Court : HIGH COURT OF JUDICATURE AT MADRAS
Brief : 1
Citation :
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01/02/2006
CORAM
THE HON'BLE MR. AJIT PRAKASH SHAH, CHIEF JUSTICE
and
THE HON'BLE MRS. JUSTICE PRABHA SRIDEVAN
Writ Appeal No.11 of 2006
and Writ Appeal Nos., 13 & 73 of 2006
and
W.P.Nos.26176, 26177, 26178 and 26179 of 2005
and
W.A.M.P.Nos.35 to 37 & 144 of 2006
1. Indian Overseas Bank,
rep. by its Deputy General Manager,
Inquiry Cell, Industrial Relations Department,
No.763, Anna Salai, Chennai 600 002.
2. S.Venkatraman,
Enquiry Officer,
Indian Overseas Bank Inquiry Cell,
Industrial Relations Department,
No.763, Anna Salai, Chennai 2. .. Appellants in all the
Writ Appeals
& Respondents 1and 2 in all
the
Writ Petitions.
Vs.
1. P.Ganesan ..1st Respondent in W.A.No.11/2006
& Petitioner in W.P.No.26176/2005
2. S.Vijayakumar ..1st Respondent in W.A.No.12/2006
& Petitioner in W.P.No.26177/2005
3. R.Amalraj ..1st Respondent in W.A.No.13/2006
& Petitioner in W.P.No.26179/2005
4. A.Dakshinamoorthy ..1st Respondent in W.A.No.73/2006
& Petitioner in W.P.No.26178/2005
5. Mr.L.Balasubramaniam
C/o. All India Overseas Bank Employees
Trade Union, No.763, Anna Salai,
Chennai 2. ..2nd Respondent in all the Writ Appeals
& 3rd respondent in all the Writ Petitions.
PRAYER: Writ Appeals filed against the interim orders passed in
W.P.M.P.Nos.28627, 28628, 28630, and 28629 of 2005
and W.V.M.P.Nos.2047, 2049, 2048 and 2050 of 2005
in W.P.Nos.26176, 26177, 26179 and 26178 of 2005
!A.L.Somayaji, Senior Cousnel :: For Appellants in Writ Appeals &
For M/s.Aiyar & Dolia For Respondents 1 & 2 in all the
Writ Petitions.
^Mr.V.Prakash, Senior Counsel :: For Respondents 1 to 4 in Writ Appeals
For Mr.P.Chandrasekaran & Petitioners in all the Writ Petitions.
:J U D G M E N T
THE HONBLE THE CHIEF JUSTICE
Heard learned Senior Counsel for the parties, and by consent of the
parties Writ Appeals as well as Writ Petitions are taken up for final hearing.
2. These writ petitions are filed challenging the action of the
respondent-bank in proceeding with the domestic enquiry with regard to the
charge-sheet dated 21.02.2005, while criminal case on the same set of
allegation is pending against the writ petitioners.
3. The following facts lead to the filing of these writ petitions:
The writ petitioners are the office-bearers of the Indian overseas
Bank Scheduled Caste/Scheduled Tribe Employees Welfare Association. The
association is registered under the Tamil Nadu Societies Registration Act,
1975. It is the case of the petitioners that one Mr.A. Krishnan, who was
also an office-bearer of their association, floated another association and
named it as All India Overseas Bank Schedule Caste and Schedule Tribe
Employees Welfare Association. The registration under similar name was the
subject matter of challenge before the High Court in W.P.No.10030 of 2001 and
this Court vide its Judgment and Order dated 23.01.2004 allowed the petition
declaring the registration of the association with the same name resembling
the petitioners association as illegal. It is the further case of the
petitioners that one Mr.L.Balasubramaniam, President All India Overseas Bank
Employees Association, who is impleaded in the writ petitions as 3rd
respondent and Mr.A.Krishnan, started to interfere with the activities of the
writ petitioners association. According to the petitioners on 27.01.2005 at
about 12.30 pm when the General Secretary of the petitioners association went
to the central office of the bank to discuss about the welfare measures to be
taken for the Scheduled Caste and Scheduled Tribe employees of the bank, he
and his associates were abused by caste and physically assaulted by
Mr.L.Balasubramaniam and some other persons. As a result the General
Secretary and the other officebearers of the petitioners association received
injuries and were admitted in the General Hospital. It is alleged by the
petitioners that Mr. L.Balasubramaniam having attacked them got himself
admitted in National Hospital, a private hospital, and lodged a private
complaint. The General Secretary of the petitioners association also lodged
a complaint on 27.01.2005 at about 19.15 hours against Mr.L.Balasubramaniam
before the F4-Thousand Lights Police Station, Chennai under Sections 3 41 and
323 of IPC read with Section 3(1) of the Schedule Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989, and the same has been registered as
Crime No.163 of 2005, and a charge sheet has also been filed before the XIV
Metropolitan Magistrate, Egmore, Chennai. It is stated that
Mr.L.Balasubramaniam had also lodged a complaint against the office-bearers of
the petitioners association and the complaint was registered in the same
police station under Crime No.162 of 2005 under Sections 341, 323, 324, 427,
307 and 507(II) of the Indian Penal Code, and a charge sheet has also been
filed in that case before the XIV Metropolitan Magistrate, Egmore, Chennai.
Both the criminal cases are pending. The grievance of the petitioners is that
the respondent-bank without conducting any preliminary investigation,
straightaway issued a statement of imputation and started domestic enquiry
against the petitioners alleging that the petitioners had indulged in unruly,
riotous behaviour, and allegedly committed willful act of criminal assault on
Mr.L.Balasubramnaiam. The statement of imputation is solely based on the
criminal complaint lodged by Mr.L. Balasubramaniam. The petitioners contend
that inasmuch as the criminal case against the petitioners is pending, and the
disciplinary proceedings are founded on the same set of allegations,
petitioners will suffer undue hardship if disciplinary proceedings are allowed
to proceed especially when Mr.L.Balasubramaniam is also facing the charge with
regard to the same incident before the criminal court. The petitioners have
therefore filed the above writ petitions seeking a direction against the 1st
respondent-bank to defer the disciplinary proceedings with regard to the
charge sheet dated 21.02.2005 issued to the petitioners until the completion
of criminal trial in respect of Crime Nos.162-163 of 2005 on the file of F-4,
Thousand Lights Police Station, Chennai.
4. Mr.V.Prakash, learned Senior Counsel appearing for the petitioners
submitted that the bank has initiated the disciplinary proceedings solely on
the basis of the criminal complaint lodged by the President of the rival
union. According to him as the criminal case against the petitioners is
pending and the disciplinary proceedings are founded on the same set of
allegations, the petitioners will be seriously prejudiced, if the disciplinary
proceedings are allowed to proceed, particularly, when the President of the
rival union is also facing the charge with regard to the same incident before
the criminal court. Further, according to him, in the facts and circumstances
of the case, it would not be desirable or proper to proceed simultaneously
with the criminal proceedings as well as the disciplinary proceedings.
5. Per contra, Mr.A.L.Somayaji, learned Senior Counsel appearing for
the respondent-bank submitted that in law there is no bar to or prohibition
against initiating simultaneous criminal proceedings and disciplinary
proceedings. The purpose of the departmental enquiry and of prosecution is
two different and distinct aspects. The crime is an act of commission in
violation of law or omission of public duty. The departmental enquiry is to
maintain discipline and efficiency in public service. It would, therefore, be
expedient that the disciplinary proceedings are conducted and completed as
expeditiously as possible.
6. In Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, 1960 (1)
LLJ 520 (SC), it was held that the principles of natural justice do not
require that the employer should wait for the decision of the criminal court
before taking disciplinary action against the employee. At the same time, the
Court observed:
We may, however, add that if the case is of a grave nature or involves
questions of fact or law, which are not simple, it would be advisable for the
employer to wait the decision of the trial court, so that the defence of the
employee in the criminal case may not be prejudiced.
7. In Tata Oil Mills Co. Ltd. Vs. Workmen, 1964 (II) LLJ 113 (SC),
following Delhi Cloth and General Mills Ltd. Case (supra) it was observed
that, it is desirable that if the incident giving rise to a charge framed
against a workman in a domestic enquiry is being tried in a criminal court,
the employer should stay the domestic enquiry pending the final disposal of
the criminal case. It would be particularly appropriate to adopt such a
course where the charge against the workman is of a grave character, because
in such a case, it would be unfair to compel the workman to disclose the
defence, which he may take before the criminal court. But to say that
domestic enquiries may be stayed pending criminal trial is very different from
saying that if an employer proceeds with the domestic enquiry in spite of the
fact that the criminal trial is pending, the enquiry for that reason alone is
vitiated and the conclusion reached in such an enquiry is either bad in law or
mala fide.
8. In Jang Bahadur Singh Vs. Baij Nath Tiwari, 1969 (1) LLJ 567 (SC) the
contention that initiation of disciplinary proceedings during the pendency of
criminal proceedings on the same facts amounts to contempt of court was
rejected by the Supreme Court.
9. After considering the ratio of the above three decisions vide, Delhi Cloth
and General Mills Ltd. Case, Tata Oil Mills Co. Ltd. Case and Jang Bahadur
Singh case (supra) the Supreme Court in Kusheshwar Dubey Vs. Bharat Coking
Coal Ltd., 1988 (2) LLJ 470 observed:
"The view expressed in the three cases of this court seems to
support the position that while there could be no legal bar for simultaneous
being taken, yet, thee may be cases where it would be appropriate to defer
disciplinary proceedings awaiting disposal of the criminal case. In the
latter class of cases it would be open to the delinquent employee to seek such
an order of stay or injunction from the court. Whether in the facts and
circumstances of a particular case there should or should not be such
simultaneity of the proceedings would then receive judicial consideration and
the court will decide in the given circumstances of a particular case as to
whether the disciplinary proceedings should be interdicted, pending criminal
trial. As we have already stated that it is neither possible nor advisable to
evolve a hard and fast, straightjacket formula valid for all cases and of
general application without regard to the particularities of the individual
situation. For the disposal of the present case, we do not think it is
necessary to say anything more, particularly when we do not intend to lay down
any general guideline.
In the instant case, the criminal action and the disciplinary
proceedings are grounded upon the same set of facts. We are of the view that
the disciplinary proceedings should have been stayed and the High Court was
not right in interfering with the trial courts order of injunction which had
been affirmed in appeal (emphasis supplied).
10. In State of Rajasthan Vs. B.K.Meena & Others, 1997 (1) LLJ 746 a two
Judge Bench of the Supreme Court observed:-
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 staying of
disciplinary proceedings, it is emphasised, is a matter to be determined
having regard to the facts and circumstances of a given case and that no hard
and fast rules can be enunciated in that behalf. 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. The ground indicated in D.C.M.
and Tata Oil Mills (supra) is also not an invariable rule. It is only a
factor which will go into the scales while judging the advisability or
desirability of staying the disciplinary proceedings. One of the contending
considerations is that the disciplinary enquiry cannot be and should not be
delayed unduly. While it is not possible to enumerate the various factors,
for and against the stay of disciplinary proceedings, we found it necessary to
emphasise some of the important considerations in view of the fact that very
often the disciplinary proceedings are being stayed for long periods pending
criminal proceedings. Stay of disciplinary proceedings cannot be, and should
not be, a matter of course. All the relevant factors, for and against, should
be weighed and a decision taken keeping in view the various principles laid
down in the decisions referred to above (emphasis supplied).
11. In Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1 416
the Supreme Court indicated some of the fact situations which would govern the
question whether departmental proceedings should be kept in abeyance during
the pendency of a criminal case. In paragraph 22 of the said decision,
conclusions which are deducible from various decisions were summarised. They
are as follows:
(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 couldnt 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 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
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, the
administration may get rid of him at the earliest.
12. The question as to whether there is any prohibition against initiating
simultaneous criminal proceedings and disciplinary proceedings was again
considered by a two Judge Bench of the Supreme Court in State Bank of India
and Others Vs. R.B.Sharma, (2004) 7 SCC 27 wherein the Supreme Court observed
as follows:
Para- 8: The purpose of departmental enquiry and of prosecution are
tow 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 questions of fact and
law. Offence generally implies infringement of public duty, 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 provisions of the Indian
Evidence Act, 1872 (in short the Evidence Act). Converse is the case of
departmental enquiry. The enquiry 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 of 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 a
question of fact to be considered in each case depending on its own facts and
circumstances (emphasis supplied).
13. It is thus fairly settled law that on basic principles
proceedings in a criminal case and a departmental proceedings can go on
simultaneously, except in some cases where departmental proceedings and
criminal case are based on the same set of facts and the evidence in both the
proceedings are same. It is in these cases the Court has to decide taking
into account special features of the case whether simultaneous continuance of
both would be proper. There can be no straight jacket formula as to in which
case the departmental proceedings have to be stayed, and the Court will have
to decide in the given circumstances of a particular case as to whether
disciplinary proceedings should be interdicted, pending criminal trial.
14. In 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.
15. In our opinion, in the peculiar facts and circumstances of the
case on hand, fair play requires the postponing of the departmental
proceedings till the criminal cases are decided. We are, therefore, of the
view that the prayer made by the petitioners for deferring the departmental
proceedings till the conclusion of the criminal trial has to be accepted and
it is ordered accordingly.
16. With the above observations, the writ appeals and the writ
petitions are disposed of. However, there will be no order as to costs.
Consequently, connected miscellaneous petitions are closed.
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