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2011 (1) GCD 849 (Guj)
Hon’ble Smt. Justice Abhilasha Kumari
P.V. Sharma
Versus
State of Gujarat Anr.
Special Civil Application No. 15960 of 2010—Decided on 16/12/2010
Service and Employment — Criminal Proceedings and Departmental Inquiry — Simultaneously — Relating to same incident — Maintainability — Scope of — Finding as to — Petitioner having found under influence of alcohol a case under Sections 66(1)(B) and 85(1)(3) of Bombay Prohibition Act, 1949 was registered and after charge-sheet filed in the case criminal proceedings are pending against him — He was sending as a Subedar Company Commander in Border Wing Home Guard, therefore, he was also put under suspension and Departmental inquiry was initiated — Both the proceedings one for having committed the offence under the Act of 1949 and other of proceeding under Departmental inquiry are of different nature with difficult scope and object, therefore, contention of petitioner that in view criminal case pending in the Court Departmental inquiry be dropped can not accepted — The petitioner has not been able to successfully show how prejudice would be caused to him if both proceeding go on simultaneously — Court as a result refused to interfere.
Held :
The initiation of departmental proceedings flows from the alleged misconduct committed by the petitioner, who is a member of an armed and disciplined force, whereas the criminal case has arisen from alleged commission of offences under the Bombay Prohibition Act. The nature of both proceedings is different. In the departmental inquiry, the action of the petitioner qua his duties and the required norms and standards of discipline to be maintained by him would be inquired into, but in the criminal case, the Court would decide whether the petitioner is guilty of criminal offences or not. The criminal case would require a much higher standard of proof, that is, proof beyond any reasonable doubt, whereas in departmental proceedings the standard of proof would be based upon a preponderance of probabilities. At this stage, it cannot be said with any certainty whether the same set of witnesses will be summoned for the criminal trial, and for the departmental proceedings. However, the fact remains that the departmental proceedings have already been initiated, whereas criminal proceedings may take a long time to conclude. The purpose of a departmental inquiry is to maintain discipline whereas in criminal proceedings, the alleged offender, if found guilty after due trial, would be inflicted with appropriate punishment, as prescribed by law. [Para 14]
Law Laid Down :
Unless petitioner shows how prejudice would be caused when if criminal proceedings and department inquiry continuous simultaneously against him, no interference is required.
Smt. Abhilasha Kumari, J.—Rule. Mr. Anand L. Sharma, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondents. On the facts and in the circumstances of the case, and with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided, today.
2. This petition has been preferred under Article 226 of the Constitution of India, with a prayer to restrain the respondents from proceeding with the Departmental Inquiry initiated against the petitioner, as a criminal case has also been filed against him for the same incident that has given rise to the departmental inquiry.
3. Briefly stated, the facts of the case are that, the petitioner is serving as a Subedar Company Commander in the Border Wing Home Guards, in the office of the Battalion Commander. At present, the petitioner has been placed under suspension, with effect from 15.12.2008, in connection with a case involving prohibition offences under Section 66(1)(B) and Section 85(1)(3) of the Bombay Prohibition Act, 1949. An F.I.R. dated 23.9.2008 has been registered against the petitioner at City Police Station, Vadodara. The allegation against the petitioner is that, he was found under the influence of alcohol near Hathikhana area, in Vadodara city. A charge-sheet in connection with the aforesaid F.I.R. came to be filed before the competent Court on 18.11.2008 and a criminal case against the petitioner is pending. It is stated that the actual hearing of the case has not yet begun. In connection with the same incident, a charge-sheet dated 8.6.2010, has been issued to the petitioner by respondent No. 1, for initiating a departmental inquiry on the allegation that on 23.9.2008, at 14:20 hours, the petitioner was found in a drunken condition in Hathikhana area, of Vadodara city. Respondent No. 1 has appointed the Special Officer for Departmental Inquiries (Respondent No. 2) as the Inquiry Officer, by memorandum dated 4.11.2010. Respondent No. 2 has kept the departmental inquiry for examination of witnesses, on 22.12.2010, as per Note of proceedings dated 7.12.2010.
4. The case of the petitioner is that he is being prosecuted in a Court of law and is also being proceeded against in departmental inquiry proceedings, in respect of the same offences, based on the same set of facts. In this background, the petitioner has approached this Court by filing the present petition.
5. Mr. A. S. Supehia, learned Counsel for the petitioner has submitted that the action of the respondents in holding a departmental inquiry when a criminal case has been simultaneously filed against the petitioner, is unreasonable and arbitrary, as the departmental inquiry and criminal prosecution are based on the same set of facts, and are arising from the same incident. That, though the hearing of the criminal case has not yet started so far, the departmental inquiry is going to start on 22.12.2010, and it would be in the interest of justice if the petitioner is protected from facing two proceedings simultaneously.
6. It is further submitted by the learned Counsel for the petitioner, that as the witnesses in both proceedings would be the same, the defence of the petitioner would be disclosed in the departmental proceedings, resulting in prejudice being caused to him, therefore, the prayers made in the petition may be granted.
7. In support of the above submissions, reliance has been placed upon a judgment of the Supreme Court in Indian Overseas Bank, Anna Salai & Anr. vs. P. Ganeshan & Ors., 2007 AIR SCW 7553.
8. Per contra, Mr. Anand L. Sharma, learned Assistant Government Pleader has submitted that it is settled law that departmental proceedings and criminal proceedings can go on side-by-side and in the present case, there is nothing on the record to suggest that the petitioner will be prejudiced if both proceedings are carried on simultaneously, therefore, the prayers made in the petition may not be granted.
9. I have heard lear
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