Court No. - 30
Case :- WRIT - A No. - 15116 of 2019 Petitioner :- Surya Pratap Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Atipriya Gautam,Vijay Gautam(Senior Adv.),Vinod Kumar Mishra Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Vijay Gautam, learned Senior Counsel assisted by Ms. Atipriya Gautam, learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents and have perused the record.
At the very outset, learned counsel for the petitioner submits that the controversy involved in the present writ petition is fully covered by a decision of this Court dated 4.7.2019 passed in writ petition no. 9781 of 2019 (Afaq Haider vs. State of U.P. and others).
The said judgement dated 4.7.2019 is quoted hereinunder:-
"Petitioner has challenged the charge sheet issued against him on 05.02.2019, on the ground that with identical charge and on the basis of same evidence a first information report in Case Crime No.250 of 2018 has been registered on 28.09.2018 at Police Station Mirzamurad, Varanasi. It is contended that since the allegations are identical and the basis to proceed both departmentally and in criminal trial are same, therefore, prejudice would be caused to the petitioner in case disciplinary proceedings and criminal trial is allowed to go on simultaneously. Reliance is placed upon a judgment of the Apex Court in Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. reported in AIR 1999 SC 1416 as well as State Bank of India and others vs. R. B. Sharma reported in (2004) 7 SCC 27. Reliance is also placed upon a decision of this Court in Dhirendra Kumar Tiwari vs. State of U.P. and others being Writ Petition No.2705 of 2012, decided on 16.1.2002, in which following observations have been made:-
"After the respective arguments have been advanced, the judgment of Hon'ble Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. AIR, 1999 SC 1416 is being looked into. In the aforementioned judgment the Hon'ble Apex Court after taking into account various earlier judgments has held that departmental proceedings and proceedings in criminal case can proceed simultaneously, as there is no bar in their being conducted simultaneously, though separately. It has been further held that if the departmental proceedings and criminal case are based on similar set of facts and charges in criminal case against delinquent employees is of grave nature which involves complicated questions of fact and law, it would be desirable to stay the departmental proceedings till conclusion of criminal case. Whether complicated questions of fact and law are involved or not will depend upon the nature of the offence, and the case lodged against the employee on the basis of evidence and material collected during the investigation or as reflected in the charge sheet, and these facts are not to be considered in isolation but due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. Thus, if complicated questions of fact and law are involved, and departmental proceedings and criminal case are based on identical and similar set of facts, only then it is desirable to stay the departmental proceedings, but the said facts are not to be considered in isolation. Paragraph 22 of the judgment being relevant is being quoted below:
"22. The conclusions which are deducible from the various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in 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 charge in criminal case against delinquent employees 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 criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and complicated questions of fact and law are involved in that case will depend upon the nature of the offence, the nature of case launched against the employee on the basis of evidence and material collected against him during the 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 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 pendency of 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."
The judgment in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. 1999 ( 3) S.C.C. 679 (Supra) has been followed in the case of State Bank of India and others Versus R.B. Sharma 2004 (7) S.C.C. 27 . Relevant paragraphs 7,8 and 11 are being quoted below:-
7. It is a fairly well stetted position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of fact and the evidence in both the proceedings is common.
8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public . So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated question of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act, 1872 (in short " the Evidence Act"). Converse is the case of departmental enquiry. The inquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always question of fact to be considered in each case depending on its own facts and circumstances.
11.There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending.
Principles laid down above are clear and categorical that there is no bar in simultaneous separate proceeding of criminal case as well as departmental proceeding. Further if departmental proceedings and criminal case are based on similar set of facts and charges in criminal case against delinquent employee is of grave nature which involves complicated question of fact and law, it would be desirable to stay the departmental proceedings till conclusion of criminal case. Whether complicated question of fact and law are involved or not will depend upon the nature of the offence, and the case lodged against the employee on the basis of evidence and material collected during the investigation or as reflected in the charge sheet. Thus it is clear that departmental proceeding can proceed, as there is no bar and only when nature of charge in criminal case are grave and complicated question of fact and law are involved, then departmental proceedings can be stayed and further also in contingency when departmental enquiry would seriously prejudice delinquent in his defence at the trial, and even these facts cannot be considered in isolation to stay departmental proceeding but due regard will have to be given to the fact that departmental proceedings cannot be unduly delayed.
Under Sub Rule (4) (a) of Rule 8 of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal ) Rules, 1991, the punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape is dismissal unless the punishing authority for reasons to be recorded in writing awards a lessor punishment. Thus major penalty of dismissal as provided for under Rule 4 of of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal ) Rules, 1991 in the matter of intentionally or negligently allowing a person in police custody or judicial custody to escape is a rule,l and punishing authority, for reasons to be recorded can award lesser punishment. Section 223 of I. P.C. deals with duties of public servant legally bound to keep in confinement any person charged with or convicted of any offence, negligently suffers such person to escape from confinement is to be awarded punishment with imprisonment of two years. Section 224 deals with resistance or obstruction by person to his lawful possession. Here both in departmental proceeding and in criminal trial being negligent is the essence of action taken against petitioner, but parameters of both the proceedings are entirely different, as criminal prosecution is launched for an offence for violation of duty the offender ows to the society, whereas departmental enquiry is to maintain discipline in the service. It is true that criminal case and departmental proceedings are based on similar set of fact same incident but the charge in question cannot be said to of such grave nature, involving complicated question of fact and law, warranting stay of the proceeding till conclusion of criminal case. Nothing has been brought from the side of petitioner to substantiate that departmental enquiry would seriously prejudice the delinquent in his defence at the trial in Criminal Case.
Much reliance has been placed on Regulations 492 and 493 of of U.P. Police Regulations. The two Regulations mentioned are set out below:-
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 reexamine 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,l 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 be 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 though 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 caused to show cause why any particular penalty should not be inflicted on him (ii) record anything the accused Officers has to urge against such penalty without allowing him to dispute the findings of the Court. and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officers 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 mot 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:
Bare perusal of Regulations 492 and 493 would go to show that 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. Regulation 493 mentions that 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. Division Bench of this Court in the Case of Kedar Nath Yadav Vs. State of U.P. 2005(3) E.& C 1955, while considering these very Regulations, has taken the view, that even after enforcement of 1991 Rules, these two Regulations continue to hold the field. Both these Regulations occupy different field i.e. wherein Police Officer has been judicially tried and after judicial trial is over, and consequently will not come to the rescue of petitioner.
Reliance has been placed on the judgment of this Court in the case of Virendra Kumar Sharma Vs. State of U.P. 2002(3) UPLBEC, for the preposition that, when charges are engaging attention of criminal trial or police investigation, departmental enquiry cannot proceed on same charges. Said decision has been rendered, in context of the mandate provided for in Rule 104 of U.P. Rajya Sahkari Bhoomi Vikas Bank Employees, Service Rules, 1976, which specifically prohibits departmental enquiry against a charge which is sub-judice in judicial enquiry or trial.
Argument has also been advanced, that disciplinary proceeding in the present case, is in fact second enquiry on same facts and same charges, as such same is legally not permissible. Reliance in this connection has been placed on judgment of this Court, in the case of Ram Nath Singh Vs. State of U.P. 2002(3) UPLBEC 2463. Arguments advanced are clearly devoid of substance, as in the present case, at no point of time any departmental enquiry has been held in the past, wherein petitioner has been exonerated, and too the contrary for the first time, for his alleged misconduct, petitioner is being asked to appear and face enquiry. Judgment cited is totally out of context and will not come to the rescue of petitioner.
Whether disciplinary enquiry is to continue at all or not, and whether result of criminal trial is to be awaited, is to be decided, by the authority- in-charge of disciplinary matter, keeping in view over all fact and situation as prevailing on the spot, and said issues will have to be answered the parameter provided for. Request of petitioners be considered within next eight weeks from the date of receipt of certified copy of the order. With these observations, writ petition is disposed of."
Learned Standing Counsel states that the issues on facts raised by the petitioner can more appropriately be examined by the disciplinary authority, at the first instance.
The question as to whether evidence to be relied upon in both the proceedings are identical, or whether petitioner would be prejudiced, in any manner, by holding of simultaneous proceedings, in view of the tests laid down by the Apex Court in Capt. M. Paul Anthony (supra) and State Bank of India (supra) can more appropriately be examined by the disciplinary authority.
Writ petition is, accordingly, disposed of with a direction upon the respondent no.3 to examine petitioner's grievance, as noticed above, keeping in view the observations made by the Apex Court in Capt. M. Paul Anthony (supra) and State Bank of India (supra), within a period of three months from the date of presentation of certified copy of this order."
Learned Standing Counsel has not disputed the aforesaid position.
Consequently, the present petition is also disposed of in terms of the aforesaid judgement dated 4.7.2019 as quoted above.
Order Date :- 27.9.2019 Lalit Shukla