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Babu Singh Chauhan vs The State Of Madhya Pradesh on 12 July, 2021

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THE HIGH COURT OF MADHYA PRADESH
W.P. No.10421/2021

(Babu Singh Chauhan Versus The State of M.P. Others)

Gwalior, dated 12.07.2021
Mr. Dharmendra Singh Raghuwashi, learned

counsel for the petitioner.

Mr. Deepak Khot, learned Government Advocate

for the State.

This petition under Article 226 of the

Constitution of India has been filed seeking the

following relief:

“(i) That, the impugned charge-sheet dated
12.04.2021

(Annexure P/1) be quashed or be directed
to kept in abeyance till finalization of the criminal case
of Crime No.397/2018 and 98/2019 of Police Station
Kampoo, District-Gwalior (M.P.).

(ii) That, other relief which is just and proper in
the facts and circumstances of the case may also be
granted.”

It is submitted by the counsel for the petitioner

that the petitioner is working on the post of Sub-

Inspector (SAF) and at present he is under suspension

and attached with Police Training School Tighra,

District-Gwalior (M.P.). Anoffence under Sections 363

and 376 of the Indian Penal Code was registered

against the nephew of the petitioner. It is alleged that

the petitioner threatened the prosecution witnesses in

the said criminal case and accordingly a criminal case
under
Sections 195(a) and 506/34 of the Indian Penal

Code has been registered. Since the petitioner was

arrested and therefore, he was placed under suspension.

The Police after completing the investigation has filed

the charge-sheet. It is submitted that as per the

impugned charge-sheet, the Departmental Enquiry has

been initiated against the petitioner on the allegation

that from 14.12.2018 to 05.02.2019, he had threatened

and misbehaved with the family members of the

prosecutrix on whose complaint Crime No.397/2018

was registered and they were threatened to withdraw

the complaint which is in violation of Para 64(11) of

Police Regulations and Rule 3(1)(3) of the Madhya

Pradesh Civil Services (Conduct) Rules, 1965.

Another charge which has been leveled is that by

assisting his nephew Deepu @ Deepak Chouhan, who is

an accused in Crime No.397/2018, the petitioner has

misused his office and hence, violated Para 64 (2) of

the Police Regulations.

It is submitted by the counsel for the petitioner

that since the petitioner is facing trial on the

allegations that he had threatened the prosecution

witnesses to withdraw their complaint against his
nephew Deepu @ Deepak Chouhan, therefore, the

criminal case pending against the petitioner is

identically same to the charges which have been

leveled against him in the Departmental Enquiry and

thus, the further proceedings of the Departmental

Enquiry may be kept in abeyance till the criminal trial

is finally disposed of. It is further submitted that in

case if the petitioner is compelled to face the

Departmental Enquiry then, it may prejudice his

defence in the criminal trial.

Per contra, the petition is vehemently opposed by

the counsel for the State. It is submitted that so far as

the degree of proof in criminal case is concerned, it is

quite different from the degree of proof which is

required in a Departmental Enquiry. It is submitted that

the Departmental Enquiry is decided on the basis of

preponderance of probabilities whereas the criminal

case is to be proved beyond reasonable doubt. Further,

it is submitted that it is incorrect to say that the

charges leveled against the petitioner are identical to

the criminal trial. It is submitted that in the

Departmental Enquiry, the petitioner has been charge-

sheeted on the allegations of violation of Police
Regulations and the Madhya Pradesh Civil Services

(Conduct) Rules, 1965.

Heard the learned counsel for the parties.

Before considering the submissions made by the

counsel for the parties, this Court think it apposite to

consider the law governing the field.

The Supreme Court in the case of Shashi

Bhushan Prasad v. CISF, reported in (2019) 7 SCC

797 has held as under :

17. 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
A.P. SRTC v. Mohd. Yousuf Miya. The
relevant paragraph is as under: (SCC pp. 704-05, para

8)
“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 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 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. 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 304-A and 338 IPC. Under these
circumstances, the High Court was not right in
staying the proceedings.”

(emphasis supplied)

18. The exposition has been further affirmed by a
three-Judge Bench of this Court in
Ajit Kumar Nag v.
Indian Oil Corpn. Ltd. This Court held as under: (SCC
p. 776, para 11)
“11. 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 doubt”, he cannot
be convicted by a court of law. In a departmental
enquiry, on the other hand, penalty can be
imposed on the delinquent officer on a finding
recorded on the basis of “preponderance of
probability”. 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.”

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
judgment1 in detail and needs no interference by this
Court.

20. The judgment in M. Paul Anthony case on which
the learned counsel for the appellant has placed
reliance was a case where a question arose for
consideration as to whether the departmental
proceedings and proceedings in a criminal case on the
basis of same sets of facts and evidence can be
continued simultaneously and this Court answered in
para 22 as under: (SCC p. 691)
“22. 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 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 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, the administration may
get rid of him at the earliest.”

The Supreme Court in the case of Depot

Manager, A.P. SRTC v. Mohd. Yousuf Miya, reported

in (1997) 2 SCC 699 has held as under :

8. We are in respectful agreement with the above view.

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 (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 304-A and
338, IPC. Under these circumstances, the High Court
was not right in staying the proceedings.

The Supreme Court in the case of Kusheshwar

Dubey v. Bharat Coking Coal Ltd., (1988) 4 SCC 319

has held as under :

6. In the Delhi Cloth General Mills case it was
pointed out by this Court: (SCR p. 230)
“It is true that very often employers stay enquiries
pending the decision of the criminal trial courts
and that is fair; but we cannot say that principles
of natural justice require that an employer must
wait for the decision at least of the criminal trial
court before taking action against an employee. In
Bimal Kanta Mukherjee v. Newsman’s Printing
Works this was the view taken by the Labour
Appellate Tribunal. We may, however, add that if
the case is of a grave nature or involves questions
of fact or law, which are not simple, it would be
advisable for the employer to await the decision
of the trial court, so that the defence of the
employee in the criminal case may not be
prejudiced.”

In Tata Oil Mills case Gajendragadkar, C.J.,
spoke for a three-Judge Bench thus: (SCR p. 562)
“There is yet another point which remains to be
considered. The Industrial Tribunal appears to
have taken the view that since criminal
proceedings had been started against Raghavan,
the domestic enquiry should have been stayed
pending the final disposal of the said criminal
proceedings. As this Court has held in
Delhi Cloth
and General Mills Ltd. v. Kushal Bhan it is
desirable that if the incident giving rise to a
charge framed against a workman in a domestic
enquiry is being tried in a criminal court, the
employer, should stay the domestic enquiry
pending the final disposal of the criminal case.”

In Jang Bahadur case this Court said: (SCR p.

137)
“The issue in the disciplinary proceedings is
whether the employee is guilty of the charges on
which it is proposed to take action against him.
The same issue may arise for decision in a civil or
criminal proceeding pending in a court. But the
pendency of the court proceeding does not bar the
taking of disciplinary action. The power of taking
such action is vested in the disciplinary authority.
The civil or criminal court has no such power. The
initiation and continuation of disciplinary
proceedings in good faith is not calculated to
obstruct or interfere with the course of justice in
the pending court proceeding. The employee is
free to move the court for an order restraining the
continuance of the disciplinary proceedings. If he
obtains a stay order, a wilful violation of the order
would of course amount to contempt of court. In
the absence of a stay order the disciplinary
authority is free to exercise its lawful powers.”

7. The view expressed in the three cases of this
Court seem to support the position that while
there could be no legal bar for simultaneous
proceedings being taken, yet, there may be cases
where it would be appropriate to defer
disciplinary proceedings awaiting disposal of the
criminal case. In the latter class of cases it would
be open to the delinquent employee to seek such
an order of stay or injunction from the court.
Whether in the facts and circumstances of a
particular case there should or should not be such
simultaneity of the proceedings would then
receive judicial consideration and the court will
decide in the given circumstances of a particular
case as to whether the disciplinary proceedings
should be interdicted, pending criminal trial. As
we have already stated that it is neither possible
nor advisable to evolve a hard and fast, strait-
jacket formula valid for all cases and of general
application without regard to the particularities of
the individual situation. For the disposal of the
present case, we do not think it necessary to say
anything more, particularly when we do not
intend to lay down any general guideline.

The Supreme Court in the case of Avinash

Sadashiv Bhosale v. Union of India, reported in

(2012) 13 SCC 142 has held as under :

54. This Court recently reiterated the legal principle
that departmental proceedings can be conducted
simultaneously to the criminal trial in
Karnataka SRTC
v. M.G. Vittal Rao. In this case, making reference to
almost all the previous precedents, this Court has
reiterated the legal position as follows:
54.1. There is no legal bar for both proceedings to go
on simultaneously.

54.2. The only valid ground for claiming that the
disciplinary proceedings may be stayed 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 and law.

54.3. Such defence ought not to be permitted to
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.

54.4. Departmental proceedings can go on
simultaneously 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.
54.5. In our opinion, the principles culled out by this
Court would be a complete answer to all the
submissions made by Mr Jain.

55. In view of the aforesaid legal principles enunciated
and reiterated by this Court, we cannot accept that
because the appellant had been prosecuted, the
departmental proceedings could not have been
continued simultaneously. As pointed out by Mr
Dwivedi, the charges against the appellant in the
criminal trial related to the commission of criminal
offences under
Sections 120-B, 420, 467, 468, 471 and
201 of the Penal Code. The proof of criminal charges
depended upon prosecution producing proof beyond
reasonable doubt relating to the culpability of the
appellant along with other persons. In the departmental
proceedings, the basic charge was that the appellant
whilst posted as a Branch Manager of Washi Turbhe
Branch, failed to discharge his duties with utmost
integrity, honesty, devotion and diligence to ensure and
protect the interest of the Bank and acted in a manner
unbecoming of a bank officer. The aforesaid charge
clearly related to the manner in which the appellant
performed the duties as the Manager of the branch of
the Bank. It had nothing to do with any criminal
liability attaching to such conduct.

If the facts of the present case are considered

then, it is clear that in criminal trial, the petitioner is

being tried for threatening the prosecution witnesses to

withdraw their complaint against his nephew Deepu @

Deepak Chouhan whereas, the charges leveled in the

charge-sheet are for violation of Police Regulations

and of the Madhya Pradesh Civil Services (Conduct)

Rules, 1965. It is a trite law that in a criminal case, the

prosecution has to prove the allegations beyond

reasonable doubt whereas, in a Departmental Enquiry

the strict degree of proof is not applicable and it can be

decided on preponderance of probabilities. Further, no

complex questions of fact and law are involved,

requiring the stay of departmental proceedings. The

petitioner is working in an uniformed discipline force,

and if he is pressurizing the prosecutrix to withdraw

her complaint against the nephew of the petitioner,
then it is a serious misconduct on the part of the

petitioner, because he should know the duties of an

uniformed force. Thus, prima facie it is a clear case of

misuse of official position.

Under these circumstances, this Court is of the

considered opinion that no case is made out for

warranting interference in this writ petition. The

petition fails and is hereby dismissed.

(G.S. AHLUWALIA)
JUDGE
julie

JULIE
Digitally signed by JULIE SINGH
DN: cIN, oHIGH COURT OF
MADHYA PRADESH, ouHIGH COURT
OF MADHYA PRADESH,
postalCode482007, stMadhya

SINGH
Pradesh,
2.5.4.208f963ebaa02fb4a3345e3727
93059209283d40f4022dc2e30a9072c
fd258b4fc, cnJULIE SINGH
Date: 2021.07.16 12:34:02 +05’30’

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