Fahim Khan vs The State of Madhya Pradesh

Sanjay Yadav, J—With consent, the petition is finally heard.

Petitioner, a Constable posted at Police Station Jahangirabad has been subjected to criminal prosecution for an offence under Section 366, 376, 506 of the Indian Penal Code vide Crime No. 286/14, subject matter of S.T. No. 643/14. That, on registration of offence, the petitioner besides being subjected to suspension has been served with the charge-sheet on 12.07.2014 on the following charges :

Apparently, the charges are that the conduct of the petitioner of outraging the modesty is a conduct unbecoming of Rule 3 of M.P. Civil Services (Conduct) Rules, 1965.

Petitioner has preferred the petition seeking stay of departmental enquiry proceedings during pendency of criminal trial, on the ground that the evidence led in the departmental enquiry will prejudice the defence of the petitioner adversely affecting the criminal case.

Respondents by filing the return have refuted the contentions. It is urged that in a departmental enquiry the petitioner is being charged in respect of his conduct, contrary to Rule 3 of 1965 Rules and since the charges in departmental enquiry can be proved in preponderance of probability and not the strict proof as required in the criminal case. It is contended that no prejudice is caused even if the departmental enquiry is continued.

The contentions on behalf of petitioner are noted to be rejected outright as it is always open for the Departmental Authorities to inquire into delinquency of its employees in a departmental enquiry.

The law on the issue is settled that criminal proceedings does not automatically leads to stay of the departmental enquiry on the charges levelled against an employee.

In State Bank of India and Others Vs. R.B. Sharma, AIR 2004 SC 4144 : (2005) 99 CLT 1 : (2004) 102 FLR 1027 : (2004) 6 JT 361 : (2004) 3 LLJ 528 : (2004) 6 SCALE 541 : (2004) 7 SCC 27 : (2004) 3 SCR 417 Supp : (2005) 1 SLJ 35 : (2004) AIRSCW 4587 : (2004) 6 Supreme 227 , t has been held -

It is fairly well-settled 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 facts and the evidence in both the proceedings is common.

The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The 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 questions of fact and law. Offence 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 enquiry in a departmental proceedings 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 a question of fact to be considered in each case depending on its own facts and circumstances.

In Hindustan Petroleum Corporation Ltd. and Others Vs. Sarvesh Berry, (2005) 104 FLR 305 : (2004) 10 JT 392 : (2005) 1 LLJ 588 : (2004) 10 SCALE 340 : (2005) 10 SCC 471 : (2005) 1 UJ 442 : (2004) AIRSCW 7290 : (2005) 1 Supreme 388 ; it has been held -

It is to be noted that in cases involving Section 13 (1)(e) of the P.C. Act, the onus is on the accused to prove that the assets found were not disproportionate to the known sources of income. The expression ''known sources of income'' is related to the sources known to the authorities and not the accused. The Explanation to Section 13(1) of the P.C. Act provides that for the purposes of the Section, "known sources of income" means income derived from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. How the assets were acquired and from what source of income is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. In the criminal case, the accused has to prove the source of acquisition. He has to satisfactorily account for the same. Additionally issues covered by charges 2 and 3 cannot be the subject-matter of adjudication in the criminal case.

That being the position, the High Court was not justified in directing stay of the departmental proceedings pending conclusion of the criminal charge. As noted in Capt. M. Paul Anthony''s case (supra) where there is delay in the disposal of a criminal case the departmental proceedings can be proceeded with so that the conclusion can be arrived at an early date. If ultimately the employee is found not guilty his honour may be vindicated and in case he is found guilty the employer may get rid of him at the earliest.

In Depot Manager, Andhra Pradesh State Road Transport Corporation Vs. Mohd. Yousuf Miya, etc., (1996) 9 AD 651 : AIR 1997 SC 2232 : (1997) 2 LLJ 902 : (1996) 9 SCALE 65 : (1997) 2 SCC 699 : (1997) SCC(L&S) 548 : (1996) 8 SCR 941 Supp : (1997) 1 SLJ 241 : (1997) AIRSCW 2098 : (1997) 1 Supreme 565 ; it has been held -

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The 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 commission 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 no 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 questions of fact and law. Offence generally implies infringement of public, 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 Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. 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 a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304A and 338 I. P.C. Under these circumstances, the High Court was not right in staying the proceedings."

In Indian Overseas Bank, Anna Salai and Another Vs. P. Ganesan and Others, AIR 2008 SC 553 : (2008) 2 CLT 597 : (2007) 5 CTC 632 : (2008) 116 FLR 494 : (2007) 13 JT 118 : (2008) 1 LLJ 502 : (2007) 3 SCALE 446 : (2008) 1 SCC(L&S) 275 : (2007) 12 SCR 474 , it has been observed -

"23. The High Court, unfortunately, although noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non stayed of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.

The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the bank which was not the subject matter of allegations in a criminal case, the departmental proceedings should not have been stayed."

In view of the law laid down in the cases of R.B. Sharma, Sarvesh Berry, Mohd. Yousuf Miya and P. Ganesan (supra), merely because the petitioner has been prosecuted in a criminal case, will not lead to stay the departmental enquiry initiated against him in respect of dereliction of duty. The direction for quashing of charge sheet is negatived.

In the result, petition fails and is dismissed. No costs.