Research › Browse › Judgment

Gauhati High Court · body

1996 DIGILAW 114 (GAU)

Sukumar Das v. State of Tripura and Ors.

1996-06-13

N.G.DAS

body1996
This application under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order of suspension dated 23.2.87 (Annexure A), Memo of proceeding dated 1.6.87 (Annexure C) and order of termination dated 15.1.1988 (Annexure D/2) and also the order of appellate authority dated 28.11.88 contained in Annexure I. 2.1 have heard Mr. S. Chakraborty, the learned counsel appearing on behalf of the petitioner and Mr. AK Bhowmik, the learned senior counsel appearing on behalf of the respondents. 3. The facts of the case shortly put, are that the petitioner who was a Clerk-cum-Cashier in a privately managed school, namely Netaji Subhash Vidyaniketan was put under suspension by an order dated 23.2.1987 (Annexure A) in contemplation of drawing up a departmental proceeding against him. Thereafter, by Memo dated 1st June, 1987 a departmental proceeding was drawn up against the petitioner on the charges of mis-appropriation of a sum of Rs.32,412.94. Two distinct charges which were framed against the petitioner under Articles No. 1 an<j| 2 are as follows : "Statement of Articles of charges framed against Shri Sukumar Ranjan Das, Clerk-cum-Cashier, Netaji Subhash Vidyaniketan, Agartala in connection with the enquiry under Rule 22 of the Grant-in-aid Rules (Recurring), 1978. ARTICLE 1 That Shri Sukumar Ranjan Das, Clerk-cum-Cashier, Netaji Subhash Vidyaniketan, Agartala is charged for gross misconduct in that he while employed as Clerk-cum-Cashier of Netaji Subhash Vidyaniketan, Agartala having dominion over the funds of the school misappropriated a sum of Rs.31,402.89 (Rupees thirty one thousand four hundred two and paise eighty-nine) only, during the period from 11.9.1986 to 21 11.86 and that admitting the said position Shri Sukumar Ranjan Das refunded an amount of Rs. 11,000/- (Rupees eleven thousand) only on 25.11.86 but failed to refund the balance amount of Rs.20,402.89 (Rupees twenty thousand four hundred two and paise eightynine) only, within 21.1.87 as per direction of the Managing Committee. ARTICLE 2 That Shri Sukumar Ranjan Das, Clerk-cum-Cashier, Netaji Subhash Vidyaniketan, Agartala is charged for gross misconduct in that he while employed as Clerk-cum-Cashier of Netaji Subhash Vidyaniketan, Agartala having sole responsibility of cash accounts did not make due entries in the cash books of the school day to day wef 11.9.86 to 9.10.86 and thus neglected to perform his duty." 4. It was alleged that after drawing up the aforesaid proceeding against the petitioner the respondents filed a criminal case on the allegation that the petitioner committed offence of misappropriation of money. The petitioner, therefore, submitted an application before the disciplinary authority to stop the departmental proceeding as a departmental proceeding and a criminal case cannot go simultaneously. But the authority did not stop the departmental proceeding. The petitioner, therefore, filed a civil suit in the Court of learned Munsiff, Sadar for restraining the respondent from proceeding with the departmental proceeding. Along with the plaint the petitioner also filed an application under Order 39 Rules 1 end 2 of CPC for an order of temporary injunction. But the petitioner was unsuccessful to get an order of interim injunction in his favour. 5. Meanwhile, the departmental proceeding was over wherein the petitioner was found guilty and accordingly by the order dated 15.1.88 his services were terminated. Aggrieved by this order of termination the petitioner preferred an appeal before the appellate authority. But the appellate authority also by its order dated 8.12.1988 dismissed the appeal confirming the order of punishing authority. The petitioner has, therefore, prayed for the reliefs as stated above. 6. The respondent Nos. 1,2 and 3 filed a joint counter affidavit denying all the material averments of the writ petition. Similarly, the respondent Nos. 4 to 7 who filed a joint affidavit-in-opposition contended, inter alia, that it was not a fact that the petitioner submitted any application to the disciplinary authority for suspending the departmental proceeding until trial of the criminal case is over. It was further contended that the disciplinary authority repeatedly informed the petitioner at each stage of the departmental proceeding but the petitioner did not appear before the departmental authority on the date of hearing. It was also contended that before passing the order of punishment the petitioner was duly informed by notice, but he neither appeared before the disciplinary authority nor submitted any prayer. It was, therefore, submitted that the writ petition merits no consideration. 7. Now, the only point that has been urged by Mr. Chakraborty, the learned counsel appearing on behalf of the petitioner is that the departmental proceeding and the order of punishment must be set aside on the simple ground that a criminal case and a departmental proceeding on the same charge cannot proceed together. It is contended by Mr. 7. Now, the only point that has been urged by Mr. Chakraborty, the learned counsel appearing on behalf of the petitioner is that the departmental proceeding and the order of punishment must be set aside on the simple ground that a criminal case and a departmental proceeding on the same charge cannot proceed together. It is contended by Mr. Chakraborty that because of simultaneous proceedings the petitioner has been prejudiced. Jn support of his contention Mr. Chakraborty has placed reliances upon a decision of the Supreme Court rendered in the case of Kusheswar Dubey vs.M/s Bharat Coking Coal Ltd & others reported in (1984) 4 SCC 319. But Mr. AK Bhowmik, the learned senior counsel appearing on behalf of the respondents has argued that the decision of the aforesaid case will not be of any help to the petitioner as a perusal of the documents submitted by both the parties will show that the facts of this case are quite distinguishable from the facts of the" decision referred to by Mr. Chakraborty. 8. It is contended by Mr. Bhowmik that the petitioner was unsuccessful to get any order of injunction in the civil Court which he filed for staying the departmental proceeding. Mr. Chakraborty on the other hand, submits that since the Court did not grant the temporary injunction the petitioner remained satisfied. It is an admitted fact that the petitioner did not approach the appellate authority for getting an order of interim injunction. 9. On the otherhand, it appears that the departmental proceeding was completed by 15.1.1988. In the criminal case which was filed on 25.2.87 charge was framed on 11.7.1991 and two judgment of that criminal case holding the petitioner guilty was passed on 31.8.1993. It is an admitted fact that order of punishment in the departmental proceeding was passed on 15.1.1988 and the appellate authority also disposed of the appeal by its order dated 28.11.1988 (Annexure 1). From this fact it is clear that the departmental proceeding was over before the charge was framed in the criminal case. So, there was no scope of interference with the course of justice in the criminal case that as pending before the Court. . 10. From this fact it is clear that the departmental proceeding was over before the charge was framed in the criminal case. So, there was no scope of interference with the course of justice in the criminal case that as pending before the Court. . 10. In the case of Kusheswar Dubey (supra) the Supreme Court held : "While there can be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the later class of cases it would be open to the delinquent employee to seek such an order of stay of injunction from the Court whether in the facts and circumstances of a particular case there should or should not be such a 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 proceeding should be interdicted, pending criminal trial. It is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. In the instant case, the criminal action and the disciplinary proceedings were grounded upon the same set of facts. The disciplinary proceedings should have been stayed and High Court was not right in interfering with the trial Court's order of injunction which had been affirmed in appeal." 11. It would be quite apparent from the above quoted passage that in the aforesaid dictum the Supreme Court also held that it is not possible to evolve a hard and fast formula for general application. What has been envisaged is that it would depend upon the circumstances of a particular case. In the instant case from my discussion made above it will appear that the civil Court did not allow the interim injunction. The petitioner remained satisfied with the order of injunction and he did not prefer any appeal. Apart from that it would also appear from the facts I have narrated above that the departmental proceeding which was started on 1.6.1987 was completed on 15.1.1988. The criminal case in which the petitioner was convicted was filed on 25.2.1987 and charge in that case was framed on 11.7.1991 and the judgment was delivered on 31.8.1993. Apart from that it would also appear from the facts I have narrated above that the departmental proceeding which was started on 1.6.1987 was completed on 15.1.1988. The criminal case in which the petitioner was convicted was filed on 25.2.1987 and charge in that case was framed on 11.7.1991 and the judgment was delivered on 31.8.1993. From these facts it cannot be said that the petitioner was prejudiced. 12. In the case of Jang Bahadur Singh vs. Baij Nath Tiwari reported in AER 1969 SC 30 the Supreme Court held : "The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceeding. The employee is free to move the Court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of Court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers." 13. In the instant case, it is true that charge in the departmental proceeding as well as in the criminal case was substantially same. But from the above quoted passage it would appear that pendency of the Court's proceeding does not bar the taking of disciplinary action. Where the civil Court rejected the prayer for , temporary injunction the petitioner, if he was really aggrieved could move the higher Court, but he did not do so. Moreover, the departmental proceeding was over before the charge was framed in the criminal case. 14. No other point has been argued by Mr. Chakraborty, the learned counsel for the petitioner. 15. For the reasons stated above, I see no merit in this writ petition which is accordingly dismissed with no costs.