# Sonu Bharti v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 516
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-24
- **Case number:** Writ-A No. 2592 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-bharti-v-state-of-u-p-ors-48553
- **Pages:** 10

## Headnote

A. Civil Law - Practice & Procedure -
Simultaneous Proceedings - U.P. Police
Regulation, 1861: Regulation 492 & 493 -
It is a settled principle of law that
departmental proceedings and criminal
proceedings can proceed simultaneously
as the standard of proof in both the cases
are different but when if the departmental
proceedings and criminal case are based
on similar set of facts and charges in
criminal
case
against
a
delinquent
employee
is
of
grave
nature
which
involves complicated question of fact and
law, it would be desirable to stay the
departmental
proceedings
till
the
conclusion of criminal case. (Para 10)
Writ Petition Disposed of. (E-10)
5 All. Sonu Bharti Vs. State of U.P. & Ors.
517
List of Cases cited:

## Text

516 INDIAN LAW REPORTS ALLAHABAD SERIES
more of the minor penalties mentioned in
Rule 3.

11.

The
satisfaction
of
the
Disciplinary Authority has to be based on
good
and
sufficient
reasons
which
obviously implies proper application of
mind, the entire material on record
including the inquiry report where there is
an inquiry report or otherwise the show
cause notice. Merely because at the stage of
Rule 9 of the Rules, 1999 the Disciplinary
Authority has not differred with the inquiry
report, does not mean that, ultimately, after
considering
the
response
of
the
chargesheeted government servant to the
inquiry report, he does not have to apply
his mind and has necessarily to accept the
inquiry report and the findings contained
therein. This is not the scheme of the Rules,
1999 nor its intent. The requirement of
Rules as aforesaid and principal of natural
justice are not meant to be an empty
formality.

12. Further more, Sub-rule (2) of Rule
10 of the Rules, 1999 also says that after
considering the said explanation of the
government servant, if any, and the
relevant records, pass such orders as he
considers proper and where a penalty is
imposed, reason thereof shall be given.
None of these parameters and requirements
are satisfied in the impugned order. The
Court does not go into the question as to
how the Special Secretary has passed the
impugned order on behalf of the State
Government as ordinarily it is the Principal
Secretary or the Additional Chief Secretary
who passes such an order which may be
communicated by the Special Secretary,
but, it does not take this into account for
quashing the impugned order and it does so
for
other
reasons
already
mentioned
hereinabove.

13. The State Government, however,
shall now proceed to pass a fresh order in
the light of what has been stated
hereinabove considering the response of the
petitioner to the inquiry report etc. and
other material on record.

14. The writ petition is allowed in the
aforesaid terms.
----------
(2022)05ILR A516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-A No. 2592 of 2022

Sonu Bharti ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pravin Kumar Tiwari, Sri Dharmendra Kumar
Chaubey

Counsel for the Respondents:
C.S.C.

A. Civil Law - Practice & Procedure -
Simultaneous Proceedings - U.P. Police
Regulation, 1861: Regulation 492 & 493 -
It is a settled principle of law that
departmental proceedings and criminal
proceedings can proceed simultaneously
as the standard of proof in both the cases
are different but when if the departmental
proceedings and criminal case are based
on similar set of facts and charges in
criminal
case
against
a
delinquent
employee
is
of
grave
nature
which
involves complicated question of fact and
law, it would be desirable to stay the
departmental
proceedings
till
the
conclusion of criminal case. (Para 10)
Writ Petition Disposed of. (E-10)
5 All. Sonu Bharti Vs. State of U.P. & Ors.
517
List of Cases cited:

1. Capt. M. Paul Anthony Vs Bharat Coal Mines
Ltd. 1999 (3) SCC 679

2. S.B.I. Vs R.B. Sharma 2004 (7) SCC 27

3. Dhirendra kumar Tiwari Vs St. of U.P. & Ors.
Writ - A N. 2705 of 2012

4. St. of Har. Vs Rattan Singh (1977) 2 SCC 491

5. St. of Raj. Vs B.K. Meena (1966) 6 SCC 417

6. Krishnakali Tea Estate Vs Akhil Bharatiya
Chah Mazdoor Sangh (2004) 8 (SCC) 200

7. Ajit kumar Nag Vs Indian Oil Corp. Ltd.
(2005) 7 SCC 764

8. CISF Vs Abrar Ali (2017) 4 SCC 507

9. Karnataka Power Transmission Corporation
Ltd. Vs C. Nagaraju

10. Depot Manager, Andhra Pradesh State Road
Transport Corp. Vs Mohd Yousuf Miya & ors. AIR
1997 SC 2232

11. Kendriya Vidyalaya Sangathan & ors. Vs T.
Srinivas AIR 2004 SC 4127

12. Kedar Nath Yadav Vs St. of U.P. 2005 (3) E.
& C 1955

13. Virendra Kumar Sharma Vs St. of U.P. 2002
(3) UPLBEC

14. Ram Nath Singh Vs St. of U.P. 2002 (3)
UPLBEC 2463
(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Pravin Kumar Tiwari,
learned counsel for the petitioner and Mr.
Pranav Ojha, learned Standing Counsel for
the State-respondents.

2. This writ petition has been filed
interalia for the following reliefs:-

"A) Issue a writ, order or direction in
the nature of certiorari quashing the
departmental proceedings initiated against
the
petitioner
in
pursuance
of
the
departmental charge sheet dated 12.01.2022
issued by the respondent no.4 (Annexure no.3
to the writ petition).

B) issue a writ, order or direction in the
nature
of
mandamus
directing
the
respondents to stay the further departmental
disciplinary proceedings initiated against the
petitioner in pursuance of the departmental
charge sheet dated 12.01.2022."

3. Brief background of the case as is
reflected that the petitioner was posted as
Constable at Police Chauki-Mehrauli, P.S.-
Lar, District-Deoria. First Information Report
was lodged on 13.05.2020 against the
petitioner and three others, under Sections
389 & 120B IPC and Section 7 of the
Prevention of Corruption Act, 1988 and the
same was registered as Case Crime No.101
of 2020 at P.S. Lar, District-Deoria with the
allegations that the petitioner along with
others were demanding and taking money
from truck drivers for passing from that area.
Charge sheet in the criminal case has been
submitted on 18.01.2021.

4. Learned counsel for the petitioner
submits that on the basis of charge sheet
against the petitioner, the respondent no.4 has
passed order dated 12.01.2022 for initiating
departmental
proceedings
against
the
petitioner and charge sheet/memo has been
filed by respondent no.4. Learned counsel for
the
petitioner
further
submits
that
departmental proceedings has been initiated
against the petitioner on the same set of facts
and evidence as that in the criminal case.

5. Learned counsel for the petitioner
further submits that on one hand the
petitioner is facing criminal proceedings
518 INDIAN LAW REPORTS ALLAHABAD SERIES
and on the other hand departmental
proceedings have been initiated against him
relying upon the same set of facts and
evidence,
therefore,
the
departmental
proceedings should be kept in abeyance till
the conclusion of criminal case.

6. He further submits that the
petitioner has not been convicted in the
criminal case, hence without conclusion of
the
criminal
case,
the
departmental
proceedings cannot be initiated for the
same set of facts and evidence. The
criminal case and departmental proceeding
are based on same set of fact and same
evidence,
as
such
continuance
of
departmental inquiry, is not at all justifiable
and consequentially directive be issued for
withholding departmental proceeding till
criminal trial is not over. For this
preposition, he has placed reliance on
Regulation 492 and 493 of U.P. Police
Regulations as well as judgment of Hon'ble
Apex Court in the cases of Capt. M. Paul
Anthony vs. Bharat Coal Mines Ltd.
Reported in 1999 (3) SCC 679 and State
Bank of India vs. R.B. Sharma reported
in 2004 (7) SCC 27 as well as the
judgment of this Court in the case of
Dhirendra Kumar Tiwari vs. State of
U.P. and Ors. passed in Writ-A No.2705
of 2012 decided on 16.01.2012.

7. On the other hand, learned
Standing counsel contended that there is no
bar in simultaneous proceeding i.e. criminal
proceeding and departmental proceeding
can go on simultaneously as area of both
departmental
proceeding
and
criminal
prosecution are altogether different and as
such there is no occasion for staying
departmental proceedings hence such writ
petition be dismissed.

8. After hearing the arguments
advanced by both the parties, it would be
appropriate to analyze the relevant part of
the judgments, settled proposition of law as
well as the relevant regulations in this
regard. In the case of Capt. M. Paul
Anthony vs. Bharat Coal Mines Ltd.
reported in 1999 (3) SCC 679, the Apex
Court after taking into consideration
various other judgments has held that after
taking
into
account
various
earlier
judgments has held that departmental
proceedings and proceedings in criminal
case can proceed simultaneously, as there is
no
bar
in
their
being
conducted
simultaneously, though separately. It has
been further held that if the departmental
proceedings and criminal case are based on
similar set of facts and charges in criminal
case against delinquent employees is of
grave nature which involves complicated
questions of fact and law, it would be
desirable
to
stay
the
departmental
proceedings till conclusion of criminal
case. Whether complicated questions of
fact and law are involved or not will
depend upon the nature of the offence, and
the case lodged against the employee on the
basis of evidence and material collected
during the investigation or as reflected in
the charge sheet, and these facts are not to
be considered in isolation but due regard
has to be given to the fact that departmental
proceedings cannot be unduly delayed.
Thus, if complicated questions of fact and
law
are
involved,
and
departmental
proceedings and criminal case are based on
identical and similar set of facts, only then
it is desirable to stay the departmental
proceedings, but the said facts are not to be
considered in isolation. Paragraph 22 of the
judgment being relevant is being quoted
below:
5 All. Sonu Bharti Vs. State of U.P. & Ors.
519

"22. The conclusions which are
deducible from the various decisions of this
Court referred to above are:

(i) Departmental proceedings and
proceedings in 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
charge in criminal case against delinquent
employees 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 criminal case.

(iii) Whether the nature of a charge in
a criminal case is grave and complicated
questions of fact and law are involved in
that case will depend upon the nature of the
offence, the nature of case launched
against the employee on the basis of
evidence and material collected against
him during the 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
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 pendency of 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."

9. The judgment in the case of Capt.
M. Paul Anthony (Supra) has been
followed in the case of State Bank of
India and others Versus R.B. Sharma
reported in 2004 (7) SCC 27. Relevant
paragraphs 7,8 and 11 are being quoted
below:-

"7. It is a fairly well stetted position in
law that on basic principles proceedings in
criminal
case
and
departmental
proceedings can go on simultaneously,
except where departmental proceedings
and criminal case are based on the same
set of fact and the evidence in both the
proceedings is common.

8. The purpose of departmental
enquiry and of prosecution are two
different and distinct aspects. 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 question of fact and law.
Offense generally implies infringement of
public duty, as distinguished from mere
private rights punishable under criminal
law. When trial for criminal offence is
520 INDIAN LAW REPORTS ALLAHABAD SERIES
conducted it should be in accordance with
proof of the offence as per the evidence
defined under the provisions of the Indian
Evidence Act, 1872 (in short " the Evidence
Act"). Converse is the case of departmental
enquiry. 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 enquiry would
seriously prejudice the delinquent in his
defence at the trial in a criminal case. It is
always question of fact to be considered in
each case depending on its own facts and
circumstances.

11. There can be no straitjacket
formula
as
to
in
which
case
the
departmental proceedings are to be stayed.

There may be cases where the trial of
the case gets prolonged by the dilatory
method adopted by the delinquent official.
He cannot be permitted to, on one hand,
prolong criminal case and at the same time
contend that the departmental proceedings
should be stayed on the ground that the
criminal case is pending."

10. If departmental proceedings and
criminal case are based on similar set of
facts and charges in criminal case against
delinquent employee is of grave nature
which involves complicated question of
fact and law, it would be desirable to stay
the
departmental
proceedings
till
conclusion of criminal case. Whether
complicated question of fact and law are
involved or not will depend upon the nature
of the offence, and the case lodged against
the employee on the basis of evidence and
material collected during the investigation
or as reflected in the charge sheet. Thus it
is clear that departmental proceeding can
proceed, as there is no bar and only when
nature of charge in criminal case are grave
and complicated question of fact and law
are
involved,
then
departmental
proceedings can be stayed and further also
in contingency when departmental enquiry
would seriously prejudice delinquent in his
defence at the trial, and even these facts
cannot be considered in isolation to stay
departmental proceeding but due regard
will have to be given to the fact that
departmental proceedings cannot be unduly
delayed.

11. There is a consensus of judicial
opinion
on
a
basic
principle
that
proceedings in a criminal case and
departmental proceedings can go on
simultaneously, except where departmental
proceedings and criminal case are based on
the same set of facts and the evidence in
both the proceedings is common. Basis for
this proposition is that proceedings in a
criminal
case
and
the
departmental
proceedings
operate
in
distinct
and
different
jurisdictional
areas.
In
the
departmental
proceedings,
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 delinquent or other
staff. The standard of proof required in
those proceedings is also different from
that required in a criminal case. While in
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 doubt.

12. The principles which govern a
disciplinary enquiry are distinct from those
which apply to a criminal trial. In a
5 All. Sonu Bharti Vs. State of U.P. & Ors.
521
prosecution for an offence punishable
under the criminal law, the burden lies on
the prosecution to establish the ingredients
of the offence beyond reasonable doubt.
The accused is entitled to a presumption of
innocence. The purpose of a disciplinary
proceeding by an employer is to enquire
into an allegation of misconduct by an
employee which results in a violation of the
service rules governing the relationship of
employment. Unlike a criminal prosecution
where the charge has to be established
beyond reasonable doubt, in a disciplinary
proceeding, a charge of misconduct has to
be established on a preponderance of
probabilities. The rules of evidence which
apply to a criminal trial are distinct from
those which govern a disciplinary enquiry.

13. In a judgment of a three judge
Bench of the Court in the case of State of
Haryana vs. Rattan Singh, reported in
(1977) 2 SCC 491 set out the principles
which govern a disciplinary proceedings as
follows:-

"4. It is well settled that in a domestic
enquiry the strict and sophisticated rules of
evidence under the Indian Evidence Act
may not apply. All materials which are
logically probative for a prudent mind are
permissible. There is no allergy to hearsay
evidence provided it has reasonable nexus
and credibility. It is true that departmental
authorities and Administrative Tribunals
must be careful in evaluating such material
and should not glibly swallow what is
strictly speaking not relevant under the
Indian Evidence Act. For this proposition it
is not necessary to cite decisions nor text
books, although we have been taken
through case-law and other authorities by
counsel on both sides. The essence of a
judicial approach is objectivity, exclusion
of extraneous materials or considerations
and observance of rules of natural justice.
Of course, fairplay is the basis and if
perversity
or
arbitrariness,
bias
or
surrender of independence of judgment
vitiate the conclusions reached, such
finding, even though of a domestic tribunal,
cannot be held good. However, the courts
below misdirected themselves, perhaps, in
insisting that passengers who had come in
and gone out should be chased and brought
before the tribunal before a valid finding
could be recorded. The ''residuum' rule to
which counsel for the respondent referred,
based
upon
certain
passages
from
American Jurisprudence does not go to that
extent nor does the passage from Halsbury
insist on such rigid requirement. The
simple point is, was there some evidence or
was there no evidence -- not in the sense of
the technical rules governing regular court
proceedings but in a fair commonsense way
as men of understanding and worldly
wisdom will accept. Viewed in this way,
sufficiency of evidence in proof of the
finding by a domestic tribunal is beyond
scrutiny. Absence of any evidence in
support of a finding is certainly available
for the court to look into because it
amounts to an error of law apparent on the
record. We find, in this case, that the
evidence of Chamanlal, Inspector of the
Flying Squad, is some evidence which has
relevance to the charge levelled against the
respondent. Therefore, we are unable to
hold that the order is invalid on that
ground."

 (emphasis supplied)

14. These principles have been
reiterated in subsequent decisions of this
Court including State of Rajasthan vs. B K
Meena reported in (1966) 6 SCC 417;
Krishnakali
Tea
Estate
vs.
Akhil
Bharatiya Chah Mazdoor Sangh reported
in (2004) 8 SCC 200; Ajit Kumar Nag vs.
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Oil Corporation Ltd. reported in
(2005) 7 SCC 764; and CISF vs. Abrar Ali
reported in (2017) 4 SCC 507.

15.

In
Karnataka
Power
Transmission Corporation Ltd. vs. C.
Nagaraju, this Court has held that the two
proceedings, criminal and departmental, are
entirely different. They operate in different
fields and have different objectives. In the
disciplinary proceedings, the question is
whether the delinquent 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 question is whether the
offences
registered
against
him
are
established,
and
if
established,
what
sentence should be imposed upon him.

16. The issue as to whether
disciplinary proceedings can be held at the
time when the delinquent employee is
facing the criminal trial, has also been
considered from time to time. In State of
Rajasthan Vs. B.K. Meena & Ors.
reported in AIR 1997 SC 13, the Hon'ble
Supreme Court while dealing with the issue
observed as under:-

"It would be evident from the above
decisions that each of them starts with the
indisputable proposition that there is no
legal bar for both proceedings to go on
simultaneously and then say that in certain
situations, it may not be 'desirable',
'advisable' or 'appropriate' to proceed with
the disciplinary enquiry when a criminal
case
is
pending
on
identical
charges...........The only ground suggested
in the above decisions as constituting a
valid ground for staying the disciplinary
proceedings is that 'the defence of the
employee in the criminal case may not be
prejudiced'. This ground has, however,
been hedged in by providing further that
this may be done in cases of grave nature
involving questions of fact and law. In our
respectful opinion, it means that not only
the charges must be grave but that the case
must involve complicated questions of law
and
fact.
Moreover,
'advisability',
'desirability' or 'propriety', as the case may
be, has to be determined in each case
taking into consideration all the facts and
circumstances of the case............One of the
contending considerations is that the
disciplinary enquiry cannot be - and should
not be - delayed unduly. So far as criminal
cases are concerned, it is well known that
they drag on endlessly where high officials
or persons holding high public offices are
involved. They get bogged down on one or
the other ground. They hardly ever reach a
prompt conclusion..........If a criminal case
is unduly delayed that may itself be a good
ground
for
going
ahead
with
the
disciplinary
enquiry
even
where
the
disciplinary proceedings are held over at
an
earlier
stage.
The
interests
of
administration
and
good
government
demand
that
these
proceedings
are
concluded
expeditiously.
It
must
be
remembered
that
interests
of
administration demand that undesirable
elements are thrown out and any charge of
misdemeanour is enquired into promptly.
The disciplinary proceedings are meant
not really to punish the guilty but to keep
the administrative machinery unsullied by
getting rid of bad elements. The interest of
delinquent officer also lies in a prompt
conclusion of the disciplinary proceedings.
If he is not guilty of the charges, his honour
should be vindicated at the earliest possible
moment and if he is guilty, he should be
dealt with promptly according to law. It is
not also in the interest of administration
that
persons
accused
of
serious
misdemeanour should be continued in
5 All. Sonu Bharti Vs. State of U.P. & Ors.
523
office indefinitely, i.e., for long periods
awaiting the result of criminal proceedings.
It is not in the interest of administration. It
only serves the interest of the guilty and
dishonest........"

17. While deciding the said case a
very heavy reliance has been placed upon
the earlier judgment of the Supreme Court
in the case of Depot Manager, Andhra
Pradesh
State
Road
Transport
Corporation Vs. Mohd Yousuf Miya &
Ors., reported in AIR 1997 SC 2232,
wherein it has been held that both
proceedings can be held simultaneously
unless the gravity of the charges demand
staying the disciplinary proceedings till the
trial is concluded as the complicated
questions of fact and law are involved in
that case.

18. A similar view has been reiterated
by the Apex Court in the case of Kendriya
Vidyalaya Sangathan & Ors. Vs. T.
Srinivas, reported in AIR 2004 SC 4127. A
Three-Judge Bench of the Hon'ble Supreme
Court in the case on Krishnakali Tea
Estate Vs. Akhil Bhartiya Chah Mazdoor
Sangh & Anr. reported in (2004) 8 SCC
200 reconsidered all earlier judgments and
reiterated the same view, as the approach
and
the
objective
of
the
criminal
proceedings,
and
the
disciplinary
proceedings are distinct and different.
There can be no bar in carrying on the
criminal trial and criminal proceedings
simultaneously.

19. Much reliance has been placed on
Regulations 492 and 493 of of U.P. Police
Regulations.
The
two
Regulations
mentioned are set out below:-

"492. Whenever a police officer has
been judicially tried, the Superintendent
must await the decision of the judicial
appeal, if any, before deciding whether
further departmental action is necessary.

493. It will not be permissible for the
Superintendent of Police in the course of a
departmental proceeding against a Police
Officer who has been tried judicially to
reexamine the truth of any facts in issue at
his judicial trial, and the finding of the
Court on these facts must be taken as final.

Thus. (a) if the accused has been
convicted and sentenced to rigorous
imprisonment,l no departmental trial will
be necessary, as the fact that he has been
found deserving of rigorous imprisonment
must be taken as conclusively providing his
unfitness for the discharge of his duty
within the meaning of Section 7 of the
Police
Act.
In
such
cases
the
Superintendent of Police will without
further proceedings ordinarily pass an
order of dismissal, obtaining the formal
order of the Deputy Inspector General
when necessary under paragraph 479 (a).
Should be wish to do otherwise he must
refer the matter to the Deputy Inspector
General of the range for orders.

(b) If the accused has been convicted
but sentenced to a punishment less than of
rigorous imprisonment a departmental trial
will be necessary, if further action is
though desirable, but the question in issue
at this trial will be merely (1) whether the
offence of which the accused has been
convicted amounts to an offence under
Section 7 of the Police Act .(2) if so, what
punishment should be imposed. In such
cases the Superintendent of Police will (i)
call upon the caused to show cause why
any particular penalty should not be
inflicted on him (ii) record anything the
accused Officers has to urge against such
penalty without allowing him to dispute the
findings of the Court. and (iii) write a
finding and order in the ordinary way
524 INDIAN LAW REPORTS ALLAHABAD SERIES
dealing with any plea raised by the accused
officers which is relevant to (1) and (2)
above..

(c) If the accused has been judicially
acquitted or discharged, and the period for
filing an appeal has elapsed and/or no
appeal has been filed the Superintendent of
Police must at once reinstate him if he has
been suspended; but should the findings of
the Court mot be inconsistent with the view
that the accused has been guilty of
negligence in, or unfitness for, the
discharge of his duty within the meaning of
Section
7
of
the
Police
Act,
the
Superintendent of Police may refer the
matter to the Deputy Inspector General and
ask for permission to try the accused
departmentally for such negligence or
unfitness:"

20. Bare perusal of Regulations 492
and 493 would go to show that whenever a
police officer has been judicially tried, the
Superintendent must await the decision of
the judicial appeal, if any, before deciding
whether further departmental action is
necessary. Regulation 493 mentions that it
will
not
be
permissible
for
the
Superintendent of Police in the course of a
departmental proceeding against a Police
Officer who has been tried judicially to reexamine the truth of any facts in issue at his
judicial trial and the finding of the Court on
these facts must be taken as final. Division
Bench of this Court in the Case of Kedar
Nath Yadav Vs. State of U.P. reported in
2005(3) E.& C 1955, while considering
these very Regulations, has taken the view,
that even after enforcement of 1991 Rules,
these two Regulations continue to hold the
field. Both these Regulations occupy
different field i.e. wherein Police Officer
has been judicially tried and after judicial
trial is over, and consequently will not
come to the rescue of petitioner.

21. Reliance has been placed on the
judgment of this Court in the case of
Virendra Kumar Sharma Vs. State of U.P.
2002(3) UPLBEC, for the preposition that,
when charges are engaging attention of
criminal
trial
or
police
investigation,
departmental enquiry cannot proceed on
same charges. Said decision has been
rendered, in context of the mandate provided
for in Rule 104 of U.P. Rajya Sahkari
Bhoomi Vikas Bank Employees, Service
Rules, 1976, which specifically prohibits
departmental enquiry against a charge which
is sub-judice in judicial enquiry or trial.

22. Argument has also been advanced,
that disciplinary proceeding in the present
case, is in fact second enquiry on same facts
and same charges, as such same is legally not
permissible. Reliance in this connection has
been placed on judgment of this Court, in the
case of Ram Nath Singh Vs. State of U.P.
reported
in
2002(3)
UPLBEC
2463.
Arguments advanced are clearly devoid of
substance, as in the present case, at no point
of time any departmental enquiry has been
held in the past, wherein petitioner has been
exonerated, and too the contrary for the first
time, for his alleged misconduct, petitioner is
being asked to appear and face enquiry.
Judgment cited is totally out of context and
will not come to the rescue of petitioner.

23. Thus, there can be no doubt
regarding the settled legal proposition that
as the standard of proof in both the
proceedings is quite different, therefore, no
interference is required by this Court in the
departmental proceedings being carried out
against the petitioner.

24. However, it is open to the
disciplinary authority to conclude the
departmental
proceedings,
strictly
in
accordance with law, at the earliest possible
5 All. Pawan Kumar Vs. State of U.P. & Ors.
525
preferably within a period of three months
from the date of production of certified
copy of this order before the disciplinary
authority.

25. With the aforesaid observations
and directions, this writ petition is disposed
of.
----------
(2022)05ILR A525
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ-A No. 2764 of 2022

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Vikram, Kirti Prakash, Prashant Kumar
Singh

Counsel for the Respondents:
C.S.C.,
Ashok
Shukla,
Raj
Kumar
Upadhyaya(R.K. Upadhyaya)

A. Practice & Procedure - Through this
petition, the Court clarified that when an inquiry
has not been concluded within the time which
has been fixed by the Court, the employer has
the option to seek an extension of time by
making an appropriate application to the Court,
setting out the reasons for the delay in
conclusion of the inquiry. The Court on the
other hand, based on the reasons stated, has to
consider whether to extend the time or not.
Meaning thereby, it will not be open to the
employer to disregard that stipulation and
an extension of time must be sought. The
Court further added that mere delay on the part
of the employer to conclude a disciplinary
proceeding in time did not ipso facto nullify the
entire proceeding. (Para 8 & 12) (E-10)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The case of the petitioner is that,
the Tribunal while deciding the Claim
Petition No. 151 of 2011 quashing the
earlier
order
of
punishment
dated
08.01.2011 and directing the opposite
parties before it to conclude the inquiry or
the disciplinary proceedings within three
months of service of the copy of said
judgment,
the
said
judgment
was
challenged by the State before this Court by
means of Writ Petition No. 4147 (SB) of
2017 which was dismissed summarily on
22.02.2017. Therefore, the State was
already aware of the judgment dated
31.03.2015 passed in the above mentioned
claim petition as it had challenged the same
before this Court and its petition was
dismissed on 22.02.2017. However, the
disciplinary
proceedings
were
not
completed within three months as ordered,
not even from the date of passing of the
judgment in Writ Petition by the High
Court. Instead, the inquiry was completed
on 17.09.2020, that is, almost five years
from the date of judgment of the Tribunal
and three years from the date of judgment
of the High Court. Thereafter, a show cause
notice was issued to the petitioner on
12.10.2020
and
the
final
order
for
punishment has been passed by the State
Government in the name of his Excellency
the Governor on 21.04.2022, that is, seven
years from the judgment of the Tribunal
and five years from the date of judgment of
the High Court referred hereinabove.

3. The contention is that, this order is
in the teeth of the full Bench decision of
this Court in the case of 'Abhishek
Prabhakar Awasthi Vs. The New India