA PRADESH)
3. IRFAN QURESHI S/O SHRI AYYUB QURESHI , AGED
ABOUT 43 YEARS, OCCUPATION: ACTING HEAD
CONSTABLE POSTED AT RESERVE CENTRE
BURHANPUR, R/O DRP LINE BURHANPUR,
DISTRICT- BURHANPUR, M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ANOOP KUMAR SHUKLA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY HOME DEPTT. VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF POLICE PHQ
BHOPAL M.P. PHQ BHOPAL (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE INDORE ZONE
INDORE, M.P. (MADHYA PRADESH)
4. DEPUTY INSPECTOR GENERAL OF POLICE NIMAR
NIMAR RANGE, KHARGONE, M.P. (MADHYA
PRADESH)
5. THE SUPERINTENDENT OF POLICE DISTRICT
B U R H A N P U R DISTRICT- BURHANPUR, M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAURAV TIWARI, PANEL LAWYER)
Th is petition coming on for admission this day, the court passed the
following:
Signature Not Verified
SAN
ORDER
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.02.18 14:57:34 IST The petitioners have preferred this petition under Article 226 of the
Constitution of India, claiming the following relief:-
7.1 to quash the charge sheet dated 08/01/2021
(Annexure-P-1) or direct the respondents to keep the
further proceeding of the departmental enquiry in
abeyance till conclusion of the trial with regard to
criminal case registered against the petitioners.
7.2 pass any other order or further order or directions to
the respondents as this Hon'ble Court may deem fit and
proper in the interest of justice.
From the relief claimed and averments made in the petition, it reveals that the
petitioners are mainly aggrieved with the action of respondents issuing charge-sheet
(Annexure-P-1), whereunder the charge levelled against them are based on similar
facts and circumstances and also on the basis of same evidence which are the
foundation of initiating criminal case against the petitioners.
Counsel for petitioners submits that as per the settled principle of law since
departmental enquiry and criminal cases are based on same set of facts and
evidence and witnesses are also same in both the proceedings, therefore, the same
cannot go on simultaneously. He placed reliance upon the order dated 07/02/2022
passed by this Court in W.P.No.453/2022 ( Harish Chandra Hinunia Vs. Food
Corporation of India), wherein the co-ordinate Bench of this Court relying upon
the case of Supreme Court in (Capt.M.Paul Anthony Vs. Bharat Gold Mines
Limited and another) reported in 1993(3) SCC 679 has allowed the petition
holding that the departmental enquiry and criminal case cannot go on
simultaneously on the same set of charges and evidence.
However, counsel for respondents has relied upon an order passed by a
Writ Court in W.P.No.26543/2021( Sheshdhar Badgaiya Vs. The State of
Madhya Pradesh and others), wherein contrary view has been taken by the
Court even considering the judgment of Capt.M.Paul Anthony(supra) and said
judgment of Writ Court was further assailed before the Division Bench in Writ
Appeal No.1259/2021 (Sheshdhar Badgaiya Vs. The State of Madhya
Pradesh and others), in which Division Bench by order dated 07/01/2022
Signature Not Verified
decided the Writ Appeal affirming the judgment of writ Court passed in
SAN
W.P.No.26534/2021. He further relied upon a judgement passed by the Supreme
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.02.18 14:57:34 IST
Court in Civil Appeal No.5848/2021(Union of India & others Vs. Dalbir Singh),
wherein the Supreme Court has set-aside the order passed by the High Court
whereby High Court has set-aside the judgment passed by the disciplinary
authority saying that when criminal case is pending disciplinary authority cannot go
on the same issue. Relevant part in paragraph '26' of the judgement is quoted
hereunder:-
This Court in Noida Entrepreneurs Association Vs. Noida
& others held that 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, whereas, the
departmental inquiry is to maintain discipline in the
service and efficiency of public service. It was held as
under:-
"11 A bare perusal of the order which has been quoted in
its totality goes to show that the same is not based on any
rational foundation. The conceptual difference between a
departmental inquiry and criminal proceedings has not
been kept in view. Even orders passed by the executive
have to be tested on the touchstone of reasonablenes.[See
Tata Cellular Vs. Union of India[(1994) 6 SCC 651] and
Teri Oat Estates(P) Ltd.Vs.U.T.,Chandigarh [(2004) 2
SCC 130)]. The conceptual difference between
departmental proceedings and criminal proceedings have
been highlighted by this Court in several cases. Reference
may be made to Kendriya Vidyalaya Sangathan v. T.
Srinivas [(2004) 7 SCC 442 : 2004 SCC (L&S) 1011] ,
Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005)
10 SCC 471 : 2005 SCC (Cri) 1605] and Uttaranchal RTC
v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC
(L&S) 1341] .
8. … The purpose of departmental inquiry and of
prosecution are two different and distinct aspects. The
criminal prosecution is launched for an offense 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 inquiry 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.
Signature Not Verified
SAN
It is not, therefore, desirable to lay down any guidelines as
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.02.18 14:57:34 IST
inflexible rules in which the departmental proceedings may
or may not be stayed pending trial in the criminal cases
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 inquiry and trial of a
criminal case unless the charge in the criminal trial is of
grave nature involving complicated questions of fact and
law. Offense generally implies infringement of public duty,
as distinguished from mere private rights punishable under
criminal law. When the trial for a criminal offense is
conducted it should be in accordance with proof of the
offense as per the evidence defined under the provisions of
t h e Indi an Evidence Act, 1872 [in short ‘the
Evidence Act’]. The converse is the case of
departmental inquiry. The inquiry 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. … Under
these circumstances, what is required to be seen is whether
the departmental inquiry would seriously prejudice the
delinquent in his defense 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.â€Â
Thus, considering the judgment of Supreme Court and the view taken by the
Division Bench of this Court, I do not find any substance in the petition. This
Court has no reason to take a different view.
Accordingly, Petition is dismissed allowing the respondent-department to
proceed with the departmental enquiry as initiated against the petitioners.
(SANJAY DWIVEDI)
JUDGE
sushma
Signature Not Verified
SAN
Digitally signed by SUSHMA KUSHWAHA
Date: 2022.02.18 14:57:34 IST
