Delhi District Court
Mca 3/ vs Delhi Jal Board on 24 September, 2012
-1-
IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 10.11.2010
Arguments heard on : 10.09.2012
Announced on : 24.09.2012
In re :
MCA 3/10
Lal Babu Mahto
S/o Sh. Khedan Mahto
R/o H.No. 1433,
Madan Pur Khadar,
J.J.Colony, Phase-III,
Delhi
.... Plaintiff
Versus
Delhi Jal Board
Through
Its Member (Administration)
Delhi Jal Board
Govt. of N.C.T of Delhi
Varunalya Bhawan-II
Jhandewalan, New Delhi.
.... Defendant
JUDGMENT
1. This is an appeal against order dated 7.07.2010 passed by Sh. Ajay Goel, the then Ld. Senior Civil Judge, Central District, Delhi. Vide the impugned order, an application Under Order 39 Rule 1 & 2 CPC read with 151 CPC filed by the plaintiff/appellant was dismissed.
2. Briefly stated the facts are that the appellant/plaintiff is an employee of MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 1 of 9 r -2- Delhi Jal Board. The appellant was employed under the Scheduled Tribe category and he was posted as an Assistant Fitter in the year 1998. It was found that certificate for Scheduled Tribe category submitted by the appellant/plaintiff at the time of joining of services was forged. This fact was revealed when pursuant to directions of Hon'ble Delhi High Court in a Civil Writ Petition, the verification letter was sent to the District Magistrate, Gopalganj, Bihar on 20.06.2005. In response to the said letter, the concerned District Magistrate of Gopalganj, Bihar vide his letter dated 5.7.2006 informed that no such Scheduled Tribe certificate was issued by the said office in favour of the appellant. Accordingly, the appellant was charge sheeted for major penalties. Besides the departmental enquiry, one criminal case was also registered against the appellant.
3. Against the departmental proceedings, the appellant filed the suit and in the said suit, the interim injunction application was filed. In the injunction application, appellant prayed that the departmental proceedings against the appellant be stayed till completion of the criminal case. The said application was dismissed by the Ld. Trial Court on 7.7.2010 vide the impugned order.
4. Despite the fact that the injunction application was dismissed vide impugned order dated 7.07.2010, the present appeal was filed on 10.11.2010. The appeal otherwise would be clearly barred by limitation but the appellant in the appeal has claimed that the appeal is also against the order dated 28.10.2010 passed by Ld. Trial Court.
5. On 28.10.2010, the Ld. Trial Court disposed of a miscellaneous application filed by the defendant/respondent Delhi Jal Board which MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 2 of 9 r -3- sought clarification qua the fact that before the dismissal of interim injunction application, vide impugned order dated 7.07.2010, the Ld. Trial Court had granted the interim stay vide orders dated 28.1.2010 & 10.02.2010. The defendant/respondent wanted clarification as to what happened to the interim stay granted by Ld. Trial Court consequent upon the impugned order dated 7.07.2010.
6. It is but natural that when interim stay is granted, during pendency of an application Under Order 39 Rule 1 & 2 CPC, the said interim stay remains in operation only till the main application is decided. The moment the main application Under Order 39 was dismissed, the earlier interim order automatically stood vacated. Vide order dated 28.10.2010, the Ld. Trial Court clarified this position only.
7. Therefore, the appeal is time barred since it has not been preferred within stipulated period from 7.7.2010 despite the fact that actually this appeal challenges the order dated 7.7.2010. No application for condonation of delay has been filed by the appellant.
8. Be that as it may. I proceed to decide this appeal even on merits assuming that the appellant was under misconception that his limitation would begin from 28.10.2010.
9. The appellant claims that in case the departmental enquiry is not stayed against him, the appellant shall suffer irreparable injury as the facts in the criminal case and the departmental enquiry are not only based on some set of facts but they are also based on some evidence and also important and complicated question of law an facts are involved.
10. In support of its case, the appellant has relied upon following seven cases :-
MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 3 of 9 r -4- a. Ramesh Kumar Vs. DTC 141 (2007) DLT 457;
b. Suresh Chand Vs. DTC WP(c) 13122/2006 decided on 22.11.2006 by Hon'ble High Court;
c. R. B. Sharma Vs. SBI 108(2003) DLT 140;
d. Albert Davit Ltd. Vs. Anuradha Chaudhary & Ors. FMAT No. 2770 of 2003 decided on 27.11.2003 (Calcutta High Court) e. Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. & Ors. AIR 1988 SC 2118;
f. P.V. Madhavan Vs. M. D. Tamil Nadu Housing Board AIR 2006 SC 207;
g. Sudhir Khetrapal & Anr. Vs. FCI CWP. No. 2594 of 1995 decided on 14.07.2010 by Hon'ble Punjab & Haryana High Court.
11. As against this, the respondent Delhi Jal Board has relied upon following twelve cases :-
1. Phelps & Co. Vs. Shalimar Paints - 1980 RLR 646;
2. Mohinder Singh Vs. Dharamvir - 1981 RLR (Note) 56;
3. Delhi Cloth & Gen. Mills Vs. Kushal Bhan - AIR 1960 SC 806;
4. State of Rajasthan Vs. B. K. Meena AIR 1997 SC 13;
5. Kendriya Vidyalaya Vs. T. Srinivas , AIR 2004 SC 4127;
6. NOIDA Entrepreneurs Vs. NOIDA - AIR 2007 SC 1161;
7. Commissioner of Police Vs. Narender AIR 2006 SC 1800;
8. Depot Manager Vs. Mohd. Yousuf - AIR 1997 SC 2232;
9. Hindustan Petroleum Vs. SArvesh - AIR 2005 SC 1406;
10.Antony Faria Vs. Secretary Council 1997 ILLJ 66 DEL;
11.Tallusi Seiniwal Vs. Institute of CA - 174 (2010) DLT 537;
MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 4 of 9 r -5-
12.R. S. Negi Vs. DDA - WP (c) No. 13066/2099 decided by Division Bench Delhi High court on 25.01.2010.
12. I have perused the material on record including the written submissions and the trial court record. I have also gone through the authorities relied upon by both the sides.
13. In AIR 2008 SUPREME COURT 553 "Indian Overseas Bank, Anna Salai v. P. Ganesan", before Hon'ble Supreme Court, a similar question, whether pendency of a criminal case by itself would be a sufficient ground for stay of the departmental proceedings arose for consideration.
Hon'ble Supreme court held as follows;
"15. Legal position operating in the field is no longer res integra. A departmental proceeding pending a criminal proceeding does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter.
16. In Delhi Cloth and General Mills Ltd. vs. Kushal Bhan : AIR 1960 SC 806 this Court while holding that the employer should not wait for the decision of the criminal court before taking any disciplinary action against the employee and such an action on the part of the employer does not violate the principle of natural justice, 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 MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 5 of 9 r -6- the employee in the criminal case may not be prejudiced."
The same principle was reiterated in Tata Oil Mills Co. Ltd. vs. The Workmen : AIR 1965 SC 155.
17. In State of Rajasthan vs. B.K. Meena and others : (1996) 6 SCC 417 this Court held - :-
"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."
18. Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and another :
(1999) 3 SCC 679 also deserves to be noticed. This Court therein held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Court summarized its findings as under - :-
"(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 6 of 9 r -7-
(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, the administration may get rid of him at the earliest."
19. The issue came up for consideration yet again in T. Srinivas (supra) where this Court while analyzing B.K. Meena (supra) and Capt. M. Paul Anthony (supra) held that - :-
"From the above, it is clear that the advisability, desirability or propriety, as the case may be, in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 7 of 9 r -8- circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course."
20. The High Court, unfortunately, although noticed some of the binding precedents of the Court failed to apply the law in its proper perspective. The High Court was not correct in its view in concluding that the stay of the departmental proceedings should be granted in the peculiar facts and circumstances of the case without analyzing and applying the principle of law evolved in the aforementioned decisions. It, therefore, misdirected itself in law. What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non stayed of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law."
14. In view of the judgment of Hon'ble Supreme Court as mentioned above, one thing is clear that not only the fact that departmental enquiry and the criminal case should be based on same facts and evidence but also it must be shown by a plaintiff in such a case seeking stay of departmental enquiry that a complicated question of law & facts are involved in the case.
15. In the present case, the facts & circumstances would reveal that no complicated question of law or of facts is involved in the present case. The case is as simple as that an employee is charge sheeted for submitting MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 8 of 9 r -9- forged Scheduled Tribe certificate while obtaining employment. In case this fact is proved, the employee would face necessary consequences. This fact does neither give rise either to any complicated question of law which requires interpretation by a competent court of law, nor does it involve any complicated question of facts. The facts would be simple that whether the plaintiff/appellant submitted certificate at the time of employment or not and whether this certificate was a genuine certificate or a forged certificate. No complication whatsoever appears to this court in the facts of this case.
16. Accordingly, the necessary requirements for seeking stay of the departmental proceedings against the appellant/plaintiff are lacking in this case and therefore Ld. Trial Court was perfectly justified in dismissing the injunction application of the plaintiff/appellant.
17. The present appeal is accordingly liable to fail and is dismissed. Appeal file be consigned to record room. Copy of this order be placed in the Trial Court Record and it be sent to the court concerned immediately. Both the parties to appear before Ld. Trial Court on 8.10.2012 at 2.00 PM. Ahlmad to send the Trial Court Record well in time.
Announced in the open court on 24th Day of September, 2012. DIG VINAY SINGH ADJ-04 (CENTRAL) DELHI MCA no. 3/10 titled Lal Babu Vs. Delhi Jal Board dtd.. 24.09.2012 Pg.. 9 of 9 r