TaxTMI 
TaxTMI 
2021 (5) TMI 1033
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....the State of Haryana (common called as HCS (Judicial) Examination). The petitioner, who was posted as Registered (Recruitment) on the establishment of respondent No. 1 - High Court, was assigned the duty of assisting the recruitment committee in conduct of the preliminary examination. After the preliminary examination was conducted on 16.07.2017, a complaint was received by respondent No. 1 - High Court on 20.07.2017 alleging therein that the question paper of preliminary examination held on 16.07.2017 was leaked and prayer was made for cancellation of the examination. The matter was taken up on judicial side as a petition under Section 482 of Cr.P.C. was filed vide CRM-M- No. 28947 of 2017, titled as "Suman Versus State of Haryana and others". In the said petition, it was directed that an FIR be registered against the present petitioner and others and further a Special Investigation Team (SIT) was ordered to be constituted to conduct investigation pertaining to the alleged leakage of question paper of HCS (Judicial) Preliminary Examination. Consequently, FIR No. 194 dated 19.09.2017 (P-1) was registered. After registration of FIR, investigation was conducted by the SIT and a....
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....iry be kept in abeyance. Reliance in this regard has been placed upon the judgment passed by Hon'ble Supreme Court in Stanzen Toyotetsu India Private Limited Versus Girish V. and others (2014) 3 Supreme Court Cases 636 and State Bank of India and others Versus Neelam Nag and another (2016) 9 Supreme Court Cases 491. We have heard learned counsel for the petitioner at length and have scrutinized the paper-book. From the pleadings of the writ petition as well as arguments raised before us, we see that the sole question that arises before us to decide is as to whether the departmental proceedings can be permitted to continue in the wake of charges have been framed by the trial court or not? DISCUSSION ON CASE LAW Some of the leading decisions on the issue are required to be referred so as to answer the issue raised before us. The first judgment on this issue is Capt. M. Paul Anthony (supra), whereby Hon'ble Supreme Court, after considering the entire law involved had arrived to the following conclusions: "The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a crimin....
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....ration Ltd. Versus Sarvesh Berry", whereby while allowing the appeal filed by employer, it was held on facts that departmental proceedings could indeed continue as Criminal Court is concerned with the culpability of an offence punishable under various codes, whereas departmental proceeding is only pertaining to misconduct or breach of duty as defined under the relevant service rule and thus, applicability of Evidence Act stands excluded. Relevant paragraph No. 9 of the said judgment is reproduced as under:- "9. 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 i....
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....the charge-sheet and stay of the disciplinary proceedings during the pendency of the criminal trial in FIR No. 58 dated 22.09.2006 under Sections 7/13 of Prevention of Corruption Act registered at Police Station State Vigilance Bureau, Ambala City. The petitioner therein was shown to have been caught red handed while accepting the bribe. The Division Bench while referring the judgment of Capt. M. Paul Anthony's case (supra), held that disciplinary proceedings should not be stayed as a matter of course and the writ petition was dismissed. In Stanzen Tooyotetsu India P. Ltd. Versus Girish V. and others (2015) 6 RCR (Civil) 723, same proposition as held in Capt. M. Paul Anthony's case (supra) was re-iterated with a slight addition that department proceedings were stayed till the common witnesses of criminal and departmental proceedings were examined in criminal trial. Thus, to our mind, the crux of all the decisions referred herein above leads to one conclusion that grant or decline of stay on departmental proceedings would always depend on the facts of the case, as there can be no straight jacket formula. DISCUSSION ON FACTS: Coming back to the facts of the presen....
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....PC r/w 120-B of IPC and within my cognizance. Thirdly that on the above said period and place, you accused Balwinder Kumar Sharma being Registrar (Recruitment) as public servant was entrusted with the question paper of Haryana Civil Services, Judicial (Preliminary) to be held on 16/07/2017 and you leaked the question paper in pursuance of the aforesaid criminal conspiracy induced the complainant to part with a sum of Rs. 1.5 Crores to provide her leaked question paper well in advance, as well as cheated Hon'ble Punjab and Haryana High Court and the other aspirants of the said examination and thereby you committed the offence punishable U/s 420 of IPC and you all the other above named accused persons committed an offence punishable U/s 420 of IPC r/w 120-B of IPC and within my cognizance. Fourthly that on the above said period and place, you accused Sunita influenced, by corrupt and illegal means to accused Balwinder Kumar Sharma being Registrar (Recruitment) as public servant who was entrusted with the question paper of Haryana Civil Services, Judicial (Preliminary) to be held on 16/07/2017 and leaked the question paper in pursuance of the aforesaid criminal c....
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....rding the leakage of paper has been committed and incriminating material, documents connected with the said offence were removed/destroyed from the rooms of Sunita and Ayushi, and you accused Sushila broken your mobile phone and you accused Sunil @ Titu destroyed the record relating to accommodation at Radha Krishan Temple, Sector 18, Chandigarh in order to disappear the evidence against you and other co-accused being part of conspiracy with the intention to screen the offender from legal punishment, as mentioned above, and thereby, you accused Sunil Titu and accused Kuldip Singh (step brother of accused Sunita), Sunita, Sushila and Ayushi committed an offence punishable u/s 201 of IPC whereas other accused persons committed an offence punishable U/s 201 of IPC r/w 120-B of IPC. And I hereby direct that you be tried by this Court for the aforesaid offences. " (Emphasis Supplied) Similarly, Articles of Charge appended with the memorandum dated 15.09.2018 is reproduced as under:- " You, Dr. Balwinder Kumar Sharma, Additional District & Sessions Judge, Under Suspension with Headquarter at Rupnagar are hereby charged as under:- 1. That while you were po....
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....the Prevention of Corruption Act, 1988 and Sections 409, 420 and 120-B of the Indian Penal Code, 1860 was registered against you at Police Station Sector-03 Chandigarh. During investigation of the case, it came to notice that you had developed intimate relations with Ms. Sunita amounting to immoral conduct thereby violated the Government Employees (Conduct) Rules, 1966, Punjab. Thus, you not only failed to maintain absolute integrity but also committed criminal act, maligned the image of judiciary in the eyes of public and acted in a manner unbecoming of a judicial officer. " A perusal of the charges framed in criminal trial and Articles of Charge issued to petitioner in departmental enquiry would show that the petitioner has been implicated in both the criminal as well as departmental proceedings on similar set of facts. However, in our opinion this is bound to happen. When an employee is roped in a criminal offence, the disciplinary authority by taking cognizance of such initiation of criminal offence, proceeds with the departmental proceedings to take appropriate action as per the statutory rules governing the post an employee is holding. In case the offence is of serious nat....
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.... was a topper in the HCS (Judicial) Preliminary Examination. This prima facie reflects towards a conduct not behoving the post that petitioner - Dr. Balwinder Sharma was holding. We have highlighted only one of the aspect that is glaring at our faces to only satisfy ourselves regarding the decision taken vide impugned order dated 06.11.2019 (P-9) to continue with departmental proceedings. We would like to refrain ourselves to further delve into the issue and make more comments, lest it would prejudice the case of petitioner either during criminal trial or during the disciplinary proceedings. Further, it is to be noted that charges under Sections 409, 420, 120-B and 201 IPC have been framed on the basis of documentary and other evidence collected by the SIT during the course of investigation. How the paper was leaked and the manner it was further supplied for prosecution / Department to prove, which otherwise is within the special knowledge of the accused. Therefore, there is no question of any disclosure of defence in the departmental proceedings. As far as the various provisions of Prevention of Corruption Act, 1988 are concerned, most of the provisions are to be proved by t....