CIVIL WRIT PETITION NO.3495 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 18, 2010 Subhash Chand .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. K. Handa, Advocate & Mr. Madan Sandhu, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner is serving as Assistant Sub Inspector of Police in District, Ambala. An FIR No.280 dated 15.9.2009 has been registered against the petitioner under Sections 7/13 of the Prevention of Corruption Act. A charge sheet dated 20.11.2009 is also issued to the petitioner with the allegation that on the night of 7.9.2009 at about 11.00 P.M., PCR caught a vehicle on G.T.Highway CIVIL WRIT PETITION NO.3495 OF 2010 :{ 2 }: Road loaded with buffaloes, which was kept in Police Chowki No.4, Ambala. On the following day, i.e., 8.9.2009, the petitioner had allegedly put pressure on Taushif son of Ishadi and took bribe of ` 30,000/- for freeing the animals. Later, however, it was found that one buffalo costing ` 40,000/- was missing. Finding this to be an act of indiscipline and one showing that the petitioner had failed to maintain his integrity, he was charge sheeted. The petitioner, therefore, has filed the present writ petition seeking writ of mandamus for directing the respondents not to proceed with the departmental enquiry pursuant to the charge sheet issued to him till the decision in the criminal trial on the ground that both are based on the same facts and if the departmental enquiry is not stayed, the defence of the petitioner would be prejudiced and it would be in violation of principles of natural justice. While issuing notice of motion, the disciplinary proceedings against the petitioner were ordered to be stayed. Respondents have filed reply and justified the action of proceeding against the petitioner departmentally and at the same time for making the petitioner answerable for serious criminal misconduct, for which the criminal case has been registered against him. It is pleaded that the criminal proceedings and the departmental enquiry are not based on the same charges, rather are on different footings. As per the reply, the conduct of the petitioner in lowering the police prestige would be an issue and is being enquired into in the departmental enquiry and there would, thus, be no bar in continuing with the proceedings simultaneously with the criminal trial. Thus, the main issue that would require consideration is CIVIL WRIT PETITION NO.3495 OF 2010 :{ 3 }: whether in the facts and circumstances of the case, the criminal trial and departmental proceedings can proceed simultaneously or not. The counsel for the petitioner would mainly rely upon the case of Capt.M.Paul Anthony Vs. Bharat Gold Mines Ltd., 1999 (3) S.C.C. 679 in support of his contention that departmental proceedings are required to be stayed if the charges and the issues are the same before the criminal court and in the departmental proceedings. On the other hand, Mr.Sunil Nehra, Sr.DAG, Haryana has referred to a large number of judgments to urge that the departmental proceedings in this case cannot be stayed as there are some additional charges in the departmental proceedings. In Indian Overseas Bank, Anna Salai and Anr. Vs. P.Ganesan and others, 2008 (1) S.C.C. 650, it has been viewed that the departmental proceedings could not be stayed if there are some additional charges in the departmental proceedings. In Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry, 2005 (1) S.C.T. 179, the Hon'ble Supreme Court went into the purposes of departmental enquiry and the criminal prosecution and held that both are different. One is to maintain discipline and efficiency of public service, whereas the other is for an offence committed by violation of a law and duty of a public servant towards the public and is meant for the satisfaction to the public. Even the difference in the standard of proof in the criminal trial, which is bound by strict standards of proof was noticed and compared with the departmental enquiry which relates only to misconduct or breach of his duty where this strict standard of proof stands excluded. CIVIL WRIT PETITION NO.3495 OF 2010 :{ 4 }: Reference here may also be made to the case of State Bank of India & Ors. Vs. R.B.Sharma, 2004 (6) J.T. 361 where the Hon'ble Supreme Court held that departmental and criminal proceedings both can go simultaneously and that the stay of the departmental proceedings during pendency of criminal proceedings on the same subject in issue is not mandatory as a rule. In this case only, it is again observed that the purpose, procedure, mode and standard of proof required in both proceedings are totally different. The principles required to be followed in such cases again are reiterated in this case. This Court in Bhim Sain, Warder (Under Suspension) Vs. State of Haryana, 1996 (1) S.C.T. 728 has held that degree of proof required for conviction in a criminal case and holding a person guilty in a departmental enquiry are altogether different and accordingly held that departmental proceedings cannot be stayed. Recently, a Division Bench of this Court in Balwinder Singh Vs. State of Punjab and others, 2009 (1) S.C.T. 86 has held that where no complicated questions of law and fact are involved in a criminal trial, which may take its own time to conclude, the departmental proceedings cannot be kept in abeyance for such an indefinite time especially when serious charges of corruption are levelled against an employee. The Court has accordingly held that both the proceedings can go simultaneously. In almost all the cases noted above, the courts have made reference to Capt.M.Paul Anthony's case (supra). This case has in fact been noticed with approval in almost all the cases. Since this is the case mainly relied upon by the counsel for the petitioner, it may CIVIL WRIT PETITION NO.3495 OF 2010 :{ 5 }: require a notice as to what is the ratio that would emerge from this case. In the case of Capt.M.Paul Anthony's case (supra), the Hon'ble Supreme Court has observed that no hard and fast strait- jecket formula can be evolved valid for all cases and general application, but some principles were culled out as guidelines which as per the court could be followed in the facts and circumstances of a particular case. The first principle that is stated is that the departmental proceedings and the proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. It is then stated that 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, then it would be desirable to stay the departmental proceedings till the conclusion of the criminal trial. Thus, for staying a departmental proceeding, what may have to be seen is if both the proceedings are based on identical and similar set of facts and that the charge in a criminal case is of a grave nature and this involves complicated questions of law and fact. If these conditions are satisfied, then the courts have held that it would be desirable to stay the departmental proceedings not that they are required to be stayed as a matter of rule or of law. It may be worth noting that the Supreme Court has rather categorically held that both the proceedings can proceed simultaneously. That is the ratio that would emerge from the case of Capt.M.Paul Anthony (supra). In fact, the ratio, which comes out of this case, has been summed up in the case of State Bank of India CIVIL WRIT PETITION NO.3495 OF 2010 :{ 6 }: (supra) and Hindustan Petroleum Corporation Ltd. supra) as follows:- “(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, CIVIL WRIT PETITION NO.3495 OF 2010 :{ 7 }: 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.” Thus, the plea that departmental proceedings are to be stayed in each case when it relates to same set of facts and incidents cannot be accepted. There are large number of other conditions, which are required to be satisfied before any order directing stay of the departmental proceedings is passed. Even in the case of Uttaranchal Road Transport Corpn. And Ors. Vs. Mansaram Nainwal, 2006 (3) SCT 830, which is referred to by the counsel for the petitioner, no different principle is enunciated. What is held in this is that criminal and departmental proceedings both can go simultaneously and it is only when both proceedings are based on the same set of facts and the charges and the complicated questions of law and fact and the criminal charges are of grave nature, it is desirable that the departmental proceedings are stayed. Further, if the criminal case does not proceed, the disciplinary proceedings can be resumed and proceeded with. In Capt.M.Paul Anthony's case, a detailed reference was made to the various cases and it was ultimately observed that there was a consensus of judicial opinion amongst the High Courts, whose decisions ofcourse were not referred to, and from the various pronouncements of the Hon'ble Supreme Court on the basic principle CIVIL WRIT PETITION NO.3495 OF 2010 :{ 8 }: that the proceedings in a criminal case and the departmental proceedings can proceed simultaneously but with a little exception. Reference in this regard was made to Delhi Cloth & General Mills Ltd. Vs. Kushal Bhan, AIR 1960 SC 806, where it was observed:- “...it is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee”. Jang Bahadur Singh Vs. Baij Nath Tiwari, AIR 1969 SC 30 is referred to observe that the plea that initiation of disciplinary proceedings during pendency of a criminal case on the same facts amounted to contempt of court was rejected. The difference about the issues involved in the disciplinary proceedings and criminal trial was noticed and it is held that initiation and continuation of disciplinary proceedings in a good faith is not calculated to obstruct or interfere with the course of justice in a pending court proceeding. In Nelson Motis Vs. Union of India and others, AIR 1992 SC 1981, the Hon'ble Supreme Court clearly held that the disciplinary proceedings can legally be continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. The distinction between the approach and object of these two types of proceedings was then noticed in the case of State of CIVIL WRIT PETITION NO.3495 OF 2010 :{ 9 }: Rajasthan Vs. B.K. Meena and others, 1996 (6) SCC 417. After making reference to number of other cases, the Supreme Court has observed that each of these cases started with indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then observed that in certain situation, it may not be `desirable', `advisable' or `appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. 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 could be enunciated in this behalf. The Court has observed that a valid ground for staying disciplinary proceedings is that the defence of an employee in a criminal case may not be prejudiced. At the same time, it is also observed that this ground, however, is hedged in by providing further that this may be done in cases of grave nature involving complicated questions of facts and law. What it would mean is that not only the charges must be grave but that the case must also involve complicated questions of law and fact. The `advisability', `desirability' or `propriety', as the case may be, has to be determined in each case taking into account all the facts and circumstances of the case. It may be noticed that the Hon'ble Supreme Court in B.K.Meena's case (supra) made reference to Tata Oil Mills Company Ltd. Vs. Workmen, AIR 1965 SC 155 to hold that the ground indicated in this case is not an invariable rule and only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. It may be noticed CIVIL WRIT PETITION NO.3495 OF 2010 :{ 10 }: that in Tata Oil Mills's case (supra), the Court has observed that it is desirable that a charge framed against a workman in a domestic enquiry, which is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case. The Supreme Court went on to observe in B.K.Meena's case (supra) that so far as criminal cases are concerned, these drag on endlessly where high officials or persons holding high public offices are involved. These get bogged down on one or the other ground and hardly ever reach a prompt conclusion. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. One may have to remember that undesirable elements are not to be kept in service and must be thrown out as early as possible and it would be in the interest of administration to do so. It would also be desirable to enquire the misdemeanour against an employee promptly. The disciplinary proceedings, in reality, are not meant for punishing the guilty but is to keep the administration machinery clean and unsullied by getting rid of bad elements. It is also in the interest of an employee to vindicate his honour if he is not guilty of the charge. Where he is guilty, he should be dealt with promptly according to law. It would not be in the interest of administration to continue such a person in office indefinitely for a long period awaiting result of the criminal proceedings. If it is so allowed, it will only serve the interest of guilty and dishonest. The stay of disciplinary proceedings, thus, cannot be and should not be as a matter of course and has to be on the basis of various principles CIVIL WRIT PETITION NO.3495 OF 2010 :{ 11 }: that have been laid down. The Hon'ble Supreme Court considered this issue yet again in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miyan, 1997(2) SCC 699. Same principles were reiterated and it is held that no inflexible guidelines can be laid down and each case is required to be considered in its own facts and circumstances. The observations made in B.K.Meena's case (supra) were extensively referred and approved. The approach and the objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. The question requiring determination in disciplinary proceedings is to see if a person is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in criminal proceedings, the question is if the offences registered against him under Prevention of Corruption Act or Indian Penal Code are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both cases are entirely distinct and different. Thus, staying of disciplinary proceedings pending criminal proceedings should not be a matter of course but a considered decision. Finally, it is observed that even if the proceedings are stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed. Coming to the facts of the present case, the issues now may be seen in the background of the law as would emerge from various judgments noticed above. The facts in the criminal case and CIVIL WRIT PETITION NO.3495 OF 2010 :{ 12 }: the departmental proceedings may be the same. However, that is not the sole factor, which would determine whether the departmental proceedings are to be stayed or not. In addition, it is also required to be seen if the charge is of a grave nature. Apparently, it is not the gravity from the angle of punishment that is to be seen, but if it is such a charge which involves complicated questions of law and fact. As observed by the Hon'ble Supreme Court in B.K.Meena's case, what this expression would mean is that not only the charges must be grave but the case must involve complicated questions of law and fact. The charge may be grave but no complicated questions of fact and law is involved in this case, which would put the petitioner to any prejudice. As observed in Capt.M.Paul Anthony's case, (supra) these factors cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. It is also to be seen if it would be in the interest of administration to allow the petitioner to remain in service, his misdemeanour is such which is required to be enquired promptly and if found guilty, he deserves to be thrown out of service to keep the administrative machinery unsullied. If on the other hand, he is not guilty of the charges, his honour must be vindicated at the earliest possible moment and that would also be an reason enough to deal with him promptly according to law. All these relevant factors, when viewed would show that it is neither desirable or advisable or appropriate to stay the departmental enquiry and both the cases must proceed simultaneously. The standard of proof in departmental proceedings and criminal charges would be different and this aspect also cannot CIVIL WRIT PETITION NO.3495 OF 2010 :{ 13 }: be ignored. The petition, as such, is lacking in merit and is, therefore, dismissed. August 18, 2010 ( RANJIT SINGH ) ramesh JUDGE