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2002 DIGILAW 399 (MP)

Vijay Kumar Ekka v. State Of M. P.

2002-04-10

DIPAK MISRA, UMA NATH SINGH

body2002
JUDGMENT : DIPAK MISRA, J. Soundness of orders dated 5-11-2001 and 3-12-2001 passed by the M. P. Administrative Tribunal (for short 'the Tribunal') in O.A. No. 3695/2001 and in M. A. No. 472/2001 respectively is the subject-matter of assail in this Writ petition. 2. The facts which have been depicted in the writ petition are that the two petitioners, namely, Vijay Kumar Ekka and Horliyus Tirki, are working as Constables in the Armed Police and are posted at Police Line, Jabalpur. The respondent No. 2, the Superintendent of Police, Jabalpur, initiated a departmental enquiry against the petitioners by issue of a memorandum No. Endt. No. SP/JBL/Steno/2/D.E./45, dated 5-12-2000 contained in Annexure P/1. In the meantime, a criminal case on the basis of an FIR was lodged by the owner of the hotel, Rajesh Scindia at the police Station, Mandla. The criminal law was set in motion and eventually a crime was registered for the offences punishable under Sections 294, 323, 427 and 506 read with Section 34 of the Indian Penal Code (for brevity 'the IPC'). When the departmental proceeding as well as the criminal case was in progress the petitioner approached the Tribunal in the aforesaid original application for quashment of the departmental enquiry on many a ground. It was putforth before the Tribunal that if the departmental proceeding was allowed to continue, serious prejudice would be caused to the petitioners and it would not be possible for him to urge certain grounds in further point of time. 3. The Tribunal adverted to the prayer portion of the application, noted the facts in brief and came to hold that there is no impediment for conducting a departmental enquiry for committing misconduct by a government employee inasmuch as the criminal case stands in a different and separate compartment. Being of this view the Tribunal negatived the prayer sought for by the petitioners which entailed in dismissal of the original application. An application for review was filed which met with similar fate. 4. Assailing the aforesaid orders it is urged by Mr. K. L. Dubey, learned counsel for the petitioners that though the petitioners had prayed for quashment of the departmental proceeding before the Tribunal, but in essence the prayer was for stay of the departmental proceeding inasmuch as if the departmental proceeding is allowed to continue, immense prejudice would be caused to the petitioners. K. L. Dubey, learned counsel for the petitioners that though the petitioners had prayed for quashment of the departmental proceeding before the Tribunal, but in essence the prayer was for stay of the departmental proceeding inasmuch as if the departmental proceeding is allowed to continue, immense prejudice would be caused to the petitioners. The learned counsel has highlighted that the witnesses in both cases may be common and that would adversely affect the interest of the petitioners. 5. Mr. Sanjay Yadav, learned Government Advocate for the State submitted that order passed by the Tribunal is absolutely justified and supportable and there is no bar for continuance of the departmental enquiry and the criminal case simultaneously unless certain conditions precedent are satisfied but in the present case, unfortunately, the same are absolutely absent as the charges framed against the petitioners in the departmental proceeding are quite distinct and separate than that for which the criminal case has been instituted. 6. To appreciate the rival submissions raised at the Bar, we have carefully perused the chargesheet which has been brought on record as Annexure P/2. On a scrutiny of the same, it transpires that the petitioners were chargesheeted on the ground that on 20th October, while they were bringing the undertrial prisoners, namely, Rakesh and Kallu alias Narendra they entered into a hotel indulged in drinking by which act, they violated Regulation 64 of the M. P. Police Regulations. Apart from this there is no other charge which is fairly conceded to by the learned Government Advocate for the State. The criminal case as has been indicated hereinbefore exposits that it relates to various offences and it has been lodged by the owner of the hotel. On a perusal of the FIR which has been brought on record as Annexure P/3, it is crystal clear that accused persons got drunk, abused the hotel owner, created mischief, assaulted him and also threatened him with dire consequences. 7. The moot question that falls for consideration is whether under these circumstances the departmental enquiry should await the verdict of the criminal proceeding. 7. The moot question that falls for consideration is whether under these circumstances the departmental enquiry should await the verdict of the criminal proceeding. In this context, we may profitably refer to the decision rendered in the case of Kusheshawar Dubey vs. M/s Bharat Coking Coal Ltd., and another, AIR 1988 SC 2118 , wherein after referring to the cases of Delhi Cloth and General Mills' Ltd. vs. Kushal Bhan, AIR 1960 SC 806 , Tata Oil Mills Co. Ltd. vs. Its Workmen, AIR 1965 SC 155 and Jang Bahadur Singh vs. Baijnath Tiwari, AIR 1969 SC 30 , the Apex Court came to hold as under :- "6. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual-situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline." 8. In this context we may also profitably refer to the decision rendered in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yusuf Miya, etc., AIR 1997 SC 2232 , wherein a three Judge Bench referred to the earlier decisions as well as the decision rendered in the case of Kusheshwar Dubey (supra) and after analysing the basic principles in extenso ruled thus :- "We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The purpose of departmental enquiry and of prosecution are 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 commission 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 provisions of 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in 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 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 circumstance, 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 section 304A and 338, Indian Penal Code. Under these circumstances, the High Court was not right in staying the proceedings." 9. The present factual matrix has to be tested on the anvil of the aforesaid pronouncement of law. As has been stated by their Lordships there cannot be a straitjacket formula and matters of this nature are totally dependent upon the facts of each case. In the case at hand as has been indicated hereinbefore the departmental proceeding has been initiated against the delinquent employees as they were indulged in drinking that violates the regulation of the M. P. Police Regulation which attracts the accountability and liability of an employee under the Regulations. It is axiomatic that the State power predicates accountability and responsibility. The criminal case has been initiated at the instance of the informant, the owner of the hotel, who had lodged the FIR. The factual scenario in both the cases belong to different spheres and exist in separate realms. Hence, we are of the considered view that the concept of prejudice which is the sine qua non for stay of the departmental proceeding is not applicable to this case. 10. In view of the aforesaid premises, we are of the considered opinion, the view expressed by the Tribunal does not warrant any interference. Hence, we are of the considered view that the concept of prejudice which is the sine qua non for stay of the departmental proceeding is not applicable to this case. 10. In view of the aforesaid premises, we are of the considered opinion, the view expressed by the Tribunal does not warrant any interference. We may hasten to add that we may not be understood to have expressed any opinion relating either to the departmental proceedings or in respect of the criminal case, but have only stated what has been brought on record by way of facts. 11. Consequently, the writ petition, being sans substance, is dismissed in limine.