Madhya Pradesh High Court
Food Corporation Of India vs Harish Prakash Hinunia on 8 March, 2022
Author: Sheel Nagu
IN THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 8th OF MARCH, 2022
W.A. NO.158 OF 2022
Between:-
1. FOOD CORPORATION OF INDIA, THROUGH
GENERAL MANAGER, REGIONAL OFFICE
CHETAK BUILDING M.P. NAGAR ZONE II, PIN
CODE-462011, DISTRICT BHOPAL (MADHYA
PRADESH)
2. MANAGING DIRECTOR, FOOD CORPORATION
OF INDIA, VIGILANCE DIVISION,
HEADQUARTERS 16-20 BARAKHAMBA LANE,
NEW DELHI-110001
3. EXECUTIVE DIRECTOR (SZ), FOOD
CORPORATION OF INDIA, ZONAL OFFICE
SOUTH VIGILANCE HADDOWS RD, THOUSAND
LIGHTS WEST, GANDHI NAGAR CHENNAI,
TAMIL NADU- 600006
.....APPELLANTS
(BY SHRI S.K. RAO, SENIOR ADVOCATE WITH SHRI MUKESH
KUMAR AGRAWAL, ADVOCATE)
AND
HARISH PRAKASH HINUNIA, S/O CHATURBHUJ
HINUNIA, AGED ABOUT 43 YEARS,
OCCUPATION- GOVERNMENT SERVICE, R/O C-
94A, PALACE ORCHARD, SARVDHARAM KOLAR
ROAD, BHOPAL (MADHYA PRADESH)-462042
.....RESPONDENT
(BY SHRI SANJAY AGRAWAL, ADVOCATE ALONGWITH SHRI RAHUL
GUPTA, ADVOCATE)
--------------------------------------------------------------------------------------------------------
W.A. No.158 of 2022
- 2 -
This appeal coming on for admission this day, Sheel Nagu, J.,
passed the following:
ORDER
The instant intra-Court appeal filed u/S. 2(1) of the Madhya
Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal)
Adhiniyam, 2005, assails final order dated 07.02.2022 passed in W.P.
No.453/2022 by the learned Single Judge disposing of petition in
question by which quashment of charge-sheet dated 27.09.2021 was
sought or in the alternative, direction was sought to restrain the
employer from proceeding with departmental enquiry till criminal
proceedings based on similar charges are decided by the Special
Branch, CBI in view of the law laid by the Apex Court in Capt. M.
Paul Anthony Vs. Bharat Gold Mines Ltd. and another, (1999) 3 SCC
679.
2. Learned Single Judge while disposing of petition restrained the
employer from proceeding with departmental enquiry only as regards
charge No.1 in the charge-sheet till criminal case is concluded, but not
in regard to charge No.2.
3. Learned senior counsel, Shri S.K. Rao alongwith Shri Mukesh
Agrawal for appellants and Shri Sanjay Agrawal alongwith Rahul Gupta
for respondent, are heard at length on the question of admission.
4. Learned senior counsel, Shri Rao though does not dispute that
charge No.1 alleged in the departmental enquiry is the same as alleged
in the criminal prosecution, but submits that if charge No.1 is divided
into two sub-charges, one pertaining to the respondent failing to
maintain absolute integrity and devotion to duty to serve the employer
W.A. No.158 of 2022
- 3 -
honestly and faithfully and not to act in a manner unbecoming of his
employee in as much as entering into conspiracy with his subordinate
officers, while the second part of charge No.1 pertaining to demand and
acceptance of illegal gratification of Rs.1,00,000/- from one Shri Shiv
Dayal Dwivedi and his associate Shri Vishnu Yadav, then the employer
can very well proceed to conduct disciplinary proceedings as regards
the first part of charge No.1 leaving aside the second part of charge
No.1 to be dealt with on criminal side.
5. To understand the ostensibly complex looking argument of
learned senior counsel, it would be appropriate to reproduce charge
No.1 in its entirety and by splitting the same into two parts as alleged by
learned senior counsel as follows:-
Charge No.1
Part 1- Shri Harish Prakash Hinunia AGM (G), while working
as Divisional Manager / Assistant General Manager at FCI,
DO, Bhopal failed to maintain absolute integrity and devotion
to duty to serve the Corporation honestly & faithfully and
acted in a manner unbecoming of an employee of the
Corporation in as much as he entered into a conspiracy with
his subordinate officers Shri Arun Kumar Shrivastava,
Manager(Accounts), Shri Mohan Parate,
Manager(Movement), Shri Kishor Meena, Assistant Grade-I
Part 2- and in pursuance of the said conspiracy demanded
and received illegal gratification of Rs. 1,00,000/- (Rs one
lakh only) from one Shri Shiv Dayal Dwivedi and his associate
Shri Vishnu Yadav and was trapped by CBI while receiving an
illegal gratification of Rs. 1,00,000/- on 28.05.2021 in the
presence of the independent witnesses.
6. Learned senior counsel referring to Clause 32A of the Food
Corporation of India (Staff) Regulations, 1971, especially sub-clause 1,
2, 5 & 30 submits that the said service regulations empower the
employer to treat misconducts in sub-clause 1, 2, 5 & 30 of Clause 32A
W.A. No.158 of 2022
- 4 -
to be amenable to disciplinary proceedings. It is thus submitted that
since first part of charge No.1 alleges allege misconduct enumerated in
the aforesaid sub-clauses of Clause 32-A, the jurisdiction of employer
to conduct disciplinary proceedings in respect of the first part of charge
No.1 cannot be taken out.
6.1 Learned senior counsel for appellants has relied upon the decision
of Apex Court in Noida Entrepreneurs Association Vs. Noida and
others, (2007) 10 SCC 385, which in the considered opinion of this
Court does not assist the appellants since the factual matrix attending
the said case was not similar to the one attending the instant case. In the
said case of Noida Entrepreneurs Association (supra), the Apex Court
laid down the law in regard to distinction between criminal and
departmental proceedings in the factual backdrop, where departmental
enquiry had been dropped in view of report of CBI that no action on
disciplinary side is necessary.
7. After having heard learned counsel for rival parties, this Court is
of the considered view that this petition deserves to be dismissed for
reasons infra:-
(i) The very assumption of appellants that charge No.1 can be split
into two sub-charges is fallacious. Appellants seem to be labouring
under the misconception that charge No.1 is comprised of two separate
sub-charges. It is obvious from the mere reading of charge No.1 that
failure to maintain absolute integrity and devotion to duty and to be
honest and faithful to the employer is alleged due to the act of demand
and acceptance of illegal gratification by the petitioners/appellants
herein. Thus, charge No.1 is a composite charge which cannot be
segregated into two sub-charges.
W.A. No.158 of 2022
- 5 -
(ii) It is further relevant to point out that in all charge-sheets, the
misconduct is alleged followed by alleging failure to maintain absolute
integrity and devotion to duty and action being unbecoming of a
government servant. These allegations of failing to maintain absolute
integrity, devotion to duty, honesty and faithfulness are consequential to
every charge and are not the main charges which can be independently
tried.
(iii) In view of above discussion, this Court has no hesitation to hold
that charge No.1 cannot be split into two independent charges.
8. The other fact which arises in the present case is commonality of
charges and its complexity thereby prejudising the defence of petitioner
in criminal case by compelling him to disclose his defence in the
disciplinary proceedings if allowed to continue.
8.1 This Court has undertaken the comparative reading of charges in
the criminal charge-sheet and charge No.1 in departmental enquiry and
finds that both the charges relate to demand and acceptance of bribe and
thus are common. More so, out of 8 witnesses cited by the management
in support of charges in departmental enquiry, 4 witnesses i.e. Animesh
Kumar, Shiv Dayal Dwivedi, Vishnu Yadav and Deepak Purohit are also
proposed as prosecution witnesses in the criminal charge-sheet. Further,
there is some commonality in the list of documents cited by the
prosecution in criminal charge-sheet and list of documents cited by the
management in the impugned charge-sheet.
8.2 More so, charge of demand and acceptance of bribe involves
complexity of facts as well as of laws, and therefore, it cannot be said
that charges are simple in nature.
W.A. No.158 of 2022
- 6 -
8.3 Accordingly, all the criteria as laid down by various decisions of
Apex Court for staying disciplinary proceeding pending criminal
charges appear to be satisfied. For the sake of clarity, the views of the
Apex Court on the subject matter herein is mentioned below by
reproducing relevant extract of the judgments.
Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and
another, (1999) 3 SCC 679
"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
W.A. No.158 of 2022
- 7 -
case he is found guilty, the administration may get rid of
him at the earliest.
Stanzen Toyotetsu India Private Limited Vs. Girish V. and
others, (2014) 3 SCC 636
"10. The relatively recent decision of this Court in Karnataka
SRTC v. M.G. Vittal Rao [(2012) 1 SCC 442 : (2012) 1 SCC
(L&S) 171] , is a timely reminder of the principles that are
applicable in such situations succinctly summed up in the
following words:
"(i) There is no legal bar for both the proceedings to
go on simultaneously.
(ii) 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.
(iii) 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.
(iv) 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."
19. In the circumstances and taking into consideration all
aspects mentioned above as also keeping in view the fact that
all the three courts below have exercised their discretion in
favour of staying the ongoing disciplinary proceedings, we do
not consider it fit to vacate the said order straightaway.
Interests of justice would, in our opinion, be sufficiently served
if we direct the court dealing with the criminal charges against
the respondents to conclude the proceedings as expeditiously
as possible but in any case within a period of one year from the
date of this order. We hope and trust that the trial court will
take effective steps to ensure that the witnesses are served,
appear and are examined. The court may for that purpose
adjourn the case for no more than a fortnight every time an
adjournment is necessary. We also expect the accused in the
criminal case to cooperate with the trial court for an early
completion of the proceedings. We say so because experience
W.A. No.158 of 2022
- 8 -
has shown that the trials often linger on for a long time on
account of non-availability of the defence lawyers to cross-
examine the witnesses or on account of adjournments sought
by them on the flimsiest of the grounds. All that needs to be
avoided. In case, however, the trial is not completed within the
period of one year from the date of this order, despite the steps
which the trial court has been directed to take the disciplinary
proceedings initiated against the respondents shall be resumed
and concluded by the inquiry officer concerned. The impugned
orders shall in that case stand vacated upon expiry of the
period of one year from the date of the order."
9. In the conspectus of above discussion and the law laid down by
the Apex Court on the subject, it is vivid that learned Single Judge has
rightly restrained the employer from proceeding with the charge-sheet
on the disciplinary side till conclusion of criminal case on the basis of
commonality of charges, proposed witnesses and proposed documents
and factual and legal complexity involved in the trial.
10. Accordingly, this Court declines to interfere in the impugned
order of learned Single Judge.
11. However, before parting, this Court cannot leave the employer in
a lurch of uncertainty due to bleak possibility of early conclusion of
criminal trial. It is well known that criminal trial especially under the
Prevention of Corruption Act in our Criminal Justice System ordinarily
takes a long time to conclude. Therefore, this Court cannot turn a blind
eye towards this glaring fact, and thus, modifies the order of learned
Single Judge to the extent indicated below:-
(i) In case criminal trial is not concluded within 12 months from
today, then the employer shall be at liberty to approach this Court by
filing an appropriate application for enabling the employer to proceed
W.A. No.158 of 2022
- 9 -
with departmental enquiry subject to satisfying this Court that the delay
in criminal trial is for reasons not attributed to the prosecution.
(ii) With the aforesaid slight modification in the impugned order,
present writ appeal stands disposed of.
(SHEEL NAGU) (MANINDER S. BHATTI)
JUDGE JUDGE
Sateesh
Digitally signed by SATEESH
KUMAR SEN
Date: 2022.03.10 18:02:19
+05'30'
