Madhya Pradesh High Court
N.K. Soloman vs Food Corporation Of India And Anr. on 12 August, 1996
Equivalent citations: 1997(2)MPLJ94
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
ORDER D.M. Dharmadhikari, J.
1. This case is a concrete instance of procedural delay causing irretrievable damage to both the parties in their relationship as Employer and Employee. The employee has already suffered punishment of his long suspension from service for 10 years without getting opportunity to prove his innocence either in the Criminal trial which is pending or in the departmental enquiry which could not commence till he reached the age of superannuation. The employer had also to suffer by paying suspension allowance to the employee for long 10 years without taking any work from him because he was facing a serious criminal charge in the Court of law. The facts in detail would justify the above comment.
2. The petitioner was working since 1976 as Assistant Grade-I in the Food Corporation of India (respondent herein and hereinafter described as the 'employer'). While the petitioner (hereinafter referred to as the 'employee') was posted at Naila District, Bilaspur, a Criminal case was registered against him for offences among others Under Section 409, Indian Penal Code for the alleged charge of illegally and dishonestly transporting certain quantities of food' grains and other items from godowns of the Corporation. The crime was registered against him in the Court of Judicial Magistrate First Class, Janjgir in the year 1983. He was placed under suspension on 19-9-1983. He continued to remain under suspension for 10 years, during which neither the trial was completed nor he was proceeded against departmentally by way of a disciplinary action.
3. It appears that as the criminal trial had taken a very long period and he was to reach the age of superannuation, the order of suspension was revoked on 10-9-1993. Thereafter also the employer did not issue any charge sheet to take any disciplinary action against the employee. The charge sheet has now been issued on 17-4-1996 (Annexure P-2) which is sought to be quashed in this petition which was filed on 10-5-1996. This Court on 17-5-1996 passed an interim order staying passing of a final order in the pending departmental enquiry against the employee. As is stated in the return of the employer, the departmental enquiry has now been completed and only the final order remains to be passed and communicated to the petitioner. The passing of the final order and its communication have been stayed because of the interim order passed by this Court.
4. During pendency of this petition the employee now stands retired on 31-5-1996.
5. Shri P.R. Bhave learned counsel appearing for the employee relies on State of M.P. v. Bani Singh, AIR 1990 SC 1308, in support of his contention that the departmental enquiry is liable to be quashed on the ground of inordinate delay and laches on the part of the disciplinary authority.
6. Shri S.C. Jain learned counsel appearing for the employer referred to the observation of the Supreme Court in Kusheswar Dubey v. Bharat Coking Coal Limited, AIR 1988 SC 2118. It is submitted that simultaneously with criminal trial the departmental enquiry could not be commenced and it was expected of the employer to have reasonably waited for the conclusion of the criminal trial. It is further submitted that as the criminal trial did not conclude within the reasonable time and the employee was reaching the age of superannuation, the employer had to start and complete the departmental enquiry well before his retirement. It is argued that in the present case it cannot be held that there has been any unexplained delay on the part of the employer. The delay was occasioned due to long pendency of a criminal trial. Reliance is placed on another decision of the Supreme Court Dinesh Kumar Agarwal v. Bank of India, 1996(1) MPJR 89 (SC). The submission now made on behalf of the employer is that commencing of departmental enquiry on same charges on which criminal trial is long pending cannot be held as barred.
7. I have considered the submission made by the learned counsel for the parties in the light of the decisions of the Supreme Court cited by them. In the opinion of this Court the departmental enquiry commenced after 13 years of the commission of the alleged misconduct deserves to be quashed on the ground of unreasonable delay and laches on the part of the employer. It need not be emphasized that unduly delayed disciplinary action is bound to cause prejudice to the employee in defending himself. The decision of the Supreme Court in the case of Bani Singh (supra) supports that view.
8. The delay in holding the disciplinary enquiry is sought to be explained on the ground that the pending criminal trial did not conclude within a reasonable time and the employer was awaiting the verdict of the criminal court. This explanation is unacceptable and the delay is inexcusable on the above ground. There is no absolute bar either in the service rules or in any of the decisions of the Supreme Court cited by the parties for holding a disciplinary enquiry on the same charges on which a criminal case is pending. As held by the Supreme Court in the case of Kusheswar Dubey (supra), each case has to be judicially reviewed to decide whether the disciplinary enquiry deserves to be stayed awaiting verdict of criminal court where charges are same or similar. See the following observations of the Supreme Court in the case of Kusheswar (supra) :
"The view expressed in the three cases of this Court seem to support the position that while there would be no legal bar for simultaneous proceedings being taken, yet there may be cases where it could 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, strait-jacket 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 necessary to say anything more, particularly when we do not intend to lay down any general guideline."
9. In the absence of any prohibition in law or any order of Court of Law staying the departmental enquiry, the employer was not justified in waiting for an unreasonably long period of 13 years for conclusion of the criminal trial. The decision to commence disciplinary action could well have been taken within a period of 3 years from the commission of the alleged misconduct. The employer would have been well within its power to take disciplinary action although a criminal case was pending on the said charges because the criminal trial had taken an unduly long period of time over which the employer had no control. In such a situation the action of the employer would have been held as legal and legitimate against the employee who might have been made to face simultaneously a criminal trial on same set of allegations or charges. As held by the Supreme Court in the case of Kusheswar Dubey (supra), commencement or continuance of Departmental Enquiry pending a criminal trial on same charges can be interdicted considering the facts of that particular case and only after such simultaneous proceedings are found to be likely to prejudice the defence of the employee. The departmental enquiry in such a case can be stayed only if the aggrieved employee would have made a resort to the Court of law for obtaining an injunction or stay.
10. The employer, therefore, can be held guilty of inexcusable and unexplained delay in not holding a disciplinary enquiry for long 13 years on the alleged commission of misconduct. The latest decision of the Supreme Court in the case of Dinesh Kumar Agarwal (supra) also indirectly supports the view that no absolute bar is attracted in simultaneously proceedings against an employee departmentally and in a criminal case.
11. Learned counsel for the employer, in the course of his arguments, referred to some provisions in the Vigilance Manual of Government of India which are said to be applicable also to the Corporation. The long waiting for criminal trial to conclude was tried to be justified on the basis of some executive instructions contained in the Vigilance Manual. It may be observed that executive instructions can have no greater value than the legal provisions in statutory service regulation or the law laid down by the Court. Reliance on provision of such manual is, therefore, utterly misplaced.
12. Before concluding this Court cannot resist from observing that to avoid such situations creating practical difficulties both for employer and employee some Rule Making framing of law to meet them appears imminent and is a felt need. This should attract attention of the legislature and subordinate law making authorities.
13. To conclude, this petition succeeds and is allowed. The disciplinary enquiry commenced against the petitioner by a memorandum along with charge sheet Annexure P-2 dated 19-6-1996 and all subsequent proceedings taken thereafter are hereby quashed. In the circumstance the parties are directed to bear their own costs.