Mahesh Kumar v. State of Haryana and Others

VIKAS BAHL, J.(ORAL)

¶1This is a civil writ petition filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus directing respondents no.4 and 5 not to proceed with the departmental enquiry, which has been initiated in compliance of the order dated nd17.11.2023 (Annexure P-3) passed by Commandant, 2 IRB, Bhondsi, Gurugram and all the subsequent proceedings arising therefrom including notices dated 20.11.2023 (Annexure P-5), 04.12.2023 (Annexure P-6) and

15.12.2023 (Annexure P-7) vide which the petitioner has been summoned to participate in the departmental proceedings, till the conclusion of the trial in FIR no.5 dated 08.02.2022 (Annexure P-1) registered under Section 7-A of the Prevention of Corruption Act, 1988 at Police Station SVB Faridabad.

¶2Brief facts of the present case are that the petitioner was appointed as Constable in the respondent department on 27.10.2004 and Davinder Kumar nd 2024.01.12 15:10 was thereafter posted at A Company, 2 IRB, Police Line Nuh as Assistant CWP-232-2024         2 2024:PHHC:002212 Sub Inspector when FIR no.5 dated 08.02.2022 was registered against the petitioner under Section 7-A of the Prevention of Corruption Act, 1988 at Police Station State Vigilance Bureau, Faridabad, on a complaint made by one Virender to the DSP Vigilance, Faridabad on the allegations that a Whatsapp message had come on his phone from a girl and thereafter he became friendly with the girl and as it was mutually decided, the said complainant Virender and the said girl met at Neelam Chowk and spent time together and went to a hotel with common consent. It is further alleged in the FIR that on 03.02.2022 said Virender received a phone call on his number i.e., 9992882122 from the present petitioner's mobile no.7015497022 and the petitioner told Virender that he had gone to Faridabad NIT Women Police Station for some work from where he has come to know that a girl has given a complaint of a rape case against said Virender and that the petitioner can arrange compromise with the said girl and that thereafter the said girl called Virender on Whatsapp and told him that she would register a case of rape against him and in case he wants to save himself, then he should talk to the present petitioner (Mahesh Kumar) and that thereafter, the petitioner told Virender that the said girl is asking for Rs.10 lacs and he would be able to convince the said girl to pay a lesser amount. On 06.02.2022, the petitioner again called up Virender and told him that he would talk to the girl in front of said Virender and the said complainant (Virender) switched on the voice recording of his phone when the petitioner had called up the girl and the conversation of the petitioner and the girl as well as the said complainant was recorded by the complainant and the amount ultimately was fixed at Rs.3 lacs. On the basis of the said allegations, the FIR was registered. 2024.01.12 15:10 3. In the petition, there is no averment as to whether inspite of a CWP-232-2024         3 2024:PHHC:002212 lapse of 1 year and 11 months, any report under Section 173 Cr.P.C. has been submitted or not, or as to what is the stage of the criminal case but learned counsel for the petitioner has submitted that as per instructions, no challan / report under Section 173 Cr.P.C. has been submitted. On nd17.11.2023, the Commandant 2 IRB, Bhondsi, Gurugram has ordered a regular departmental enquiry against the petitioner. The charge sheet dated

18.12.2023 was issued against the petitioner and the said departmental proceedings are stated to be pending. Learned counsel for the petitioner has submitted that although report under Section 173 Cr.P.C. has not been filed in the criminal case, but there are bound to be common witnesses in the criminal case as well as in the departmental proceedings and has prayed that the common witnesses in the departmental proceedings be not examined till they are examined in the criminal trial as the defence of the petitioner would be disclosed by cross-examining the said witnesses in the departmental proceedings. In support of his arguments, learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in case titled as "Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd.", reported as 1999(3) SCC 679 and also a judgment of the Hon'ble Supreme Court in Civil Appeal no.7935 of 2023 (arising out of SLP (C) no.33423 of 2018 titled as "Ram Lal vs. State of Rajasthan & Ors.".

¶4This Court has heard learned counsel for the parties and has perused the paper-book and finds that the present writ petition is meritless and deserves to be dismissed for the reasons which have been detailed hereinafter.

¶5Before considering the facts of the present case, it would be relevant to refer to the judgment of the Hon'ble Supreme Court in Capt. M. 2024.01.12 15:10 Paul Anthony's case (supra), which has been relied upon by the learned CWP-232-2024         4 2024:PHHC:002212 counsel for the petitioner. In the said judgment and also in various other judgments of the Hon'ble Supreme Court, it has been repeatedly held that one of the necessary ingredients for the Court to consider before staying departmental proceedings, with respect to the issue in hand, is whether the case involves complicated questions of law and facts or not. Paragraph 22 of the judgment in Capt. M. Paul Anthony's case (supra) is reproduced hereinbelow:- "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 CWP-232-2024         5 2024:PHHC:002212

(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, administration may get rid of him at the earliest." A perusal of the above judgment would show that the Hon'ble Supreme Court after considering various judgments had drawn the conclusion which was given in the abovesaid paragraph. It was held that the departmental proceedings and the proceedings in the criminal case can proceed simultaneously as there was no bar in their being conducted simultaneously. It was further held that departmental proceedings and criminal proceedings if based on identical and similar set of facts and also in case the charge in the criminal case against the delinquent employee is of grave nature which involves complicated questions of law and fact, then in such circumstances, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. Thus, all the ingredients i.e., averments/ allegations being identical, based on similar set of facts and the charge being of  grave nature involving complicated questions of law and fact are required to be met so as to consider the case of the employee for  grant  of  stay. In sub clause (iii), reference has been made that the evidence and the material collected during investigation or as reflected in the charge sheet is to be taken into consideration for the purpose of considering as to whether the nature of charge in the criminal case is grave in nature and complicated questions of law and fact are involved in the case or not. Importantly, as per sub clause (iv) even in a particular case where it CWP-232-2024         6 2024:PHHC:002212 is found that ingredients of sub clause (ii) and (iii) do exist, even then the same  cannot  be  considered  in  isolation,  to  stay  the  departmental proceedings,  but  further  regard  has  to  be  given  to  the  fact  that  the departmental  proceedings  cannot  be  unduly  delayed. Sub clause (v) specifically provides that if the criminal case does not proceed or its disposal is being unduly delayed, then even in case stay has been granted, with respect to the departmental proceedings, the same can be resumed and proceeded with.

¶6Similarly, in the judgment of the Hon'ble Supreme Court of India in "Indian Overseas Bank, Anna Salai and Anr. vs. P.Ganesan and others", reported as 2008(1) SCC 650 it had been specifically observed that the High Court was apart from other considerations also required to consider as to whether the matter involves complicated questions of law. The relevant portion of the said judgment is reproduced hereinbelow:-"11. Writ appeals preferred by the appellants against that order were disposed of by a Division Bench of the Court by reason of the impugned judgment opining :-

¶14In  the  instant  case,  there  is  no  dispute  that  the criminal  action  and  the  disciplinary  proceedings  are founded  upon  the  same  set  of  facts.  In  fact,  the disciplinary  proceedings  are  solely  based  upon  the criminal  complaint  lodged  by  the  president  of  a  rival union, who is also facing prosecution with regard to the same incident. It has been conceded before us that the bank had not conducted any independent enquiry before initiating the impugned departmental proceedings.

¶15In our opinion, in the peculiar facts and circumstances of the case on hand, fair play requires that postponing of the departmental proceedings till the criminal  cases  are  decided.  We  are,  therefore,  of  the I attest to the accuracy and view that the prayer made by the petitioners for deferring CWP-232-2024         7 2024:PHHC:002212 the departmental proceedings till the conclusion of the criminal  trial  has  to  be  accepted  and  it  is  ordered accordingly. xxx xxx xxx

¶18Legal  position  operating  in  the  field  is  no  longer  res integra. A  departmental  proceedings  pending  a  criminal proceedings does not warrant an automatic stay. The superior courts  before  exercising  its  discretionary  jurisdiction  in  this regard must take into consideration the fact as to whether the charges  as  also  the  evidence  in  both  the  proceedings  are c ommon a  nd as to whether any complicated question of law is involved in the matter. xxx xxx xxx

¶22The issue came up for consideration yet again in T. Srinivas (supra) where this Court while analyzing B.K. Meena (supra) and Capt. M. Paul Anthony (supra) held that :- "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."

¶23The High Court, unfortunately, although it noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges Davinder Kumar levelled  against  the  delinquent  officers,  both in  the  criminal CWP-232-2024         8 2024:PHHC:002212 case  as  also  the  disciplinary  proceedings,  were  same. Furthermore it was obligatory on the part of the High Court to arrive  at  a  finding  that  the  non  stay  of  the  disciplinary p  roceedings shall not only prejudice the delinquent officers b  ut the matter also involves a complicated question of law." In the above-said case, the Hon'ble Division Bench of the High Court had disposed of the appeals on the ground that there was no dispute of the fact that the criminal action and the disciplinary proceedings were founded on the same set of facts and that disciplinary proceedings were solely based upon the criminal complaint lodged by the President of a rival union and that the Bank had not conducted any independent enquiry before initiating the impugned departmental proceedings and thus, the departmental proceedings were postponed till the time the criminal cases were decided. The said order was set aside by the Hon'ble Supreme Court by making the observations which have been reproduced hereinabove.

¶7The Hon'ble Supreme Court of India in "Kendriya Vidyalaya Sangathan & Ors. Vs. T.Srinivas", reported as 2004(7) SCC 442, had observed that there should be special facts in a case so as to persuade the Court to stay departmental proceedings and every case where departmental proceedings and criminal trial with regard to the same misconduct is pending, is not to be stayed. It was also observed in the said judgment that the approach and the objective of the criminal proceedings and the disciplinary proceedings are altogether distinct and different inasmuch as in the disciplinary proceedings, the question is whether the employee 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 Davinder Kumar question is whether the offences which the employee is alleged to have CWP-232-2024         9 2024:PHHC:002212 committed, are established or not, and if so established the sentence to be imposed. It was further observed that the standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both the cases are distinct and different. In the said case, the Tribunal had come to the conclusion that two articles of charge in the criminal proceedings and the departmental proceedings were identical and the third charge was inter connected and accordingly, the Tribunal had stayed the departmental proceedings till the time the applicant therein disclosed his defence in the criminal trial. The writ petition against the said order was also dismissed and the Hon'ble Supreme Court after considering the law on the point, set aside the said orders and observed that the Tribunal and the High Court had proceeded on an erroneous principle to the effect that grant of stay of disciplinary proceedings is a must in every case where there is a criminal trial on the same charges. The relevant portion of the said judgment is reproduced hereinbelow:-

4.  The respondent herein challenged the said decision of the appellants to hold a departmental enquiry while a criminal trial on identical facts was pending against him before a competent court. This challenge was made before the Central Administrative Tribunal, Hyderabad Bench at Hyderabad. The tribunal by its order dated 2.7.2003  came to the  conclusion that the first two Articles of charges are identical to the charge levelled against the petitioner before the special court under t he provisions of the  P  revention of Corruption Act   and the third Article of charge though not a subject matter of the trial is an inter-connected charge with charges 1 and 2, hence it allowed  the  application  of  the  respondent  and  directed  the appellant  that  proceedings  pursuant  to  the  charge  memo  be stayed till the applicant discloses his defence in the pending criminal trial. It, however gave permission to the appellant to I attest to the accuracy and proceed with the disciplinary proceedings after the disclosure CWP-232-2024         10 2024:PHHC:002212 of the defence by the respondent which in effect would mean that the disciplinary proceedings will stand stayed almost till the disposal of the trial before the criminal court. xxx xxx xxx

¶11In 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 p  roceedings.   On the contrary, 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  appellant  in  service  inspite  of such serious charges levelled against him. This Court in the said case of State of Rajasthan (supra) 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 is whether 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 the facts which seems to be almost similar to the facts of this case held that the tribunal fell in error in staying the disciplinary proceedings. xxx xxx xxx

¶14We are of the opinion that both the tribunal and the HighDavinder Kumar CWP-232-2024         11 2024:PHHC:002212 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……"

¶8The Hon'ble Supreme Court in "State Bank of India and Ors. vs. Neelam Nag and Anr., reported as 2016(9) SCC 491, had observed as under:- "13. We have heard the learned counsel for the parties at some length. The only question that arises for consideration, is no more res-integra. It is well-settled that there is no legal bar to  the  conduct  of  the  disciplinary  proceedings  and  criminal trial simultaneously. However, no straight jacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in a series of decisions.

¶14This Court in Karnataka SRTC vs. M.G.Vittal Rao

(2012) 1 SCC 442 has summed up the same in the following words: "(i) There is no legal bar for both the proceedings to go on simultaneously.

(ii) 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 or law.

(iii) 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.

(iv) 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. (emphasis supplied)" I attest to the accuracy and In the above judgment, apart from reiterating the fact that it is a CWP-232-2024         12 2024:PHHC:002212 matter of settled law that there is no legal bar on conducting the disciplinary proceedings and criminal trial simultaneously, reliance was also placed upon the judgment of Hon'ble Supreme Court in Karnataka SRTC vs. M.G. Vittal Rao, in which it was observed that the ground for seeking stay would be available only in cases involving complex questions of law and facts and where the departmental proceedings were not being unnecessarily delayed.

¶9Thus, a perusal of the above said judgments would show that apart from other factors, one of the primary factors which the Court is to consider before even considering as to whether the stay of departmental proceedings is to be granted in a particular case or not or as to whether the evidence of the witnesses in the departmental proceedings is to be kept in abeyance till their examination in the criminal case, is to see as to whether complicated questions of law and facts are involved in the case or not. In the present case, no complicated question of law or facts, has been brought to the notice of this Court. The issue which arises for consideration in the criminal case is only as to whether the petitioner had on the asking of the girl and in collusion with her sought to extract money from Virender in order to save the said Virender from being implicated in the false case of rape, for which the said Virender (complainant) as per his case has recorded the conversation between the petitioner, the girl and the complainant. In the said circumstances, it cannot be said that any complicated question of law or fact arises. Moreover, no judgment has been cited before this Court to show that in such a situation complicated question of law or fact would arise. Moreover, this Court has found that there are no special facts in the present case so as to persuade this Court to grant the relief sought, rather the present case as per the allegations in the FIR prima facie looks to be a case 2024.01.12 15:10 of honey trapping. CWP-232-2024         13 2024:PHHC:002212

¶10The Hon'ble Division Bench of this Court in "Dr.Balwinder Kumar Sharma vs. Hon'ble Punjab and Haryana High Court through Registrar General, CWP-7539-2021, decided on 28.05.2021 has held as under:- "The  reason  for  initiation  and  early  conclusion  of departmental proceedings in such cases seems to be three-fold:

(i)  To  weed  out  an  employee  whose  integrity  / character  has  been  put  to  doubt,  prima  facie,  on account of some criminal proceedings having been initiated against him/her.

(ii) At the same time, when an employee is suspended, he/she is entitled to atleast half of the pay that it was drawing before being suspended and thus,  any  inordinate  delay  in  conclusion  of departmental  proceedings,  where  charges  are  of very  serious  nature,  would  unnecessarily  entail burden on exchequer and thus will be against public interest.

(iii)  The  departmental  proceedings  is  to  maintain discipline  in  the  service  and  efficiency  of  public service  and  thus,  its  initiation  and  conclusion  as expeditiously as possible is in public interest. In the present case, it is not disputed that challan was presented in the year 2019 and charges were framed on

31.01.2020 (P-11), however till date no progress has been made in the criminal trial on account of one reason or the other. Although, the delay in criminal trial cannot be attributed to the petitioner, at the same time, the department cannot be expected to wait endlessly for the trial to conclude as held in Capt. M. Paul Anthony's case (supra). xxx xxx xxx Further, it is to be noted that charges under Sections 409, 420, 120-B and 201 IPC have been framed on the basis of 2024.01.12 15:10 documentary and other evidence collected by the SIT during CWP-232-2024         14 2024:PHHC:002212 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 p  rovisions of  P  revention of Corruption Act ,  1988 are concerned,  most  of  the  provisions  are  to  be  proved  by  the prosecution  during  the  course  of  trial  except  the  one concerning "known sources of income", which again is within the special knowledge of accused-petitioner. Hence,  there seems to be no justification in the prayer made by petitioner for staying of disciplinary proceedings." In the abovesaid judgment, the reasons for early conclusion of departmental proceedings have been highlighted and it has been further observed that the department cannot wait endlessly for the criminal trial to conclude irrespective of the fact that the delay in the criminal trial is attributed to the employee or not. It is further observed in the said case that an early conclusion of the departmental proceedings was necessary in order to weed out an employee whose integrity / character has been put to doubt on account of initiation of criminal proceedings and since the purpose of the said proceedings is to maintain discipline in the service and efficiency of public service. It was also observed that during the pendency of the said proceedings, since the employee is suspended, thus, the said employee would get some part of pay without doing work which would amount to unnecessarily entailing burden on the exchequer and would be against public interest.

¶11The Hon'ble Division Bench of this Court in LPA-239-2022 titled as "Paramjit Kaur Vs. Punjab and Sind Bank and others" decided on 24.03.2022 had held as under:- 2024.01.12 15:10 "2. The learned Single Judge, after taking into consideration CWP-232-2024         15 2024:PHHC:002212 the facts of the case as well as the decision of the Supreme Court, relied upon by the appellant, in Captain M. Paul Anthony Vs. Bharat Gold Mines, 1999(3) SCC 679, dismissed her petition, upon  reaching  a  conclusion  that  decision  in Captain  M.  Paul  Anthony  (supra)  does  not  lay  down  any absolute  principle  of  law  that  in  all  those  cases  where  a criminal trial is pending, the departmental proceedings must be kept in abeyance. Rather, the question, whether, in the given situation,  the  departmental  proceedings  are  required  to  be stayed,  would  be  determined  taking  into  account  multiple factors: if the departmental proceedings and criminal trial are based on similar set of facts; the charge in the criminal trial against  the  delinquent  employee  is  of  a  grave  nature  and involved complicated questions of law and fact. Whereas, upon due consideration of the matter in issue, the learned Single Judge recorded that it was not the case in the matter at hands. It was observed that the charges against the appellant in the departmental proceedings were that she had been siphoning off the funds/amount from the accounts of the bank's customers in the name of her own relatives since 2005. Further, upon being confronted with this fact, she has made three deposits refunding certain amount. And, significantly, the learned Single Judge also recorded that the entire material that was to be relied upon and produced against the appellant was documentary in nature and was either prepared by her or under her supervision, being Manager of the branch. xxx xxx xxx

¶5Upon being pointedly  asked,  if the charges  have  been framed in the criminal trial against the appellant and, if yes, whether  the  charge  sheet  was  produced/placed  before  the learned  Single  Judge?  Learned  counsel  fairly  concedes  that though charges have already been framed but the charge sheet was  not  placed  before  the  learned  Single  Judge.  In  such circumstances, it is evident that the contention of the appellant that basis of the departmental proceedings and criminal trial is I attest to the accuracy and the  same,  is  neither  substantiated  nor  established.  Even CWP-232-2024         16 2024:PHHC:002212 otherwise,  as  indicated  above,  the  charges  against  the appellant  are  based  on  record  and  do  not  involve  any complicated  questions  of  law  and  facts,  least  a  charge  that could be termed as grave." A perusal of the above judgment would show that the charges/charge sheet in the criminal case was not placed before the learned Single Judge and that thus, the contention of the appellant therein that the basis of the departmental proceedings and criminal trial were the same, was neither substantiated nor established. It was also observed that in the said circumstances, no complicated questions of law and facts were involved.

¶12In the present case, although the FIR was registered on

08.02.2022 and no averment has been made in the petition as to whether the challan in the criminal case has been filed or not but it is the case of the petitioner that the same has not been filed and the charges have also not been framed. In the said circumstances, the law laid down in the above said judgment would also apply in the present case. Moreover, in the absence of the challan / report under Section 173 Cr.P.C., it cannot be ascertained as to who are the common witnesses and thus, the prayer of the petitioner for staying the examination of the common witnesses deserves to be rejected on the said ground also. The writ petition also deserves to be dismissed on account of the fact that no challenge has been made to any order/ notice and a simple prayer for mandamus has been made for stay of proceedings.

¶13The reliance placed upon the judgment of the Hon'ble Supreme Court in Ram Lal's case (supra) does not further the case of the petitioner. The facts of the said case are completely different from the facts of the present case and the following factors would clearly show that the said judgment would not apply to the facts and the prayer made in the present 2024.01.12 15:10 case:- CWP-232-2024         17 2024:PHHC:002212

i) In the above case, the entire departmental proceedings had culminated and the appeal, review etc. against the order of dismissal had also been dismissed and the entire evidence had been led in the departmental proceedings. Moreover, the criminal trial had also been concluded and the appellant before the Hon'ble Supreme Court had been acquitted by the Appellate Judge in the criminal trial, whereas in the present case as per the stand of the petitioner, even the challan under Section 173 Cr.P.C. has not been presented and even in the departmental proceedings, the evidence has not started.

ii) The case before the Hon'ble Supreme Court was neither a case under the Prevention of Corruption Act nor there was any demand of money made by the appellant therein but was a case with respect to alleged alteration in the date of birth of the appellant-police officer therein.

iii) In the case before the Hon'ble Supreme Court, a perusal of paragraphs 14 to 22 would show that the evidence led in the disciplinary proceedings was considered and after considering the same, it was observed that material evidence and documents including the original marks sheet which was exhibit D-3 had been completely left out in the discussion and consideration in the disciplinary proceedings and crucial, relevant and material evidence had been ignored. It was observed that since the finding of the disciplinary authority had been arrived at after ignoring the relevant material thus, in the said circumstances, judicial review was possible and after 2024.01.12 15:10 observing the same and considering the evidence in detail in CWP-232-2024         18 2024:PHHC:002212 the disciplinary proceedings, the Hon'ble Supreme Court had recorded satisfaction that the disciplinary proceedings were vitiated and deserved to be quashed and the explanation given by the appellant therein with respect to the over writing in the date of birth was accepted. In paragraph 14 of the said judgment it was observed that even the origin of dispute does not inspire confidence. In the present case, as per the case of the petitioner the disciplinary proceedings have not even been initiated and there is no argument raised that the disciplinary proceedings are vitiated on account of non-consideration of relevant material.

iv) In the abovesaid judgment of the Hon'ble Supreme Court in paragraph 23 to paragraph 30, it is apparent that the Hon'ble Supreme Court had examined the finding of the criminal case and the observation of the Appellate Judge to the extent that in ththe original marksheet of 8 standard, the date of birth was clearly shown as 21.04.1972 and it was also observed that a reading of the entire judgment clearly showed that the prosecution had miserably failed to prove the charge. In paragraph 26 of the judgment, it was observed that the Hon'ble Supreme Court was satisfied that the finding of the Appellate Judge in the criminal case clearly indicated that the charge against the appellant therein was not just "not proved" but in fact the charge even stood "disproved" by the prosecution evidence and thus, on the said aspect, the Hon'ble Supreme Court was additionally satisfied that the orders passed in the 2024.01.12 15:10 disciplinary proceedings were unjust, unfair and oppressive and CWP-232-2024         19 2024:PHHC:002212 deserved to be set aside. In the present case, it is the case of the petitioner that the report under Section 173 Cr.P.C. has not been submitted and there is no such evidence or finding in favour of the petitioner.

v) The Hon'ble Supreme Court in paragraph 11 of the above said judgment had observed that a writ court's power to review the order of the disciplinary authority is limited and in paragraph 12, it has further been observed that mere acquittal by a criminal Court would not confer on the employee a right to claim any benefit including reinstatement and it is only after considering the peculiar facts and circumstances of the case which was before the Hon'ble Supreme Court that the Hon'ble Supreme Court allowed the appeal of the appellant therein.

¶14Keeping in view the above said facts and circumstances and the law laid down in the abovesaid judgments of the Hon'ble Supreme Court and the Division Bench of this Court, the present writ petition deserves to be dismissed and is accordingly dismissed. (VIKAS BAHL) JUDGE January 09, 2024. Davinder Kumar

CWP-232-2024 1 2024:PHHC:002212 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP-232-2024 Date of decision : 09.01.2024 Mahesh Kumar ... Petitioner Versus State of Haryana and others ... Respondents CORAM: HON'BLE MR. JUSTICE VIKAS BAHL Present: Mr.Jagjeet Beniwal, Advocate for the petitioner. Ms. Rajni Gupta, Addl.A.G. Haryana.