CWP No.17615 of 2006 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH.
CWP No.17615 of 2006
Date of decision:October 15, 2008
Balwinder Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
HON'BLE MR. JUSTICE RAJAN GUPTA
Present: Mr. J.S. Rattu, Advocate, for the petitioner.
Mr. K.S. Dadwal, Addl. A.G. Punjab.
Rajan Gupta, J.
This writ petition has been preferred by one Balwinder
Singh who was posted as Moharar Head Constable (Munshi) in Police
Station Division No.7, Jalandhar when an FIR was registered against
him under Sections 7 and 13 of the Prevention of Corruption Act, the
allegation being that he took illegal gratification of Rs.2500/- for
releasing a moped ceased by the police. As a result, he was charged
under Sections 7 and 13 of the Prevention of Corruption Act and a
criminal trial ensued. Simultaneously, departmental proceedings were
initiated against him.
The petitioner has prayed for a writ of mandamus directing
the respondents not to proceed with the departmental inquiry as he
would be compelled to disclose his defence in the same, due to which
CWP No.17615 of 2006 2
his trial for criminal charge will be prejudiced.
A detailed reply has been filed on behalf of the respondents.
It has been stated therein that the departmental inquiry has been rightly
and legally initiated against the petitioner under Rule 16.24 of the
Punjab Police Rules and that there is no legal bar to conduct a regular
departmental inquiry on the basis of same facts on which the criminal
case is pending. It has been further averred that petitioner has no legal
right to seek a writ of mandamus for stopping the departmental
proceedings during the pendency of the criminal trial as both can
proceed simultaneously. However, in view of the interim order passed
by this court on 9th November, 2006, the departmental proceedings had
been stopped vide order No.123001-07 dated 5th December, 2006.
We have heard learned counsel for the parties and perused
the record.
Learned counsel for the petitioner has placed reliance on a
judgment of the apex court reported as Capt. M. Paul Anthony Vs.
Bharat Gold Mines Ltd., 1999 (2) SCT 660 to contend that when an
employee is being proceeded against in criminal as well as departmental
proceedings on the same charges and same evidence, in certain cases it
may violate the right of defence of the employee. On the basis of the
said judgment, the counsel has contended that departmental proceedings
against the petitioner be stayed during the pendency of the criminal trial.
On the other hand Mr. K.S. Dadwal, Addl. Advocate
General Punjab has vehemently opposed this prayer and has contended
CWP No.17615 of 2006 3
that departmental inquiry and criminal trial can go on simultaneously.
He has placed reliance upon a judgment of the apex court reported as
Hindustan Petroleum Corporation Ltd. and others Vs. Sarvesh Berry,
AIR 2005 Supreme Court 1406. The counsel has contended that in the
said judgment it had been clearly laid down that departmental inquiry
and criminal prosecution stand on different footing and there would be
no conflict if both proceed simultaneously. Another judgment, on
which counsel for the respondents has placed reliance, is State Bank of
India and others Vs. R.B. Sharma, 2004(5) Service Law Reporter 429
in support of his contention.
We have carefully perused various judgments of the apex
court on the question of law raised before us. In Capt. M. Paul
Anthony’s case (supra), the apex court was pleased to quash the
departmental proceedings against the appellant considering the fact that
he had been acquitted by the criminal court in respect of the allegations
levelled against him. The court also came to the conclusion that the
facts and the evidence in the departmental proceedings and the criminal
case were exactly same and since the appellant had been acquitted in the
criminal trial, disciplinary proceedings deserved to be quashed. After
considering various precedents, the apex court was pleased to lay down
certain parameters, which read thus:-
“21. The conclusions which are deducible from various
decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a
criminal case can proceed simultaneously as there is no bar
CWP No.17615 of 2006 4in 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 involves 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, administration
may get rid of him at the earliest.”
In the subsequent judgment R.B. Sharma’s case (supra), the
apex court while considering the question of double jeopardy due to
pendency of criminal trial and departmental proceedings, held as
CWP No.17615 of 2006 5
follows:-
“8. The purpose of departmental enquiry and of
prosecution is 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
CWP No.17615 of 2006 6standard 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
department 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 the aforementioned case, the apex court was pleased to
set aside the High Court order staying the departmental proceedings and
had remitted the case back to the High Court as no details had been
indicated to justify the conclusion that the entire matter in the
departmental proceedings and the criminal trial was substantially the
same.
In Sarvesh Berry’s case (supra) the same question again
cropped up before the apex court and it was pleased to hold that the
High Court was not justified in directing stay of departmental
proceedings pending conclusion of criminal charge. It was further held
that as noted in Capt. M. Paul Anthony’s case (supra),where there was
delay in the disposal of a criminal case, the departmental proceedings
could proceed so that conclusion could be arrived at an early date.
Ultimately, if the employee was found not guilty, his honour may be
vindicated and in case he is found guilty, the employer may get rid off
him at the earliest. In the said case, the Central Bureau of Investigation
had raided the house of the respondent and found that he was in
possession of assets disproportionate to his known sources of income.
CWP No.17615 of 2006 7
A criminal case was thus registered against him and charge-sheet was
presented before the competent court. In the mean time, departmental
proceedings were initiated against the employee. The court was, thus,
pleased to hold as under:-
“10. There can be no straight jacket 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 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.”
A perusal of the aforementioned judgments shows that no
straight jacket formula can be laid down in such cases where
departmental proceedings and criminal trial proceed simultaneously and
no inflexible rule can be laid down for cases in which departmental
proceedings may or may not be stayed pending trial in a criminal case
against a delinquent officer. It appears that each case has to be
considered in the backdrop of its unique facts and circumstances. The
conclusion is inescapable that there is no bar to the departmental
proceedings and the criminal trial to go on parallel to each other.
In the instant case the petitioner, who is member of a disciplined force,
took illegal gratification of Rs.2500/- for releasing a moped ceased
by the police. A complaint in this regard was made by one
Jaswinder Singh and on that basis a case under Sections 7 and 13
of the Prevention of Corruption Act was registered against him at Police
CWP No.17615 of 2006 8
Station Division No.7, Jalandhar. The petitioner was charge-sheeted by
the court of Additional Sessions Judge, Jalandhar on 3rd January, 2006.
In the meanwhile, departmental proceedings were also initiated and a
charge-sheet dated 27th June, 2005 was also served upon the petitioner.
This court was pleased to stay the departmental proceedings on 9th
November, 2006.
From the facts and circumstances of the case in hand, a
conclusion cannot be drawn that complicated questions of law and fact
are involved in the criminal trial. However, it may take its own time to
conclude. For this much period the employer would have no option but
to keep the departmental proceedings in abeyance, despite there being
serious charges of corruption against the employee. Already stay has
continued for almost two years during which period the departmental
proceedings have remained at a standstill. The departmental
proceedings, therefore, cannot be allowed to hang fire endlessly.
We are, thus, of the considered view that the petitioner who
is member of a disciplined force and is charged with serious
misconduct, is not entitled to the relief claimed for. The departmental
proceedings cannot be allowed to be kept in abeyance indefinitely till
the conclusion of the criminal trial. In fact, stay of departmental
proceedings indefinitely would only lead to protracting the same
without any basis. It is, thus, not possible for us to allow the plea of the
petitioner to stay the departmental proceedings till conclusion of the
criminal trial.
CWP No.17615 of 2006 9
We, thus, find no merit in the writ petition. The same is
hereby dismissed.
(RAJAN GUPTA)
JUDGE
(ASHUTOSH MOHUNTA)
JUDGE
October 15, 2008
‘rajpal’