Madhya Pradesh High Court
Jitendra Yadav vs The State Of Madhya Pradesh on 28 July, 2025
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WP No.39004 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 28th OF JULY, 2025
WRIT PETITION No. 39004 of 2024
JITENDRA YADAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
.........................................................................................................
Appearance:
Shri Sanjay Kumar Singh - Advocate for the petitioner.
Shri Prabhanshu Shukla -Govt. Advocate for the respondents / State.
..........................................................................................................
ORDER
By way of this petition, challenge is made to the charge-sheet issued
to the petitioner vide Annexure P-4 on the ground that for the same set of
allegations, the petitioner has been subjected to FIR under Sections 7 and
13 of Prevention of Corruption Act and therefore, since the charge-sheet
has been issued to him by the Police Department and the evidence of
common witnesses is going to take place shortly, therefore the charge-sheet
be quashed or at least the deposition of common witnesses be postponed till
the said witnesses are examined in criminal trial because if the petitioner is
asked to cross-examine the common witnesses then his defence in criminal
trial would be prejudiced.
2. It is contended by learned senior counsel for the petitioner that the
impugned charge sheet is bad in law because on the same set of allegations,
the petitioner is also facing a Criminal Prosecution and therefore, the
petitioner cannot be vexed twice for the same cause because there is
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commonality of charges between the Criminal Case and in the
Departmental Enquiry and if the petitioner is asked to participate in
the Departmental Enquiry, he would be required to disclose his defence in
the Departmental Enquiry before the witnesses are examined in the
Criminal Case.
3. It is vehemently argued that in the Criminal Case the accused has a
right to remain silent whereas in Departmental Enquiry there is no such
right and presumption may be drawn against him if he remains silent and
does not put forth his defence. It is argued that since he would be required
to cross examine the Departmental witnesses in the Departmental enquiry,
his defence to be taken in Criminal trial would be disclosed and the
witnesses in the Criminal trial may cover up the defence of the petitioner in
their statements in Criminal case and this would be to grave prejudice of
the petitioner because upon disclosure of defence in the Criminal case, he
stands to be having greater chances of being convicted in the Criminal case.
Then not only that would have a bearing on his service career, but it shall
also affect the personal liberty of the petitioner. Therefore, it is argued that
the charge sheet issued during pendency of the Criminal case is bad in law.
4. It is further argued that in fact the charge sheet could not have been
issued because there is commonality of charges in the Criminal case and
the Departmental proceedings and the Department ought not to have issued
the charge sheet or because if he is ultimately acquitted in Criminal case,
then naturally it would have bearing in the Departmental Proceedings and
the petitioner cannot be made to face two proceedings for the same cause.
5. Per contra, it is contended by learned counsel for the State that the
charges are not similar and therefore, no relief can be granted to the
petitioner either to quash the charge sheet or to seek postponement of cross
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examination of common witnesses in Departmental Enquiry till such time
those witnesses are cross-examined in the criminal trial.
6. Heard.
7. In the present case, first this Court proceeds to examine whether the
charges are common or not so that the further grounds of the petitioner may
be considered. The basic facts creating dispute in the present case are that
the petitioner was Investigating Officer of Crime No.565/2024 registered at
Police Station Kotwali, District Chhindwara against some private persons.
8. In the FIR registered against the petitioner in the criminal case the
allegation against the petitioner is demand of bribe from the accused person
Durgesh Soni during investigation of the said crime. In the FIR registered
against the petitioner under Prevention of Corruption Act, the allegation
against the petitioner that the petitioner first placed that accused person in
illegal custody for three days and then demanded an amount of Rs.1.00
Lakh from the accused of criminal case out of which Rs.25,000/- was taken
by him in cash from brother of accused and while accepting the rest amount
of Rs.50,000/- he was caught trapped red handed.
9. In the departmental charge-sheet brought on record as Annexure P-2
the allegations against the petitioner are that the petitioner was
investigating officer in the crime No.565/2024 under Section 115, 12-0B of
IPC and benefit of Section 35(1) BNSS had been given to the accused
person as offence was punishable with imprisonment of less than 7 years.
The petitioner had made a demand of Rs.1.00 Lakh for giving benefit of
Section 35(1) of BNSS to the accused persons and accepted an amount of
Rs. 25,000/- from one Chanchlesh Soni, who was brother of accused
person. For the rest Rs.75,000/- he accepted an amount of Rs.50,000/- at a
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place beyond his police station area without recording any entry and exit
from police station area in the daily diary.
10. In the FIR the allegation against the petitioner is though similar in
nature but the exact allegation is that the petitioner had accepted
Rs.25,000/- from the brother of complainant and then he demanded further
bribe of Rs.75,000/- the demand of which was recorded in tape recorder
and then he made complaint to Lokayukta Police and thereafter the
petitioner was trapped red handed while accepting bribe.
11. It is evident from perusal of the FIR in the criminal case and the
departmental charge-sheet that in the FIR of criminal case the allegation is
of bribe to help the accused person. The criminal case is not concerned with
what actual help the petitioner did to the accused person and it is restricted
to demand of bribe from the accused person in which the petitioner was the
investigating officer.
12. The act of petitioner in actually helping and actually releasing or not
releasing the accused person of criminal case by giving benefit of Section
35(1) of BNSS is not within the scope of criminal case and the scope of
criminal case is only on the question of demand of bribe.
13. On the other hand, the departmental charge-sheet has been issued by
the employer alleging that the petitioner did not carry out his duties as
investigating officer and he indulged in dubious practices in his duties and
investigating officer of the crime registered at the police station.
14. Therefore, in the opinion of this Court, the police in the FIR and the
department as employer have kept themselves within their own spheres by
the department proposing to enquire into the petitioner for conduct of not
properly investigating the case and demanding illegal gratification from the
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accused persons and not discharging his duties as investigating officer. On
the other hand criminal FIR is restricted to the petitioner demanding bribe
from the accused person in relation to which he was trapped red handed
while accepting the bribe.
15. Therefore, in the opinion of this Court, the Petitioner has failed to
establish that what prejudice would be caused by cross-examination of
Departmental witnesses or any other witnesses to be produced by
Department in Departmental Enquiry before those witnesses are examined
in the criminal trial.
16. In the Departmental enquiry, the petitioner is only required to
explain that his activities as Police officer and Investigating Officer were in
accordance with law, and nothing else. He is not expected to explain or
defend the allegation of demand and acceptance of bribe. The cross
examination of witnesses to be produced by Department would therefore in
no manner prejudice the defence of the petitioner in the criminal trial which
may be held at some uncertain time in future.
17. The learned counsel for the petitioner has heavily relied on the
judgment of Hon’ble Supreme Court in the case of Captain M. Paul
Antony Vs. Bharat Gold Mines, 1999 (3) SCC 679 so also on the case of
G.M. Tank Vs. State of Gujarat and Anr. reported in (2006) 5 SCC 446.
Though this Court has already come to conclusion that effectively the
commonality of charges and witnesses in the departmental enquiry and
criminal trial are not such that it warrants postponement of departmental
enquiry till the witnesses are examined in the criminal trial, still this Court
proceeds to deal with the legal issue raised by learned counsel for the
petitioner.
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18. Even the judgment in the case of G.M. Tank (supra) has been
subsequently considered by the Hon’ble Supreme Court in various cases.
Later three judges Bench of Supreme Court in the case of Shashi Bhushan
Prasad Vs. Inspector General Central Industrial Security Force and
others (2019) 7 SCC 797 had the occasion to consider the judgment of
G.M. Tank (supra) and after considering the law on the subject has held as
under:-
“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
[Shashi Bhusan Prasad v. CISF, 2008 SCC OnLine Ori 544 :
2008 Lab IC 3733] in detail and needs no interference by this
Court.
21. It may not be of assistance to the appellant in the instant
case for the reason that the charge levelled against the
appellant in the criminal case and departmental proceedings of
which detailed reference has been made were on different sets
of facts and evidence having no nexus/co-relationship. The kind
of criminal act/delinquency which he had committed in
discharge of his duties in the course of employment. That apart,
much before the judgment of the criminal case could beSignature Not Verified
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WP No.39004 of 2024pronounced, the departmental enquiry was concluded and after
the enquiry officer had held him guilty, he was punished with
the penalty of dismissal from service.
22. The judgment in G.M. Tank case [G.M. Tank v. State of
Gujarat, (2006) 5 SCC 446 : 2006 SCC (L&S) 1121] on which
the learned counsel for the appellant has placed reliance was a
case where this Court had proceeded on the premise that the
charges in the criminal case and departmental enquiry are
grounded upon the same sets of facts and evidence. This may
not be of any assistance to the appellant as we have observed
that in the instant case the charge in the criminal case and
departmental enquiry were different having no nexus/co-
relationship based on different sets of facts and evidence which
has been independently enquired in the disciplinary
proceedings and in a criminal trial and acquittal in the criminal
proceedings would not absolve the appellant from the liability
under the disciplinary proceedings instituted against him in
which he had been held guilty and in sequel thereto punished
with the penalty of dismissal from service.”
19. The Hon’ble Supreme Court in the case of Karnataka Power
Transaction Corporation Limited Vs. C. Nagaraju and another 2019 (10)
SCC 367 has held in para 11 that benefit can be claimed only if evidence
before the criminal court and the departmental inquiry is exactly the same.
In such circumstances acquittal of the employee by criminal court can be
given weight by the disciplinary authority. It has further been held that
acquittal of employee due to non-availability of any evidence before the
criminal court would not come to rescue of the employee in the matter of
dismissal on the basis of report of enquiry officer before whom there is
ample evidence. The following has been held in para- 11 :
“11. Reliance was placed by the High Court on a judgment of
this Court in G.M. Tank [G.M. Tank v. State of Gujarat, (2006) 5
SCC 446 : 2006 SCC (L&S) 1121] whereby the writ petition
filed by Respondent 1 was allowed. In the said case, the
delinquent officer was charged for an offence punishable under
Section 5(1)(e) read with Section 5(2) of the PC Act, 1988. He
was honourably acquitted by the criminal court as the
prosecution failed to prove the charge. Thereafter, a
departmental inquiry was conducted and he was dismissed fromSignature Not Verified
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WP No.39004 of 2024service. The order of dismissal was upheld [G.M. Tank v. State
of Gujarat, 2003 SCC OnLine Guj 487] by the High Court. In
the appeal filed by the delinquent officer, this Court was of the
opinion that the departmental proceedings and criminal case
were based on identical and similar set of facts. The evidence
before the criminal court and the departmental proceedings
being exactly the same, this Court held that the acquittal of the
employee by a criminal court has to be given due weight by the
disciplinary authority. On the basis that the evidence in both the
criminal trial and departmental inquiry is the same, the order of
dismissal of the appellant therein was set aside. As stated
earlier, the facts of this case are entirely different. The acquittal
of Respondent 1 was due to non-availability of any evidence
before the criminal court. The order of dismissal was on the
basis of a report of the inquiry officer before whom there was
ample evidence against Respondent 1.”
20. It is also settled in law that the scope of inquiry in criminal case and
in departmental enquiry is altogether different. The standard of proof in
criminal case is proof beyond reasonable doubt whereas in departmental
proceeding the standard of proof is preponderance of probability.
21. The Supreme Court in the case of Management of Bharat Heavy
Electricals Limited Vs. M.Mani 2018 (1) SCC 285 has held that employee
can seek automatic reversal of dismissal order upon acquittal in criminal
case only in such cases where the dismissal is founded upon conviction in
criminal case. Where dismissal is not founded upon conviction in criminal
case but is founded upon independent domestic inquiry carried out by the
management/ employer, there cannot be any automatic reinstatement. The
following has been held therein:-
“32. The answer to the aforementioned submission lies in the
law laid down by this Court in Karnataka SRTC [Karnataka
SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442 : (2012) 1 SCC
(L&S) 171] . At the cost of repetition, we may say that in the
case on hand, the dismissal orders had not been passed on
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WP No.39004 of 2024which later stood set aside by the superior court. Had it
been so, then the situation would have been different
because once the conviction order is set aside by the
superior court, the dismissal order which was solely based
on passing of the conviction order also stands set aside.
Such was not the case here.
33. In the case on hand, the appellant employer had
conducted the departmental enquiry in accordance with law
independently of the criminal case wherein the enquiry
officer, on the basis of the appreciation of evidence brought
on record in the enquiry proceedings, came to a conclusion
that a charge of theft against the delinquent employees was
proved. This finding was based on preponderance of
probabilities and could be recorded by the enquiry officer
notwithstanding the order of criminal court acquitting the
respondents.”
22. The Supreme Court in the case of Stanzen Toyotetsu India Private
Limited Vs. Girish V. and others reported in(2014) 3 SCC 636 has held as
under:-
“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.”
(Emphasis supplied)
23 . The Supreme Court in the case of Shashi Bhushan Prasad v. CISF,
reported in (2019) 7 SCC 797 has held as under :
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“17. The scope of departmental enquiry and judicial
proceedings and the effect of acquittal by a criminal court have
been examined by a three-Judge Bench of this Court in A.P.
SRTC v. Mohd. YousufMiya. 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
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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
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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)
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“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.”
24. 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 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 actSignature Not Verified
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WP No.39004 of 2024of 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.
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Under these circumstances, the High Court was not right in
staying the proceedings.”
(Emphasis supplied)
25. The Supreme Court in the case of Kendriya Vidyalaya Sangathan
and others v. T. Srinivas, reported in (2004) 7 SCC 442 has held that while
staying the departmental proceedings, the Court must take into
consideration the seriousness of charges alleged against the employee.
Where the charge is in relation to acceptance of illegal gratification by
employee and desirability of continuing the delinquent officer in service in
spite of such charges against him, the stay of disciplinary proceedings till
the conclusion of criminal trial was unsustainable and accordingly has held
as under:
“10. From the above, it is clear that the advisability,
desirability or propriety, as the case may be, in regard to a
departmental enquiry has to be determined in each case
taking into consideration all facts and circumstances of the
case. This judgment also lays down that the stay of
departmental proceedings cannot be and should not be a
matter of course.
11. In the instant case, from the order of the Tribunal as
also from the impugned order of the High Court, we do not
find that the two forums below have considered the special
facts of this case which persuaded them to stay the
departmental proceedings. On the contrary, a reading of
the two impugned orders indicates that both the Tribunal
and the High Court proceeded as if a departmental
enquiry had to be stayed in every case where a criminal
trial in regard to the same misconduct is pending. Neither
the Tribunal nor the High Court did take into
consideration the seriousness of the charge which pertains
to acceptance of illegal gratification and the desirability of
continuing the respondent in service in spite of such
serious charges levelled against him. This Court in the said
case of State of Rajasthan [(1996) 6 SCC 417 : 1996 SCC
(L&S) 1455] has further observed that the approach and
the objective in the criminal proceedings and the
disciplinary proceedings is altogether distinct and different.
It held that in the disciplinary proceedings the question isSignature Not Verified
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WP No.39004 of 2024whether the respondent is guilty of such conduct as would
merit his removal from service or a lesser punishment, as
the case may be, whereas in the criminal proceedings the
question is whether the offences registered against him are
established and, if established, what sentence should be
imposed upon him. The Court in the above case further
noted that the standard of proof, the mode of enquiry and
the rules governing the enquiry and trial in both the cases
are distinct and different. On that basis, in the case of State
of Rajasthan [(1996) 6 SCC 417 : 1996 SCC (L&S) 1455]
the facts which seem to be almost similar to the facts of this
case, held that the Tribunal fell in error in staying the
disciplinary proceedings.
12. We think the above ratio of law laid down by this Court
applies aptly to the facts of the present case also. It is also
to be noted that in Capt. M. Paul Anthony case [(1999) 3
SCC 679 : 1999 SCC (L&S) 810] this Court has accepted
the principle laid down in Rajasthan case [(1996) 6 SCC
417 : 1996 SCC (L&S) 1455].
13. As stated above, in the case in hand, both the Tribunal
and the High Court proceeded as if a departmental enquiry
and a criminal trial could not proceed simultaneously,
hence, they stayed the departmental enquiry which by itself,
in our opinion, is contrary to the principles laid down in the
above cited cases. 14. We are of the opinion that both the
Tribunal and the High Court proceeded on an erroneous
legal principle without taking into consideration the facts
and circumstances of this case and proceeded as if the stay
of disciplinary proceedings is a must in every case where
there is a criminal trial on the very same charges, in this
background it is not necessary for us to go into the second
question whether at least Charge 3 by itself could have been
permitted to be decided in the departmental enquiry as
contended alternatively by the learned counsel for the
appellant.” (Emphasis supplied)
26. In the case of Union of India and others vs Dalbir Singh reported
in (2021) 11 SCC 321 the Hon’ble Supreme Court has held as under:-
“24. …. held that 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. In criminal law, burden
of proof is on the prosecution and unless the prosecution is ableSignature Not Verified
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WP No.39004 of 2024to 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. It was held as under: 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.
25. ….
8. ……The purpose of departmental inquiry and of prosecution
are two different and distinct aspects. The criminal prosecution
is launched for an offense 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 inquiry is to maintain discipline in the
service and efficiency of public service. It would, therefore, beSignature Not Verified
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WP No.39004 of 2024expedient 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 the criminal cases 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 inquiry and trial of
a criminal case unless the charge in the criminal trial is of
grave nature involving complicated questions of fact and law.
Offense generally implies infringement of public duty, as
distinguished from mere private rights punishable under
criminal law. When the trial for a criminal offense is conducted
it should be in accordance with proof of the offense as per the
evidence defined under the provisions of the Indian Evidence
Act, 1872 [in short the Evidence Act]. The converse is the case of
departmental inquiry. The inquiry 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.
… Under these circumstances, what is required to be seen
is whether the departmental inquiry would seriously prejudice
the delinquent in his defense 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.”
(Emphasis supplied)
27. In the case of SBI Vs. Neelam Nag reported in (2016) 9 SCC 491 it
has been held that the delinquent may not claim postponement of witnesses
in criminal trial in such a manner that it would unnecessarily delay the
departmental proceedings and an equitable balance has to be drawn
between expeditious conclusion of ongoing disciplinary proceedings on
one hand and fair trial to the accused on the other hand.
28. In the case of Hindustan Petroleum Corporation Ltd. Vs. Sarvesh
Berry reported in (2005) 10 SCC 471 it has been categorically held by the
Hon’ble Supreme Court in para-8 thereof that crime is an act of
commission in violation of law or omission of public duty whereas
Signature Not Verified
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WP No.39004 of 2024
departmental enquiry is to maintain discipline in service and efficiency of
service and it not desirable to lay down any guideline or rules in which
departmental proceedings may or may not be stayed pending trial in
criminal case and each case requires to be considered in the backdrop of its
own facts and circumstances.
29. In the present case, this Court has already reached to conclusion on
facts that no grave prejudice is going to be caused to the petitioner by
examining common witnesses even if they are examined in the
departmental enquiry prior to being examined in criminal case. The facts of
trap of the petitioner and the manner in which he has been trapped while
accepting of bribe, his tape recorded conversation and being trapped red
handed by accepting the bribe of notes lased with phenopthelene powder is
not the scope of departmental charge-sheet. These are the questions purely
within the domain of criminal case in which as yet charge-sheet has also
not been filed.
30. The employer is always at liberty to enquire into the conduct of its
officers and the authorities of the police department can always enquire
into conduct of their officers who are entrusted with investigation of
offences which are alleged to have committed by their officers and who
have indulged in dubious practices. Such cases of grave and glaring lapses
and misconducts being alleged against police officers if made to wait till
conclusion of criminal proceedings or examination of witnesses in criminal
proceedings would unnecessarily delay the action which the Department is
within its competence to take, restricted to the misconduct committed by
the investigating officer of a case and misconducting himself during the
course of investigation.
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WP No.39004 of 2024
31. Consequently, this petition deserves to be and is hereby dismissed.
However, it is observed that nothing contained in this order shall prejudice
the petitioner in raising all defences available to him either in departmental
enquiry or in the criminal trial.
(VIVEK JAIN)
nks JUDGE
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