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2024 DIGILAW 963 (PNJ)

Ram Niwas v. State of Haryana

2024-06-20

VIKAS BAHL

body2024
JUDGMENT Vikas Bahl, J. (Oral) CM-9734-CWP-2024 This is an application under section 151 CPC to recall/ modify the order dated 14.05.2024 (Annexure A-1) passed by this Court in CWP- 11138-2024. 2. On 14.05.2024, in view of the judgment dated 10.04.2024 passed by this Court in CWP-5111-2024 titled as "Mustaq v. State of Haryana and others", this Court was not inclined to interfere in the matter as the issue raised in the present case was similar to the one raised in the said judgment and thus, the counsel appearing before this court instead of suffering an order of dismissal, chose to withdraw the writ petition. The said order dated 14.05.2024 is reproduced hereinbelow:- "1. This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus directing respondent Nos.3 and 4 not to examine the common witnesses in pursuance of impugned order dated 23.11.2023 (Annexure P-2). 2. Learned counsel for the petitioner seeks permission of this Court to withdraw the present writ petition. 3. In view of the above, the present Civil Writ Petition is dismissed as withdrawn." 3. Learned counsel for the applicant-petitioner has submitted that the case of the applicant-petitioner be decided on merits as the applicant-petitioner wishes to further challenge the said order by filing L.P.A. 4. Although the present application has been filed by a different counsel than the counsel who appeared on 14.05.2024 but in order to enable the applicant-petitioner to exercise his right of appeal, the application is allowed and the order dated 14.05.2024 is recalled and the main writ petition is ordered to be restored to its original number and is taken up today itself for hearing. CWP-11138-2024 5. This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus directing respondent Nos.3 and 4 not to examine the common witnesses in pursuance of impugned order dated 23.11.2023 (Annexure P-2) in the departmental proceedings/enquiry till the pendency of the criminal trial. 6. CWP-11138-2024 5. This is a Civil Writ Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus directing respondent Nos.3 and 4 not to examine the common witnesses in pursuance of impugned order dated 23.11.2023 (Annexure P-2) in the departmental proceedings/enquiry till the pendency of the criminal trial. 6. Learned counsel for the petitioner has submitted that there are common witnesses in the departmental proceedings and in the criminal proceedings and the said common witnesses should not be examined in the departmental proceedings till the time they are examined in the criminal proceedings as in case the said witnesses are examined in the departmental proceedings, then, the same would cause prejudice to the case of the petitioner in the criminal proceedings. In support of the said argument, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in case titled as "Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.", reported as 1999(3) SCC 679 . 7. Before considering the facts of the present case, it would be relevant to note that this Court had after considering the same argument/issue as raised in the present writ petition, dismissed a bunch of writ petitions i.e. CWP-5111-2024 titled as Mustaq v. State of Haryana and others and other connected matters vide judgment dated 10.04.2024. Various judgments of the Hon'ble Supreme Court as well as of this Court were considered and the principles/conclusions which emerged from the said judgments were detailed in para 17 of the judgment dated 10.04.2024 of this Court. Para 17 of the said judgment is reproduced hereinbelow:- "17. From the above said judgments, the following principles/conclusions emerge:- 1. Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously though separately. (Specific reference in this regard can be made to the judgment in case of Capt. M. Paul Anthony (supra) (relevant portion of which is reproduced in Para 5 of the present order) and State Bank of India and Ors. (supra) (relevant portion of which is reproduced in Para 8 of the present order) 2. (Specific reference in this regard can be made to the judgment in case of Capt. M. Paul Anthony (supra) (relevant portion of which is reproduced in Para 5 of the present order) and State Bank of India and Ors. (supra) (relevant portion of which is reproduced in Para 8 of the present order) 2. The approach and objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different inasmuch as in the disciplinary proceedings, the question is as to whether the employee is guilty of such conduct as would merit his removal from service or imposition of lesser punishment whereas in the criminal proceedings, the question is as to whether the offences registered against him are established and if established, what sentence is to be imposed upon him. (Specific reference in this regard can be made to the judgment in Kendriya Vidyalaya Sangathan & Ors (supra) (relevant portion of which is reproduced in Para 7 of the present order) and to Shashi Bhusan Prasad v. Inspector General, Central Industrial Security Force and others, reported as 2019(7) SCC 797 and also LPA-470-2024 (relevant portion of which is reproduced in Para 10 of the present order). 3. The mode of the enquiry, the rules governing the enquiry and trial as well as the standard of proof in criminal proceedings and in departmental proceedings are distinct and different and in a criminal case, charge has to be established beyond reasonable doubt whereas in the departmental proceedings, the charge of misconduct has to be established on the principle of "preponderance of probabilities". (Specific reference in this regard can be made to the judgment of the Hon'ble Supreme Court of India in "State of Karnataka and others v. Umesh", reported as 2022 SCC Online SC 345 and LPA-470-2024 (relevant portion of which is reproduced in Para 10 of the present order). 4. There should be early conclusion of departmental proceedings so as to weed out any employee whose integrity/character has been put in doubt and to maintain discipline in service and efficiency of public service and also in case the employee is not guilty of any wrong doing, then his honour is required to be vindicated at the earliest. [Specific reference in this regard can be made to the judgment in the case Dr. [Specific reference in this regard can be made to the judgment in the case Dr. Balwinder Kumar Sharma's (supra) (relevant portion of which is reproduced in Para 14 of the present order) and Capt. M. Paul Anthony (supra) (relevant portion of which is reproduced in Para 5 of the present order). 5. All the ingredients i.e., the departmental proceedings and the criminal case being based on identical and similar set of facts, charge in the criminal case being of grave nature involving complicated questions of law and facts are required to be met before the Court could consider the case of the employee for grant of stay of departmental proceedings during the pendency of the criminal case. (Specific reference in this regard can be made to the case of Capt. M. Paul Anthony (supra); Indian Overseas Bank, Anna Salai and Anr (supra) (relevant portion of which is reproduced in Para 6 of the present order); State Bank of India and Ors. (supra) (relevant portion of which is reproduced in Para 8 of the present order). 6. 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. [Specific reference can be made to the judgment of Capt. M. Paul Anthony (supra)]. Even the question as to whether the case involves identical and similar set of facts would also have to be considered after taking into consideration the FIR, the report under Section 173 Cr.P.C. and the charges framed. [Reference in this regard can be made to the judgment of Paramjit Kaur's (supra)] (relevant portion of which is reproduced in Para 16 of the present order) 7. The fact that the departmental proceedings and the criminal case are based on identical and similar set of facts and the charges in the criminal case against the delinquent employee are of grave nature which involve complicated questions of law and facts also cannot be considered in isolation to stay the departmental proceedings and due regard must be given to the fact that the departmental proceedings cannot be unduly delayed. [Specific reference in this regard can be made to the case of Capt. [Specific reference in this regard can be made to the case of Capt. M. Paul Anthony (supra) (relevant portion of which is reproduced in para 5 of the present order) and State Bank of India and Ors. (supra).] (relevant portion of which is reproduced in Para 8 of the present order) 8. Before granting stay of the departmental proceedings, special facts of the case are required to be mentioned, warranting stay of departmental proceedings. (Specific reference in this regard can be made to the judgment of Kendriya Vidyalaya Sangathan & Ors (supra) (relevant portion of which is reproduced in Para 7 of the present order). 9. In case all the above parameters are met and the stay of the departmental proceedings has been granted, then also in case, the criminal case is being unduly delayed, the departmental proceedings can be resumed and proceeded with so as to conclude them at an early date. (Specific reference in this regard can be made to the judgment of Capt. M. Paul Anthony's case (supra) (relevant portion of which is reproduced in Para 5 of the present order)." 8. Various judgments which were relied upon by this Court while passing the judgment dated 10.04.2024, were detailed in paragraphs 5 to 16 of the said judgment and the judgment of this Court in the case of Mustaq (supra) has been upheld by the Division Bench of this Court in LPA-1221- 2024 vide judgment dated 23.05.2024. 9. In the light of the above said principles/conclusions, for the reasons detailed hereinafter, this Court is of the opinion that the present writ petition is meritless and deserves to be dismissed. 10. The petitioner was holding the post of ESI in the Haryana Police when he was made an accused in FIR no.17 dated 22.11.2023 under Section 7 of the Prevention of Corruption Act which was registered at Police Station ACB Rohtak, Haryana on the complaint made by one Amit on the allegations that the petitioner in order to help one Sudhir and one Sachin in FIR no.318 dated 06.10.2023 registered by one Deepak had sought bribe of Rs. 60,000/- from the complainant, regarding which the complainant had a recording with him. A perusal of Annexure P-2 would show that the petitioner was arrested by the raiding party while accepting the bribe of Rs. 60,000/- in the presence of a gazetted officer. 60,000/- from the complainant, regarding which the complainant had a recording with him. A perusal of Annexure P-2 would show that the petitioner was arrested by the raiding party while accepting the bribe of Rs. 60,000/- in the presence of a gazetted officer. The report under Section 173 Cr.P.C. has also been filed although copy of the entire report has not been annexed and the criminal case is now listed for framing of charges as per learned counsel for the petitioner. The departmental proceedings have also been initiated against the petitioner vide order dated 23.11.2023 and the substance of allegations has been issued to the petitioner on 09.01.2024 which has been annexed as Annexure P-3. 11. From the above said facts, it is apparent that primary issue which arises for consideration in the criminal case is as to whether the petitioner had demanded bribe from the complainant to give benefit to Sudhir and Sachin in FIR no.318 dated 06.10.2023 registered by Deepak regarding which the complainant had a recording and as to whether the petitioner was caught red handed while accepting the bribe money of Rs. 60,000/- by the raiding party. The same in the opinion of this Court does not involve any complicated questions of law and facts, nor any complicated questions of law and facts have been brought to the notice of this Court, nor any judgment has been cited by the counsel for the petitioner to show that the facts of the present case give rise to complicated questions of law or facts. Further, no special facts arise in the present case, which are required to be mentioned, as per the law laid down by the Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan & Ors (supra) warranting stay of departmental proceedings, rather the allegations against the petitioner are such that the departmental proceedings are required to be culminated expeditiously. 12. Further, no special facts arise in the present case, which are required to be mentioned, as per the law laid down by the Hon'ble Supreme Court in Kendriya Vidyalaya Sangathan & Ors (supra) warranting stay of departmental proceedings, rather the allegations against the petitioner are such that the departmental proceedings are required to be culminated expeditiously. 12. It would be relevant to note that admittedly in the criminal case, the report under Section 173 Cr.P.C. as noticed hereinabove, has already been filed but the complete copy of the same has not been annexed and the charges have not been framed in the present case and thus, the law laid down by the Hon'ble Division Bench of this Court in the case of Paramjit Kaur (supra), applies in the present case inasmuch as, in the said case it was observed that since the charge-sheet was not placed before the learned Single Judge, thus, in the said circumstances, the argument of the appellant therein that the basis of the departmental proceedings and criminal trial was the same was held to be neither substantiated nor established. Moreover, since the complete copy of report under Section 173 Cr.P.C. has not been annexed, therefore, it cannot be said with absolute certainty as to whether the charge in the criminal case and the departmental proceedings is based on identical and similar set of facts and that there is no additional/extra charge in the departmental proceedings. It would be further relevant to note that in the present case the report under Section 173 Cr.P.C. has already been submitted and the statements of all the witnesses under Section 161 Cr.P.C. have already been recorded and a copy of the same has been given to the petitioner/accused and it is for the prosecution to prove the case against the petitioner by relying upon the evidence of the witnesses whose statements have already been recorded under Section 161 Cr.P.C. and the documents which form a part of the report under Section 173 Cr.P.C. and thus, the plea of prejudice raised is misconceived. The Division Bench of this Court in the case of Dr. Balwinder Kumar Sharma's (supra), the relevant portion of which has been reproduced in para 14 of the order in Mustaq's case, had observed as under: - " Therefore, there is no question of any disclosure of defence in the departmental proceedings. The Division Bench of this Court in the case of Dr. Balwinder Kumar Sharma's (supra), the relevant portion of which has been reproduced in para 14 of the order in Mustaq's case, had observed as under: - " Therefore, there is no question of any disclosure of defence in the departmental proceedings. As far as the various provisions of Prevention of Corruption Act, 1988 are concerned, most of the provisions are to be proved by the prosecution during the course of trial except the one concerning "known sources of income", which again is within the special knowledge of accused-petitioner. Hence, there seems to be no justification in the prayer made by petitioner for staying of disciplinary proceedings." The SLP against the said judgment has been withdrawn. 13. Thus, keeping in view the principles as have been enumerated in para 17 of the judgment passed by this Court in Mustaq's case (Supra), and the abovesaid facts, there is no ground to accept the arguments of learned counsel for the petitioner to the effect that till the time common witnesses are examined in the criminal case, the said witnesses should not be examined in the departmental proceedings and thus, the writ petition being meritless, deserves to be dismissed and is accordingly, dismissed. 14. It is made clear that this Court has not opined on the merits of the allegations either in the criminal proceedings or in the departmental proceedings and the trial Court in the criminal case as well the competent authority in the departmental proceedings would consider and adjudicate / decide the same independently, in accordance with law.