Deepa Rani vs State Of Uttarakhand
2021 Latest Caselaw 39 UK

                                                           Reserved Judgment


     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

              Writ Petition No. 139 of 2020 (S/S)
                (under Article 226 of the Constitution of India)

Deepa Rani W/o Sri Pradeep Kumar,
Pul Jatwada, Ghas Mandi,
Jwalapur, Haridwar                                                 ..... Petitioner

                                  Versus

State of Uttarakhand                                         ..... Respondent

Mr. Pankaj Miglani, Advocate for the petitioner.
Mr. P.C. Bisht and Mr. Anjali Bhargava, Addl. C.S.C. with Mr. Narain Dutt,
Mr. Sushil Vashistha, Ms. Indu Sharma and Mr. Virendra Singh Rawat, Brief
Holders for the State.




                               JUDGMENT

Hon'ble Lok Pal Singh, J.

By means of present writ petition, petitioner has sought following relief:

"(i) To summon the complete record pertaining to the case.

(ii) To issue the writ, order or direction in the nature of certiorari quashing the charge sheet dated 24.12.2019."

2. Petitioner was appointed as Sub-Inspector in Special Branch, Intelligence Department of Police in the year 2009. The batchmate of the petitioner, namely, Yogesh Kumar, who was then posted at Rudraprayag called on her mobile phone on 31.06.2018 at about 8:00 PM and told her that one of his acquaintance, namely, Ramesh/Rakesh Kumar who is the resident of Rishikesh is a good source to furnish information about the foreigners which will help her in stopping the crime against foreigners and she can give good information to her officers with his help. On 5/6.07.2018, the petitioner received a call from Sub- Inspector Yogesh Kumar and told the petitioner that he has

some information about foreigners which he wants to give to the petitioner. Thereafter the petitioner informed about the same to Special Intelligence Officer, Rishikesh who asked her to work on that information and report him thereafter but she did not get any further information from Ramesh/Rakesh Kumar. Thereafter, on 12.07.2018, Ramesh/Rakesh Kumar called the petitioner and asked her to meet at Ram Jhula near Muni Ki Reti. When the petitioner reached there Ramesh/Rakesh Kumar met her and told her that the foreigners are taught meditation by Vedansh International Yoga Academy after administration of drugs and the said academy issue frivolous Yoga Certificate and deceive them. On the same day, he went with the petitioner and showed her the location of the institute. In the said institute, she met a person who was the brother of Dr. Sanjeev Kumar Pandey, the Director of Institute. In the meantime, the informer called three more person i.e. two male and one female, out of these three person, Abhishek and Dipika, who are husband and wife and they were ex- mangers of the said institute and were expelled due to some private dispute. They told that the said institute issues fake certificate. Thereafter, the petitioner received a call from Dr. Sanjeev Kumar Pandey, who told that Abhishek has taken money from him. After 15 days, Dr. Sanjeev Kumar Pandey lodged an F.I.R. No. 59 of 2018 for the offences punishable under Section 388/120-B of I.P.C. and 7/13 of Prevention of Corruption Act against the petitioner and five other persons alleging therein that they demanded a sum of Rs. 10 lacs from him out of which he paid a sum of Rs. 5 lacs to them. The petitioner filed WPCRL No. 1415 of 2018 for quashing of said F.I.R. This Court vide order dated 01.08.2018 granted interim protection to the petitioner. Thereafter, the petitioner was attached to the office of respondent no.2. The departmental enquiry initiated against the petitioner and a show cause notice was issued to her. The petitioner replied

to the said show cause notice. After completion of departmental enquiry, on 24.12.2019, a charge sheet has been issued levelling charges against the petitioner, which reads as under:

(i) While the petitioner was on duty in the office of Special Intelligence Officer, Rishikesh, District Dehradun upon the receipt of alleged anomalies in the Vedansha International Yoga Academy, Tapowan, Muni Ki Reti, the petitioner on her own, without informing her officer/without taking permission from her officer, went for the investigation. Even after the passage of many days of such investigation, she has not given any sort of information/report to her officer.

(ii) Apart from the aforesaid, the petitioner has not taken any subordinate with her and went away with the informer who was earlier unknown to the petitioner and she kept him with her during the entire checking."

3. The petitioner filed the present petition for quashing of charge sheet dated 24.12.2019 inter alia on the ground that on similar set of facts, a criminal case is going on against her, thus, the charge sheet issued by the respondent department is liable to be quashed.

4. A counter affidavit has been filed by Respondent nos. 2 & 3 stating therein that the petitioner received the information from the informant and on the basis of the said information the petitioner reached at Yog Academy without taking any other employee or officer of the department and went there with the informant but the petitioner did not communicate about the said fact to any of the officers/officials of the department. It is further stated that the petitioner made a wrong statement before the authority that at the time of the said incident, there was no

subordinate officer present in S.I.O. Unit, Rishikesh. It is clear that on said day, one Head Constable and two Constable were present there but the petitioner did not disclosed the said information to the higher officer of the department. It is stated that the act of the petitioner is totally wrong and illegal.

5. Petitioner has filed the rejoinder affidavit and denied the averments made in the counter affidavit.

6. Heard learned counsel for the parties and perused the material available on record.

7. Learned counsel for the petitioner vehemently argued that while a criminal case pending against the petitioner in a criminal court on the same set of fact, the impugned charge sheet has been served upon the petitioner. It is also argued that the evidence in criminal case and disciplinary proceedings are on the same set of fact. He referred the judgment of Hon'ble Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat God Mines Ltd. reported in (1999) 3 SCC 679. Paragraph 22 of the said judgment is extracted below:

"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 involved 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 chargesheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

35. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was

acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand.

36. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."

8. Per contra, learned Government pleader placed reliance upon the judgment of Hon'ble Apex Court in the case of Karnataka Power Transmission Corporation Limited Vs. C.Nagaraju and another reported in (2019) 10 SCC 367 wherein the Hon'ble Supreme Court while dealing with the identical issue has held that acquittal by criminal court does not preclude departmental enquiry against delinquent since both the proceedings are entirely different, operate in different fields and have different objectives. It is also stated that disciplinary authority is not bound by the judgment of a criminal court where evidence produced in departmental enquiry is different from that produced in a criminal trial. The object of departmental enquiry was to find out whether the delinquent was guilty of misconduct under Conduct Rules, whereas, in a criminal proceedings the question is whether the accused was guilty of offences charged under Prevention of Corruption Act. Besides, standard of proof in departmental enquiry, is not strictly based on rules of evidence and this mode of enquiry is significantly distinct. Paragraph nos. 10, 11 & 12 are relevant, which are extracted below:

"10. As the High Court set aside the order of dismissal on the basis of the judgments of this Court in Captain M. Paul Anthony (supra) and G.M. Tank (supra), it is necessary to examine whether the said judgments are applicable to the facts of this case. Simultaneous continuance of departmental proceedings and proceedings in a criminal case on the same set of facts was the point considered by this Court in Captain M. Paul Anthony's case (supra). This Court was of the opinion that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar. However, it is desirable to stay departmental 6 State of Rajasthan v. B.K. Meena (1996) 6 SCC 417 [9] inquiry till conclusion of the criminal case if the departmental proceedings and 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. On the facts of the said case, it was found that the criminal case and the departmental proceedings were based on identical set of facts and the evidence before the Criminal Court and the departmental inquiry was the same. Further, in the said case the departmental inquiry was conducted ex parte. In such circumstances, this Court held that the ex parte departmental proceedings cannot be permitted to stand in view of the acquittal of the delinquent by the Criminal Court on the same set of facts and evidence. The said judgment is not applicable to the facts of this case. In the present case, the prosecution witnesses turned hostile in the criminal trial against Respondent No.1. He was acquitted by the Criminal Court on the ground that the prosecution could not produce any credible evidence to prove the charge. On the other hand, the complainant [10] and the other witnesses appeared before the Inquiry Officer and deposed against Respondent No.1. The evidence available in the Departmental Inquiry is completely different from that led by the prosecution in criminal trial.

11. Reliance was placed by the High Court on a judgment of this Court in G.M. Tank (supra) whereby the Writ Petition filed by Respondent No.1 was allowed. In the said case, the delinquent officer was charged for an offence punishable under Section 5(1)(e) read with Section 5(2) of the PC Act, 1988. He was honourably acquitted by the criminal court as the prosecution failed to prove the charge. Thereafter, a Departmental Inquiry was conducted and he was dismissed from service. The order of dismissal was upheld by the High Court. In the Appeal filed by the delinquent officer, this Court was of the opinion that the departmental proceedings and criminal case were based on identical and similar set of facts. The evidence before the Criminal Court and the departmental proceedings being exactly the same, this Court held that the acquittal of the [11] employee by a Criminal Court has to be given due weight by the Disciplinary Authority. On the basis that the evidence in both the criminal trial and Departmental Inquiry are the same, the order of dismissal of the Appellant therein was set

aside. As stated earlier, the facts of this case are entirely different. The acquittal of Respondent No.1 was due to non- availability of any evidence before the Criminal Court. The order of dismissal was on the basis of a report of the Inquiry Officer before whom there was ample evidence against Respondent No.1.

12. In Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh 7 this Court was concerned with the validity of the termination of the services of workmen after acquittal by the Criminal Court. Dealing with a situation similar to the one in this case, where the acquittal was due to lack of evidence before criminal court and sufficient evidence was available before the Labour Court, this Court was of the opinion that the 7 (2004) 8 SCC 200 [12] judgment in Captain M. Paul Anthony's case (supra) cannot come to the rescue of the workmen."

9. Ms. Anjali Bhargava, Addl. C.S.C. has referred the judgment of State of Rajasthan v. B.K. Meena reported in (1996) 6 SCC 417 to the same effect, where the Hon'ble Apex Court reiterated that there was no legal bar for both proceedings to go on simultaneously unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. She also referred paragraph nos. 8 of the judgment of Hon'ble Apex Court rendered in Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and others reported in (1997) 2 SCC 699. Same is extracted below:

"8. We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence in violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be

expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in the that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry

would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."

10. Learned Government pleader referred the judgments of Hon'ble Apex Court rendered in "Commissioner of Police, New Delhi Vs. Narender Singh" reported in 2006 (4) SCC 265.

11. Perusal of material available on record, it is evidently clear that the allegations made against the petitioner in the criminal case as well as in the disciplinary proceedings are serious in nature. I have gone through the ratio of law laid down in M. Paul Anthony's case in which the Hon'ble Apex Court has observed that it would be desirable to stay the disciplinary proceedings on the facts and circumstances of the case. The said judgment has been considered in numbers of judgments by Hon'ble Apex Court. In the case of Karnataka Power Transmission Corporation Limited, Hon'ble Apex Court distinguishably followed the ratio of law laid down in M. Paul Anthony's case. It has been held that the criteria of decision in a criminal case is that the prosecution has to prove its case beyond reasonable doubt whereas the criteria in the judgment (supra) it has been held that the standard of proof in a criminal trial is different from what is required for a departmental proceeding. Strict rules of evidence are followed in criminal proceedings whereas preponderance of probabilities is what is taken into consideration in a departmental inquiry

12. In my view, a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Though these two proceedings run simultaneously but the nature of inquiry and investigation is entirely different. In the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that of in a criminal case. In the departmental proceedings the standard of proof is one of preponderance of the probabilities, whereas in a criminal case, the strict proof of evidence is required and the charge has to be proved by the prosecution beyond any reasonable doubts. Insofar as the judgment of M. Paul Anthony's case is concerned, in the said judgment, the Hon'ble Apex Court has simply observed that it would be desirable to stay the departmental proceedings till the conclusion of the criminal case and no specific directions have been issued by the Apex Court stating that in all the cases where a criminal case is pending against any Government employee, the disciplinary authority should be stayed. Hon'ble Apex Court in the case of Karnataka Power Transmission Corporation Limited has laid down the law that the criminal proceedings as well as departmental proceedings can run simultaneously and the department is not obliged to keep the departmental proceedings in abeyance till decision of the criminal court.

13. It is apt to note that the criminal case will take a long time. Since the criteria of leading evidence in departmental proceedings is entirely different, therefore, the submission of learned counsel for the petitioner that in case, the impugned charge-sheet is not quashed and disciplinary proceedings are not stayed by this Court, the defence of the

petitioner will effect the criminal case. The submissions of learned counsel for the petitioner is misconceived as this Court observed that the criminal case is to be decided on the strict proof of evidence by the prosecution agency, whereas the disciplinary proceedings are to be decided on the preponderance of evidence.

14. In view of the foregoing discussion, there is no merit in the present petition. Writ petition fails and same is hereby dismissed.

15. No order as to costs.

(Lok Pal Singh, J.) Mamta Dated : 06.01.2021