CWP No.6839 of 2006 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.6839 of 2006 Date of decision:October 15, 2008 Sukhwinder Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. D.D. Sharma, Advocate, for the petitioner. Mr. K.S. Dadwal, Addl. A.G. Punjab. Rajan Gupta, J. This writ petition has been preferred by one Sukhwinder Singh who was posted as Moharar Head Constable in Malkhana of Police Station Raikot when an FIR was registered against him under Sections 409, 467, 468, 471 read with Section 34 IPC, regarding tampering with the case property of a case. As a result, he was charged under Sections 409, 467, 471 read with Section 34 IPC and 61 (1) (a) of the Punjab Excise Act and a criminal trial ensued. Simultaneously, departmental proceedings were initiated against him. The petitioner has prayed for a writ of mandamus directing the respondents not to proceed with the departmental inquiry as he would be compelled to disclose his defence in the same, due to which his trial for criminal charge will be prejudiced. CWP No.6839 of 2006 2 A detailed reply has been filed on behalf of the respondents. It has been stated therein that the departmental inquiry has been rightly and legally initiated against the petitioner as departmental as well as criminal proceedings can run simultaneously and there is no such bar or prohibition against simultaneous criminal and disciplinary proceedings. It has been further averred that the purpose of departmental enquiry and criminal prosecution is different as the departmental enquiry is to maintain discipline and efficiency of public service whereas the criminal proceedings are for an offence committed for violation of law. It has been further averred that the criminal court is bound by strict standards of proof as per the Evidence Act, whereas the departmental enquiry relates to only mis-conduct or breach of duty defined under the relevant Service Rules and the applicability of Evidence Act in the departmental enquiry stands excluded. However, in view of the interim order passed by this court on May 04, 2006, the departmental proceedings have been stayed. We have heard learned counsel for the parties and perused the record. Learned counsel for the petitioner has placed reliance on a judgment of the apex court reported as Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., 1999 (2) SCT 660 to contend that when an employee is being proceeded against in criminal as well as departmental proceedings on the same charges and same evidence, in certain cases it may violate the right of defence of the employee. On the basis of the CWP No.6839 of 2006 3 said judgment, the counsel has contended that departmental proceedings against the petitioner be stayed during the pendency of the criminal trial. On the other hand Mr. K.S. Dadwal, Addl. Advocate General Punjab has vehemently opposed this prayer and has contended that departmental inquiry and criminal trial can go on simultaneously. He has placed reliance upon a judgment of the apex court reported as Hindustan Petroleum Corporation Ltd. and others Vs. Sarvesh Berry, AIR 2005 Supreme Court 1406. The counsel has contended that in the said judgment it had been clearly laid down that departmental inquiry and criminal prosecution stand on different footing and there would be no conflict if both proceed simultaneously. Another judgment, on which counsel for the respondents has placed reliance, is State Bank of India and others Vs. R.B. Sharma, 2004(5) Service Law Reporter 429 in support of his contention. We have carefully perused various judgments of the apex court on the question of law raised before us. In Capt. M. Paul Anthony's case (supra), the apex court was pleased to quash the departmental proceedings against the appellant considering the fact that he had been acquitted by the criminal court in respect of the allegations levelled against him. The court also came to the conclusion that the facts and the evidence in the departmental proceedings and the criminal case were exactly same and since the appellant had been acquitted in the criminal trial, disciplinary proceedings deserved to be quashed. After considering various precedents, the apex court was pleased to lay down CWP No.6839 of 2006 4 certain parameters which read thus:- “21. 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 employee is found not guilty his honour may be vindicated and in case he is found guilty, administration CWP No.6839 of 2006 5 may get rid of him at the earliest.” In the subsequent judgment R.B. Sharma's case (supra), the apex court while considering the question of double jeopardy due to pendency of criminal trial and departmental proceedings, held as follows:- “8. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for 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 duty, 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 provisions of the Indian Evidence Act, CWP No.6839 of 2006 6 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or 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. Under these circumstances, what is required to be seen is whether the department 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 the aforementioned case, the apex court was pleased to set aside the High Court order staying the departmental proceedings and had remitted the case back to the High Court as no details had been indicated to justify the conclusion that the entire matter in the departmental proceedings and the criminal trial was substantially the same. In Sarvesh Berry's case (supra) the same question again cropped up before the apex court and it was pleased to hold that the High Court was not justified in directing stay of departmental proceedings pending conclusion of criminal charge. It was further held that as noted in Capt. M. Paul Anthony's case (supra),where there was delay in the disposal of a criminal case, the departmental proceedings could proceed so that conclusion could be arrived at an early date. Ultimately, if the employee was found not guilty, his honour may be vindicated and in case he is found guilty, the employer may get rid off CWP No.6839 of 2006 7 him at the earliest. In the said case, the Central Bureau of Investigation had raided the house of the respondent and found that he was in possession of assets disproportionate to his known sources of income. A criminal case was thus registered against him and charge-sheet was presented before the competent court. In the mean time, departmental proceedings were initiated against the employee. The court was, thus, pleased to hold as under:- “10. There can be no straight jacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.” A perusal of the aforementioned judgments shows that no straight jacket formula can be laid down in such cases where departmental proceedings and criminal trial proceed simultaneously and no inflexible rule can be laid down for cases in which departmental proceedings may or may not be stayed pending trial in a criminal case against a delinquent officer. It appears that each case has to be considered in the backdrop of its unique facts and circumstances. The conclusion is inescapable that there is no bar to the departmental proceedings and the criminal trial to go on parallel to each other. In the instant case the petitioner, who is member of a disciplined force, was found tampering with liquor deposited in the Malkhana and using the CWP No.6839 of 2006 8 duplicate seal prepared by him in order to fabricate the property entrusted to him. A criminal case bearing FIR No.172 dated 10th October, 2004 was registered against the petitioner and one Sukhchain Singh after an enquiry by D.S.P., Raikot who found that the petitioner and his co-accused in furtherance of their common intention tampered with the case property of case FIR No.35 of 2004 and criminally misappropriated the same. The petitioner was charge-sheeted by the court of Sub Divisional Judicial Magistrate, Jagraon on 25th May, 2005. In the meanwhile, departmental proceedings were also initiated and a charge-sheet was also served upon the petitioner. This court was pleased to stay the departmental proceedings on May 04, 2006. From the facts and circumstances of the case in hand, a conclusion cannot be drawn that complicated questions of law and fact are involved in the criminal trial. However, it may take its own time to conclude. For this much period the employer would have no option but to keep the departmental proceedings in abeyance, despite there being serious charges of corruption against the employee. Already stay has continued for almost two years during which period the departmental proceedings have remained at a standstill. The departmental proceedings, therefore, cannot be allowed to hang fire endlessly. We are, thus, of the considered view that the petitioner who is member of a disciplined force and is charged with serious misconduct, is not entitled to the relief claimed for. The departmental proceedings cannot be allowed to be kept in abeyance indefinitely till CWP No.6839 of 2006 9 the conclusion of the criminal trial. In fact, stay of departmental proceedings indefinitely would only lead to protracting the same without any basis. It is, thus, not possible for us to allow the plea of the petitioner to stay the departmental proceedings till conclusion of the criminal trial. We, thus, find no merit in the writ petition. The same is hereby dismissed. (RAJAN GUPTA) JUDGE (ASHUTOSH MOHUNTA) JUDGE October 15, 2008 'rajpal'