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2000 DIGILAW 373 (RAJ)

Hadoti Kshetriya Gramin Bank v. Govindlal

2000-03-24

ARUN MADAN

body2000
JUDGMENT : 1. The civil revision petition arises out of judgment dated 15.10.96 of the Civil Judge (SD), Jhalawar affirming the temporary injunction granted by the Munsif, Jhalawar by his judgment dated 12.10.93, whereby the defendant No. 1, 3 and 4 (present petitioners) were directed to maintain status quo in the departmental inquiry in respect of the plaintiff till final disposal of the suit. 2. The facts relevant for disposal of this revision petition, briefly stated, are that the plaintiff (respondent No. 1) filed a civil suit for permanent injunction and for declaring ex-parte departmental inquiry as illegal and void ab initio and meanwhile for staying these proceedings. It has been averred therein that by lodging FIR on 19.12.90 and getting him arrested from 13.5.91 to 21.5.91 in criminal case arising out of FIR No. 260/90 lodged at police station Kotwali Jhalawar for offences under Sections 420, 379 and 120-B, Indian Penal Code the defendants who are officers of the Hadoti Gramin Bank Kota after suspending him issued charge sheet on 7.1.92 for the self same allegations made in criminal case, referred to above and in pursuance of the charge-sheet, the disciplinary action was initiated against him, wherein P.R. Sharma (defendant No. 2) was appointed as Inquiry Officer who, according to the plaintiff bore animosity as would be evident from the fact that he rejected plaintiff's application dated 12.6.93 by an ex parte order passed on 16.7.93. An application for grant of temporary injunction was also moved by the plaintiff under Order 39, Rules 1 and 2 Civil Procedure Code reiterating the averments stated in the plaint. 3. It has also been averred in the suit as also T.I. application that criminal case has also been pending before the Judicial Magistrate Jhalawar. An application for grant of temporary injunction was also moved by the plaintiff under Order 39, Rules 1 and 2 Civil Procedure Code reiterating the averments stated in the plaint. 3. It has also been averred in the suit as also T.I. application that criminal case has also been pending before the Judicial Magistrate Jhalawar. Temporary injunction out of which this revision petition has arisen, was sought on the ground inter alia that the allegations as also subject matter in criminal case and the charge-sheet under departmental inquiry against the plaintiff are not only similar as also identical but also self same facts and circumstances based for his single posting period i.e. from 2.2.89 to 9.8.90 when he was working as clerk-cum cashier in the defendant's bank, inasmuch as the defendants are biased with him (plaintiff) thereby are adamant to get the departmental inquiry concluded by terminating his service in a hot haste manner and duly actuated with malice, without awaiting the outcome of the criminal case. The plaintiff's cause further was that in case the departmental inquiry is not stayed, it would prejudice to his defence not only in the criminal case but also in the disciplinary proceedings and thereby it would result in violation of principles of natural justice. 4. The defendants upon notice submitted their joint reply to the T.I. application denying the plaintiff's case for temporary injunction on all respects by contending that the allegations are distinct in the criminal case as also in the disciplinary proceedings. The defendants stated in the reply that FIR in question was lodged by the defendant Bank not against the plaintiff but one Sohanlal. They have even denied to have any knowledge not only as to the arrest of the plaintiff but also to the proceedings held by the police in that FIR. 5. After hearing the parties and examining the material on record, the learned trial Court held prima facie case and balance of convenience in favour of the plaintiff and therefore granted temporary injunction by its judgment directing the defendants to maintain status quo in the departmental inquiry pending against the plaintiff till the disposal of his suit, against which the defendants went in misc. appeal before the appellate Court, which upheld the temporary injunction by its judgment dated 15.10.96. Hence this revision petition. 6. appeal before the appellate Court, which upheld the temporary injunction by its judgment dated 15.10.96. Hence this revision petition. 6. I have heard learned counsel for the parties and have perused the impugned judgments so also considered the legal aspect of the matter, with reference to their respective rival contentions. 7. The contention on behalf of the defendant Bank was that merely because the police started investigation and thereupon challan has been filed in the competent Court for trial in criminal case or that criminal case has been registered against the employee who is delinquent in disciplinary inquiry, this by itself would not be a ground for stay in the disciplinary inquiry and there is no bar for the plaintiff employee to participate in these proceedings. In sum and substance, the bank's case was that merely because subject matter of the prosecution as also departmental inquiry was also one and the same, this by itself could not be legal and valid ground for stay of the disciplinary proceedings against the plaintiff employee and that apart, mere allegation of biasness or malafides could not be itself be a valid or cogent ground to stay the disciplinary inquiry, especially, when those proceedings are being conducted by competent authority, to which also the plaintiff at his own accord has volunteered to abstain from appearing despite show cause notice having been served upon him. Hence under the circumstances, it could not be assumed that the Bank had proceeded validly ex parte against him, and as a matter of fact, the plaintiff was never deprived of any opportunity at any stage of the disciplinary proceedings to participate or appear before the inquiry officer. 8. It has also been contended by the learned counsel for the defendant Bank that the trial Court was neither competent nor justified in law in having stayed the disciplinary inquiry merely on the basis of criminal case having been pending with the criminal court. He relied upon the decision of this Court in Central Co-operative Bank Ltd., Jhalawar v. Mahendra Kumar, S.B. Civil Revision Petition No. 1370/95 decided on 7.5.1996 , and the decision of the Apex Court in State of Rajasthan v. M/s. Kalyan Sundaram Cement Industries Ltd., JT 1996 (3) SC 162 . 9. He relied upon the decision of this Court in Central Co-operative Bank Ltd., Jhalawar v. Mahendra Kumar, S.B. Civil Revision Petition No. 1370/95 decided on 7.5.1996 , and the decision of the Apex Court in State of Rajasthan v. M/s. Kalyan Sundaram Cement Industries Ltd., JT 1996 (3) SC 162 . 9. On the other hand, supporting the impugned judgments of Courts below consisting of concurrent findings of fact based on well established canons of law, Shri K.K. Mehrish learned counsel for the plaintiff respondent reiterated the contentions urged before the Courts below and he vehemently contended that decisions cited by Shri A.K. Gupta, learned counsel for the Bank have already been taken into consideration and have rightly been distinguished in the facts and circumstances of this case by the courts below. 10. In the instant case, the trial Court which granted temporary injunction directing the defendant Bank to maintain status quo in pending disciplinary inquiry, as well as the appellate Court, both have concluded that the facts and circumstances allegations made against the plaintiff in disciplinary inquiry and in criminal case are one and the same being identical and similar and hence they cannot be distinct to each other. Such a conclusion is based on material brought on record by the parties to the T.I. application. 11. Foremost question which arises is as to in what circumstances departmental enquiry can be stayed in case of criminal prosecution particularly when the departmental enquiry having been launched and continued together ? 12. In Kushewar Dubey v. M/s. Bharat Coking Ltd., AIR 1988 SC 2118 , the Apex Court placed reliance upon its earlier decision in DCM Ltd. v. Kushal Bhan, AIR 1960 SC 806 , and Tata Oil Mills Ltd. v. Its Workmen, AIR 1965 SC 155 . In DCM"s case (supra), the Apex Court held that if the case is of a grave nature or involves question of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court in criminal case, so that the defence of the employee in the criminal case may not be prejudiced. In Tata Oil Mills' case (supra), Gajendragadkar C.J., as he then was, speaking for a three Judges Bench held that as held in DCM Ltd.'s case (supra), 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. In Kushewar's case (supra), the Apex Court then held:- (a) that while there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case and in latter class of cases, it would be open to the delinquent employee to seek such an order of say or injunction from the Court; and (b) that it is neither possible not advisable to involve (evolve ?) a hard and fast, strait-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. However, the Apex Court observed the criminal action and disciplinary proceedings in that case before it are grounded upon the same set of facts and, therefore, it held that the disciplinary proceedings could be stayed in the facts and circumstances. 13. In latest decision of the Apex Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., 1999 (2) JT 456 , their Lordships while taking into consideration a series of its earlier decisions including those referred to in preceding para, deduced following conclusions:- (i) Departmental proceedings are 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 charges 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. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charges 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 question of fact and law are involved in that case, will depend upon the nature of offence, the nature 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 cannot 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 the they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude then at an early date, so that if 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. 14. Thus viewed from the proposition of law laid down by the Apex Court (supra), I am of the considered opinion that there is no bar for the criminal prosecution and departmental enquiry being launched and continued together. However, there is one exception to its namely that if the departmental proceedings and criminal case are based on identical and similar set of facts, and the charge in criminal case against the delinquent employee is of a grave nature involving complicated questions of law and fact, then the latter can be stand. In other words, criminal prosecution and departmental enquiry both can proceed together, unless they are based on the same set of facts and circumstances as referred to above. In other words, criminal prosecution and departmental enquiry both can proceed together, unless they are based on the same set of facts and circumstances as referred to above. Applying the aforesaid proposition of law to the present case, in my considered view, the disciplinary proceedings have rightly been stayed by grant of temporary injunction after holding by the Court below in the instant case, that criminal case and the disciplinary proceedings are grounded upon the same set of facts and hence they should be interdicted pending trial in the Civil suit. 15. As regards objection of the Bank as to the maintainability of suit, itself, in view of Section 75 read with Section 135 of the Rajasthan Co- operative Societies Act, 1965, and as to the applicability of ratio of decision of this Court in Central Cooperative Ltd.'s cases (supra), prima- facie, I am of the view that such an objection having not been raised either in reply to the T.I. application or in written statement but being raised for the first time in this revision petition, is not tenable, that a part, the defendant's Bank have failed to plead or produce any documents to prima facie establish that the provisions of the Act 1965 are applicable to the present case or the disciplinary proceedings were initiated under the Act 1965. 16. Section 75 of the Act 1965 deals with disputes which may be referred to arbitration. Sub-section (1) of Section 75 provides that if any dispute touching the constitution, management, or the business of a Co-operative society arises out of following categories then such dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. Sub-section (1) of Section 75 provides that if any dispute touching the constitution, management, or the business of a Co-operative society arises out of following categories then such dispute shall be referred to the Registrar for decision and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute. "(a) among members, past members and persons claiming through members, past members and deceased members, or (b) between a member, past member or person claiming through a member, part member, or deceased member and society, its committee or any officer, agent or employee of the society, or (c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, or (d) between the society and any other co-operative society, or (e) between the society and the surety of a member, past member or a deceased member, or a person other than a member who has been granted a loan by the society or with whom the society has or had transaction under Section 66, whether such a surety is or is not a member of a society." 17. Having considered this aspect of the matter, prima facie, I am of the opinion that in order to ouster the jurisdiction of the Civil Court, the essential conditions mentioned in sub-section (1) should be satisfied, viz. (1) that a dispute which requires to be referred for settlement under Section 75, must be - (i) touching the constitution, management, or business of a society; (ii) the parties to the dispute must be those mentioned in clauses (a) to (e) of sub-section (i) besides mentioned in clauses (a) to (c) of sub- section (2) of Section 75. However, it cannot be denied that the provisions of sub-section (1) is an overriding one and if a dispute comes within the conditions laid down in that sub-section, such a dispute should be referred to the Registrar only. Therefore, everything will depend upon the interpretation of a dispute but in case, any dispute is not covered by such sub-section, the civil Court shall have jurisdiction to entertain the same. Therefore, everything will depend upon the interpretation of a dispute but in case, any dispute is not covered by such sub-section, the civil Court shall have jurisdiction to entertain the same. Thus, it can also not be denied that in order to ouster the jurisdiction of the civil Court, it is also essential to interpret dispute whether dispute is covered under Section 75 or not, and unless such a question is decided, it cannot be said that civil Court has jurisdiction or not. Therefore, the bar of jurisdiction of a civil Court created by Section 75 is not absolute but limited only. Such a question can only be decided upon an objection by aggrieved party and that too at a proper stage for consideration of such objection, if it is raised in reply or written statement is suit and not by way of the present revision petition. Nothing has been placed on record to establish that any such pleading or objection was raised in civil suit before the trial Court. Therefore, I am not prone to decided such an objection in this revision petition and further refrained myself to decided this issue as to whether civil Court has jurisdiction to entertain the suit out of which this revision petition arise and whether dispute raised in the suit is covered by provisions of Section 75 of the Act 1965 or not and whether the defendant Bank is a Co- operative society within the meaning of provisions of the Act 1965 or not. All such question are left open. However, I must hasten to add than a suit for declaration instituted by an employee of a Co-operative society alleging the action of such a society impugned in the suit to be illegal, raised a dispute which does not relate to the business of the society and in that even, the jurisdiction of the civil Court to try an adjudicate such suits is not barred under the Act 1965. I am fortified in my view as expressed in All District Cooperative Ltd. v. Hanuman Datt, AIR 1982 SC 120 by the Apex Court. 18. I am fortified in my view as expressed in All District Cooperative Ltd. v. Hanuman Datt, AIR 1982 SC 120 by the Apex Court. 18. I my considered view, it is not necessary that each and every dispute should first be referred to the Registrar under Section 75 of the Act, 1965 and if he decides that the matter which is not a dispute under Section 75, then alone, the party should raise the same by way of appropriate proceedings in a civil Court. It is for the parties to judge whether the dispute is of such a nature over which the Registrar alone has the jurisdiction to decide. If it is, then alone, the dispute should be referred to him for adjudication. If it is not, it should be by way of filing proceedings in a civil Court and let the Civil Court decide the said issue about its own jurisdiction. Thus, it is also totally within the domain of civil Court and not this Court to decide whether such a dispute raised in a suit, is covered by Section 75 or not or can be entertained by it ? Viewed from this angle, ratio of decision of this Court in Central Cooperative Bank's (supra) also does not apply to the facts and circumstances of the case on hand. 19. As regards ratio of decision in State of Rajasthan v. M/s. Kalyan Sundaram Cement Industries Ltd. (supra), it was a case where the respondent Cement Company after inviting tenders had extended an agreement on 13.4.89 and three post dated cheques of dates between May & July 1989 were given but each of which got bounced, so after issuing notice the suits were filed for recovery and simultaneously proceedings were initiated under Section 138 of the Negotiable Instruments Act and also under Section 420 Indian Penal Code in three complaints. But in civil revision, the High Court stayed the proceedings of the civil suits pending disposal of the criminal cases and against that stay order, an appeal was filed by the State before the Apex Court. In these circumstances, the Apex Court observed as under:- "It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal court would deal with offence punishable under Act. In these circumstances, the Apex Court observed as under:- "It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal court would deal with offence punishable under Act. On the other hand, the courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any Civil suits by the courts so far." 20. In the aforesaid case, since it was a case where proceedings of civil suits were stayed pending disposal of the criminal cases, whereas in the present case there is no such stay of proceedings of civil suit, hence in my considered view, ratio of decision in M/s. Kalyan Sundaram's case (supra) does not render any help nor does apply to the facts of the case on hand being distinguished. 21. Similarly, I do not find any material irregularity or illegality or error of law in the findings recorded by the Courts below overruling the object of defendant Bank as to jurisdiction of civil Court because of the dispute being covered under the Industrial Disputes Act, by holding the dispute not an industrial dispute and thereby rightly applying the principles No. 1 laid down in Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke, AIR 1975 SC 2238 , namely that if the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil Court. 22. Moreover, before the appellate Court as would be apparent from para 8 of its judgment the learned counsel for the defendant Bank did not dispute as to the jurisdiction of the civil Court in the facts of the case on hand and in this view of the matter, the object raised before this Court by the learned counsel for the defendant Bank as to the jurisdiction of the civil Court either in view of Section 75 read with Section 135 of the Act 1965 or in the light of the ratio of the decisions cited above, must fall flat inasmuch as is bizarre and devoid of force. 23. As regards the decision in P.J. Sunderrajan v. Unit Trust of India, 1993 (1) LLJ (SC) 168 . 23. As regards the decision in P.J. Sunderrajan v. Unit Trust of India, 1993 (1) LLJ (SC) 168 . Wherein it has been that the departmental enquiry should be stayed till the trial pending before criminal court is completed, whereas in the case on hand, Temporary Injunction has been granted directing the defendant's Bank to maintain status quo in respect of the plaintiff's disciplinary action that too till the disposal of civil suit and not the criminal case. Therefore, ratio of decision in P.J. Sunderrajan's case (supra) does not render any help to the plaintiff. 24. As a result of the above discussion, this revision petition fails and is hereby dismissed with no order as to costs. However, in the interest of justice both the trial Courts in civil and criminal case are directed to expedite the proceedings if any pending adjudication till date by completing the trial as early as possible but not beyond six months from the date of receipt of certified copy of this order for which Bank is directed to submit certified copy of this order to the concerned Court.Revision dismissed.