Shri Siddhartha Kumar Buragohain vs Union Of India & Ors.

PER R.S. DOGRA, MEMBER (J):

The instant OA has been filed by the applicant praying for the following relief(s):-

This application is made against the impugned decision of the respondents authority to initiate departmental inquiry on the Memorandum of Charges issued vide No. HMA 70/2023/43 dated 05.10.2023 by issuing the impugned order dated 05.04.2024 by which, the Government of Assam decided to proceed with the departmental proceeding and accordingly, appointed the Inquiry Officer to inquire into the charges framed against the Applicant; however the same was not served upon the applicant. Furthermore, the Respondent authorities further issued summons dated 06-05-2024 and 17-05-2024 during pendency of criminal trial in PRC 329/2023 arising out of the CID PS Case no. 14/2023 pending before the Court of Ld. Chief Judicial Magistrate, Dist Bajali, Assam on similar allegations based on identical facts and evidence having complex question of facts and law. A bare perusal of the Memorandum of Charges reveal that it initiates a major penalty proceedings against the applicant under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. The show cause notice contains 4 nos. of Article of Charges and the allegations in all 4 charges arises out of the same incident. The list of witnesses, documents and allegations in the Memorandum of Charge are identical to the facts of the criminal case pending against the Applicant. That the materials as contained in the chargesheet which is relied upon, and the documents mentioned in the 'List of Documents of the Memorandum of Charge dated 05.10.2023 are also the documents and materials that are relied against the applicant in the Criminal case in as much as the same were furnished by the Investigating authorities of the Criminal Case pending against the applicant. That apart, the Witnesses as mentioned in the 'List of witnesses' of the Memorandum, under reference, are also the Prosecution Witnesses which have been cited by the Prosecution in the Criminal Case initiated against the applicant in as much as the names of the witnesses incorporated in the "List of Witnesses" annexed to the Memorandum, under reference, was so incorporated basing on the inputs from the investigating agency. Therefore, there is no iota of doubt about the fact that the evidence adduced in both the proceedings i.e., criminal and departmental is absolutely similar and rather one and the same. The law is well settled in a catena of decisions, wherein the Hon'ble Supreme Court has laid down the law that "if the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in criminal case against a delinquent employee is of a grave nature, which involves complicated questions of law and fact, it is desirable to stay the departmental proceedings till conclusion of the criminal case'. Since, in both the Criminal Proceeding i.e., PRC no 329/2023 arising out of CID PS case no. 14/2023 as well as the Disciplinary Proceedings contemplated against the applicant are similar, in the interest of justice, the Departmental Enquiry is liable to be stayed/kept in abeyance till the disposal of the Criminal case. Moreover, when the Memorandum of Charges dated 05.10.2023 was served to the Applicant (while in jail), а representation dated 18.10.2023 was given by the Applicant with a prayer to stay the Departmental proceedings initiated vide Memorandum of Charges dated 05.10.2023 stating that the Departmental proceeding and Criminal Trial is based on identical facts having complex questions of facts and law; however the Respondent authorities, in complete disregard to the prayer made by the Applicant and without disposing of the representation of the Applicant in a very high handed manner and without adhering to the principles of natural justice, proceeded to initiate the said departmental enquiry. Thus, on this count also, the Departmental Proceeding is liable to be stayed/ kept in abeyance at this stage.

Respondents have filed their written statement, wherein he avers that the Departmental Proceeding was initiated against the Applicant (under suspension) on the basis of reports received and after observance of due procedure and Rules. The factual matrix is that on 15.07.2023, the Applicant, who was the then Superintendent of Police, Bajali received information about alleged drug dealer Rabiul Islam, the complainant of CID PS Case No-14/2023. After receipt of the information, the Applicant passed on the information to Shri Pushkal Gogoi, APS, the then Deputy Superintendent of Police (Hqtrs), Bajali for taking necessary action. Without proper verification and briefing, Shri Pushkal Gogoi, APS, the then Deputy Superintendent of Police (Hqtrs), Bajali, alongwith other police officials conducted search at night of 15/16.07.2023 at the residence of the complainant, Rabiul Islam. During the search operation, no incriminating documents or material viz. contraband drugs were recovered from the house of Rabiul Islam, yet the Applicant directed Pushkal Gogoi, APS, the then Deputy Superintendent of Police (Hqtrs), Bajali, to pick up Rabiul Islam and other two relatives of the complainant, namely, Imamul Hussain Hazarika and Ajijur Rahman from the house of Rabiul Islam with the intention to commit extortion from Rabiul Islam. Based on a complaint petition addressed to the Hon'ble Chief Minister., Assam and signed by Md. Rabiul Islam, who is a resident of village Karagarigaon, P.O. Chapaguri, P.S. Patacharkuchi, District Bajali, Assam, praying for taking necessary actions against the Applicant, the then SP, Bajali, Smti Gayatri Sonawal, the then Addl. SP(HQ), Pushkal Gogoi, the then Dy. SP(HQ), Bajali, Arnab Jyoti Patir, the then Officer in Charge, Patacharkuchi PS, Debajit Giri, the then In Charge, Bhawanipur Out Post, ASI Sasanka Das, an ASI of Bhawanipur Out Post and other police officers, the Principal Private Secretary to Hon'ble Chief Minister, Assam forwarded the aforesaid complaint to the Respondent No. 5, Director General of Police, Assam vide letter dated 11.08.2023 (Annexure A-1 of the Original Application) for taking necessary action. On receipt of the complaint petition of Rabiul Islam by the Crime Investigation Department (CID), Assam, Guwahati on 31.08.2023 from the Director General of Police, Assam with a direction to register a case and investigate, the CID PS Case No-14/23 was registered on 31.08.2023 and investigated into. During investigation, prosecutable evidences have been gathered against the Applicant and on completion of investigation, charge sheet was submitted against the Applicant under Sections 1208/342/348/323/119/386/387/201/506 of the IPC read with Sections 98(a)/99(3)(5)(6) of the Assam Police Act, 2007 on 28.11.2023 before the Hon'ble Court of Chief Judicial Magistrate, Bajall, along with other accused persons on various charges. At present the said case is at pre-trial stage. The Home (A) Department to the Government of Assam through the Respondent No.4, Joint Secretary, Home & Political Department vide letter No. HMA.70/2023/54 dated 11.01.2024 responded to the representation submitted by the Applicant Informing him about the department's Inability to accept his petition of not proceeding with the departmental enquiry initiated against him. Further, he was requested to submit his statement of defence urgently. Therefore his representation dated 18.10.2023 was rejected in terms of the letter dated 11.01.2024.

Counsel further states that the initiation of the departmental proceeding drawn up against the Applicant is no way connected to the criminal case, i.e. CID PS Case No-14/2023 investigated by the CID, Assam. There is no legal bar to the continuance of the disciplinary proceeding simultaneously against the delinquent based on an incident which is also the subject matter of criminal case against such delinquent. Pertinent to mention herein that though the criminal case and the departmental proceedings are based on identical and similar set of facts and the charge in the criminal case against the Applicant is of grave nature, the Hon'ble Apex Court has held that the said Court has stopped short of prescribing any straight-jacket formula for application to such cases. It is further stated that while criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departmental enquiry is aimed at maintaining discipline and efficiency in service. The difference is in the standard of proof and the application of the rules of evidence to one and in applicability to the other and therefore, conceptually the two operate in different spheres and are intended to serve distinctly different purposes. Therefore, the interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. 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 questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct of 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. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. 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 a question of fact to be considered in each case depending on its own facts and circumstances.

Learned counsel for the applicant has filed rejoinder, wherein he averred that the information/tip off regarding the alleged drug dealer, namely, Rabiul Islam i.e. the complainant in CID PS Case No. 14/2023, and a dealer of betel nuts was initially received from a former Director General of Police (DGP) and a high-ranking official holding a constitutional position in Assam. This information, received on the Applicant's WhatsApp at 8:55 PM on 15/07/2023, prompted an immediate response. Thus given the urgency associated with drug-related cases and the credibility of the source, ie. a former top police official rather than an unreliable informant, the Applicant directed the then Deputy Superintendent of Police (Dy. SP), a seasoned officer from the 2015 APS batch, to assemble a team and conduct a raid in compliance with the NDPS Act's procedural requirements. It is further submitted that during the raid, Rabiul Islam refused to open his door for several hours, necessitating a forced entry by the raiding police team. This delay allowed Rabiul Islam sufficient time to potentially relocate the entire drug consignment to another location. Moreover, upon entry, Rabiul Islam continued to withhold information and demonstrated non-cooperation. Consequently, he was taken to the police station for further questioning. It is stoutly disputed and denied that the Informant in CIS PS Case no 14/2023 was picked up with the purpose of extortion. Furthermore, a General Diary (GD) Entry was recorded in connection with the raid. Wherein, Rabiul Islam subsequently filed an application for anticipatory bail, being AB No. 2691/2023, before the Hon'ble Gauhati High Court. However, after the applicant's arrest alongside other police officials, Rabiul Islam withdrew AB No. 2691/2023. It is further stated at the cost of repetition that Rabiul Islam's travel history, verified from his seized passport, indicates frequent trips to Myanmar and Thailand, i.e. countries falling under the Golden Triangle of Drugs, reinforcing the credibility of the information suggesting his involvement in drug trafficking. With regard to connection of CID PS Case no 14/2023 and the Departmental proceedings is not true and correct and the same is hereby vehemently denied. In this connection, it is reiterated that the allegations, facts and evidence in both the proceedings are absolutely similar, arising out of the same incident and involves similar evidence and witnesses.

Counsel states that there is no bar to conduct departmental proceedings concurrently with a criminal trial, it is essential to consider the unique facts of this case. Here, the criminal charges are of a serious nature and are based on an identical set of facts as the departmental enquiry, which could unfairly prejudice the Applicant's defense. The Hon'ble Supreme Court has held that although there is no rigid rule prohibiting simultaneous proceedings, however the Applicant submits that it is prudent to prioritize fairness where complex factual and legal issues overlap. In such cases, allowing both proceedings to continue can compromise the Applicant's ability to defend himself effectively in the criminal trial by prematurely revealing his defense strategy. Given these circumstances, the Applicant respectfully prays the Hon'ble Tribunal to consider staying the departmental proceedings until the criminal trial concludes, thus ensuring that the principles of natural justice are upheld without prejudicing the Applicant's rights.

Heard the parties and perused the materials on records.

After assessing the records and submissions of both the sides, it is noted that the criminal case and the impugned departmental proceeding are based on identical and similar set of facts and the charges in the criminal case against the applicant is of grave nature. The “List of Witness” of the show cause notice are also cited as prosecution witnesses in the criminal case. Since the allegations levelled in the disciplinary proceeding arise out of the same incident basing on which the criminal trial is going on, any attempt to proceed with regular departmental enquiry would cause serious prejudice to the applicant. During examination and cross examination of the witnesses, which is an integral part in a departmental proceeding, would open up the defence of the applicant causing serious prejudice to him. Further, the Hon’ble Supreme Court in the case of G.M. Tank Vs. State of Gujarat and Ors.[(2006) 5SCC 4461] has held that when the departmental proceedings and the criminal case are based on identical and similar set of facts and the charges in a Departmental case against the delinquent and the charge before the Criminal Court are one and the nature of charge in the departmental proceedings and in the criminal case is grave, the nature of the case launched against the delinquent on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same i.e., the charges, evidence, witnesses and circumstances are one and the same, under such circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. We have also perused the Judgement delivered by the Hon’ble Supreme Court in Civil Appeal No. 7935 of 2023[arising out of SLP(C) No. 33423 of 2018] in Ram Lal Vs. State of Rajasthan and Ors., the relevant paras are reproduced below:–

From the above, it is clear that both the departmental proceedings and criminal proceedings can run hand in hand. However, in terms of the celebrated decision of the Hon’ble Apex Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. & Anr.,(1999) 3 SCC 679 which stipulates that 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 grave nature involving complicated question of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. Therefore, it is necessary that the delinquent be given adequate chance of defence.

Since the allegations levelled in the disciplinary proceedings arises out of the same incident basing on which the criminal trial is going on, any attempt to proceed with regular departmental enquiry would cause serious prejudice to the applicant in the criminal trial because the cross examination of the witnesses during the regular departmental enquiry would lead to the disclosure of defence of the applicant which will be to his detriment in his criminal trial. Therefore, in the interest of the justice, the departmental proceedings are kept in abeyance till the prosecution is not completed by the Trial Court. After the conclusion of trial, the respondents are at liberty to proceed with the departmental proceedings.

For the foregoing reasons and discussions, the instant OA stands disposed of.

Pending M.A.(s), if any, stand disposed of. No costs.