1. In both these matters common questions of law are involved and have been raised and argued, therefore, as agreed by learned counsels for the parties I have heard both the matters together and the same are being decided by this common judgment under the Rules of this Court at this stage.
2. On behalf of petitioners principal submissions have been advanced by Sri A.P. Singh, Advocate which have been adopted by Sri S.K. Mishra, learned counsel appearing for petitioner in Writ Petition No. 1590 (SS) of 2011.
3. In Writ Petition No. 1735 (SS) of 2011 (hereinafter referred to as the "first writ petition") a writ of mandamus has been sought commanding respondents not to conduct departmental inquiry and withdraw the same in the light of Government Order dated 01.07.1973 (Annexure-4 to the writ petition).
4. In Writ Petition No. 1590 (SS) of 2011 (hereinafter referred to as the "second writ petition") the petitioner, a Constable in U.P. Police Service, has sought a writ of certiorari for quashing departmental proceeding alongwith charge sheet dated 01.03.2011 (Annexure-1 to the writ petition).
5. The facts, in brief, giving rise to present writ petitions as borne out from pleadings are as under.
6. In first writ petition a first information report in Case Crime No. 100 of 2010, under Sections 224/223 IPC lodged against petitioners alleging that they were given custody of one accused, namely, Ramu alias Rizwan alias Raju who was to be produced in F.T.C. No. 6, Lakhimpur, carrying him from Sitapur District Jail, but while returning, the accused absconded from custody of petitioners from train for the reason that petitioners become unconscious by consuming some intoxicating materials. Petitioners were placed under suspension. The suspension orders were challenged in Writ Petitions No. 6081 (SS) of 2010 and 7465 (SS) of 2010 on the ground that order was passed with reference to Rule 17(1)(a) of U.P. Police Officers of Subordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to as the "1991 Rules") by mentioning that since criminal case has been lodged against them though 17(1)(a) could not have applied to such a situation as it would have been governed by Rule 17(1)(b) of 1991 Rules. The submission found favour with this Court and both the writ petitions are allowed by quashing order of suspension. This Court, however, provided liberty to respondents to pass a fresh order in accordance with law, if they so desired.
7. Petitioners thereafter have been served with two charge sheets (Annexures-6 and 7 to the writ petition). The first writ petition has been filed stating that since a criminal case has been initiated against petitioners, no departmental inquiry can be initiated. In support of submission reliance is placed on Government Order dated 01.07.1973 (Annexure-4 to the writ petition) as also Regulations 492 and 493 of U.P. Police Regulations.
8. Sri A.P. Singh, learned counsel for the petitioners has also placed reliance on a Division Bench decision of this Court in Kedar Nath Yadav Vs. State of U.P. and others, 2005(23) LCD 1181, the Apex Court's decision in State of U.P. and others Vs. Babu Ram Upadhya, AIR 1961 SC 751. He has also referred to judgment of Hon'ble Single Judge of this Court in Jangli Prasad Vs. State of U.P. and others, Writ Petition No. 5907 (SS) of 2010, decided on 23.08.2010.
9. In the second writ petition, there is only one petitioner, namely, Karuna Shankar Pandey, who was enrolled in U.P. Police Force in 1981. While posted at Police Line Shrawasti on 18.08.2010 he was deputed for Hawalat duty. He had to proceed from District Jail Behraich to Bhinga Hawalat with other police personnel having custody of certain accused persons who were to be produced in F.T.C. No. 2 in Case Crime No. 616 of 2007, S.T. No. 616 of 2008, under Sections 147, 148, 149, 302, 324, 506 IPC. While returning, in the way, an accused absconded, in respect whereto a first information report being Case Crime No. 1445 of 2010, under Sections 223/224 IPC was lodged against petitioner. He was placed under suspension on 18.08.2010 itself though the said suspension was later on revoked. He was issued a charge sheet dated 01.03.2011 under Rule 14(1) of 1991 Rules, whereagainst the second writ petition has been filed.
10. Relying on judgement of Apex Court in Babu Ram Upadhya (supra) and Regulation 492 of U.P. Police Regulations, Sri A.P. Singh, learned counsel for the petitioners contended that Regulation 492 restrain the authorities concerned to proceed with departmental inquiry when a criminal trial/case is pending.
11. I have heard learned counsel for the parties at length and perused the record.
12. It is not in dispute that matter in question would be governed by U.P. Police Act, 1861 (hereinafter referred to as the "Act') and the Rules and Regulations framed thereunder.
13. Section 7 of the Act provides that subject to provisions of Article 311 and to such rules as the State Government may make from time to time, the Director General-cum-Inspector General, Deputy Inspector General, Assistant Inspector General and District Superintendent of Police may have the power of dismissal, suspension or reduction in rank of any police officer of subordinate rank whom they shall think fit remiss or negligent in discharge of his duty or unfit for the same or may award one or more punishment provided in Clauses (a) to (e) thereof. With reference to Section 7 of the Act Rules were framed which have been compiled in Chapter XXXII of Police Regulations. This Chapter has the Regulations 477 to 507-A. For the purpose of present case, this Court is concerned with Regulations 492 and 493 which have been relied by learned counsels for the petitioners and for convenience, I quote the aforesaid provisions as under:
"492. Whenever a police officer has been judicially tried, the Superintendent must await the decision of the Judicial appeal, if any, before deciding whether further departmental action is necessary.
493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a Police Officer who has been tried judicially to re-examine the truth of any facts in issue at his judicial trial, and the finding of the Court on these facts must be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479(a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act, (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him, (ii) record anything the accused officer has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in ordinary way dealing with any plea raised by the accused officer which is relevant to (1) and (2) above.
(c) If the accused has been judicially acquitted or discharged, and the period for filing an appeal has elapsed and/ or no appeal has been filed the Superintendent of Police must at once reinstate him if he has been suspended; but should the findings of the Court not be inconsistent with the view that the accused has been guilty of negligence in, or unfitness for, the discharge of his duty within the meaning of Section 7 of the Police Act, the Superintendent of Police may refer the matter to the Deputy Inspector General and ask for permission to try the accused departmentally for such negligence or unfitness."
14. Regulation 492 talks of a situation where a police officer has been judicially tried. In such circumstances it provides that Superintendent of Police must await decision of judicial appeal, if any, before deciding whether further departmental action is necessary or not. It thus has become necessary to this Court to find out what constitute judicial trial under Regulation 492.
15. Regulation 483 contemplates three kinds of proceedings against a police officer, (a) a magisterial or police inquiry, followed, if this inquiry shows need for further action, or (b) a judicial trial, or (c) a departmental trial, or both, consecutively. The inquiry contemplated in Regulation 483, Magisterial or Police, have been dealt with in detail in Regulations 484, 485, 486 and 487. It provide that nature of inquiry shall depend on the nature of offence namely, whether offence is cognizable or non-cognizable according to Schedule 2 of Code of Criminal Procedure (in short "Cr.P.C.). On the information received by District Magistrate, he may exercise his power under Cr.P.C. either to make or order a magisterial inquiry or order an investigation by police. Similarly, where a magisterial inquiry is ordered the same shall be according to provisions of Cr.P.C. A judicial trial is dealt with in Regulation 488 and it reads as under:
"488. A criminal charge against a Police Officer, superior in rank to a head constable shall in a separation district be tried by the Additional District Magistrate, Judicial. Elsewhere, such a case will be tried by a Judicial Officer having a least four years' experience of Judicial work. In case a Judicial Officer with the requisite experience is not available, the District Magistrate will keep the case on his own file or transfer it to the Additional District Magistrate, Executive."
16. The departmental inquiry is provided in Regulation 489 and onwards. The stage to attract Regulation 492 is when a police officer "has been tried judicially". Apparently at the time when writ petition was filed it does not appear that any judicial trial was pending against petitioners. However, by way of a Misc. Application supported by an affidavit (in first writ petition) it has been brought on record that police has submitted charge sheet in the court of Chief Judicial Magistrate, Lakhimpur Kheri and, therefore, now it is contended that as provided by Regulation 492 further proceedings cannot be continued.
17. Similarly, in second writ petition also from the pleadings it does not appear when writ petition was filed the judicial trial was pending but in para 10 of the counter affidavit it has been stated that a charge sheet registered as Crime No. 1445 of 2010 has been submitted and the criminal case is pending against petitioner and the same is pending before the trial court.
18. Regulation 492 has been considered by this Court in Kedar Nath Yadav (supra). This Court in para 40 and 43 of the judgment said:
"40. These Regulations are substantially Regulations of procedure in disciplinary inquiries. Whether the disciplinary inquiry is to continue at all or not, in what manner the authority-in-charge of the disciplinary inquiry will decide the matter, these are the subject matter of Regulations 492 and 493. Regulation-493 provides a sort of departmental res judicata. In Courts of law, res judicata is part of the Code of Civil Procedure. In the Police Inquiries, this part of the Civil Procedure Code is, in a manner of speaking, replicated in Regulation-493. A Regulation like 493, similarly like the principle of res judicata, has the great virtue of avoiding conflict of decisions. There is nothing unconstitutional in Regulation-493; there is nothing, which is practically archaiz in this Regulation either, if the charge is of such a nature that the departmental inquiry is sufficient into the purpose, like may be, the loss of four magazines, then it is not obligatory upon the police authority to lodge a complaint and start the criminal prosecution at all. It would be open to them to conduct the disciplinary inquiry on their own and reach a finding as and when they please. Regulation 493 would not hurt then at all.
43. Of course it is possible for the rule making authorities to do away with Regulation 493, but until that is done, it has to be given full effect; unless of course, in the 1991 Rules there is a Rule which can be said to operate in the same field. We have searched the Rules in vain to find one Rule, which can be a suitable contender to Regulation 493 in the matter of taking up of the position of the guiding Rule in this regard."
19. The judgment in Kedar Nath Yadav (supra) is relied to support the submission that Regulations 492 and 493 are bound to be observed by authorities 1991 Rules notwithstanding. This is what ultimately has been said by this Court after making necessary observations in para 46 and in concluding para 50 of the judgment. Para 46 and 50 are reproduced as under:
"46. As such, we are of the clear opinion that the said Regulation is not repealed specifically or impliedly by any part or portion of the 1991 Rules which is inconsistent with the said Regulation 493, and the said Regulation is not repealed in a body with the entirety of Chapter-XXXII by application of the principle of implied repeal either. That is because the 1991 Rules are not comprehensive enough to bring in the doctrine of total repeal by implication. Even this single Regulation-493 is so important and so occurring again and again in matters of departmental inquiry, that by reason of the presence of this Regulation only it would be possible to argue that the 1991 Rules do not seek to cover the entirety of the field in relation to disciplinary inquiry and punishment. The preamble also does not seek, even with the words that it uses, to cover the entire field, it merely mentions that it seeks to regulate, only to regulate, the disciplinary proceedings and the matters of punishment. Such Regulation is quite possible by operating on the existing Police Regulations in Chapter-XXXII and doing away with only those Regulations, which are in conflict with the later express Rules.
50. The inescapable conclusion, therefore, is that the authorities were bound to follow Regulations 492 and 493, the 1991 Rules notwithstanding. They did not do so and they proceeded to decide differently on the charge of embezzlement of four magazines although the writ petitioner-appellant had been acquitted on the same charge in the criminal Courts. The authorities have thus brought on record an error of law by acting contrary to existing Regulations; such an error on the face of the record can and should be corrected by the writ Court. An acquittal is an acquittal, whether on the benefit of doubt or not. One cannot go behind the acquittal, but must ordinarily accept it on its face value."
20. For the purpose of present case I have no reason to take a different view and proceed to hold that Regulations 492 and 493 are still operating and have not been whittled down in any manner by 1991 Rules. In fact I myself is in complete agreement with the above. The question would be when these provisions would apply , i.e., the stage when those would come into place.
21. Regulation 492 clearly says that where a police officer "has been judicially tried". The language is very important. It talks of something which has already happened. The simple language of provision shows where a police officer has been tried judicially and only the judgment is awaited, in such circumstances and in interregnum period, the competent authority should not decide to take further departmental action but should await the decision. In other words, Regulation 492 shall be attracted only when the judicial trial is over but judgment has not been delivered and it is awaited. The words "has been" reflect to something which has performed and accomplished in past and is not continuing in present. The words "has been" refer to the state of affairs as existed in past and it is a present perfect tense. The words "has been" on a plain grammatical construction means, without doubt, the existence of past event i.e. the requisite event has already occurred and completed. The expression "has been" and its connotation have been subject of interpretation before Apex Court and this Court, both, at several occasions and it would be useful to refer a few thereof.
22. In Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. v. Management, AIR 1973 SC 1227 their Lordships had an occasion to consider the meaning of the words "has been" occurring in Section 7(3)(a) and (e) of Industrial Disputes Act, 1948 which provides qualification of a person for appointment as Presiding Officer of a Labour Court and construing the words "has been" the Apex Court held as under:
"The words 'has been a judge of a High Court' denote a past event, on the date of his appointment, he must have been a Judge of a High Court. Same is the position under clause (e) regarding the office mentioned therein. A similar interpretation will have to be placed on the expression 'has been' occurring in sub-section (3) of Section 7A regarding the qualifications to be possessed by a person for appointment as presiding officer of a Tribunal. The words 'has been' occurring in these sub-sections, immediately after the word 'is' or even separately clearly show that they refer to a past event."
23. Earlier Section 57 of Bombay Police Act came up for consideration before the Apex Court in State of Bombay (now Maharshtra) Vs. Vishnu Ramchandra, AIR 1961 SC 307 and construing the words "if a person has been convicted......" the Apex court observed:
"The verb "has been" is in the present perfect tense, and may mean either "shall have been" or "shall be". Looking, however, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended."
24. In Mubarak Mazdoor Vs. K.K. Banerji, AIR 1958 All 323 construing the words "has been" this court held:
"The petitioner's contention is that the proviso to Section 86(3) must be interpreted strictly according to the rules of grammar and that when so interpreted, the words has been (in the phrase ''has been a Judge') signify that the person eligible for appointment must not only have held, but be then holding, office as Judge; and that accordingly a retired Judge is not eligible for appointment. This argument is based on the assumption that ''has been' is a present perfect continuous tense. This assumption in our opinion is not correct. ''Has been' when not followed by a participle is the present perfect tense of ''to be' ''and accordingly indicates that state of being has existed and may be (but not necessarily is) continuing."
25. Again the said words came up for consideration before a Division Bench of this Court in Shitla Prasad Shukla Vs. The State of U.P. and others, 1984 UPLBEC 461 and construing the words "has been" under Section 16-F(a) of U.P. Intermediate Education Act, 1921 this Court observed as under:
"On a plain interpretation of Section 16-F in our opinion no appointment can be validly made unless the teacher possesses the prescribed minimum qualifications or has been exempted under sub-section (1) of Section 16-E. The words ''has been' on a plain grammatical construction, undoubtedly mean the existence of past event, i.e., the exemption which is contemplated under Section 16-F(1) must have already been granted before the teacher can be validly appointed."
26. The judgment in Shitla Prasad Shukla (Supra) has been confirmed by the Apex Court by dismissing the appeal in Shitla Prasad Shukla Vs. State of U.P. and others, AIR 1986 SC 1859.
27. The above exposition of law clearly shows that the term "has been" in simple language means a thing already happened and here the term "judicially tried" means that police officer concerned's trial in the court of law is already complete but the decision is awaited.
28. Similarly Regulation 493 is attracted when trial is complete and judgment of trial court has also come, resulting in recording a finding in favour of police officer. It restrain the competent authority in such matter to create a situation where a contrary finding can be recorded in departmental proceedings vis a vis court's verdict and the Regulation provides that such a contingency should not occur hence it prohibits such a course to be followed by competent authority.
29. Going by the above discussion it becomes apparently clear that situation in the present cases do not attract either Regulation 492 or 493 in both these matters since the only stage at which the criminal cases proceeding presently are that a charge sheet has been filed against petitioners. The petitioners cannot be said to have undergone judicial trial so far. The trial is still awaited. For the purpose of understanding the meaning of word "Trial" one may simply refer to the provisions of Cr.P.C. and that would clearly show that an accused can be said to have tried when evidence by prosecution and defence has already led and matter has been argued before trial court. This itself leaves inescapable conclusion that both these writ petitions at this stage have to fail.
30. There is one more aspect which has been argued, hence I intend to consider the same.
31. It is said that when charges in departmental inquiry as well as in criminal case are same, the departmental inquiry cannot be permitted to continue.
32. Besides the fact that said argument as such is not germane to Regulations 492 and 493, I propose to consider the same, first to find out whether charges in two proceedings in these two writ petitions can be said to same and then the consequence if the answer of former is in affirmative.
33. In the first writ petition after referring to incident resulting in absconding of accused persons the charges levelled against petitioners are as under:
"Apka ukt kritya apne kartavya ke prati ghor laparwahi, udasinta, akarmanyata evam aruchi prakat karta hai, jo vibhagiya niyamo ke viprit hai."
"Apka ukt kritya apne kartavya ke prati ghor laparwahi, udasinta, akarmanyata evam aruchi prakat karta hai, jo vibhagiya niyamo ke viprit hai."
34. In the second writ petition after referring to incident resulting in absconding of accused person the charge levelled against petitioner is as under:
"Apka yah kritya rajkiya kartava ke prati ghor laparwahi, udasinta, akarmanyata evam pad ke liye ayogya hone ka dhotak hai."
35. In the criminal case the charge is of commission of an offence under Section 223 and 224 IPC. The relevant provisions in IPC reads as under:
"223. Escape from confinement or custody negligently suffered by public servant.--Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
224. Resistance or obstruction by a person to his lawful apprehension.-- Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
36. From bare perusal of charges levelled in departmental inquiry and criminal case it is evident that though the same emanate from a common incident but charges ex facie are different. In departmental proceeding the charges relates to violation of conduct rules and departmental rules while the charges in criminal case relates to an offence under Section 223 and 224 IPC. One of the basic difference besides others in these two are that in criminal case the element of mens rea, i.e., intention to commit offence is a necessary ingredient which has no place in respect to charges levelled in departmental inquiry. It is also true that evidence in two proceedings may be similar but the procedure of inquiry/trial, the assessment of evidence and other legal principle in two proceedings are totally different.
37. It is now well settled that departmental proceedings can proceed simultaneously with criminal proceedings and there is no bar as such therein as held by the Apex Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Another 1999 (3) SCC 679 where it has been clearly held that the departmental as well as criminal, both the proceedings, can go on simultaneously as there is no bar in their being conducted simultaneously. The question as to whether during the pendency of criminal proceeding, the departmental proceeding should be stayed depends upon the facts and circumstances of the individual case. In Ajit Kumar Nag Vs. General Manager I.O.C. JT 2005 (8) SC 425, the Apex Court said that the procedure followed in both the cases as well as the subject matter of the departmental enquiry and criminal proceeding has different scope and it cannot not be said that when a criminal proceeding is going on a particular criminal charge, in that regard, the departmental proceeding cannot be allowed to proceed. The same view has been reiterated subsequently, in Chairman/ Managing Director TNCS Corporation Ltd. & others Vs. K. Meerabai JT 2006 (1) SC 444, Suresh Pathrella Vs. Oriental Bank of Commerce AIR 2007 SC 199 and Union of India & others Vs. Naman Singh Shekhawat 2008 (4) SCC 1.
38. Referring to Capt. M. Paul Anthony (supra), recently the Apex Court in Managing Director, State Bank of Hyderabad & another Vs. P. Kata Rao JT 2008 (4) SC 577 observed that the legal principle enunciated to the effect that on the same set of facts, the delinquent shall not be proceeded in a departmental proceeding and in a criminal proceeding simultaneously has been deviated from. It it also said that the dicta laid down by the Apex Court in Capt. M. Paul Anthony (supra), though has remained unshaken but its applicability has been found to be dependent on the facts and situations obtained in each case.
39. Similarly, in the case of Noida Entrepreneurs Assn. Vs. NOIDA & others JT 2007 (2) SC 620, the Court has reproduced the following conclusion deducible from various judgments as noticed in para-22 of the judgment in Capt. M. Paul Anthony (supra), namely :
"(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 involved 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."
40. A similar view has also been taken in Indian Overseas Bank Vs. P. Ganesan & others AIR 2008 SC 553 and the Court held that where a prayer is made that so long as criminal proceedings are going on, departmental proceeding may not be proceeded, the Court must record a finding that the non grant of stay on departmental proceeding would not only prejudice the delinquent officer, but the matter also involve a complicated question of law. Nothing of that sort has been shown by the learned Counsel for the petitioner in the case in hand.
41. Following the aforesaid authorities of the Apex Court, this Court has taken a similar view in Priti Chauhan vs. State of U.P. & others 2008 (9) ADJ 388.
42. I, therefore, have no hesitation to hold that here is a case where it cannot be said that charges in departmental proceedings are same as in the criminal trial and thus also the submission that departmental inquiry cannot proceed simultaneously, cannot be accepted particularly.
43. In the result, both the writ petitions lack merit. Dismissed.
Dt/-06.01.2012 AK