Hari Krishan vs State Of H.P. & Ors

 Tarlok Singh Chauhan, J

The. instant. petition. has. been. filed. for. grant. of following substantive reliefs:

“a. that the departmental enquiry initiated by respondent No.3 may be kept in abeyance during the pendency of the criminal appeal.

b. that Annexure AÂ3, i.e. show cause notice dated 16.2.2018, whereby departmental proceedings are contemplated against the applicant, may be

quashed and . set aside..

The petitioner. was recruited as Constable in Himachal Pradesh Police Department in the year 1984. He joined his services on 31.7.1986 in 1st

Battalion, Junga and thereafter his services were allocated to the Superintendent of Police, Sirmaur at Nahan. It was averred that during the posting of

the petitioner in District Sirmaur, one false case was registered against him vide FIR No. 1/14, dated 28.1.2014 by the Police Station, State Vigilance

and AntiÂCorruption Bureau, Sirmaur at Nahan under Sections 7 and 13(2) of the Prevention of Corruption Act and thereafter, the departmental

proceedings were simultaneously initiated against the petitioner. Mr. Bhupinder Singh Bragta, SDPO Rajgarh was appointed as an Inquiry Officer and

final inquiry report was submitted by him to the Superintendent of Police, Sirmaur at Nahan on 12.8.2014. Since the criminal case was pending against

the petitioner, hence, the departmental proceedings were kept in abeyance.

The criminal case was concluded and the learned Special Judge, Nahan, vide judgment dated 3.1.2018 convicted and sentenced the petitioner to

undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20,000/Â under Section 7 and rigorous imprisonment for four years

and to pay a fine of Rs.25,000/Â​ under Section 13(2) of the Prevention of Corruption Act.

Thereafter, the petitioner preferred a criminal appeal before this Court against the judgment dated 3.1.2018, wherein vide order dated 2.2.2018, the

sentence was suspended. The petitioner brought to the notice of respondent No.3 about the factum of suspension of sentence, however, he proceeded

further with the departmental enquiry and on 16.2.2018, a show cause was issued to the petitioner for imposing penalty. Hence, the instant petition.

The respondents have contested the petition, wherein a number of preliminary objections have been raised. Out of these, one of the main objections

is that there is no legal bar to conduct a departmental enquiry when criminal case has been registered against an employee. The approach and

objective in the criminal proceedings and the disciplinary proceedings are altogether distinct and different as the two proceedings operate in different

fields and have a different objective and degree of proof. It is further averred that the strict burden of proof required to establish guilt in a criminal

court is not required in disciplinary proceedings and preponderance of probabilities is sufficient.

We have heard the learned counsel for the parties and have also gone through the material placed on record.

It is more than settled that the object of criminal trial is to inflict appropriate punishment on offender, which purpose of enquiry proceedings is to

deal with delinquent departmentally and to impose penalty in accordance with the services Rules. The degree of proof necessary to convict offender is

different from the degree of proof necessary to record commission of delinquency. Rule relating to appreciation of evidence in two proceedings is also

not similar. In criminal law, burden of proof is on prosecution to prove guilt of the accused beyond reasonable doubt, whereas in departmental enquiry,

penalty can be imposed on a finding recorded on the basis of “preponderance of probabilityâ€​.

The Hon'ble Supreme Court has gone to the extent to hold that even acquittal by court of competent jurisdiction in a judicial proceeding does not

ipso facto absolve delinquent from liability under disciplinary jurisdiction.

In this regard, it shall be apposite to refer to the decision of the ThreeÂJudge Bench of the Hon'ble Supreme Court in Shashi Bhushan Prasad vs.

Inspector General, Central Industrial Security Force and ors., (2019) 7 SCC 797, wherein it was observed as under:Â​

7.. The scope of departmental enquiry and judicial proceedings and the effect of acquittal by a criminal Court has been examined by a three Judge

Bench of this Court in Depot Manager A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Others3. The relevant para is as under:

8…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 3 1997(2) SCC 699 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 (sic 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 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 the Evidence Act. The

evidence required in the departmental enquiry is not regulated by the 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, IPC. Under these

circumstances, the High Court was not right in staying the proceedings.â€​ (Emphasis supplied)

18.. The exposition has been further affirmed by a three Judge Bench of this Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil

Corporation Limited, Haldia and Others 4, this Court held as under: “As far as acquittal of the appellant by a criminal court is concerned, in our

opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well

settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The

two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object

of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally

and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances

or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency.

The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless

the prosecution is able to prove the guilt of the accused “beyond reasonable doubtâ€, he cannot be convicted by a court of law. In a departmental

enquiry, on the other 4 2005(7) SCC 764 hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of

“preponderance of probabilityâ€. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability

under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by

a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside.â€​ (Emphasis supplied)

19.. We are in full agreement with the exposition of law laid down by this Court and it is fairly well settled that two proceedings criminal and

departmental are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict

appropriate punishment on an offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in

accordance with the service Rules. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to

record the commission of delinquency. Even the rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law,

burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt, he cannot be

convicted by a Court of law whereas in the departmental enquiry, penalty can be imposed on the delinquent on a finding recorded on the basis of

‘preponderance of probability’. Acquittal by the Court of competent jurisdiction in a judicial proceeding does not ipso facto absolve the

delinquent from the liability under the disciplinary jurisdiction of the authority. This what has been considered by the High Court in the impugned

judgment in detail and needs no interference by this Court.

The petitioner in the instant case is being charged for demanding and accepting bribe, which is not only a criminal misconduct, but also a

departmental misconduct.

Above all, the petitioner has already been convicted by the learned trial court, meaning thereby, the petitioner has already disclosed his defence

and no prejudice would therefore be caused to him at this stage in case he faces the departmental enquiry.

The very object of staying the departmental enquiry where an employee is already facing a criminal trial is to ensure that he is not prejudiced

before the criminal court so as to compel him to disclose his defence in the departmental enquiry, but here, as observed above, the petitioner has

already been convicted. Therefore, there is no question of there being any prejudiced caused to him.

Similar reiteration of law can be found in the judgments rendered by the learned Division Bench of this Court, of which one of us (Justice Tarlok

Singh Chauhan, J.) was a member, in CWP No. 1418/2020, titled as Shubham Thakur vs. State of Himachal Pradesh & ors., dated 14.10.2020 and

CWP No. 474/2020, titled as Gian Chand Thakur vs. State of H.P. & ors., dated 26.6.2020.

In view of the aforesaid discussions, we find no merit in the instant petition and the same is accordingly dismissed, so also the pending

application(s), if any, leaving the parties to bear their own costs.