Calcutta High Court (Appellete Side)
Rabindra Kr. Bharati vs Eastern Coalfields Ltd. & Ors on 10 February, 2021
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
10-02-2021
ct no. 13
Sl.7
sp
WPA 16117 of 2017
With
CAN 1 of 2020
(Old No. CAN 12678 of 2019)
Rabindra Kr. Bharati
-Versus-
Eastern Coalfields Ltd. & Ors.
(Via Video Conference)
Mr. Swapan Banerjee,
Mr. Siddhartha Banerjee,
Mr. Kunal Ganguly,
Mr. Sudipta Nayan Ghosh
...for the petitioner
Mr. Manik Das
...for the respondents
The instant application has been filed by the Eastern Coalfields Limited seeking leave to pass final orders in departmental proceedings initiated against the writ petitioner.
By an order dated June 29, 2017 passed by a Co-ordinate Bench of this Court, this Court permitted the respondents to proceed with the departmental enquiry but not to pass the final order without the leave of this Court.
The grievance agitated in the writ application was that departmental proceedings have been initiated on the self-same facts as criminal proceedings pending against the petitioner, inter alia, under Section 7 of the Prevention of Corruption Act. The writ petitioner has been charged by the employer as well as the 2 State for receiving illegal gratification for releasing undue retirement benefits to another employee. There are other charges, inter alia, in the nature of abandonment of the place of work.
The writ petitioner contended in the writ application that the continuance of departmental proceedings against him during the pendency of the criminal proceedings would compel him to disclose his defence that would prejudice him in the criminal proceedings, consequences whereof are graver to him.
Having considered the writ petitioner's submissions, a Co-ordinate Bench by the order dated June 29, 2017 (supra) has called for affidavits asking the employer to disclose the nature of the criminal proceedings against the writ petitioner. The disciplinary proceedings against the petitioner were to continue but no final order was to be passed.
The employer continued the departmental proceedings. The writ petitioner participated in the same. An enquiry report has been submitted. The matter remained at that stage in view of the order dated June 29, 2017 (supra). Hence, CAN 1 of 2020 has been filed seeking leave to pass final orders.
The application has been vehemently opposed by the counsel for the writ petitioner. 3 Reference is made firstly to the fact that three witnesses in the criminal proceedings are also the witnesses in the departmental proceedings. A number of documents in the criminal proceedings and departmental proceedings are, in fact, similar. Reliance in this context is placed on the decision of the Hon'ble Supreme Court in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another reported in (1999) 3 SCC 679. At paragraph 22, the Hon'ble Supreme Court summarized the law on the subject which holds good even today. The said paragraph is set out herein below.
22. The conclusions which are deducible from various decisions of this Court referred to above are :
(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 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 4 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.
It is clear and evident from the aforesaid paragraph that it is within the discretion of the management to continue departmental proceedings even during the pendency of the criminal proceedings. In a given situation it is for the management to decide as to whether the enquiry proposed involves complicated evidence and interpretation of legal question. In such situations, it has been laid down that the management may be best advised to wait until the outcome of the criminal proceedings. It is also indicated that if criminal proceedings are unduly delayed, the same cannot consequently delay the conclusion of the departmental proceedings.
Reliance on the decision of the Hon'ble Supreme Court in the case of G.M. Tank vs. State of Gujurat and others reported in (2006) 5 SCC 446, paragraphs 30 and 31 thereof indicating that where the principles in 5 the Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another (supra) have been reiterated. Further reliance is placed on the decision of S. Bhaskar Reddy and another vs. Superintendent of Police and another reported in (2015) 2 SCC 365, paragraphs 21 and 22 thereof.
It is clear from the submissions of the learned counsel for the applicant ECL that there is also a charge of being absent from his post without leave. This is not the subject matter of the criminal proceedings.
The discussion on the principles laid down by the Ho'ble Supreme Court in the case of Capt. M. Paul Anthony decision (supra), G.M. Tank decision (supra) and S. Bhaskar Reddy and another decision (supra), may be rather academic for the purpose of the instant application. The reason, therefore, is that the writ petitioner has already disclosed his defence in the departmental enquiry. The order dated June 29, 2017 (supra) has not been challenged by the writ petitioner. Once a defence is disclosed, the question of any further prejudice in criminal proceedings or otherwise does not and cannot arise.
The only question that remains to be addressed is as to whether the charges are so 6 complicated that require awaiting a regular criminal Court's decision thereon. In this context reliance is placed by the counsel for the writ petitioner on a communication dated September 14/15, 2015 at page 85 of the writ application. It was communicated to the petitioner by the respondents that the petitioner's suspension was revoked and the final decision of the CBI Court is awaited by the employer in respect of the charge-sheet issued to the petitioner.
This Court is of the view that the employer cannot be bound to the letter dated September 14/15, 2015 (supra). It may proceed with the enquiry if it finds that the criminal proceedings are being unduly delayed. Sub-paragraph 5 of paragraph 22 of the Capt. M. Paul Anthony decision (supra), decision of the Hon'ble Supreme Court in this regard that has already been set out hereinabove.
In any event, the writ petitioner having participated in the departmental enquiry and not having challenged the order of the Co- ordinate Bench dated June 29, 2017 is, in fact, deemed to have waived his contention as regards the prejudice if any, that may be caused to him by the enquiry. It cannot be said that the ECL employer is in any way estopped from 7 proceeding with the enquiry by reason of the aforesaid letter dated September 14/15, 2015 (supra). The employer, on the contrary, was granted specific leave by this Court to proceed with the enquiry.
Counsel for the ECL would rely upon three decisions of the Hon'ble Supreme Court being State of Rajasthan vs. Shri B.K. Meena and others reported in (1996) 6 SCC 417, Karnataka Power Transmission Corporation Ltd. vs. Sri C Nagaraju & Anr. reported in (2019) 10 SCC 367 as also the decision of Supreme Court in the case of Shashi Bhushan Prasad vs Inspector General, Central Industrial Security Force and others reported in (2019) 7 SCC 797.
In view of the above, even subsequent to the order dated June 29, 2017, this Court is, therefore, of the view that the main writ petition itself has been rendered infructuous. The writ petitioner participated in and allowed the enquiry to continue. There can be no legal impediment therefore on the ECL for passing final order in the departmental enquiry in accordance with law. Such leave is granted to the ECL and the interim order dated June 29, 2017, particularly, the last paragraph thereof shall stand vacated.
8
This Court also finds that no useful purpose would be served in keeping the writ petition alive. The writ petition itself is disposed of.
It is, however, made clear that this Court had not entered into the merits of the enquiry or the grounds the petitioner may have, to challenge the entire departmental proceedings, in accordance with law. The same is left open.
In view of the above, CAN 1 of 2020 (Old No. CAN 12678 of 2019) is allowed and disposed of.
There shall be no order as to costs. Counsel for the petitioner prays for stay of the operation of this order. The same is considered and rejected.
Since the original affidavit-in-reply is not available in the record, a copy of the same handed over by the counsel for the writ petitioner may be kept with the record.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)