Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1800 (HP)

Ashwani Kumar v. State Of H. P.

2014-12-03

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. An FIR was lodged against the petitioner under the provisions of the Prevention of Corruption Act, 1988. On the score of the FIR having come to be registered against the petitioner, he was placed under suspension and a departmental inquiry was ordered to be initiated against the petitioner. The petitioner avers that if the departmental inquiry is continued at this stage, defence of the petitioner in the criminal trial would be badly prejudiced and the same would cause immense loss and harm to the petitioner, as such, the petitioner prays for following relief:- "That a writ in the nature of mandamus may be issued directing the respondents particularly respondent No. 3 to adjourn the departmental inquiry of the petitioner sine die till the completion of criminal trial in the interest of justice." 2. The respondents filed reply to the writ petition averring that the departmental inquiry initiated against the petitioner has been initiated and is being conducted in accordance with the provisions laid down in the Punjab Police Rules 16.24 as applicable to the State of Himachal Pradesh. It is further contended that the petitioner was given an adequate opportunity to defend himself during the course of the departmental inquiry. It is contended that there is no legal bar against the departmental inquiry as well as the criminal proceedings taking place simultaneously, as both have distinct and variant objectives. 3. We have heard learned counsel on either side at length. The petitioner is alleged to have accepted bribe, which sequelled, the lodging of FIR against him. The respondents were, hence, constrained to place the petitioner under suspension. Obviously initiation of a departmental inquiry against the petitioner for his purported misconduct arising from the allegations comprised in Annexure P-2 was, as such, necessitated. The learned counsel for the petitioner, contends, that the criminal proceedings as would sprout or spur from the fact of lodging of an FIR against him under the provisions of the Corruption Act are protracted proceedings entailing exorbitant consumption of time. Besides, the witnesses on which the prosecution would rely in the criminal proceedings to secure conviction against the petitioner, for his having allegedly infringed the provisions of Corruption Act, would be the same, as or would be relied upon by the department/respondents in the departmental inquiry initiated against the petitioner. Besides, the witnesses on which the prosecution would rely in the criminal proceedings to secure conviction against the petitioner, for his having allegedly infringed the provisions of Corruption Act, would be the same, as or would be relied upon by the department/respondents in the departmental inquiry initiated against the petitioner. In sequel, it is urged that the defence of the petitioner is likely to be prejudiced in the criminal proceedings unless the departmental inquiry initiated against the petitioner is not stayed till the conclusion of the criminal trial. 4. For adjudging as well as gauging the sinew of the legal contention as advanced by the learned counsel for the petitioner that given the commonality of witnesses in both the criminal trial as well as the departmental inquiry, there is likelihood of his being subjected to prejudice. Hence, there is a concomitant necessity enjoined upon this Court to stay the departmental inquiry, it is necessary to advert to the judgment of Hon'ble Apex Court reported in Stanzen Toyotetsu India P. Ltd. Vs. Girish V. and Others, (2014) 3 SCC 636 , which has encapsulated the entire legal position for determining the circumstances and set of facts whereby the Courts of law would be constrained to lean towards staying departmental proceedings till the conclusion of criminal trial against the petitioner. In the judgment aforesaid it has been authoritatively spelt out that there cannot be any hardened prescriptive formula nor any rigid inflexible determinant for delineating the facts and circumstances for weaning the Courts of law to order the staying of departmental inquiry till the conclusion of the criminal trial against the person aggrieved, by theirs being launched against the delinquent/accused. However, certain broad principles have been spelt out. It has been emphatically stated that both, the launching of criminal proceedings as well as the initiation of departmental inquiry against the accused/delinquent have different purposes inasmuch, as a criminal prosecution is launched for violation of duty by the offender to society whereas the departmental inquiry is meant for maintaining discipline and efficiency in service. Both have been emphasized to be meant to serve diverse and different purposes. Both have been emphasized to be meant to serve diverse and different purposes. Further more, it is emphasized in para 10 of the citation which has been extracted hereinafter that both the proceedings can proceed simultaneously and the only valid ground for claiming stay of the departmental inquiry till the conclusion of the criminal trial would be likelihood of ensuing of prejudice to the accused/delinquent in case the criminal proceedings are not stayed. However, even the said ground is available only where apparent and demonsratable complex question of facts and law palpably exist. Paragraph 10 of the judgment aforesaid, is extracted hereinafter:- "10. The relatively recent decision of this Court in The Divisional Controller, KSRTC Vs. M.G. Vittal Rao, (2012) 1 SCC 442 , is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words:- "(i) There is no legal bar for both the proceedings to go on simultaneously. (ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law. (iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. (iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common." 5. Since in the citation aforesaid, it has been contemplated that the disciplinary proceedings cannot be and should not be as a matter of course stayed till the conclusion of the trial and that the departmental proceedings be stayed till the conclusion of the criminal trial only in the event of the delinquent/accused demonstrating by material placed on record that in case the departmental inquiry concludes or terminates, before termination of the criminal trial, he would in the face of commonality of witnesses/evidence in both the cases, be prejudiced. Therefore, it was incumbent upon the delinquent accused-petitioner to place on record such cogent evidence/material evincing the fact that there would be palpable manifest and obvious prejudice caused to him, in case the criminal trial is permitted to proceed simultaneously with the departmental inquiry. However, no convincing, hard and satisfactory material has been placed on record by the accused/delinquent/petitioner demonstrative of palpable or manifest prejudice ensuing to him, in case, both the proceedings are permitted to proceed simultaneously. When both have different objectives and the exception, to both proceedings being in motion simultaneously, being of demonstrative prejudice ensuing to the petitioner/delinquent, in case departmental inquiry is not stalled or stayed by the Courts of law till the conclusion of the criminal trial, for obviation of such ensueable prejudice, hence, accruable to the petitioner, the substantiation by the petitioner-delinquent-accused of such accruable prejudice to him, was imperative. It having remained unsubstantiated, the said exception, to, the rule of both proceedings going on simultaneously remain fortifyingly un-established. Rather there is merely being an averment on the part of the petitioner-accused-delinquent that given the commonality of witnesses in both proceedings, his defence would be prejudiced, which comprises neither a hard, nor a substantial material for nurturing an inference of conclusive prejudice, accruing to the petitioner. Moreover, the above purported accruable prejudice does not appear to be realistic, rather it appears to be illusory in the face of the fact that he would be given even a fair chance to cross examine the witnesses on the part of the respondents in both the departmental inquiry and the criminal proceedings. Hence, the apprehension is purportedly misleading, besides illusory. Even otherwise, given the fact when the acid determinant gauge for construing whether the petitioner would be prejudiced in the departmental inquiry as well as in the criminal proceedings being in motion simultaneously, is of both being harboured and hinged upon complex question of law and fact. However, the said sine-qua-non remains wholly un-established. The unavailability of the said sine-qua-non in the instant case, for concluding, hence, that as such the petitioner-delinquent-accused is likely to be prejudiced in the criminal proceedings has remained unfortified. However, the said sine-qua-non remains wholly un-established. The unavailability of the said sine-qua-non in the instant case, for concluding, hence, that as such the petitioner-delinquent-accused is likely to be prejudiced in the criminal proceedings has remained unfortified. The reason for so inferring is that there is no iota of an averment in the writ petition comprising the fact that the case of the department/prosecution against the petitioner in the criminal proceedings and the departmental inquiry is anvilled upon clearly delineated complicated questions of facts and law. Hence, only when on availability whereof Courts would be constrained to stay departmental proceedings till the conclusion of the criminal trial. Obviously for non fortification/non-substantiation of the aforesaid indispensable requirement, for staying departmental proceedings till the conclusion of criminal trial it can be concluded that the ground for construing, whether prejudice would be caused to the petitioner in the criminal proceedings, in case they are permitted to proceed simultaneously with the departmental inquiry also stands reinforcingly un-established. As a result, it can only be concluded that the averments comprised in the writ petition are illusory. Rather when the departmental inquiry has been contended in the reply of the respondent to be its being concluded in accordance with law which contention remains un-denounced, during the course of the arguments addressed by the learned counsel for the petitioner, therefore, considering the validity of initiation of departmental inquiry against the petitioner, as also, its proceedings against the accused/delinquent in accordance with apposite unimpeached rules. Consequently, when petitioner/delinquent would have sufficient, adequate and fair opportunity to cross-examine the witnesses of the respondent-department in the departmental inquiry, as a sequel, hence, with the availability of fair opportunity to the petitioner to cross-examine the witnesses of the respondents in both the departmental inquiry as well as in the criminal trial overcomes as well as also dispels the purported illusory accrued prejudice to the petitioner. 6. With the inference of no prejudice having been demonstrated to be accruable to the petitioner in both the proceedings continuing or being afoot simultaneously against the petitioner/accused/delinquent, as such, this court is of the view that besides with the sine-qua-non aforesaid lacking, inasmuch as there being no demonstrative material evincing the existence of complex question of law inherent in the case of the petitioner in both the departmental inquiry and in the criminal proceedings, constrains this court to, hence, dismiss the writ petition. However, it is ordered that the State of Himachal Pradesh shall, within four months, conclude the departmental inquiry against the accused/delinquent/petitioner. In addition, it is also thought necessary that the trial Court concerned be directed to ensure that the criminal proceedings are also concluded within four months. A copy of this order be also sent to the trial Court for ensuring its compliance qua the directions issued to it. Pending application(s), if any, also stand disposed of.