Punjab-Haryana High Court
Ravi Kumar vs State Of Haryana And Others on 16 January, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:005362
CWP-975-2024 [1] 2024:PHHC:005362
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(119)
CWP-975-2024
Date of decision: 16.01.2024
Ravi Kumar
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Ashish Naik, Advocate,
for the petitioner.
Ms. Palika Monga, DAG, Haryana.
****
VIKAS BAHL, J. (ORAL)
1. This is a Civil Writ Petition filed under Article 226/227 of the
Constitution of India for the issuance of a writ in the nature of certiorari for
quashing the order dated 21.08.2023 (Annexure P-3) and summary of
allegations (Annexure P-4), which has initiated the departmental inquiry
against the petitioner, during the pendency of the criminal case FIR No.20
dated 20.08.2023 under Section 7 of the Prevention of Corruption Act,
1988. Further, a prayer has been made for a writ of mandamus directing the
respondents to keep in abeyance the departmental inquiry till the final
decision of the criminal case.
2. Brief facts of the present case are that an FIR No.20 dated
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20.08.2023 was registered under Section 7 of the Prevention of Corruption
Act, against the petitioner on the complaint of one Manish Sharma on the
allegations that the complainant had asked for superdari of his vehicle in the
Court and the present petitioner had written a superdari report that the
mechanical inspection is pending and accordingly superdari of the dumper
in question was not given to the complainant. It is further alleged that the
petitioner had demanded a bribe of Rs.15,000/- for conducting mechanical
inspection and preparing the documents for superdari report of the said
dumper and a deal was finally settled for an amount of Rs.13,000/-,
regarding which the complainant has a recording. It is further the case of the
prosecution that the present petitioner was apprehended while accepting a
bribe of Rs.13,000/-. The petitioner has pointed out that in the present case,
the report under Section 173 Cr.P.C. has not been filed. The Superintendent
of Police, Kurukshetra, vide order dated 21.08.2023 (Annexure P-3) had
ordered for holding a regular departmental enquiry by the DSP/SBD on day
to day basis and had also suspended the present petitioner. The summary of
allegations (Annexure P-4) was formulated against the petitioner, in which,
it was alleged that the petitioner had been apprehended on the allegations of
accepting a bribe of Rs.13,000/-. The petitioner had given a representation
dated 28.10.2023 (Annexure P-5) for staying the departmental enquiry
during the pendency of FIR No.20 dated 20.08.2023 and in the said
application, he had stated that he was not aware as to who are the common
witnesses to be examined in both the departmental enquiry as well as in
criminal case as the challan has not been presented. The said representation
was rejected vide order dated 18.12.2023 (Annexure P-6) passed by the
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Superintendent of Police, Kurukshetra and the said order has not been
challenged before this Court.
3. Learned counsel for the petitioner has submitted that since the
report under Section 173 Cr.P.C. had not been submitted, he could not tell
with certainty as to whether there would be any common witnesses in the
criminal case and in the departmental proceedings, but has submitted that
keeping in view the facts and circumstances of both the cases, there is every
probability of there being common witnesses and has thus prayed that the
said witnesses be not examined in the departmental proceedings till the time
they are examined in the criminal case as in case the said persons are
examined in the departmental proceedings, then, the defence of the
petitioner would be disclosed while cross-examining the said witnesses,
which would prejudice the rights of the petitioner. 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 State Counsel, on the other hand, has opposed the
present writ petition and has submitted that she has instructions to state that
out of 9 witnesses, 5 witnesses have been examined in the departmental
proceedings, which aspect has not been disputed by learned counsel for the
petitioner.
5. 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 following reasons: -
(i) The order dated 18.12.2023, vide which the representation filed
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by the petitioner for staying the departmental enquiry has been
rejected, has not been challenged.
(ii) A perusal of the representation dated 28.10.2023 (Annexure P-5)
would show that it has been pleaded by the petitioner that he is
not aware as to who are the common witnesses to be examined in
both the departmental enquiry as well as in the criminal case as
the report under Section 173 Cr.P.C. has not been filed. Even
before this Court, learned counsel for the petitioner has not been
able to show any document from which it could be ascertained as
to who are the common witnesses in the departmental proceedings
and in the criminal case.
(iii) The present case does not involve any complicated question of
law and facts, which is a necessary ingredient before any such
stay as prayed for, is to be granted.
(iv) There are no special facts in the present case so as to persuade this
Court to grant of the relief sought. The said grounds of rejection
are detailed herein as under.
6. 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
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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
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
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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
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
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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.
7. 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
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
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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
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
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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 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
by making the observations which have been reproduced hereinabove.
8. 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
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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
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
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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
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
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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......"
9. 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:-
"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.
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(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
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
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the notice of this Court. The issue which arises for consideration in the
criminal case is as to whether the petitioner demanded a bribe of
Rs.15,000/- from the complainant Manish Sharma for conducting the
mechanical inspection and preparing the documents in his favour with
respect to the inspection report, regarding which, as per the case of the
prosecution, there is a recording and as to whether in pursuance of the said
fact, the petitioner was apprehended while accepting a bribe which was
finalized as Rs.13,000/-. 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 are of demanding a
bribe and of accepting the same. Further, there is no document to show as to
who are the common witnesses in the present case and a perusal of the
representation dated 28.10.2023 would show that the petitioner himself had
said that he was not aware as to who are the common witnesses as the report
under Section 173 Cr.P.C. has not been presented. Moreover, out of 9
witnesses, 5 witnesses have been examined and it is not clear as to whether
any common witnesses are left to be examined or not. At any rate, as has
been held above, there is no complicated question of law and facts involved
in the present case.
10. 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:-
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"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
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
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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."
In the abovesaid judgment, the reasons for early conclusion of
departmental proceedings have been highlighted and it has been observed
that the cases registered under the Prevention of Corruption Act, 1988 are to
be proved by the prosecution during the course of trial and thus, there is no
justification for staying the disciplinary proceedings. The SLP i.e., SLP
no.8279 of 2021 filed against the said judgment was dismissed as
withdrawn on 17.10.2022.
11. The Hon'ble Division Bench of this Court in LPA-239-2022
titled as "Paramjit Kaur Vs. Punjab and Sind Bank and others" decided
on 24.03.2022 had held as under:-
"2. The learned Single Judge, after taking into
consideration the facts of the case as well as the decision of
the Supreme Court, relied upon by the appellant, in Captain M.
Paul Anthony Vs. Bharat Gold Mines, 1999(3) SCC 679,
dismissed her petition, upon reaching a conclusion that
decision in Captain M. Paul Anthony (supra) does not lay
down any absolute principle of law that in all those cases
where a criminal trial is pending, the departmental
proceedings must be kept in abeyance. Rather, the question,
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whether, in the given situation, the departmental proceedings
are required to be stayed, would be determined taking into
account multiple factors: if the departmental proceedings and
criminal trial are based on similar set of facts; the charge in
the criminal trial against the delinquent employee is of a grave
nature and involved complicated questions of law and fact.
Whereas, upon due consideration of the matter in issue, the
learned Single Judge recorded that it was not the case in the
matter at hands. It was observed that the charges against the
appellant in the departmental proceedings were that she had
been siphoning off the funds/amount from the accounts of the
bank's customers in the name of her own relatives since 2005.
Further, upon being confronted with this fact, she has made
three deposits refunding certain amount. And, significantly, the
learned Single Judge also recorded that the entire material
that was to be relied upon and produced against the appellant
was documentary in nature and was either prepared by her or
under her supervision, being Manager of the branch.
xxx xxx xxx
5. Upon being pointedly asked, if the charges have been
framed in the criminal trial against the appellant and, if yes,
whether the charge sheet was produced/placed before the
learned Single Judge? Learned counsel fairly concedes that
though charges have already been framed but the charge sheet
was not placed before the learned Single Judge. In such
circumstances, it is evident that the contention of the appellant
that basis of the departmental proceedings and criminal trial is
the same, is neither substantiated nor established. Even
otherwise, as indicated above, the charges against the
appellant are based on record and do not involve any
complicated questions of law and facts, least a charge that
could be termed as grave."
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A perusal of the above judgment would show that the
charges/charge sheet in the criminal case was not placed before the learned
Single Judge and that thus, the contention of the appellant therein that the
basis of the departmental proceedings and criminal trial were the same, was
neither substantiated nor established. It was also observed that in the said
circumstances, no complicated questions of law and facts were involved. In
the present case also, as has been stated herein-above, since the
investigation is not complete and neither the report under Section 173
Cr.P.C. has been submitted nor the charges have been framed, thus, the
principle of law as laid down in the above-said judgments would also apply
in the present case.
12. Keeping in view the abovesaid facts & circumstances and the
law laid down in the above-said judgments of the Hon'ble Supreme Court
and the Division Bench of this Court, the present writ petition deserves to
be dismissed and is accordingly dismissed.
January 16, 2024 (VIKAS BAHL)
naresh.k JUDGE
Whether speaking/reasoned:- Yes
Whether reportable:- Yes
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