Anil Tyagi VsState Of Madhya pradesh And Another

Heard finally with consent.

By this writ petition the petitioner has prayed for quashing the charge sheet dated 25.5.2017 and also quashing of the Departmental Enquiry initiated in

pursuance to the charge sheet.

The case of the petitioner is that he is working as Sub Inspector with the respondents and he was falsely implicated in the offence under Section 386,

394, 120-B IPC read with Section 11/13 of the MPDVPK Act, on the allegation of robbery and extortion and for the said offence the Challan has

been filed and charge has been framed but the respondents on the same allegation have initiated the Departmental Enquiry by issuing the charge sheet

Annexure P/4.

Learned counsel appearing for the petitioner submits that Departmental Enquiry and the criminal proceedings cannot continue simultaneously and

the petitioner may not be required to disclose his defence in the criminal case while conducting Departmental Enquiry, therefore, Departmental

Enquiry be quashed.

As against this, learned counsel for the respondents has submitted that the Departmental Enquiry is on a different charge, therefore, no case for

quashing the Departmental Enquiry is made out.

Having heard the learned counsel for the parties and on perusal of the record, it is noticed that in the criminal case the charge has been framed against

the petitioner in respect of commission of offence under Section 394/120B IPC read with Section 11/13 of The Madhya Pradesh Dakaiti Aur

Vyapharan Prabhavit Kshetra Adhiniyam, 1981 on the allegation of causing loot and dacoity. The said criminal trial is pending, in the meanwhile the

Departmental Enquiry has been initiated against the petitioner on the charge of unauthorized absence and maligning the image of the department on

account of registration of the criminal case under Section 386, 394, 120B IPC read with Section 11/13 of MPDVPK Act. A perusal of the charge

sheet reveals that the basic foundation of initiation of the Departmental Enquiry is the registration of criminal case against the petitioner, therefore,

counsel for the petitioner has rightly submitted that the same set of evidence is required in the Departmental Enquiry also and during the course of the

Departmental Enquiry if the petitioner is required to disclose his defence, then prejudice may be caused to the petitioner in the criminal case. The

Supreme Court in the matter of State Bank of India and others Vs. Neelam Nag and another reported in (2016) 9 SCC 491 while taking note of the

earlier judgment on the point, has held that though there is no legal bar for holding the departmental proceedings and criminal trial simultaneously but if

the criminal charge against the employee is grave and continuation of the Departmental Enquiry is likely to prejudice his defence before the criminal

court, then the departmental proceedings can be stayed, however such proceedings cannot be stayed for the indefinite period. In that case the

departmental proceedings were stayed for a period of one year with a direction to conclude the trial in the criminal case and further direction to

resume the enquiry in case if the criminal trial is not concluded within that period. Supreme Court in the matter of State Bank of India (supra) in this

regard has held as under:-

“13. We have heard the learned counsel for the parties at some length. The only question that arises for consideration, is no more res integra. It is

well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straight jacket

formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the

approach to be adopted by the Court has been delineated in series of decisions.

This Court in Karnataka SRTC vs. M.G.Vittal Rao has summed up the same in the following words:

“(i) There is no legal bar for both the proceedings to go on simultaneously.

(ii) The only valid ground for claiming thatthe disciplinary proceedings may be stated would be to ensure that the defence of the employee in the

criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law.

(iii) Such defence ought not to be permittedto unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the

employer clearly lies in a prompt conclusion of the disciplinary proceedings.

(iv) Departmental proceedings can go onsimultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and

the evidence in both the proceedings is common.â€​

The recent decision relied on by theappellant in the case of Stanzen, has adverted to the relevant decisions including M.G.Vittal Rao.

After adverting to those decisions, in para 16, this Court opined as under:Â (Stanzen case, SCC p.643)

“16. 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 ongoing disciplinary proceedings on the other. An early conclusion of the

disciplinary proceedings has itself been seen by this Court to be in the interest of the employees.â€​     Â

The Court then went on to examine thefacts of that case and observed in para 18 as follows:

“18. …….The charge-sheet, it is evident from the record, was filed on 20.8.2011. The Charges were framed on 20-12-2011. The trial Court has

ever since then examined only three witnesses so far out of a total of 23 witnesses cited in the charge-sheet. Going by the pace at which the trial

Court is examining the witnesses, it would take another five years before the trial may be concluded. The High Court has in the judgment under appeal

given five months to the trial Court to conclude the trial. More than fifteen months has rolled by ever since that order, without the trial going anywhere

near completion. The disciplinary proceedings cannot remain stayed for an indefinitely long period. Such inordinate delay is neither in the interest of

the appellant Company nor the respondents who are under suspension and surviving on subsistence allowance………â€​

In paragraph 19, the Court proceeded to conclude thus:

“19. In the circumstances and taking into consideration all aspects mentioned above as also keeping in view the fact that all the three Courts below

have exercised their discretion in favour of staying the ongoing disciplinary proceedings, we do not consider it fit to vacate the said order straightaway.

Interests of justice would, in our opinion, be sufficiently served if we direct the Court dealing with the criminal charges against the respondents to

conclude the proceedings as expeditiously as possible but in any case within a period of one year from the date of this order. We hope and trust that

the trial Court will take effective steps to ensure that the witnesses are served, appear and are examined. The Court may for that purpose adjourn the

case for no more than a fortnight every time an adjournment is necessary. We also expect the accused in the criminal case to cooperate with the trial

Court for an early completion of the proceedings. We say so because experience has shown that the trials often linger on for a long time on account

of non-availability of the defence lawyers to cross-examine the witnesses or on account of adjournments sought by them on the flimsiest of the

grounds. All that needs to be avoided. In case, however, the trial is not completed within the period of one year from the date of this order, despite the

steps which the trial Court has been directed to take the disciplinary proceedings initiated against the respondents shall be resumed and concluded by

the inquiry officer concerned. The impugned orders shall in that case stand vacated upon expiry of the period of one year from the date of the

order.â€​

In the final conclusion it was directed that :-

“27. Accordingly, we exercise discretion in favour of the respondent of staying the ongoing disciplinary proceedings until the closure of recording of

evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate

that arrangement straightway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against the

respondent to be decided expeditiously but not later than one year from the date of this order. The Trial Court shall take effective steps to ensure that

the witnesses are served, appear and are examined on day-to-day basis. In case any adjournment becomes inevitable, it should not be for more than a

fortnight when necessary.

We also direct that the respondent shallextend full cooperation to the Trial Court for an early disposal of the trial, which includes cooperation by

the Advocate appointed by her.

If the trial is not completed within oneyear from the date of this order, despite the steps which the Trial Court has been directed to take the

disciplinary proceedings against the respondent shall be resumed by the enquiry officer concerned. The protection given to the respondent of keeping

the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiry of the period of one year from the date of this order.â€​

In the present case also while entertaining the writ petition this Court had stayed the further proceedings in the Departmental Enquiry. The charge

in the criminal case is grave in nature and the Departmental Enquiry is based upon the registration of the criminal case, hence in the circumstances of

the case I am of the opinion that the interest of justice will be served by issuing the same directions as have been issued by the Hon’ble Supreme

Court in the case of State Bank of India (supra).

Hence, the present writ petition is disposed off by directing the court concerned, where the criminal case is pending, to expedite the trial of the case

and further directing the petitioner to extend full cooperation before the trial Court for the early disposal of the trial. It is further directed that the

interim order passed by this Court will continue for a period of one year and in case if the trial in the criminal case is not completed within a period of

one year from the date of this order, then this interim order will stand automatically vacated on completion of one year and the respondents will

resume the Departmental Enquiry. C.C. as per rules.