Punjab-Haryana High Court
Kuldeep Singh Mothsra And Another vs State Of Haryana And Others on 24 April, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:055422
CWP-9142-2024 -1- 2024:PHHC:055422
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
115 CWP-9142-2024
Date of Decision :24.04.2024
Kuldeep Singh Mothsra and another ...Petitioners
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Sunil K. Nehra, Advocate and
Mr. Suryaveer Surjewala, Advocate for the petitioners.
Mr. Harish Nain, AAG, Haryana
(keeping in view advance copy served)
***
Harsimran Singh Sethi, J. (Oral)
1. In the present petition, prayer of the petitioners is for quashing
the charge sheets, which have been issued to the petitioners dated
02.08.2023 (Annexures P-2 and P-3 issued to the petitioner No.1 and 2
respectively) keeping in view the fact that the said allegations mentioned in
the charge sheet are being enquired into in an FIR No.159 dated 26.04.2023
(Annexure P/1) registered at police Station Ellenabad, District Sirsa.
2. Certain facts need to be noticed for the correct appreciation of
the issue in hand.
3. Petitioner No.1 was appointed on the post of Peon on
06.07.2001 and thereafter was promoted to the post of clerk on 17.01.2020
whereas, petitioner No.2 was directly recruited on the post of Clerk on
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19.03.2018. While both the petitioners were working in the office of Deputy
Commissioner, Sirsa, it came to the notice of the department that certain
irregularities/illegalities have been committed by the petitioners while
discharging the duties on the said post due to which allegations came to
surface that large sum which the petitioners had collected on behalf of the
department while discharging their duties was not deposited with the
Government Treasury regularly, which amounts to misappropriation. On the
basis of the said allegations alleged against the petitioners, which had come,
an FIR No.159 dated 26.04.2023 (Annexure P/1) under Sections 406 and
420 of IPC was registered at Police Station Ellenabad, District Sirsa against
the petitioners.
4. Thereafter, two charge sheets, which have been impugned in
the present petition dated 02.08.2023 (Annexures P/2 and P/3) respectively
were issued to the petitioners alleging the allegations that while discharging
their duties on the said post in the registration branch, the money being
collected by the petitioners on account of registration of vehicles or for the
grant of driving licences, have not been deposited with the Government
Treasury, which amounted to embezzlement. Certain amount which the
petitioners collected and did not deposit to the concerned authority was
mentioned in the charge sheet hence, Rules 4, 1 & 5 of the Haryana Civil
Services (Government Employees Conduct) Rule, 2016 were alleged to be
violated.
5. No reply has been filed by the petitioners to the said charge
sheets and only an information has been given to the department that as the
criminal case is also pending against them the petitioners would not like to
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disclose their defence.
6. It may be noticed that the police after investigation has also
filed challan against the petitioners and the said challan is yet to be taken up
for consideration by the competent Court of law as to whether any charges
are to be framed against the petitioners or not.
7. As the respondents were proceeding in respect of the charge
sheets issued to the petitioners, the petitioners have approached this Court
on the ground that as the criminal proceedings have already been initiated on
the basis of the said facts, departmental proceedings should not be continued
any further so that the petitioners do not suffer any prejudice in the criminal
proceedings, which are being faced by them on the said allegations.
8. Keeping in view the advance copy of the petition served, Mr.
Harish Nain, AAG, Haryana appears on behalf of the respondent and
resisted the prayer of the petitioner.
9. Learned counsel for the respondents submits that a Coordinate
Bench of this Court in the bunch of petitions being CWP-5111-2024 titled
as, Mustaq vs. State of Haryana and others, decided on 10.04.2024 has
held that departmental proceedings can continue, even if, the criminal
proceedings have already been initiated on the same facts hence, prayer of
the petitioners is contrary to the law laid down by the Coordinate Bench of
this Court in the case of Mustaq (surpa) hence, the same is liable to be
rejected.
10. Learned counsel for the respondents further submits that in the
present case, allegations alleged against the petitioners are being proved on
the basis of the documents, which have come on record, according to which,
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the petitioners collected certain amount on behalf of department, details of
which have been mentioned in the charge sheets (Annexures P/2 and P/3)
respectively but did not deposit the said amount in the Government Treasury
and even if, it is assumed for the sake of arguments that the same was due to
an inadvertence, even then also, departmental action can be taken against the
petitioners as the proof required in the departmental proceeding to prove the
charge is entirely different as compared to criminal proceedings.
11. Learned counsel for the petitioners submits that no reliance can
be placed upon the judgment of the Coordinate Bench of this Court in the
case of Mustaq (surpa) as while passing the said order, the Coordinate
Bench of this Court has not considered the latest judgment passed by the
Hon'ble Supreme Court of India in Civil Appeal No.2794-2022 titled as,
Eastern Coalfields Limited and others vs. Rabindra Kumar Bharti decided
on 07.04.2022 and hence, prayer of the petitioners is liable to the allowed.
12. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
13. The question which arises is as to whether the petitioners are
entitled for the relief claimed of keeping the departmental proceeding in
abeyance till the criminal proceedings attain finality.
14. A Coordinate Bench of this Court considered the said issue on
the basis of the settled principle of law while passing order in the case of
Mustaq (surpa) and after the detailed discussion, a Coordinate Bench of this
Court keeping in view the fact that the proof required to prove the criminal
charge is beyond reasonable doubt whereas, for proving the allegations in
the departmental enquiry, the probabilities can also be taken into account
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and it is not a straight jacket formula that wherever criminal proceedings are
initiated, departmental proceedings are to be kept in abeyance. Similar
prayer has been rejected by the Coordinate Bench of this Court in the case of
Mustaq (surpa). The only objection qua the implementation of the judgment
of Mustaq (surpa) in the case of the petitioner is that the judgment of the
Hon'ble Supreme Court of India in Eastern Coalfields Limited (supra) has
not been taken into account by the Coordinate Bench of this Court.
15. It may be noticed that in Eastern Coalfields Limited the view
of the Hon'ble Supreme Court of India is not contrary to the view of the
Coordinate Bench of this Court in Mustaq (supra). In para-9 of the judgment
in Eastern Coalfields Limited, it has been mentioned that there is no straight
jacket formula of in keeping the departmental proceedings in abeyance in
case criminal proceedings have also been initiated and the law laid down in
Capt. M Paul Anthony (supra) is to be applied only on the basis of the
facts of each case hence, the objection being taken by the learned counsel
for the petitioner so as not to make applicable the judgment in Mustaq
(supra) in the case of the petitioner cannot be accepted.
16. Now coming to the case of the petitioner's, whether in the facts
and circumstances of the present case, the departmental proceedings are
liable to be stayed or not. In the present case, allegations alleged against the
petitioners are that while discharging their duties on the post of clerk in the
registration branch, the petitioners collected certain amount on behalf of the
department while issuing driving licences and for the registration of
vehicles, which amount was not deposited with the Government Treasury by
them. The facts alleged are to be seen on the basis of the record, keeping in
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view the money received by the petitioners and the said money being
deposited in the Government treasury. The allegation alleged is to be proved
on the basis of the record and not on the basis of the oral evidence. Once,
proving of the allegation alleged is to be done on the basis of the
documentary evidence, it cannot be said that petitioners are to disclose their
defence qua allegations alleged. Rather in the present case, the petitioners
have to oppose the documents being produced by the respondents in the
departmental proceedings to prove the said allegations, which is other way
around.
17. Argument of the learned counsel for the petitioners that keeping
in view the judgment in Civil Appeal No.1906-1999, titled as, Capt. M.
Paul Anthony vs. Bharat Gold Mines Limited decided on 30.03.1999, no
proceedings can be raised where there is a complicated question of fact and
law. In the case of Capt. M Paul Anthony (supra), there were allegation of
raid and recovery of certain amount, which was not proved before the
competent Court of law. It was under these circumstances, where facts were
in dispute and were required to be proved by oral evidence, an order was
passed by the Hon'ble Supreme, Court of India but while considering the
said judgment of the Hon'ble Supreme Court of India in Eastern Coalfields
Limited it has been held that every case needs to be decided on the basis of
the facts. In the present case, allegations alleged against the petitioners are
not oral but are documentary qua the receipt of certain amount by the
petitioners while discharging their duties and proving of the same not being
deposited in the Government treasury on the basis of the documents. In the
present case, petitioners are not supposed to disclose their defence and rather
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are to rebut the said documents qua the allegations alleged in the
departmental proceedings. Hence, facts of the present case are such that the
departmental proceedings need not be kept in abeyance even during the
pendency of the criminal proceedings.
18. No other argument has been raised.
19. Keeping in view the facts and circumstances recorded
hereinbefore, present petition stands dismissed.
April 24, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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