The similarity of allegations in a criminal trial and departmental proceedings does not automatically stay the departmental proceedings. The delinquent employee must prove prejudice in disclosing his defense in the departmental proceedings.

JUDGMENT

Anil Kshetarpal, J. - Through this writ petition under Article 226/227 of the Constitution of India, the petitioner prays for issuance of a writ in the nature of mandamus directing the respondent-department not to proceed with the disciplinary proceedings against the petitioner as on similar allegations FIR No.347 dated 16.07.2020 under Section 221 IPC and Section 7 of the Prevention of Corruption Act, 1988 has been registered.

2. Learned counsel for the petitioner contends that the parallel proceedings i.e. disciplinary proceedings as well as criminal prosecution on the same set of allegations cannot continue. He relies upon a judgment passed by the Hon'ble Supreme court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., (1999) 3 SCC 679.

3. This court has heard learned counsel for the petitioner and with his able assistance perused the paper book.

4. It may be noted here that FIR No.347 was registered against the petitioner and another police officials with the allegations that the petitioner and Pawan Kumar, ASI on receiving bribe of Rs.3,00,000/-, have allowed notorious criminals to go, although, they were brought to the Police Station. In the order dated 04.12.2020, passed by the learned Additional Sessions Judge, while allowing bail to the petitioner, has recorded that an amount of Rs.1,05,000/- was recovered on the disclosure of Pawan Kumar, whereas Rs.1,45,000/- was recovered on the disclosure statement of the petitioner

5. At this stage, it would be relevant to note that Hon'ble Supreme Court in Capt. M. Paul Anthony's case (Supra) has categorically held that merely because criminal trial as well as departmental proceedings are based on same allegations would not sufficient to stay the departmental proceedings during the pendency of criminal trial. The court held that the departmental proceedings can be stayed only in exceptional cases. The stay of departmental proceedings can only be ordered, if the delinquent employee proves that he shall be required to disclose his defence in the departmental proceedings in violation of Article 20 of the Constitution of India. Paragraph 13 and 22 are extracted as under:-

"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental procedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.

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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 c