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2010 DIGILAW 1864 (RAJ)

Ram Pratap Yadav v. State of Rajasthan

2010-11-03

M.N.BHANDARI

body2010
JUDGMENT Hon'ble BHANDARI, J.—This writ petition has been filed for issuance of a direction to respondents not to hold departmental enquiry pending final decision in the criminal case. 2. The petitioner while posted as Inspector of Police in Jaipur District, ordered to take charge of Reserve Inspector, Police Lines. On joining duties, petitioner started maintaining strict discipline in the Police Force which then resulted in an anonymous complaints against him. A false and motivated complaint was made by a Lady Constable alleging attempt rape. A first information report to this effect was also lodged. Pursuant to preliminary enquiry, departmental action was recommended and accordingly petitioner was served with a charge-sheet. While departmental enquiry has been initiated against petitioner, simultaneously a challan was filed in the court for commission of an offence under Sections 354, 323, 376/511of the Indian Penal Code (for short `the IPC') and section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act. The challenge is now to continuance of disciplinary enquiry pending criminal case on same facts. It is prayed that disciplinary action should not be continued till final decision of criminal case because disciplinary enquiry and criminal case are based on one and same facts. Reference of a circular issued by Departmental of Personnel, Government of Rajasthan dated 8.8.2001 has been made to support his argument. This is to show that even Government has taken decision not to proceed in departmental enquiry when criminal case is based on same facts. 3. A reference of judgment in case of Capt. M. Paul Anthony vs. Bharat Gold Mines Limited and Another reported in 1999 (2) SLR 338 has also been given apart from the judgment in case of Kusheshwar Dubey vs. M/s. Bharat Coking Coal Limited and Others reported in AIR 1988 SC 2118 . 4. I have considered submissions of learned counsel for petitioner. 5. Issue for my consideration is as to whether departmental enquiry can be permitted pending criminal case involving same facts. In case of Kusheshwar Dubey (supra), Hon'ble Apex Court held 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 to stay disciplinary proceedings pending criminal trial. However, on the facts of that case, disciplinary proceedings were stayed. In case of Capt. However, on the facts of that case, disciplinary proceedings were stayed. In case of Capt. M. Paul Anthony (supra), issue was again considered and therein it has been held that in the departmental enquiry, standard of proof is one of preponderance of probabilities whereas in criminal case, charge has to be proved beyond reasonable doubt. Thus, departmental enquiry and criminal case is having different standard of proof. In para 22 of aforesaid judgment, it was further held that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in there being conducted simultaneously, though separately. The exception was made to the cases where proceedings were based on identical and similar set of facts and offence of delinquent employee is of grave nature, involving complicated questions of facts and law. It was, however, clarified that departmental enquiry should not be unduly delayed. Thus, in view of aforesaid judgment also, no bar has been imposed to proceed with departmental enquiry. In this regard, a reference of judgment of Hon'ble Apex Court in case of State of Rajasthan vs. B.K. Meena reported in (1996) 6 SCC 417 = RLW 1997(1) SC 1 would be relevant wherein similar question came up for consideration of Hon'ble Apex Court at the stage when Central Administrative Tribunal stayed the departmental enquiry on the ground that it is based on same facts as of the criminal case. The continuance of the departmental enquiry will cause prejudice to the delinquent's defence in criminal case. In para 14, it was held, which is as under:- "14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, 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 emphasised, 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 enunciated in that behalf. The staying of disciplinary proceedings, it is emphasised, 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 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. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be and should not be - delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the High Courts. 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. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long period awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important consideration in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighted and a decision taken keeping in view the various principles laid down in the decisions referred to above." 6. Perusal of aforesaid para shows that stay on departmental enquiry is only advisable when the allegations are grave in nature involving complicated questions of facts and law, but therein Hon'ble Apex Court has taken note that departmental enquiry should not be delayed unduly, thus order passed by the Central Administrative Tribunal was set aside permitting disciplinary enquiry pending trial. The Hon'ble Apex Court has also taken note of seriousness of the charge of misappropriation of public funds in the tune of Rs. 1 crore. Learned counsel for petitioner could not show that the case in hand is involved complicated questions of fact and law, which can be better determi-ned by the trial Court. No doubt charge against petitioner is of serious nature. 7. 1 crore. Learned counsel for petitioner could not show that the case in hand is involved complicated questions of fact and law, which can be better determi-ned by the trial Court. No doubt charge against petitioner is of serious nature. 7. Looking to the overall facts and circumstances of the case, I am of the opinion that the case in hand does not fall in exceptional category where departmental enquiry is to be stayed rather looking to the fact that criminal case is at the very initial stage thus disposal of it may take long time, staying of disciplinary enquiry at this stage is not even proper. Accordingly, I do not find any merit in this writ petition, therefore, same is dismissed.