Punjab-Haryana High Court
Vikas Kumar vs State Of Haryana And Others on 24 January, 2025
Neutral Citation No:=2025:PHHC:011075
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
112 CWP-1858-2025
Date of Decision: 24.01.2025
VIKAS KUMAR
... Petitioner
VERSUS
STATE OF HARYANA AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
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Present: Mr. Sanjiv Gupta, Advocate
for the petitioner.
****
VINOD S. BHARDWAJ, J. (ORAL)
Challenging the memorandum dated 16.05.2024 (Annexure P-7)
as well as letter/order dated 13.01.2025 issued during the pendency of criminal
trial arising out of FIR No.11 dated 21.03.2024 under Section 7 of Prevention
of Corruption Act, 1988 and Section 384 of Indian Penal code, 1860 registered
at Anti-Corruption Bureau, Ambala, the petitioner has approached this Court.
Learned counsel for the petitioner contends that the petitioner was
appointed as Tehsil Welfare Officer and was discharging his duties with utmost
sincerity. He has an unblemished career. While posted as Tehsil Welfare
Officer, the petitioner was booked in an FIR No.11 dated 21.03.2024 under
Section 7 of Prevention of Corruption Act, 1988 and Section 384 of Indian
Penal code, 1860 registered at Anti-Corruption Bureau, Ambala on the
allegations of one Gurmeet Singh, wherein he alleged that he and his wife were
given beatings by certain persons on 03.10.2021, in respect whereto, an FIR
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No.218 of 2021 under Schedule Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 was registered. Consequent upon registration of the FIR,
one person namely Vikas came to his house and informed that he is from
Welfare Department, Kurukshetra and assured that he could get compensation
for the complainant from the Higher Officials, subject to the complainant
paying 50% amount to him. Complainant had further alleged that Vikas had
earlier pressurized him to pay a sum of Rs.1,40,000/- and he also threatened
that in case the matter is disclosed to any other person, the entire money will be
required to be re-deposited. It was also alleged that on 14.03.2024, Vikas
Kumar (petitioner herein) came again and demanded a further sum of
Rs.70,000/- as bribe and after much resistance, the complainant submitted to
pay a sum of Rs.30,000/-. An audio recording to the said effect was specifically
made which was handed over to the police. On the basis of said evidence, the
above FIR was registered.
The petitioner was then taken into custody and eventually, he was
released on regular bail. The Superintendent of Police, Anti-Corruption Bureau
also referred the matter to the Higher Authorities, whereupon the District
Welfare Officer further informed about the same to respondent No.2 - Director
General, Social Justice, Empowerment, Welfare of Scheduled Castes and
Backward Class and Antyodaya (SEWA) Department, Haryana, Panchkula. The
petitioner was also placed under suspension vide order dated 09.08.2024. The
same was followed by issuance of a charge sheet on 16.05.2024 giving details
of the allegations and list of witnesses.
It is submitted that neither any preliminary inquiry was done nor
any show cause notice was ever issued to the petitioner and without taking into
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the consideration mandate of law, an Inquiry Officer was appointed to conduct
a regular departmental inquiry vide notice dated 13.01.2025 {under challenged
as (Annexure P-8)}. A charge sheet under Rule 7(4B) of the Haryana Civil
Services (Punishment and Appeal) Rules, 2016 was also served upon the
petitioner.
Learned counsel for the petitioner contends that the proceedings
initiated by the respondents are in violation of law and without affording any
opportunity to the petitioner to submit his reply in the preliminary inquiry for
fact determination. It is submitted that the entire version stated in the FIR is
false because there was no occasion for any person to be ready with money in
advance, in anticipation of certain benefits to be received by him. Moreover, the
matter in question pertains to the year 2021 and that there is also nothing on
record to suggest that any payment was actually to be made. Learned counsel
for the petitioner further contends that even though the allegation is that a sum
of Rs.1,40,000/- had been paid by the complainant to Vikas Kumar (petitioner
herein) in the year 2021, however, there is no reference as to how much money
had been released in his favour by the State. Thereafter also, there is no
reference as to on what account the balance amount of Rs.70,000/- was
demanded by the petitioner. He contends that complainant had filed the
complaint in March 2024 i.e. after a period of nearly three years since the
allegation made by him of having first paid the amount of Rs.1,40,000/- in the
year 2021; without tendering any explanation for such inordinate delay. A
further argument has been raised that the investigation in the case has already
been completed and a final report has also been filed. The list of the witnesses
in the departmental inquiry is similar to the witnesses who are cited by the
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prosecution in the criminal case and that in the event of the departmental
inquiry being ordered to be proceeded, the case of the petitioner shall be
severely prejudiced as he would be compelled to disclose his defence.
Reference is made by the counsel for the petitioner to the judgment
of the Hon'ble Supreme Court in the matter of P.J. Sunderrajan and Another
Versus Unit Trust of India and Another passed in Civil Appeal No.5026 of
1990 on 30.10.1990. Learned counsel for the petitioner emphatically argues that
the said judgment still holds the field laying down a binding law.
Reference is also made on the judgment of Hon'ble Supreme Court
in the matter Capt. M. Paul Anthony Versus Bharat Gold Mines Ltd., Civil
Appeal No.1906 of 1999 decided on 30.03.1999, wherein it was held that when
an employee is being proceeded against in criminal as well as in department
proceedings on the same charges and same evidence; and witnesses are to prove
the charge on both sides, in certain cases, it may violate the right of defence of
the employee. Though no hard and fast, strait-jacket formula can be evolved for
all cases and general application in all cases cannot be done but some principle
as guidelines can be followed in the facts and circumstances of a particular
case. The guidelines laid down by the Hon'ble Supreme Court are as under: -
"(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.
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(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 (ii) 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."
Reliance is also placed on the judgment of the Hon'ble Supreme
Court passed in the matter of Eastern Coalfields Limited & Others Versus
Rabindra Kumar Bharti; Civil Appeal No.2794 of 2022 decided on
07.04.2022. The relevant extract of the same is reproduced hereinafter below:
"9. We would notice that this is a case where there is a criminal
case against the respondent. The appellant(s) as employer also
launched disciplinary proceedings. It is undoubtedly true that this
Court has taken the view that when the charges are identical and
gives rise to complicated issues of the fact and law and evidence is
the same, it may not be appropriate to proceed simultaneously in
disciplinary proceedings, along with the criminal case. The
rationale behind the principle largely is that the employee who is
facing the disciplinary proceeding would necessarily have to take
a stand. This in turn would amount to revealing his defense and
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therefore prejudice the employee in the criminal proceedings. No
doubt, this Court has laid down that it is not an absolute embargo
and the principle is one to be applied based on the facts of each
case."
I have heard the learned counsel for the petitioner and have gone
through the documents and record available on case file and the judgments cited
by him with his able assistance.
The factum that the initial FIR was got registered by complainant
under the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 is not a subject matter of dispute in this case. The bedrock for the FIR
against the petitioner relates to grant of certain financial benefits under the
Statutory Scheme to a victim belonging to the scheduled castes in the event of
investigation/proceedings under the Schedule Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. It is alleged that in lieu of securing release
of the benefits under the statutory scheme to the victim belonging to a
scheduled caste, the petitioner had coerced the complainant to part off with 50%
of the grant which was to be released in his favour by the Government. An
amount of Rs.1,40,000/- is stated to have then been paid by the complainant to
the petitioner.
It is undisputed that the scheme of the Schedule Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 contemplates payment of
compensation at different stages. While some part of the compensation is paid
at the time of registration of FIR, the balance part of the compensation is to be
paid after the filing of the charge sheet. Under the given set of circumstances, it
apparently may be probable that when the second part of compensation fell due,
the petitioner again exerted pressure upon the complainant to part away with a
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further sum of Rs.70,000/-. The contention of the petitioner that the
complainant remained silent with respect to payment of money in 2021 and
initiated the cause only in the year 2024 and thus the same is a stale cause,
deserves to be rejected since the trigger event for initiation of criminal
proceedings by way of registration of the FIR in the year 2024 is the further
demand of Rs.70,000/- raised by the petitioner from the complainant, out of
which a sum of Rs.30,000/- is stated to have been paid. In any case, the
petitioner being a public servant cannot be permitted to take benefit of such a
delay so as to oust the case of the complainant at the threshold. The
circumstances are yet to be examined and evidence yet to be recorded before a
final conclusion is to be drawn. Such attempt of scuttling the process of law by
trying to prove a case on probabilities cannot be accepted at this stage since the
same would involve disputed questions of fact. High Court, while seized of a
writ arising from departmental proceedings, would ordinarily refrain from
commenting on the prosecution evidence in the criminal case.
While dealing with the second argument advanced by the counsel
for the petitioner that the witnesses cited by the Department are the same that
have been cited by the police in its criminal case and that in the event of the
departmental inquiry being allowed to proceed any further, the petitioner would
suffer a irreparable loss and prejudice on account of being forced to disclose his
defence, I find that such an argument is bereft of merit.
Even though the investigation of the case is stated to be completed
and a final report has already been filed, however, the petitioner chose not to
append the list of witnesses and withheld the said primary document
considering that only three witnesses are referred to by the Department i.e.
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complainant Gurmit Singh; Pawan Kumar, HFS, O/o DFO and Sudhir Kumar,
RFO O/o DFO Ambala. An inference thus has to be drawn against the
petitioner for not appending the said primary document. Besides, the allegation
against petitioner in the departmental proceedings are on multiple counts,
bribery being one amongst them. The petitioner was caught red-handed and
Rs.30,000/- were recovered from him as well, a fact conveniently concealed in
pleadings. The investigation in the present case is undisputedly concluded and
therefore, it is not a stage where the prosecution may cover up any of the
disclosures or defences made by the petitioner. It is settled position in law that
the prosecution has to rely on the evidence already collected and it can travel no
further than the evidence that has already been assimilated by then and
furnished alongwith the charge sheet that has been filed before the competent
Court. Therefore, the apprehension expressed by the petitioner that there is
possibility of his defence being demolished, in the event of the petitioner cross-
examining the witnesses is farfetched, more so, when other than the
complainant, there does not seem to be any other common witness. Hence, all
that is required is that cross-examination of the complainant in departmental
proceedings be held after his examination in the Court, which can be taken care
of. No further reference is made by the petitioner that as to what is the nature of
the prejudice that is likely to be caused and the argument of prejudice is being
hammered solely on a remote possibility which does not seem probable in the
facts of the present case.
While much emphasis has been laid by the counsel for the
petitioner on the judgment of the Hon'ble Supreme Court in the matter of Capt.
M. Paul Anthony (supra), it is evident from a perusal thereof that the Hon'ble
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Supreme Court specifically held that the departmental proceedings and criminal
proceedings can proceed simultaneously as there is no bar in their being
conducted simultaneously, though separately, It is the first principle culled out
by the Hon'ble Supreme Court in the abovesaid judgment. It is further specified
that where the departmental inquiry and criminal proceedings are based on
identical and similar facts, and the allegations against the delinquent employee
are of grave nature and involve complicated questions of law, it would be
desirable to stay the departmental proceedings till the conclusion of the criminal
trial but even then departmental proceedings cannot be stayed indefinitely.
In the present case, there is, however, no complicated question of
law that is subject matter of dispute. Only a dispute about factual aspects is
being raised by the petitioner. Hence, even on the principles as culled by the
Hon'ble Supreme Court in the matter of Capt. M. Paul Anthony (supra), the
law would be to the prejudice of the petitioner rather than to his aid.
In light of the aforesaid position of law laid down by the Hon'ble
Supreme Court in the matter of Capt. M. Paul Anthony (Supra), the issue
requires to be considered no further. The proposition of law laid down by the
Hon'ble Supreme Court does not prohibit the initiation of criminal proceedings
as well as the conduct of departmental inquiry simultaneously. Moreover, it is a
case where the allegations are of serious nature against the public officer who
has wrongfully taken away the fruits of the State policy of granting
compensation to the oppressed scheduled caste victims of crime. Evidently,
such a person cannot be allowed a walk over against the departmental
proceedings being initiated against him.
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Further, the reference to the judgment of the Eastern Coalfields
Limits and Others (supra), is also misplaced. The proposition laid down by the
Hon'ble Supreme Court in the said judgment is not a subject matter of dispute,
however, apparently, even in the said judgment, the law is not settled to the
effect that department disciplinary proceedings cannot be initiated during the
pendency of a criminal case. Per contra, the Hon'ble Supreme Court set aside
the stay on passing of final order of dismissal.
Further, this Court is also apprised of a judgment dated 10.04.2024
passed by a Co-ordinate Bench of this Court in CWP-5111 of 2024 titled as
Mustaq Versus State of Haryana and others wherein various principles have
been laid down in relation to initiation of departmental proceedings during
pendency of criminal case. The relevant extract of the same reads thus:
"17. From the above said judgments, the following
principles/conclusions emerge: -
1. Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no bar
in their being conducted simultaneously though separately.
(Specific reference in this regard can be made to the
judgment in case of Capt. M. Paul Anthony (supra) (relevant
portion of which is reproduced in Para 5 of the present
order) and State Bank of India and Ors. (supra) (relevant
portion of which is reproduced in Para 8 of the present
order)
2. The approach and objective in the criminal
proceedings and the disciplinary proceedings is altogether
distinct and different inasmuch as in the disciplinary
proceedings, the question is as to whether the employee is
guilty of such conduct as would merit his removal from
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service or imposition of lesser punishment whereas in the
criminal proceedings, the question is as to whether the
offences registered against him are established and if
established, what sentence is to be imposed upon him.
(Specific reference in this regard can be made to the
judgment in Kendriya Vidyalaya Sangathan & Ors (supra)
(relevant portion of which is reproduced in Para 7 of the
present order) and to Shashi Bhusan Prasad v. Inspector
General, Central Industrial Security Force and others,
reported as 2019(7) SCC 797 and also LPA-470-
2024 (relevant portion of which is reproduced in Para 10 of
the present order).
3. The mode of the enquiry, the rules governing the
enquiry and trial as well as the standard of proof in criminal
proceedings and in departmental proceedings are distinct
and different and in a criminal case, charge has to be
established beyond reasonable doubt whereas in the
departmental proceedings, the charge of misconduct has to
be established on the principle of "preponderance of
probabilities". (Specific reference in this regard can be
made to the judgment of the Hon'ble Supreme Court of India
in "State of Karnataka and others v. Umesh", reported as
2022 SCC Online SC 345 and LPA-470-2024 (relevant
portion of which is reproduced in Para 10 of the present
order).
4. There should be early conclusion of departmental
proceedings so as to weed out any employee whose
integrity/character has been put in doubt and to maintain
discipline in service and efficiency of public service and also
in case the employee is not guilty of any wrong doing, then
his honour is required to be vindicated at the earliest.
[Specific reference in this regard can be made to the
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judgment in the case Dr. Balwinder Kumar Sharma's
(supra) (relevant portion of which is reproduced in Para 14
of the present order) and Capt. M. Paul Anthony (supra)
(relevant portion of which is reproduced in Para 5 of the
present order).
5. All the ingredients i.e., the departmental proceedings
and the criminal case being based on identical and similar
set of facts, charge in the criminal case being of grave
nature involving complicated questions of law and facts are
required to be met before the Court could consider the case
of the employee for grant of stay of departmental
proceedings during the pendency of the criminal case.
(Specific reference in this regard can be made to the case of
Capt. M. Paul Anthony (supra); Indian Overseas Bank,
Anna Salai and Anr (supra) (relevant portion of which is
reproduced in Para 6 of the present order); State Bank of
India and Ors. (supra) (relevant portion of which is
reproduced in Para 8 of the present order).
6. 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. [Specific reference can be made to the
judgment of Capt. M. Paul Anthony (supra)]. Even the
question as to whether the case involves identical and
similar set of facts would also have to be considered after
taking into consideration the FIR, the report under
Section 173 Cr.P.C. and the charges framed. [Reference in
this regard can be made to the judgment of Paramjit Kaur's
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(supra)] (relevant portion of which is reproduced in Para 16
of the present order)
7. The fact that the departmental proceedings and the
criminal case are based on identical and similar set of facts
and the charges in the criminal case against the delinquent
employee are of grave nature which involve complicated
questions of law and facts also cannot be considered in
isolation to stay the departmental proceedings and due
regard must be given to the fact that the departmental
proceedings cannot be unduly delayed. [Specific reference
in this regard can be made to the case of Capt. M. Paul
Anthony (supra) (relevant portion of which is reproduced in
para 5 of the present order) and State Bank of India and
Ors. (supra).] (relevant portion of which is reproduced in
Para 8 of the present order)
8. Before granting stay of the departmental
proceedings, special facts of the case are required to be
mentioned, warranting stay of departmental proceedings.
(Specific reference in this regard can be made to the
judgment of Kendriya Vidyalaya Sangathan & Ors (supra)
(relevant portion of which is reproduced in Para 7 of the
present order).
9. In case all the above parameters are met and the stay
of the departmental proceedings has been granted, then also
in case, the criminal case is being unduly delayed, the
departmental proceedings can be resumed and proceeded
with so as to conclude them at an early date. (Specific
reference in this regard can be made to the judgment of
Capt. M. Paul Anthony's case (supra) (relevant portion of
which is reproduced in Para 5 of the present order)."
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The abovesaid judgment was subject matter of challenge in LPA
No.1221 of 2024 before a Division Bench of this Court, which already stands
dismissed vide order dated 23.05.2024 and the guidelines laid down by the
learned Single Bench are affirmed.
I do not find that any sufficient ground has been made out by the
counsel for the petitioner as would justify the stalling of the initiation of the
departmental proceedings under the weight of serious offence and allegations
that have been set out against the petitioner.
The present writ petition is accordingly dismissed in limine. The
departmental authorities may however, defer cross-examination of the
complainant Gurmeet Singh till his testimony is recorded in Court, if not
recorded already.
(VINOD S. BHARDWAJ)
JANUARY 24, 2025. JUDGE
Rajender
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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