Court No. - 36
Case :- WRIT - A No. - 13425 of 2018 Petitioner :- Hari Shankar Gautam Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jai Singh Parihar Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
By means of the present writ petition, the petitioner is seeking for quashing of the charge sheet and the departmental enquiry on the ground that on the same set of charges, the criminal proceedings and departmental enquiry cannot go together.
Reference is made to the judgment of the Apex Court in Capt. M. Pal Anthony vs. Bharat Gold Mines Ltd. reported in 1999 (3) SCC 679.
Dealing with the submission of learned counsel for the petitioner, relevant be to note the charges levelled in the departmental charge sheet dated 6.4.2018 served upon the petitioner.
The charge no. 1 against the petitioner no. 1 is that he was posted on Platform No. 4/5 on 26.10.2017 and his duty hours were between 8:00 p.m. to 8:00 a.m. However, the petitioner had left his place of duty and went to another Platform No. 03 and then Platform No. 1, where incident had occurred.
The submission of learned counsel for the petitioner is that the question as to whether the petitioner was involved in the incident of 'Loot' can only be examined by the criminal court. On the same set of evidence, it is not possible for the disciplinary authority to conduct enquiry. In case, the disciplinary enquiry is conducted on the said evidence, it will prejudice the petitioner in the criminal case.
In so far as the charge against the petitioner of leaving his place of duty is concerned, in case, the same is proved in the enquiry, the same amounts to dereliction of duty which itself is a misconduct under the U.P. Police Officer of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. And as such, in the opinion of the Court, the said question can very well be examined by the departmental authority.
Further it would be relevant to note that the position of law regarding the departmental enquiry vis-a-vis criminal proceeding against an employee has been clarified by the Apex Court in the case of Capt. M. Paul Anthony (supra). It has been held therein that the departmental and criminal proceedings can go simultaneously and in a case where the conditions as mentioned in Paragraph '22' therein are fulfilled, the departmental enquiry shall be stayed by the Departmental Authority. The broad principles as enumerated in Paragraph '22' of the said pronouncement are as under:-
"22. The conclusions which are deducible from various decisions of this Court referred to above are :-
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings 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, administration may get rid of him at the earliest."
None of the factors as mentioned at point no. (ii) & (iii) as noted above has been made out by the learned counsel for the petitioner.
For the above noted reasons, this Court does not find any justification to quash the department enquiry or to stay the same.
However, insofar as the pending enquiry is concerned, since the petitioner has submitted his reply, it is directed that the departmental authority shall proceed with the same expeditiously and bring it to its logical end preferably within a period of three months from the date of submission of certified copy of this order, provided the petitioner cooperates.
Subject to the above observations and directions, the writ petition is disposed of.
Order Date :- 31.5.2018 Brijesh