Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 233 (MP)

Union of India v. Awadhesh Mishra

2020-02-12

AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA

body2020
JUDGMENT Shukla, J. -- 1. The present intra-Court appeal is filed under section 2 (1) of the M. P. UchchaNyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the order dated 11.9.2019 passed by the learned Single Judge in WP 11537/2019 whereby further proceeding has been stayed in the departmental enquiry giving liberty to the appellants to move an appropriate application under the following circumstances : “(a) where the criminal trial has not concluded against the respondent No. 1/petitioner even after the passage of one year from the date of the order; and (b) where the investigating agency, the respondent No. 3 in the writ appeal, files a closure report against the petitioner stating that no case is made out against him.” With the aforesaid order, the writ petition has been adjourned sine die. 2. Learned counsel for the respondent No. 1/writ petitioner raised a preliminary objection regarding the maintainability of the appeal on the ground that the impugned order passed by the learned Single Judge is an interlocutory order and, therefore, the writ appeal is not maintainable. 3. Having perused the order passed by the learned Single Judge, we are of the considered view that the impugned order is having semblance of final order and has adjudicated the issue and the rights of the appellants regarding continuation of departmental enquiry during pendency of the investigation. Hence, the appeal is maintainable. This view of ours gets fortified by the Full Bench judgment of this Court rendered in the case of Arvind Kumar Jain and others v. The State of M.P. and others, [ 2007 (3) MPLJ 565 ]. 4. The factual expose adumbrated in a nutshell are that the writ petitioner was appointed on the post of constable in the Railway Protection Force (RPF) in the year 2001 and was initially posted at RPF post Balharshah, Division Nagpur. In the year 2017, he was promoted on the post of Assistant Sub-Inspector and was posted at Damoh. While functioning at Damoh post, in the month of February 2018, the petitioner brought the driver and other employees of the bus which was parked in the “No Parking Zone” in the RPF Damoh post, but without taking any action against them, they were left. It is further urged that on 27.4.2019, the petitioner was caught red handed by the Lokayukt, Sagar taking Rs. It is further urged that on 27.4.2019, the petitioner was caught red handed by the Lokayukt, Sagar taking Rs. 10,000/- as bribe and a case was registered against the petitioner. Because of registration of the Criminal Case No. 84/2019 under section 7 of the Prevention of Corruption Act, 1988 (Amended Act, 2018), the image of the RPF in the eyes of general public suffered. According to the appellants, aforesaid action of the respondents amounts to dereliction of duties and also violation of the relevant RPF Rules. 5. On the aforesaid charges, vide Annexure-P/2, charge-sheet dated 20.5.2019 was issued against the writ petitioner/respondent No. 1 and he preferred a writ petition challenging the order of suspension dated 28.4.2019, Annexure-P/1. The challenge was on the grounds that the Lokayukt has no jurisdiction to investigate the matter pertaining to the members of the RPF; and that when a criminal case is registered against the petitioner, he will have to disclose his defence which will cause serious implications, therefore, the departmental enquiry cannot continue in view of the fact that he would be required to disclose his defence in the departmental enquiry and the same would prejudice him in the criminal trial. 6. The learned counsel for the appellants argued before the learned Single Judge that the issue regarding investigation by the Lokayukt in respect of a member of RPF has already been decided by this Court in the case of Ashok Kumar Kirtiwar and another vs. State of M.P. and others, 2001 CrLJ 2785 and, therefore, the said point was abandoned by the respondent/writ petitioner before the learned Single Judge. 7. The learned counsel for the respondent No. 1/writ petitioner confined the challenge to the charge-sheet mainly on the ground that disclosure of defence in the departmental enquiry would cause serious prejudice in the criminal trial. The learned Single Judge, by the impugned order, has stayed the departmental enquiry sine die taking into consideration the submissions of the respondent No. 1/ writ-petitioner that, in case, if the departmental enquiry continues, he would be compelled to disclose his defence which would prejudice him in the criminal trial. The learned Single Judge, by the impugned order, has stayed the departmental enquiry sine die taking into consideration the submissions of the respondent No. 1/ writ-petitioner that, in case, if the departmental enquiry continues, he would be compelled to disclose his defence which would prejudice him in the criminal trial. The learned Single Judge, while staying the departmental enquiry and adjourning the writ petition sine die, granted liberty to the appellants to move an appropriate application in case, if the criminal trial is not concluded against the respondent/writ petitioner even after a passage of one year from the date of the order and in case, if a closure report is filed against the writ petitioner. The counsel for the appellant challenged the aforesaid order mainly on the ground that the criminal case is yet under investigation and even the challan is not filed as yet. It is strenuously urged that even copy of the FIR was not filed along with the writ petition, therefore, there was no material before the learned Single Judge that the charges are identical and disclosure of defence would prejudice him in criminal trial. Thus, in absence of any cogent material, the learned Single Judge has stayed the departmental enquiry which is contrary to the law laid down by the apex Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another [ (1999) 3 SCC 679 ], which has been reiterated in a subsequent judgement passed by the Supreme Court in StanzenToyotetsu India Private Limited vs. Girish V. and others, [ (2014) 3 SCC 636 ]. 8. The learned counsel for the respondent No. 1/writ petitioner supported the order passed by the learned Single Judge and contended that if a criminal case is launched in future in respect of the raid conducted by the Lokayukt, disclosure of defence in the departmental enquiry would certainly prejudice the criminal trial and, therefore, the learned Single Judge has rightly stayed the departmental enquiry. 9. In the case of Capt. M. Paul Anthony (supra), the apex Court culled out the following principles for grant of stay of departmental enquiry in a case of simultaneous departmental and criminal proceedings : “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneo-usly as there is no bar in their being conducted simultaneo-usly, though separately. 9. In the case of Capt. M. Paul Anthony (supra), the apex Court culled out the following principles for grant of stay of departmental enquiry in a case of simultaneous departmental and criminal proceedings : “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneo-usly as there is no bar in their being conducted simultaneo-usly, though separately. (ii) If the departmental procee-dings 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, the administration may get rid of him at the earliest.” 10. To the same effect is the decision of the Supreme Court in the case of State of Rajasthan v. B. K. Meena, [ (1996)6 SCC 417 ], wherein it was reiterated that there was no legal bar for both proceedings to go on simultaneously, unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. In this regard, the Supreme Court reproduced the following passage : “14. …...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 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 be enunciated in that behalf. The only ground suggested in the above questions 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. 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 considerations 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 weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. 15 … Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditio-usly concluded. Delay in such cases really works against him.” (Emphasis supplied). 11. The same view has been reiterated by the apex Court in StanzenToyotetsu India Private Limited (supra). 12. 15 … Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditio-usly concluded. Delay in such cases really works against him.” (Emphasis supplied). 11. The same view has been reiterated by the apex Court in StanzenToyotetsu India Private Limited (supra). 12. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal Court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The Court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the on-going disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself to be seen in the interest of the employees. 13. In the present case, admittedly, challan has been filed in the criminal case so far and the criminal case is still under investigation. There was no material before the learned Single Judge to hold that the charges in the disciplinary proceedings and the criminal case are the same and the disclosure of defence in a departmental enquiry would prejudice to the writ petitioner in criminal case which is not yet instituted. In absence of any material to the aforesaid fact, we find that the learned Single Judge has erred while staying the departmental enquiry and adjourning the writ petition sine die. 14. In absence of any material to the aforesaid fact, we find that the learned Single Judge has erred while staying the departmental enquiry and adjourning the writ petition sine die. 14. In view of the enunciation of law and principles laid down by the Supreme Court, the departmental enquiry ought not to have been stayed in absence of any cogent and plausible material to come to the conclusion that at this stage, disclosure of defence would cause prejudice to the writ petitioner in criminal case, the writ appeal deserves to and is hereby allowed and the order passed by the learned Single Judge is set aside. As a logical corollary, the writ petition also stands dismissed, as no other point or issue is involved in the writ petition to be adjudicated by the learned Single Judge.