Punjab-Haryana High Court
Naresh Kumar vs State Of Haryana And Ors on 1 December, 2023
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2023:PHHC:153221
CWP-9384-2018 [1] 2023:PHHC:153221
218
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-9384-2018
Date of decision: 01.12.2023
Naresh Kumar
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Karamveer Singh Banyana, Advocate for the petitioner.
Mr. Amandeep Joshi, DAG, Haryana.
****
VIKAS BAHL, J. (ORAL)
1. This is a Civil Writ Petition filed under Article 226 of the
Constitution of India for the issuance of a writ in the nature of certiorari for
quashing the order dated 14.06.2017 (Annexure P-2) vide which a regular
departmental enquiry has been ordered. Prayer has also been made to quash
the list of allegations dated 30.06.2017 (Annexure P-6) issued to the
petitioner in the departmental proceedings. Further prayer has been made
for the issuance of a writ in the nature of mandamus directing the
respondents to keep the departmental enquiry proceedings in abeyance till
the conclusion of the criminal trial in FIR No.279 dated 13.06.2017
(Annexure P-1).
2. Brief facts of the present case are that the petitioner had joined
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the services in Haryana Police as Constable on 05.08.1992 and in the year
2014, he was working as EASI (Exempted Assistant Sub Inspector). On
08.09.2016, the petitioner was posted as Incharge of Judicial Malkhana,
Ambala when FIR No.279 dated 13.06.2017 under Sections 120-B and 409
of IPC was registered on the complaint of SI Sushil Kumar against the
present petitioner and Head Constable-Gurdeep Singh on the allegations
that the petitioner and Head Constable-Gurdeep Singh, while being posted
at Judicial Malkhana, had embezzled an amount of Rs.13,08,613/- as per the
register available in the Malkhana from various cash heads of different
Police Stations situated in District Ambala. Charge sheet dated 04.12.2017
(Annexure P-5) was framed against the petitioner and the said Gurdeep
Singh in the criminal trial in which the charges against the petitioner and
said Gurdeep Singh were that they had hatched a criminal conspiracy to
cheat the Government/Police Department by embezzling an amount of
Rs.13,08,613/- and thus, had committed the offence under Section 120-B of
IPC. It was further alleged that the petitioner along with the said Gurdeep
Singh was entrusted with cash amount of Rs.13,08,613/- in the Malkhana
and the same had been misappropriated by them and thus, the offence under
Section 409 of IPC was committed by them. Charges under Sections 201,
467, 471 and 420 of IPC were also framed against the petitioner and the said
Gurdeep Singh. Vide order dated 14.06.2017 (Annexure P-2), the
Superintendent of Police, Ambala, suspended the petitioner and Gurdeep
Singh and ordered regular departmental inquiry against them and the same
was entrusted to Mr. Anil Kumar, DSP/Barara, who was directed to complete
the departmental enquiry by holding day to day proceedings. The list of
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allegations dated 30.06.2017 (Annexure P-6) was issued by the Inquiry
Officer i.e., Deputy Superintendent of Police, Ambala Cantt in the
departmental proceedings in which, it was alleged that the petitioner along
with Gurdeep Singh, has misappropriated an amount of Rs.13,08,613/-
while being posted at Judicial Malkhana. In the criminal case, out of 15
witnesses, two witnesses have been examined whereas on account of the
stay order passed by a Coordinate Bench of this Court vide order dated
19.04.2018, no further proceedings have taken place in the departmental
proceedings.
3. Learned counsel for the petitioner has submitted that in the
present case, there are four common witnesses and has prayed that till the
time the said four common witnesses are not examined in the criminal case,
the departmental proceedings be kept in abeyance inasmuch as in case the
said witnesses are examined in the departmental proceedings then the
defence of the petitioner would be disclosed while cross-examining the said
witnesses in the departmental proceedings. In support of his arguments,
learned counsel for the petitioner has relied upon a judgment of the Hon'ble
Supreme Court in case titled as "Capt. M. Paul Anthony Vs. Bharat Gold
Mines Ltd.", reported as 1999(3) SCC 679.
4. Learned counsel for the petitioner has further pointed out that
the four common witnesses are SI Sushil Kumar, ASI Sanjay Kumar, ASI
Dharampal and Sena Clerk, Office of Superintendent of Police, Ambala. It
is further submitted that it is the co-accused Gurdeep Singh who is
responsible for the alleged misappropriation and not the present petitioner.
5. Learned State Counsel, on the other hand, has opposed the
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present writ petition and has submitted that it is a matter of settled law that
criminal proceedings and the departmental proceedings can proceed
simultaneously as there is no bar in their being conducted simultaneously
though separately. It is contended that the stay order has been continuing
since the last more than 5 years and 7 months and the Department cannot
wait indefinitely till the time the criminal case is finally adjudicated. It is
further contended that neither the evidence in the criminal case is to be
relied in the departmental proceedings nor evidence in the departmental
proceedings is to be relied in the criminal case and thus, the apprehension of
the petitioner is misplaced. It is also submitted that in the present case,
report under Section 173 Cr.P.C. has already been filed in the criminal case
and the statements of the witnesses under Section 161 Cr.P.C. have already
been recorded and thus, the plea raised by the petitioner to the effect that the
State would improve their case after the cross-examination of the common
witnesses in the departmental proceedings is also misconceived. It is also
contended that no complicated question of law and facts arise in the present
case and thus, prays that the present writ petition be dismissed and the
interim order dated 19.04.2018 be vacated so as to enable the Department to
proceed with the departmental proceedings. It is further submitted that all
the pleas raised by the petitioner on merits would be considered in the said
departmental proceedings and the same cannot be adjudicated by a Writ
Court exercising its powers under Article 226 of the Constitution of India.
6. This Court has heard learned counsel for the parties and has
perused the paper-book and finds that the present writ petition is meritless
and deserves to be dismissed for the reasons which have been detailed
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hereinafter.
7. Before considering the facts of the present case, it would be
relevant to refer to the judgment of the Hon'ble Supreme Court in Capt. M.
Paul Anthony's case (supra), which has been relied upon by the learned
counsel for the petitioner. In the said judgment and also in various other
judgments of the Hon'ble Supreme Court, it has been repeatedly held that
one of the necessary ingredients for the Court to consider before staying
departmental proceedings, with respect to the issue in hand, is whether the
case involves complicated questions of law and facts or not. Paragraph 22 of
the judgment in Capt. M. Paul Anthony's case (supra) is reproduced
hereinbelow:-
"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
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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, administration
may get rid of him at the earliest."
A perusal of the above judgment would show that the Hon'ble
Supreme Court after considering various judgments had drawn the
conclusion which was given in the abovesaid paragraph. It was held that the
departmental proceedings and the proceedings in the criminal case can
proceed simultaneously as there was no bar in their being conducted
simultaneously. It was further held that departmental proceedings and
criminal proceedings if based on identical and similar set of facts and also
in case the charge in the criminal case against the delinquent employee is of
grave nature which involves complicated questions of law and fact, then in
such circumstances, it would be desirable to stay the departmental
proceedings till the conclusion of the criminal case. Thus, all the ingredients
i.e., averments/ allegations being identical, based on similar set of facts and
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the charge being of grave nature involving complicated questions of law
and fact are required to be met so as to consider the case of the employee for
grant of stay. In sub clause (iii), reference has been made that the evidence
and the material collected during investigation or as reflected in the charge
sheet is to be taken into consideration for the purpose of considering as to
whether the nature of charge in the criminal case is grave in nature and
complicated questions of law and fact are involved in the case or not.
Importantly, as per sub clause (iv) even in a particular case where it is found
that ingredients of sub clause (ii) and (iii) do exist, even then the same
cannot be considered in isolation, to stay the departmental proceedings, but
further regard has to be given to the fact that the departmental proceedings
cannot be unduly delayed. Sub clause (v) specifically provides that if the
criminal case does not proceed or its disposal is being unduly delayed, then
even in case stay has been granted, with respect to the departmental
proceedings, the same can be resumed and proceeded with.
8. Similarly, in the judgment of the Hon'ble Supreme Court of
India in "Indian Overseas Bank, Anna Salai and Anr. vs. P.Ganesan and
others", reported as 2008(1) SCC 650 it had been specifically observed
that the High Court was apart from other considerations also required to
consider as to whether the matter involves complicated questions of law.
The relevant portion of the said judgment is reproduced hereinbelow:-
"11. Writ appeals preferred by the appellants against that
order were disposed of by a Division Bench of the Court by
reason of the impugned judgment opining :-
14. In the instant case, there is no dispute that the
criminal action and the disciplinary proceedings are
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founded upon the same set of facts. In fact, the
disciplinary proceedings are solely based upon the
criminal complaint lodged by the president of a rival
union, who is also facing prosecution with regard to the
same incident. It has been conceded before us that the
bank had not conducted any independent enquiry before
initiating the impugned departmental proceedings.
15. In our opinion, in the peculiar facts and
circumstances of the case on hand, fair play requires
that postponing of the departmental proceedings till the
criminal cases are decided. We are, therefore, of the
view that the prayer made by the petitioners for
deferring the departmental proceedings till the
conclusion of the criminal trial has to be accepted and it
is ordered accordingly.
xxx xxx xxx
18. Legal position operating in the field is no longer res
integra. A departmental proceedings pending a criminal
proceedings does not warrant an automatic stay. The superior
courts before exercising its discretionary jurisdiction in this
regard must take into consideration the fact as to whether the
charges as also the evidence in both the proceedings are
common and as to whether any complicated question of law is
involved in the matter.
xxx xxx xxx
22. The issue came up for consideration yet again in T.
Srinivas (supra) where this Court while analyzing B.K. Meena
(supra) and Capt. M. Paul Anthony (supra) held that :-
"10. From the above, it is clear that the advisability,
desirability or propriety, as the case may be, in regard to
a departmental enquiry has to be determined in each
case taking into consideration all facts and
circumstances of the case. This judgment also lays down
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that the stay of departmental proceedings cannot be and
should not be a matter of course."
23. The High Court, unfortunately, although it noticed some of
the binding precedents of the Court failed to apply the law in
its proper perspective. The High Court was not correct in its
view in concluding that the stay of the departmental
proceedings should be granted in the peculiar facts and
circumstances of the case without analyzing and applying the
principle of law evolved in the aforementioned decisions. It,
therefore, misdirected itself in law. What was necessary to be
noticed by the High Court was not only existence of identical
facts and the evidence in the matter, it was also required to
take into consideration the question as to whether the charges
levelled against the delinquent officers, both in the criminal
case as also the disciplinary proceedings, were same.
Furthermore it was obligatory on the part of the High Court to
arrive at a finding that the non stay of the disciplinary
proceedings shall not only prejudice the delinquent officers but
the matter also the matter involves a complicated question of
law."
In the above-said case, the Hon'ble Division Bench of the High
Court had disposed of the appeals on the ground that there was no dispute of
the fact that the criminal action and the disciplinary proceedings were
founded on the same set of facts and that disciplinary proceedings were
solely based upon the criminal complaint lodged by the President of a rival
union and that the Bank had not conducted any independent enquiry before
initiating the impugned departmental proceedings and thus, the
departmental proceedings were postponed till the time the criminal cases
were decided. The said order was set aside by the Hon'ble Supreme Court
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by making the observations which have been reproduced hereinabove.
9. The Hon'ble Supreme Court of India in "Kendriya Vidyalaya
Sangathan & Ors. Vs. T.Srinivas", reported as 2004(7) SCC 442, had
observed that there should be special facts in a case so as to persuade the
Court to stay departmental proceedings and every case where departmental
proceedings and criminal trial with regard to the same misconduct is
pending, is not to be stayed. It was also observed in the said judgment that
the approach and the objective of the criminal proceedings and the
disciplinary proceedings are altogether distinct and different inasmuch as in
the disciplinary proceedings, the question is whether the employee is guilty
of such conduct as would merit his removal from service or a lesser
punishment as the case may be, whereas in the criminal proceedings, the
question is whether the offences which the employee is alleged to have
committed, are established or not, and if so established the sentence to be
imposed. It was further observed that the standard of proof, the mode of
enquiry and the rules governing the enquiry and the trial in both the cases
are distinct and different. In the said case, the Tribunal had come to the
conclusion that two articles of charge in the criminal proceedings and the
departmental proceedings were identical and the third charge was inter
connected and accordingly, the Tribunal had stayed the departmental
proceedings till the time the applicant therein disclosed his defence in the
criminal trial. The writ petition against the said order was also dismissed
and the Hon'ble Supreme Court after considering the law on the point, set
aside the said orders and observed that the Tribunal and the High Court had
proceeded on an erroneous principle to the effect that grant of stay of
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disciplinary proceedings is a must in every case where there is a criminal
trial on the same charges. The relevant portion of the said judgment is
reproduced hereinbelow:-
4. The respondent herein challenged the said decision of
the appellants to hold a departmental enquiry while a criminal
trial on identical facts was pending against him before a
competent court. This challenge was made before the Central
Administrative Tribunal, Hyderabad Bench at Hyderabad. The
tribunal by its order dated 2.7.2003 came to the conclusion
that the first two Articles of charges are identical to the charge
levelled against the petitioner before the special court under
the provisions of the Prevention of Corruption Act and the
third Article of charge though not a subject matter of the trial
is an inter-connected charge with charges 1 and 2, hence it
allowed the application of the respondent and directed the
appellant that proceedings pursuant to the charge memo be
stayed till the applicant discloses his defence in the pending
criminal trial. It, however gave permission to the appellant to
proceed with the disciplinary proceedings after the disclosure
of the defence by the respondent which in effect would mean
that the disciplinary proceedings will stand stayed almost till
the disposal of the trial before the criminal court.
xxx xxx xxx
11. In the instant case, from the order of the tribunal as also
from the impugned order of the High Court, we do not find
that the two forums below have considered the special facts of
this case which persuaded them to stay the departmental
proceedings. On the contrary, reading of the two impugned
orders indicates that both the tribunal and the High Court
proceeded as if a departmental enquiry had to be stayed in
every case where a criminal trial in regard to the same
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misconduct is pending. Neither the tribunal nor the High Court
did take into consideration the seriousness of the charge which
pertains to acceptance of illegal gratification and the
desirability of continuing the appellant in service inspite of
such serious charges levelled against him. This Court in the
said case of State of Rajasthan (supra) has further observed
that the approach and the objective in the criminal proceedings
and the disciplinary proceedings is altogether distinct and
different. It held that in the disciplinary proceedings the
question is whether the respondent is guilty of such conduct as
would merit his removal from service or a lesser punishment,
as the case may be, whereas in the criminal proceedings the
question is whether the offences registered against him are
established and, if established, what sentence should be
imposed upon him. The court in the above case further noted
that the standard of proof, the mode of enquiry and the rules
governing the enquiry and trial in both the cases are distinct
and different. On that basis, in the case of State of Rajasthan
the facts which seems to be almost similar to the facts of this
case held that the tribunal fell in error in staying the
disciplinary proceedings.
xxx xxx xxx
14. We are of the opinion that both the tribunal and the High
Court proceeded on an erroneous legal principle without
taking into consideration the facts and circumstances of this
case and proceeded as if the stay of disciplinary proceedings is
a must in every case where there is a criminal trial on the very
same charges......"
10. The Hon'ble Supreme Court in "State Bank of India and Ors.
vs. Neelam Nag and Anr., reported as 2016(9) SCC 491, had observed as
under:-
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"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 straight jacket 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.
14. This Court in Karnataka SRTC vs. M.G.Vittal Rao
(2012) 1 SCC 442 has summed up the same 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 or 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.
(emphasis supplied)"
In the above judgment, apart from reiterating the fact that it is a
matter of settled law that there is no legal bar on conducting the disciplinary
proceedings and criminal trial simultaneously, reliance was also placed
upon the judgment of Hon'ble Supreme Court in Karnataka SRTC vs. M.G.
Vittal Rao, in which it was observed that the ground for seeking stay would
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be available only in cases involving complex questions of law and facts and
where the departmental proceedings were not being unnecessarily delayed.
Thus, a perusal of the above said judgments would show that
apart from other factors, one of the primary factors which the Court is to
consider before even considering as to whether the stay of departmental
proceedings is to be granted in a particular case or not or as to whether the
evidence of the witnesses in the departmental proceedings is to be kept in
abeyance till their examination in the criminal case, is to see as to whether
complicated questions of law and facts are involved in the case or not. In the
present case, no complicated question of law or facts, has been brought to
the notice of this Court. The issue which arises for consideration in the
criminal case is as to whether the petitioner along with Head Constable
Gurdeep Singh while being posted at Judicial Malkhana, Ambala had
misappropriated Government funds to the tune of Rs.13,08,613/- or not. In
the said circumstances, it cannot be said that any complicated question of
law or fact arises. Moreover, no judgment has been cited before this Court
to show that in such a situation complicated question of law or fact would
arise. Moreover, this Court has found that there are no special facts in the
present case so as to persuade this Court to grant the relief sought, rather the
allegations against the petitioner and Gurdeep Singh are that they had
misappropriated an amount of Rs.13,08,613/- of Government funds. The
argument raised by learned counsel for the petitioner on merits to the effect
that it was Head Constable Gurdeep Singh who had misappropriated the
money and not the present petitioner and all the other pleas raised by the
petitioner or Gurdeep Singh would be considered during the course of
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departmental proceedings as the departmental proceedings have not
proceeded further after issuance of charge sheet and it would be open to all
the parties to raise all the pleas and lead evidence in support of the said
pleas. Even argument of learned counsel for the petitioner to the effect that
in case common witnesses are examined then prejudice would be caused
to the case of the petitioner, is also misconceived inasmuch as in the present
case, report under Section 173 Cr.P.C. has already been submitted and the
statements of all the witnesses under Section 161 Cr.P.C. have already been
recorded and a copy of the same has been given to the accused and the
prosecution in order to prove the guilt, would have to rely upon the
statements recorded under Section 161 Cr.P.C. and the report under Section
173 Cr.P.C. and thus, the question of prejudice does not arise. At any rate, as
has been held above, there is no complicated question of law and facts
involved in the present case.
11. The Hon'ble Division Bench of this Court in "Dr.Balwinder
Kumar Sharma vs. Hon'ble Punjab and Haryana High Court through
Registrar General, CWP-7539-2021, decided on 28.05.2021 has held as under:-
"The reason for initiation and early conclusion of
departmental proceedings in such cases seems to be three-fold:
(i) To weed out an employee whose integrity /
character has been put to doubt, prima facie, on
account of some criminal proceedings having been
initiated against him/her.
(ii) At the same time, when an employee is
suspended, he/she is entitled to atleast half of the
pay that it was drawing before being suspended and
thus, any inordinate delay in conclusion of
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departmental proceedings, where charges are of
very serious nature, would unnecessarily entail
burden on exchequer and thus will be against
public interest.
(iii) The departmental proceedings is to maintain
discipline in the service and efficiency of public
service and thus, its initiation and conclusion as
expeditiously as possible is in public interest.
In the present case, it is not disputed that challan was
presented in the year 2019 and charges were framed on
31.01.2020 (P-11), however till date no progress has been
made in the criminal trial on account of one reason or the
other. Although, the delay in criminal trial cannot be attributed
to the petitioner, at the same time, the department cannot be
expected to wait endlessly for the trial to conclude as held in
Capt. M. Paul Anthony's case (supra).
xxx xxx xxx
Further, it is to be noted that charges under Sections
409, 420, 120-B and 201 IPC have been framed on the basis of
documentary and other evidence collected by the SIT during
the course of investigation. How the paper was leaked and the
manner it was further supplied for prosecution / Department to
prove, which otherwise is within the special knowledge of the
accused. Therefore, there is no question of any disclosure of
defence in the departmental proceedings. As far as the various
provisions of Prevention of Corruption Act, 1988 are
concerned, most of the provisions are to be proved by the
prosecution during the course of trial except the one
concerning "known sources of income", which again is within
the special knowledge of accused-petitioner. Hence, there
seems to be no justification in the prayer made by petitioner for
staying of disciplinary proceedings."
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In the abovesaid judgment, the reasons for early conclusion of
departmental proceedings have been highlighted and it has been further
observed that the department cannot wait endlessly for the criminal trial to
conclude irrespective of the fact that the delay in the criminal trial is
attributed to the employee or not. It is further observed in the said case that
an early conclusion of the departmental proceedings was necessary in order
to weed out an employee whose integrity / character has been put to doubt
on account of initiation of criminal proceedings and since the purpose of the
said proceedings is to maintain discipline in the service and efficiency of
public service. It was also observed that during the pendency of the said
proceedings, since the employee is suspended, thus, the said employee
would get some part of pay without doing work which would amount to
unnecessarily entailing burden on the exchequer and would be against
public interest.
12. The law laid down in the abovesaid judgment would also fully
apply to the case at hand. In the present case, the departmental proceedings
were initiated on 14.06.2017 and the charge sheet was issued on 04.12.2017
and no further proceedings have taken place in the same in spite of lapse of
more than 6 years on account of interim stay granted by the Coordinate
Bench of this Court vide order dated 19.04.2018. In such a situation, it
would not be in the interest of justice to keep the departmental proceedings
pending any further. It would also be relevant to note that the Hon'ble
Supreme Court of India in the case of Capt. M.Paul Anthony's (supra),
which has been relied upon by learned counsel for the petitioner, has in
paragraph 22 sub clause (v), which has been reproduced hereinabove,
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observed that in case the criminal case does not proceed, then departmental
proceedings, even if they have been stayed on account of the pendency of
the criminal case, can be resumed and proceeded with so as to be concluded
at an early date and the same would be in the interest of all, inasmuch as in
case the petitioners are found guilty, then the department should get rid of
them as early as possible and in case they are not guilty then the honour of
the petitioners should be vindicated at the earliest as well.
13. Keeping in view the abovesaid facts & circumstances and the
law laid down in the above-said judgments, the present writ petition
deserves to be dismissed and is accordingly dismissed.
01.12.2023 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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