Department enquiry

K K S V SOMESWAR (Querist) 20 September 2013 This query is : Resolved
the criminal proceedings in Honourable Court and also department enquiry both are based on Panchanama & Chargesheet filed by Police. Can the department enquiry be stalled as it is prejudicial to employee's interest in the case pending with Honourable Court where the trial is going on ?

Moreover the panchanama copy given in department enquiry does not bear the signatures of two witnesses who are officials of the organisation. Will that panchanama is valid without bearing signatures of witnesses ?

Pl answer both queries. thanks to experts.

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Guest (Expert) 20 September 2013
While the court case is based on criminal law, the departmental inquiry is based on the conduct and discipline rules prescribed by the department. If the police investigation has been completed the departmental inquiry case can be held simultaneously along with the criminal case in the court. Both are conducted on different lines.

About panchnama, if the same has already been filed in the court of law, only true copy of the same can be made available to the the suspected public servant, as certified by the police/CBI, as the case may be. However, the SPS can insist on the examination of the original panchnama, which the department can arrange with the help of the police or the public prosecutor.

Sudhir Kumar, Advocate (Expert) 21 September 2013
agreeing with Mr Dhingra I would add that if you have a really specific case of premature disclosure of defence during DP you can seek court order for its stay on merits of the case. But per-se simultaneous are not illegal.

Rajendra K Goyal (Expert) 21 September 2013
well advised by the experts, nothing more to add.

Murali Krishna (Expert) 21 September 2013
Yes. Departmental proceedings can be stalled in the following situation.

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. [Capt.M.Paul Anthony V. Bharat Gold Mines Ltd. & Anr. JT 1999 (2) SC 456]. Supreme Court followed the ratio in may other cases. You can search for them.

Guest (Expert) 22 September 2013
Mr. Murali Krishna,

All cases of departmental inquiry are not alike and all court judgments cannot be applied on a similar sounding case but having different grounds. We may just be misguiding the querist, if we are unable to compare the grounds of both the cases and fail to appropriately interpret the spirit of the judgment. The present query seeks guidance whether "the department enquiry be stalled as it is prejudicial to employee's interest." In no way the inquiry is held up in view of the employee's interest. Only interest of the employer is taken in to consideration with reference to the misconduct of employee.

In the case quoted by you the judgment relates to dismissal on the basis of ex-parte inquiry, not allowing adequate opportunity to defend his case, BUT NOT on the basis of not deferring the inquiry when court case was in progress.

Secondly, his Writ Petition No. 10842 of 1985 in the Karnataka High Court, for a direction to restrain the respondents from proceeding with the disciplinary inquiry till the conclusion of the criminal case, had already been disposed of by giving liberty to the respondents to defer the disciplinary proceedings IF it was FOUND EXPEDIENT so to do. You may like to see the relevant paragraph about the fact, as contained in the judgment. The same is reproduced below for your ready reference:

"In the meantime, the appellant filed Writ Petition No. 10842 of 1985 in the Karnataka High Court for a direction to restrain the respondents from proceeding with the disciplinary inquiry till the conclusion of the criminal case as the appellant's defence was likely to be prejudiced. This Writ Petition was disposed of by the High Court on 19.8.1985 and a direction was issued to the respondents to consider and dispose of the appellant's appeal the appellant's appeal filed against the order of suspension BUT LIBERTY WAS GIVEN TO THE RESPONDENTS TO DEFER THE DISCIPLINARY PROCEEDINGS IF IT WAS FOUND EXPEDIENT SO TO DO. The respondents did not defer the departmental proceedings and continued the proceedings which the appellant could not attend on account of his ill-health and financial difficulties which compelled him to shift to his home-town in Kerala. The respondents were informed by a number of letters supported by medical certificates about his illness with a request for staying the departmental proceedings and await the result of the criminal case. But the Inquiry Officer rejected the request and recorded his findings on 10.5.1986 holding the appellant guilty. These findings were accepted by the Disciplinary Authority and by order dated 7th June 1986, the appellant was dismissed from service."

So, you perhaps need to review your reply.

Rajendra K Goyal (Expert) 22 September 2013
Agree with PS Dhingra ji.

Murali Krishna (Expert) 22 September 2013
Mr. Dhingra,

1. I am always puzzled why certain people became jittery if I cite relevant judgements which give the ratio. repeat "relevant". I am sure queriests should not be misguided.

2. In Paul Anthony case, the Supreme Court has given certain guide lines as to how to deal such type of cases. Hence, your reference to facts in that particular case is irrelevant and misleading.

3. Definitely there are cases which lay down Ratio decidendi and cases which are solely based on facts. One has to know the difference.

4. My reference with the case law is to the issue raised by the queriest.

5. Query is Can the department enquiry be stalled as it is prejudicial to employee's interest in the case pending with Honourable Court where the trial is going on.

6. So, the queriest seeks guidance as to whether departmental enquiry can be stalled since continuation of the same is prejudicial to him (employee). But not the criminal case.

7. Where criminal case and departmental case both are proceeding, there is a possibility of stalling departmental proceedings but not criminal proceedings. A three member Bench of Supreme Court already decided it in 2011.

Guest (Expert) 22 September 2013
Mr. Murali Krishna,

Thanks for editing your earlier reply where you stressed upon compulsorily stalling of the case. For your information, I have not become jittery, rather you seem to have become nervous on pointing out defect in your reply. By quoting some of the parts of the judgment, I simply stated, "you perhaps need to review your reply." But your nervousness bacame known tt one and all, who are supposed to read your reaction.

Reading between the lines is never in the interest of any one, rather harms the interest of the delinquent.

Anyway, now your reply indicates, as if you have read the judgment somewhat properly. But, if you feel that even my exact quotation of the text from the referred case is irrelevant and misleading, that denotes, you have still not read the case properly.

The word, "advisable" itself denotes that the departmental inquiry cannot compulsorily be stalled if the court case is going on.

Moreover, if you re-read the same judgment, you would find that the stalling of the case can only be made on the direction of the court only on application for stay that too when the court is convinced.

You may also like to read the following part of the judgment, if you feel that is relevant or not misleading:

"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."

V R SHROFF (Expert) 22 September 2013
well advised by the experts, nothing more to add.

Murali Krishna (Expert) 22 September 2013
Cool down Mr.Dhingra.

I always wish queriests are given proper answers.

Guest (Expert) 23 September 2013
Mr. Murali,

Nice to know, at last good sense prevailed upon you.

I am already cool, only your earlier post revealed as if you were under tension, when you declared others JITTERY, while stating, "I am always puzzled why certain people became jittery".

Murali Krishna (Expert) 23 September 2013
Mr.Dhingra,

I do not want this forum to be a personal spat between participants. Sure you can understand. Jittary is in those people who misunderstands issues and in that guise giving wrong advises and who knows what is their intention.

Guest (Expert) 23 September 2013
Mr. Murali,

Nice to know, if you "do not want this forum to be a forum of personal spat between participants." But from your posts that does not seem so. Your statement, "jittary is in those people who misunderstands issues and in that guise giving wrong advises and who knows what is their intention, clearly reveals, towards whom you have raised finger. Nobody else, other than me, pointed out to you to review the position in the light of your own referred judgment. I could also have referred the said judgment, but that was of no use as that does not bind any disciplinary authority or the I.O. in any way.

If you believe that any or every judgment in some unrelated case becomes rule of law to be followed mandatorily in all cases by the disciplinary authority, when the respective conduct & discipline rules are not adapted appropriately by issue of specific administrative instructions, at least, I can't endorse your views. If he wants to stall the inquiry, only a stay order from the court is the remedy.

Anyway, it is for the querist to judge who has rightly advised and can proceed further according to his own understanding. At least, I do not believe in putting mirages of false hopes before the querists. With all sincerity and honesty, I believe in putting a clear picture, may that be in favour or against the querist. Rest depends upon his own choice, what to do and why to do.

Murali Krishna (Expert) 23 September 2013
Dear Mr.Dhingra,

Thanks for your clarification. With due respects to you, it is not my intention to hurt anybody, but for the haughty language employed by people.

I too would like to put a quietus to this issue, as I sincerely believe that this forum is for sharing and dissemination of the knowledge while answering and going through the replies of the experts on various subjects.

Guest (Expert) 23 September 2013
Thanks for your clarification.

Sudhir Kumar, Advocate (Expert) 06 October 2013
You have repeated almost same facts on many threads:-

http://www.lawyersclubindia.com/experts/SEC-66-A-OF-IT-ACT-2008-414206.asp#.UlECoVPQyVE

http://www.lawyersclubindia.com/experts/DISCREPANCY-IN-PANCHANAMA--423246.asp#.UlECmlPQyVE

http://www.lawyersclubindia.com/experts/validity-of-document-423656.asp#.UlECmFPQyVE

http://www.lawyersclubindia.com/experts/department-enquiry-424161.asp#.UlECkVPQyVE

http://www.lawyersclubindia.com/experts/INTERNAL-ENQUIRY-427321.asp#.UlECjVPQyVE

by repeated query the facts are not going to change.

Department enquiry

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