1 [CASE NUMBER] 22.01.2016 Shri [ENTITY], learned counsel for the appellant. Heard. The appellant has challenged the charge-sheet dated 5/12/2014 and order dated 17/04/2015 rejecting the representation to cancel the charge-sheet and also prayed for a direction to the respondents to restrain them from holding the departmental enquiry
in pursuance to the charge-sheet till the conclusion of the criminal trial.
The learned writ court considering the nature of the charge in the departmental enquiry and the charge in the criminal case has held that the enquiry is very much different. The evidence which is required in both the cases is also different and, therefore, if departmental enquiry proceed simultaneously that would not cause any prejudice to the appellant and dismissed the writ petition by holding that no ground to stay the departmental enquiry on account of pendency of the criminal case is made out.
Brief facts of the case are that on 4/06/2014, an FIR was registered against the appellant for committing the following offence :-
lEiq.kZ tkap o miyC/k lk{; ds vk/kkj ij ik;k fd lksjok Fkkus esa iqfyl vfHkj{kk ds nkSjku v0d0 39@14 }kjk 302]324][SECTION] Hknfo ds lansgh f>axyk firk tksx<k Hkhykyk fuoklh MkcMh ,oa tksxM+k Hkhykyk xqUpqfj;k Hkhykyk] fnyhi Hkhykyk ,oa dSyk'k Hkhykyk ds lkFk fuyafcr dkbZe LdkWM izHkkjh lwcsnkj d`".kizrki flag rksej fuyafcr lksjok Fkkuk izHkkjh ,-,l-vkbZ- egsUnzdqekj BksEcjs] iz-vkj] egsUnz 167 ls ekjihV djus ls lk/kkj.k izd`fr dks pksVs vkbZ gS A tks /kkjk 330 vkbZ-ih-lh- dh ifjf/k es vkrk gSA mDr lHkh iqfyl dfeZ;ksa ij e`rd f>axyk o vU; ds lkFk ekjihV djuk izekf.kr ik;k x;kA e`rd f>axyk o dSyk'k Fkkuk lksjok ij 'kke 16-15 cts Lo;a mifLFkr gq, FksA e`rd f>axyk Fkkus es avkus ds iwoZ 01-30 cts ls chekj py jgk FkkA ftlds }kjk izk- LokLF; dsUnz lksjok ds vks-ih-Mh- jft- ds dzekad [SECTION]@3@6@111 esa e`rd f>axyk MkW- tksxMk dk uke ntZ gSA ftldh iqf"V lk{kh ujflag Hkwfj;k }kjk dh xbZ gSA vFkkZr e`rd f>axyk ls iqNrkN djrs le; Hkh mlus chekj gksus ds laca/k esa iqfyl okyksa dks crk;k FkkA jkf= djhc 8]9 cts iqNrkN ds le; e`rd f>axyk dh rfc;r [kjkc py jgh FkhA rFkk djhcu 12 cts iwNrkN ds le; e`rd f>axyk dh rfcr;r vR;f/kd [kjkc gks xbZ FkhA ysfdu Fkkus ij lqj{kk esa rSukr vkj- 65 fo'kky] vkj- 354 lquhy] vkj- 3 vejflag }kjk ykijokgh djrs gq, mipkj ugha djk;k vkSj u gh ofj"B vf/kdkfj;ksa dks voxr djk;kA ftudks le; ij mipkj u djkus dh ykijokgh ds dkj.k e`rd f>axyk dks vLirky esa igqWpus ds i'pkr~ e`R;q gks xbZ vkj- lwuhy vkj- fo'kky vkj- vejflag ds fo:) /kkjk [SECTION] ,- Hkk-n-fo- dk vijk/k ?kfVr gksuk tkrk gSA vki- /kkjk 330] [SECTION] ,] [SECTION] vkbZ-ih-lh- dk;e dj foospuk esa fy;k x;kA In Departmental Enquiry, the following charge has been framed against the appellant which reads as under:-
&% vipkjh lmfu egsUnzflag BksEcjs ds fo:) vkjksi %& 1- vipkjh lmfu egsUnzflag BksEcjs }kjk Fkkuk lksjok ds fnukad 03@06@2014 ls fnukad 04@06@2014 ds jkstukepk lkUgk dzekad 52] 53] 55] 59] 60] 61 esa iwoZ esa vafdr [ENTITY] dks u"V dj nwljs [ENTITY] esa mijksDr lkUgksa esa xyr@=wfViw.kZ i`fof"B ,oa le; ifjofrZr dj jkstukepk lkUgksa esa gsjk&Qsjh djuk iqfyl jsX;qys'ku ds iSjk dzekad [SECTION] esa fufgr izko/kkuksa dk Li"V mYya?ku dj Lo;a dks lsok ls inP;qr cj[kkLr djus dk d`R; djukA 2- vipkjh lmfu egsUnzflag BksEcjs }kjk Fkkuk lksjok esa jkstukepk iqfLrdk dzekad 3080 Fkkus ij miyC/k gksus ds mijkar Hkh tkucq>dj fnukad 10@05@2014 ls fnukad 31@05@2014 ,oa fnukad 01@06@2014 ls fnukad 22@06@2014 rd mDr jkstukepk iqfLrdk dk mi;ksx ugha dj drZO; iath ij [ENTITY] dh fjiksVZ ntZ djuk vipkjh ds lafnX/k vkpj.k ,oa 'kkldh; fu;eksa@drZO;ksa ds izfr ?kksj ykijokgh ,oa vuq'kklughurk iznf'kZr djukA 3- vipkjh lmfu egsUnzflag BksEcjs ds }kjk mijksDrkuqlkj dnkpj.k dj e/;izns'k flfoy lsok vkpj.k fu;e 1965 ds fu;e&3 rhu ,oa iqfyl jsxqys'ku ds iSjk dzekad [SECTION] ,oa 64 2&3&4 esa fufgr izko/kkuksa dk mYya?ku djukA On 5/12/2015, Departmental Enquiry was initiated against which the appellant had submitted the representation before the Inspector General of Police and the said representation was rejected by order dated 17/04/2015 and thereafter mercy petition was preferred by the appellant which is pending. During pendency of the mercy petition he had approached before the writ court for staying of departmental enquiry on the ground of registration of criminal case.
On perusal of the record, it is noticed that the FIR dated 4/06/2014 has been registered against the appellant for commission of offence under [SECTION], [SECTION] and [SECTION] of [ACT] etc. on the allegation that appellant along with other co-accused persons had beaten one [ENTITY], who was not keeping well and he was also not provided proper treatment on account of which he had died. The charge-sheet which has been issued to the appellant on 5/12/2014 is for a different charge in respect of manipulating the entries in "Rojnamcha Sanha"(Daily Diary) and deliberately not using the Rojnamcha book for certain period and registering the Rojnamcha report in the duty register and hence committing dereliction of duty and violating para [SECTION] and [SECTION] & [SECTION] of Police Regulations and [SECTION] of [ACT]. The charge in the departmental enquiry is different from the charge in the criminal case.
It is the settled position in law that a departmental enquiry needs not be automatically stayed when the criminal proceedings are pending and while considering the stay of the departmental enquiry, it is to be examined if the charge and evidence in both the proceedings are common and if any complicated question of law is involved in the matter.
The Supreme court in the matter of [PRECEDENT] while taking note of the earlier judgment on this point has held as under:-
18. Legal position operating in the field is no longer resintegra. 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.
19. In [PRECEDENT] this Court while holding that the employer should not wait for the decision of the criminal Court before taking any disciplinary action against the employee and such an action on the part of the employer does not violate the principle of natural justice, observed: (AIR p.807 para 3) "3. We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced."
The same principle was reiterated in [PRECEDENT]
20. In State of Rajasthan V. [ENTITY] this Court held:
(SCC p.422 para 1[SECTION] "14 The staying of disciplinary proceedings, it is emphasized, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard-and-fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is that 'the defence of the employee in the criminal case may not be prejudiced'.
This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case."
21. Capt. [ENTITY] V. Bharat Gold Mines Ltd. also deserves to be noticed. This Court therein held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Court summarised its findings as under:
(SCC p.691, para 22)
"22. (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 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."
22. The issue came up for consideration yet again in T.[ENTITY] where this Court while analysing [ENTITY] and Capt. [ENTITY] held that: ([ENTITY] case, SCC p.446, para 10) "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."
Single Bench of this Court also by order dated 8th October 2012 in [CASE NUMBER] in the matter of [PRECEDENT] while considering somewhat similar circumstances has refused to stay the departmental proceeding on the ground that nature of evidence required and nature of proof for both these charges in the criminal case and in the departmental enquiry are entirely different.
On due consideration of the nature of allegation made against the appellant in the FIR and charge framed against him in departmental enquiry, we are of the view that the leaned writ court has rightly held that the charges are not same.
The Apex Court very categorically laid down the law on the subject and held that the advisability, desirability or propriety as the case may be in regard to the DEO to be determined in each cases taking into consideration all the facts and circumstances of the case.
It is also laid down the stay of departmental enquiry proceeding and cannot be and should be the matter of course.
On due consideration of the aforesaid, we are of the view that the learned writ court has rightly dismissed the writ petition by holding that the writ petition filed by the appellant was devoid of any merit . No case to interfere with the aforesaid well reasoned order nor the contention of the learned counsel for the petitioner that charges made in the charge-sheet and FIR are same, cannot be accepted.
The writ appeal filed by the appellant has no merit and is accordingly dismissed.
([ENTITY]) ([ENTITY] ) Judge Judge pn/