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2005 DIGILAW 124 (ALL)

ABHAI RAJ SINGH v. BANK OF BARODA

2005-01-27

TARUN AGARWALA

body2005
TARUN AGARWALA, J. ( 1 ) THE petitioner is working as a Head cashier in Bank of Baroda and is posted in tanda Shahabad Branch, in District Rampur. It transpires that an account holder in the bank filed a complaint against the petitioner and two others for committing a fraud in his account. Based on the F. I. R. , an investigation was made and a report was submitted to the Competent court. The Court took cognizance of the said report and a case was registered as Crime case no. 1402 of 2003 under Sections 218, 420, 467, 468, 471 and 409 I. P. C. which is pending in the Court of Judicial Magistrate, Rampur. The respondent-bank also made an in house inquiry and the disciplinary authority by an order dated October 8, 2003 issued a charge-sheet. The petitioner alleges that subject-matter of the charge-sheet in the domestic inquiry proceedings and that pending before the Criminal Court is one and the same and further contended that the evidence in both the proceedings would be the same and if the departmental proceedings are allowed to continue, the original documents which are lying in the Criminal Court would not be produced and that the domestic inquiry would continue without the production of the original documents. The petitioner therefore, prayed that the domestic inquiry proceedings should be stayed till the decision in Crime Case No. 1402 of 2003, pending in the Court of Judicial magistrate, Rampur. ( 2 ) HEARD Sri S. N. Dubey, the learned counsel for the petitioner and Sri V. B. Singh, learned senior advocate assisted by Sri Vijay sinha, the learned counsel for the respondent-bank. ( 3 ) THE learned counsel for the petitioner submitted that since the departmental proceedings and the criminal proceedings are based on the same facts and that the documents relied upon would be the same, it would be appropriate that the departmental proceedings be kept in abeyance till the decision of the criminal Court. He relied on the principles of "autrefois acquit" and the common law rule embodied in the maxim "nemo debet bis vexari (a man must not be put twice in peril for the same offence) and the doctrine of double jeopardy and submitted that if the departmental proceedings are allowed to continue he would be prejudiced. He relied on the principles of "autrefois acquit" and the common law rule embodied in the maxim "nemo debet bis vexari (a man must not be put twice in peril for the same offence) and the doctrine of double jeopardy and submitted that if the departmental proceedings are allowed to continue he would be prejudiced. ( 4 ) ON the other hand the learned counsel for the respondents submitted that the purpose of the departmental inquiry was merely to help the department to come to a definite conclusion regarding the conduct of the delinquent and to decide what penalty, if any, that could be imposed upon him. Even assuming that the charges which the delinquent had been called upon to meet was in substance the same, nonetheless there was no bar for holding the disciplinary proceedings during the pendency of the criminal trial. The learned counsel further submitted that it was for the disciplinary authority to decide as to whether in a given case it should be kept a domestic inquiry pending till the outcome of the criminal trial or not. The learned counsel submitted that no such application had been made by the delinquent petitioner before the disciplinary authority and that the petitioner approached this Honble court immediately after the issuance of the charge-sheet. Learned counsel for the respondents submitted that no evidence had been led by the petitioner to show as to how he would be prejudiced if the domestic inquiry continues during the pendency of the criminal trial. The learned counsel for the respondents further submitted that it was too early for the petitioner to suggest that the original documents would not be produced before domestic inquiry and it was not open to the petitioner to contend that the domestic inquiry would continue without the production of the relevant documents. ( 5 ) IT is a well settled principle of law that the degree of proof required in a departmental inquiry is vastly different than the degree of proof required to prove a criminal charge. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings, and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings, and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceeding. The Rules relating to the appreciation of the evidence in the two inquiries may also be different. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both the cases are entirely distinct and different. ( 6 ) THE law is well settled that the inquiry officer can come to a different conclusion than one (sic) arrived at by a Criminal Court and that it is immaterial whether the charges were identical or the witnesses were the same, as long as the power exercised by the Criminal court and the inquiry under the relevant law and the service law was distinct and separate. There is no bar for holding a disciplinary proceeding during the pendency of the trial though the basis may be one and the same. It is for the disciplinary authority to decide as to whether in a given case it should keep the domestic inquiry pending till the outcome of the criminal trial or not. ( 7 ) IN Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806 : 1960-I-LLJ-520, the Supreme Court held at p. 521 of LLJ: "it is true that very often employers stay enquiries pending the decision of the criminal Trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the Criminal Trial court before taking action against an employee. . . . . . . . . . . . and again held -". . . . . . . . . . . . . . and again held -". . . 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 await the decision of the Trial Court, so that the defence of the employee in the criminal case may not be prejudiced. . . . . . . . . ( 8 ) SIMILAR view was reiterated by the supreme Court in Tata Oil Mills Co. Ltd. v. Workmen AIR 1965 SC 155 : 1964-II-LLJ 113, Jang Bahadur Singh v. Baij Nath Tiwari air 1969 SC 30 : 1969-I-LLJ-567, kusheshwar Dubey v. Bharat Coking Coal Ltd. and others AIR 1988 SC 2118 : 1988 (4) SCC 319 : 1988-II-LLJ-470. In Kushewar Dubeys case (supra), the Supreme Court held that there was no legal bar to simultaneous proceedings being taken against an employee, even though there may be cases where it may be appropriate to defer the disciplinary proceedings awaiting the disposal of the criminal case. The Supreme court held that it was neither possible nor advisable to evolve a hard and fast straitjacket formula and that in cases where the charge against the employee was of a grave nature and involved complex questions of law and fact, in that event the disciplinary proceedings could be deferred till the decision of the criminal trial. ( 9 ) IN Jang Bahadur Singh v. Baij Nath tiwari (supra) the legal position was summed up by the Supreme Court as under 1969-I-LLJ-567 at 569:"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. 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. " ( 10 ) IN State of Rajasthan v. B. K. Meena and others AIR 1997 SC 13 : 1996 (6) SCC 417 : 1997-I-LLJ-746, the entire case law on this issue was reviewed and the Honble supreme Court held at p. 751 of LLJ: "14. 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 proceeding 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 Delhi Cloth Mills Ltd. and general Mills Ltd. (supra) and Tata Mills (supra) is not also 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. The ground indicated in Delhi Cloth Mills Ltd. and general Mills Ltd. (supra) and Tata Mills (supra) is not also 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 consideration is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage, the interests of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i. e. , for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. 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. 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. ( 11 ) IN Capt. M. Paul Anthony v. Bharat gold Mines Ltd. and another AIR 1999 SC 1416 : 1999 (3) SCC 679 : 1999-I-LLJ-1094 the Supreme Court after considering all the judgments held at p. 1100 of LLJ:"22. The conclusions which are deductible 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. (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 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 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, administration may get rid of him at the earliest. " ( 12 ) IN State Bank of India and others v. R. B. Sharma 2004 SCC (Lands) 913 : 2004-1ii-LLJ-528 the Supreme Court held at p. 530 of LLJ:"6. " ( 12 ) IN State Bank of India and others v. R. B. Sharma 2004 SCC (Lands) 913 : 2004-1ii-LLJ-528 the Supreme Court held at p. 530 of LLJ:"6. It is fairly well-settled position in law that on basic principles proceedings in criminal, case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. 7. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The 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 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 proceedings relates to conduct or breach of duty of the delinquent officer to punish him or 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. Under these circumstances, what ZX 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. That the strict standard of proof or applicability of the evidence Act stands excluded is a settled legal position. Under these circumstances, what ZX 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. " ( 13 ) THE law as enunciated by the Supreme court leaves no scope for doubt that all said and done, there is no bar for simultaneous proceedings being taken against the delinquent in the form of criminal action and also disciplinary proceedings unless the charges are extremely serious and grave requiring the judicial determination in preference to the verdict in the domestic inquiry proceedings. In the instant case, even though the criminal action and disciplinary proceedings are grounded upon the same sets of fact, in my view, there is no provision of law empowering the Court to stay the departmental proceedings merely because criminal prosecution is pending in the criminal Court. In my opinion, the purpose oi the two proceedings are quite different. The object of the departmental proceedings is to ascertain whether the delinquent is required to be retained in service or not. On the other hand the object of criminal prosecution is to find out whether the offence in the penal statute has been made out or not. Therefore, the area covered by the two proceedings are not identical. The object, in both the proceedings are different. Whereas, the departmental proceedings are taken to maintain the discipline and the efficiency in the service, the criminal proceedings are initiated to punish a person for committing an offence violating any public duty. The Supreme Court has clearly stated that where the case is of a grave nature and involves questions of fact and law, in that event it would be advisable for the employer to await the decision of a Criminal Court. In the present case, there is no complicated questions of fact and law involved, nor any evidence has been led by the petitioner to show as to how he was prejudiced in the continuance of the departmental proceedings. Nothing has been shown by the petitioner as to how the proceedings in a criminal trial would be prejudiced in the event the domestic inquiry was not stayed. Nothing has been shown by the petitioner as to how the proceedings in a criminal trial would be prejudiced in the event the domestic inquiry was not stayed. ( 14 ) IT may also be stated here that immediately upon the issuance of the charge-sheet, the petitioner approached this court. The petitioner has not even submitted his explanation and the departmental proceedings has not progressed. It is, therefore, difficult for the High Court to consider whether the matter is of such a complex nature that it would be better to stay the departmental proceedings pending disposal of the criminal case. On the other hand judicial notice can be taken of the fact that criminal cases of this nature takes a long time to conclude. The petitioner has nowhere shown as to how he would be prejudiced if he disclosed his evidence in the departmental proceedings. Further the disciplinary authority is the appropriate authority to consider whether it is worthwhile or not to await the decision of the criminal Court. In the present case, the petitioner has not approached the disciplinary authority and came to this Court directly. ( 15 ) FOR the reasons stated aforesaid, I do not find it to be a fit case for interference to stay the departmental proceedings. Consequently, in my opinion, there is no merit in the case and is dismissed accordingly. In the circumstances of the case there shall be no order as to cost.