Madhya Pradesh High Court
Hariram Ahirwar vs The State Of Madhya Pradesh on 8 May, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 8 th OF MAY, 2025
WRIT PETITION No. 14899 of 2025
HARIRAM AHIRWAR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Deepak Shrivastav - Advocate for petitioners.
Mr. Jitesh Sharma - Govt. Advocate for State.
ORDER
This petition under Article 226 of Constitution of India has been filed
seeking the following reliefs :-
"(i) It is Therefore, humbly prayed that Petition filed by the Petitioner may
kindly be allowed and order dated 03.04.2025 & 04.04.2025 Passed by the
Respondent No. 2 & 3 (Vide Annexure P/7 and P/8) may kindly be
Quashed in the interest of Justice.
(ii) That, others relief which is just and proper in the facts and
circumstances of the case may also be granted."
2. It is submitted by counsel for petitioners that a complaint was
submitted by one Ravindra Kumar Choubey, B.A.C., Janpad Education
Centre, Chanderi complaining the financial irregularities in grant paid to the
government school. On the basis of the complaint made by Ravindra Kumar
Choubey, respondent No. 3 has issued show-cause notice on 10.12.2024. A
reply was submitted by petitioners.
3. By order dated 03.04.2025 (Annexure P/7), respondent No. 2
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directed for initiation of departmental enquiry and by complaint dated
04.04.2025 (Annexure P/8), a complaint has been given by the District
Project Coordinator to lodge the FIR.
4. It is submitted by counsel for petitioners that the FIR has been
directed to be lodged without considering the reply submitted by the
petitioners. It is submitted that once the departmental enquiry is in
contemplation, then registration of FIR is unwarranted. It is further submitted
that no opportunity of pre-audience was given to the petitioners before
directing for registration of FIR.
5. Per contra, petition is vehemently opposed by counsel for State.
6. Heard counsel for parties.
Whether the suspect has a right of pre-audience before registration of
FIR ?
7. The aforesaid question is no more res-integra. The Supreme Court in
the case of Romila Thapar and others vs. Union of India and others reported
in (2018) 10 SCC 753 has held as under:-
"24. Turning to the first point, we are of the considered opinion that the
issue is no more res integra. In Narmada Bai v. State of Gujarat, in para
64, this Court restated that it is trite law that the accused persons do not
have a say in the matter of appointment of investigating agency. Further,
the accused persons cannot choose as to which investigating agency must
investigate the offence committed by them. Para 64 of this decision reads
thus: (SCC p. 100)
"64. ... It is trite law that the accused persons do not have a say in
the matter of appointment of an investigating agency. The accused
persons cannot choose as to which investigating agency must
investigate the alleged offence committed by them."
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated
that the accused had no right with reference to the manner of investigation
or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40)
"68. The accused has no right with reference to the manner of
investigation or mode of prosecution. Similar is the law laid down
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by this Court in Union of India v. W.N. Chadha, Mayawati v. Union
of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v.
Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union
of India, while dealing with the appeal preferred by the "accused"
challenging the order of the High Court directing investigation by CBI, in
para 10 observed: (SCC pp. 370-71)
"10. As regards the second ground urged by the petitioner, we find
that even this aspect has been duly considered in the impugned
judgment. In para 129 of the impugned judgment, reliance has been
placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein
it has been held that in a writ petition seeking impartial
investigation, the accused was not entitled to opportunity of hearing
as a matter of course. Reliance has also been placed on Narender G.
Goel v. State of Maharashtra, in particular, para 11 of the reported
decision wherein the Court observed that it is well settled that the
accused has no right to be heard at the stage of investigation. By
entrusting the investigation to CBI which, as aforesaid, was
imperative in the peculiar facts of the present case, the fact that the
petitioner was not impleaded as a party in the writ petition or for that
matter, was not heard, in our opinion, will be of no avail. That per se
cannot be the basis to label the impugned judgment as a nullity."
27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated
that the High Court in exercise of its inherent jurisdiction cannot change
the investigating officer in the midstream and appoint an investigating
officer of its own choice to investigate into a crime on whatsoever basis.
The Court made it amply clear that neither the accused nor the
complainant or informant are entitled to choose their own investigating
agency, to investigate the crime, in which they are interested. The Court
then went on to clarify that the High Court in exercise of its power under
Article 226 of the Constitution can always issue appropriate directions at
the instance of the aggrieved person if the High Court is convinced that
the power of investigation has been exercised by the investigating officer
mala fide.
28. Be that as it may, it will be useful to advert to the exposition in State of
West Bengal and Ors. Vs. Committee for Protection of Democratic Rights,
West Bengal and Ors.13 In paragraph 70 of the said decision, the
Constitution Bench observed thus:
"70. Before parting with the case, we deem it necessary to emphasise
that despite wide powers conferred by Articles 32 13 (2010) 3 SCC
571 38 and 226 of the Constitution, while passing any order, the
Courts must bear in mind certain self-imposed limitations on the
exercise of these Constitutional powers. The very plenitude of the
power under the said articles requires great caution in its exercise.
Insofar as the question of issuing a direction to the CBI to conduct
investigation in a case is concerned, although no inflexible
guidelines can be laid down to decide whether or not such power
should be exercised but time and again it has been reiterated that
such an order is not to be passed as a matter of routine or merely
because a party has levelled some allegations against the local
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police. This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes necessary
to provide credibility and instil confidence in investigations or where
the incident may have national and international ramifications or
where such an order may be necessary for doing complete justice
and enforcing the fundamental rights. Otherwise the CBI would be
flooded with a large number of cases and with limited resources,
may find it difficult to properly investigate even serious cases and in
the process lose its credibility and purpose with unsatisfactory
investigations."
29. In the present case, except pointing out some circumstances to
question the manner of arrest of the five named accused sans any legal
evidence to link them with the crime under investigation, no specific
material facts and particulars are found in the petition about mala fide
exercise of power by the investigating officer. A vague and
unsubstantiated assertion in that regard is not enough. Rather, averment in
the petition as filed was to buttress the reliefs initially prayed (mentioned
in para 7 above) - regarding the manner in which arrest was made.
Further, the plea of the petitioners of lack of evidence against the named
accused (A16 to A20) has been seriously disputed by the Investigating
Agency and have commended us to the material already gathered during
the ongoing investigation which according to them indicates complicity of
the said accused in the commission of crime. Upon perusal of the said
material, we are of the considered opinion that it is not a case of arrest
because of mere dissenting views expressed or difference in the political
ideology of the named accused, but concerning their link with the
members of the banned organization and its activities. This is not the stage
where the efficacy of the material or sufficiency thereof can be evaluated
nor it is possible to enquire into whether the same is genuine or fabricated.
We do not wish to dilate on this matter any further lest it would cause
prejudice to the named accused and including the co-accused who are not
before the Court. Admittedly, the named accused have already resorted to
legal 40 remedies before the jurisdictional Court and the same are
pending. If so, they can avail of such remedies as may be permissible in
law before the jurisdictional courts at different stages during the
investigation as well as the trial of the offence under investigation. During
the investigation, when they would be produced before the Court for
obtaining remand by the Police or by way of application for grant of bail,
and if they are so advised, they can also opt for remedy of discharge at the
appropriate stage or quashing of criminal case if there is no legal evidence,
whatsoever, to indicate their complicity in the subject crime.
30. In view of the above, it is clear that the consistent view of this Court is
that the accused cannot ask for changing the Investigating Agency or to do
investigation in a particular manner including for Court monitored
investigation....................."
The Supreme Court in the case of Dinubhai Boghabhai Solanki v.
State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
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"50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC
260 : 1993 SCC (Cri) 1171] , the High Court had quashed and set aside
the order passed by the Special Judge in charge of CBI
matters issuing the order rogatory, on the application of a named accused
in the FIR, Mr W.N. Chadha. The High Court held that the order issuing
letter rogatory was passed inbreach of principles of natural justice. In
appeal, this Court held as follows: (SCC pp. 290-91 & 293, paras 89, 92 &
98)
"89. Applying the above principle, it may be held that when the
investigating officer is not deciding any matter except collecting the
materials for ascertaining whether a prima facie case is made out or
not and a full enquiry in case of filing a report under Section 173(2)
follows in a trial before the Court or Tribunal pursuant to the filing
of the report, it cannot be said that at that stage rule of audi alteram
partem superimposes an obligation to issue a prior notice and hear
the accused which the statute does not expressly recognise. The
question is not whether audi alteram partem is implicit, but whether
the occasion for its attraction exists at all.
***
92 More so, the accused has no right to have any say as regards the
manner and method of investigation. Save under certain exceptions
under the entire scheme of the Code, the accused has no
participation as a matter of right during the course of the
investigation of a case instituted on a police report till the
investigation culminates in filing of a final report under Section
173(2) of the Code or in a proceeding instituted otherwise than on a
police report till the process is issued under Section 204 of the Code,
as the case may be. Even in cases where cognizance of an offence is
taken on a complaint notwithstanding that the said offence is triable
by a Magistrate or triable exclusively by the Court of Sessions, the
accused has no right to have participation till the process is issued. In
case the issue of process is postponed as contemplated under Section
202 of the Code, the accused may attend the subsequent inquiry but
cannot participate. There are various judicial pronouncements to this
effect but we feel that it is not necessary to recapitulate those
decisions. At the same time, we would like to point out that there are
certain provisions under the Code empowering the Magistrate to
give an opportunity of being heard under certain specified
circumstances.
***
98. If prior notice and an opportunity of hearing are to be given to an
accused in every criminal case before taking any action against him,
such a procedure would frustrate the proceedings, obstruct the
taking of prompt action as law demands, defeat the ends of justice
and make the provisions of law relating to the investigation lifeless,
absurd and self defeating. Further, the scheme of the relevant
statutory provisions relating to the procedure of investigation does
not attract such a course in the absence of any statutory obligation to
the contrary."
These observations make it abundantly clear that it would not be
necessary to give an opportunity of hearing to the proposed accused as a
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matter of course. The Court cautioned that if prior notice and an
opportunity of hearing have to be given in every criminal case before
taking any action against the accused person, it would frustrate the entire
objective of an effective investigation. In the present case, the appellant
was not even an accused at the time when the impugned order was passed
by the High Court. Finger of suspicion had been pointed at the appellant
by independent witnesses as well as by the grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 :
1997 SCC (Cri) 88] , this Court again reiterated the law as follows: (SCC
pp. 256- 57, para 8)
"8. There is no merit in the pleas raised by the first respondent
either. The decision to investigate or the decision on the agency
which should investigate, does not attract principles of natural
justice. The accused cannot have a say in who should investigate the
offences he is charged with. We also fail to see any provision of law
for recording reasons for such a decision. ... There is no provision in
law under which, while granting consent or extending the powers
and jurisdiction of the Delhi Special Police Establishment to the
specified State and to any specified case any reasons are required to
be recorded on the face of the notification. The learned Single Judge
of the Patna High Court was clearly in error in holding so. If
investigation by the local police is not satisfactory, a further
investigation is not precluded. In the present case the material on
record shows that the investigation by the local police was not
satisfactory. In fact the local police had filed a final report before the
Chief Judicial Magistrate, Dhanbad. The report, however, was
pending and had not been accepted when the Central Government
with the consent of the State Government issued the impugned
notification. As a result, CBI has been directed to further investigate
the offences registered under the said FIR with the consent of the
State Government and in accordance with law. Under Section 173(8)
CrPC, 1973 also, there is an analogous provision for further
investigation in respect of an offence after a report under sub-section
(2) has been forwarded to the Magistrate."
The aforesaid observations would clearly support the course adopted by
the High Court in this matter. We have earlier noticed that the High Court
had initially directed that the investigation be carried under the
supervision of the Special Commissioner of Police, Crime Branch, of the
rank of the Additional Director General of Police. It was only when the
High Court was of the opinion that even further investigation was not
impartial, it was transferred to CBI.
52. Again in Sri Bhagwan Samardha [Sri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC
740 : 1999 SCC (Cri) 1047] , this Court observed as follows: (SCC
pp.742-43, paras 10-11)
"10. Power of the police to conduct further investigation, after laying
final report, is recognised under Section 173(8) of the Code of
Criminal Procedure. Even after the court took cognizance of any
offence on the strength of the police report first submitted, it is open
to the police to conduct further investigation. This has been so stated
by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2
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SCC 322 : 1979 SCC (Cri) 479] . The only rider provided by the
aforesaid decision is that it would be desirable that the police should
inform the court and seek formal permission to make further
investigation.
11. In such a situation the power of the court to direct the police to
conduct further investigation cannot have any inhibition. There is
nothing in Section 173(8) to suggest that the court is obliged to hear
the accused before any such direction is made. Casting of any such
obligation on the court would only result in encumbering the court
with the burden of searching for all the potential accused to be
afforded with the opportunity of being heard. As the law does not
require it, we would not burden the Magistrate with such an
obligation."
These observations also make it clear that there was no obligation for the
High Court to either hear or to make the appellant a party to the
proceedings before directing that the investigation be conducted by CBI.
53. We had earlier noticed that the High Court had come to the prima facie
conclusion that the investigation conducted by the police was with the
motive to give a clean chit to the appellant, in spite of the statements made
by the independent witnesses as well as the allegations made by the father
of the deceased. The legal position has been reiterated by this Court in
Narender G. Goel [Narender G. Goel v. State of Maharashtra, (2009) 6
SCC 65 : (2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, paras 11-13)
"11. It is well settled that the accused has no right to be heard at the
stage of investigation. The prosecution will however have to prove
its case at the trial when the accused will have full opportunity to
rebut/question the validity and authenticity of the prosecution case.
In Sri Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P. [Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.,
(1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed:
(SCC p. 743, para 11)
'11. ... There is nothing in Section 173(8) to suggest that the
court is obliged to hear the accused before any such direction
is made. Casting of any such obligation on the court would
only result in encumbering the court with the burden of
searching for all the potential accused to be afforded with the
opportunity of being heard.'
12. The accused can certainly avail himself of an opportunity to
cross-examine and/or otherwise controvert the authenticity,
admissibility or legal significance of material evidence gathered in
the course of further investigations. Further in light of the views
expressed by the investigating officer in his affidavit before the High
Court, it is apparent that the investigating authorities would
inevitably have conducted further investigation with the aid of CFS
under Section 173(8) of the Code.
13. We are of the view that what is the evidentiary value can be
tested during the trial. At this juncture it would not be proper to
interfere in the matter."
Thus, it is clear that the suspect has no right of pre-audience before
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registration of FIR.
Whether the departmental proceedings in criminal case can proceed
simultaneously or not ?
8. The aforesaid question is no more res-integra. The Supreme Court in
the case of Avinash Sadashiv Bhosale (Dead) Through LRs Vs. Union of
India and others 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 [(2012) 1 SCC 442: (2012) 1 SCC
(L&S) 171]. 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 he 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."
The Supreme Court in the case of State Bank of India and Others Vs.
Neelam Nag and another reported in (2016) 9 SCC 491 has held as under:-
"13. We have heard the learned counsel for the parties at some length. The
only question that arises for consideration is no more res integra. It is
well settled that there is no legal bar to the conduct of the disciplinary
proceedings and criminal trial simultaneously. However, no straitjacket
formula can be spelt out and the Court has to keep in mind the broad
approach to be adopted in such matters on case-to-case basis. The contour
of the approach to be adopted by the Court has been delineated in a series
of decisions."
The Supreme Court in the case of Shashi Bhushan Prasad v. CISF
reported in (2019) 7 SCC 797 has held as under:-
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"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
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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
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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
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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."
10. The Supreme Court in the case of Kusheshwar Dubey v. Bharat
Coking Coal Ltd. reported in (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
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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, straitjacket formula valid for all cases and of general application
without regard to the particularities of the individual situation. For
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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."
Thus, it is clear that the departmental enquiry as well as criminal
proceedings can proceed simultaneously.
9. Furthermore, no departmental charge-sheet has been issued so far,
therefore, merely because the departmental enquiry is under contemplation,
the FIR cannot be lodged.
10. Considering the totality of the facts and circumstances of the case,
when there are serious allegations of financial irregularities and in absence
of any right of pre-audience, this Court is of the considered opinion that the
complaint made by District Education Centre, Ashoknagar on 04.04.2025 to
the S.H.O. Police Station - Chanderi, District - Ashoknagar cannot be
quashed.
11. Petition fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
