Delhi District Court
Pawan Kumar vs State Bank Of Mysore on 22 April, 2013
IN THE COURT OF CIVIL JUDGEI, NEW DELHI DISTRICT, NEW DELHI
Presided By : Sh. Apoorv Sarvaria, DJS
C.S. No.10/13
Pawan Kumar .....Plaintiff
Versus
State Bank of Mysore .... Defendant
ORDER ON APPLICATION FILED UNDER ORDER 39 RULES 1 AND 2 OF CPC
1.By this order, the application filed by the plaintiff under Order 39 Rules 1 and 2 of CPC shall be disposed of. In the application, the applicant/plaintiff has sought interim injunction against the defendant bank restraining it till the disposal of the suit from continuing with the domestic enquiry against him till the criminal matters on the subject reach their conclusion.
2. The brief facts are that the plaintiff is an employee of the defendant i.e. State Bank of Mysore since June 2006. The plaintiff got posted to the Industrial Finance Branch (hereinafter referred to as "IFB") of the defendant bank in February 2008. The background controversy leading to filing the suit is that a fraud was detected in investigation showing that the defendant bank was cheated by its customers. Excess purchase was permitted by the IFB Branch of the defendant bank to its customers, namely Texcomash International Limited, Rishab Impex and Nikita Exim. An investigation was conducted and four employees, including the plaintiff, were suspended in September 2010. The plaintiff was served upon a chargesheet dated 31st December 2011 by the defendant. Domestic enquiry against the plaintiff was to be conducted and the same was informed to him by a letter dated 17th March 2012 CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 1 of 9 and again by letter dated 26th July 2012. A further detailed investigation was conducted by the Vigilance Department of the defendant bank and the matter was referred to CBI for investigation. After conducting the investigation, the CBI filed chargesheet in three cases in relation to the three companies, viz. Texcomash International Limited, Rishab Impex and Nikita Exim. The plaintiff was summoned as one of the accused in all the three cases title CBI v. Satbir Yadav & Ors., CBI v. Yogesh Jain & Ors. and CBI v. Texcomash International & Ors. It is stated by the plaintiff that the domestic enquiry conducted by the defendant bank and the criminal cases pending before the Special Court, CBI operate on the same subject and share the same set of documents as well as witnesses. The plaintiff is stated to have been suspended for past 2 ½ years. It is also stated that the defendant bank has tried to shift the responsibility of the fraud discovered on the junior officers like the plaintiff and even the investigating agencies have taken the same stand.
3. It is further stated that during the proceedings of the domestic enquiry, the plaintiff appeared before the enquiry officer and requested him vide letter dated 11th February 2013 for supply of certain certified documents which are mandatorily required by him to rebut the charges levelled against him and also to assist the enquiry officer to reach the truth. However, the said request was denied by the enquiry officer. It is further stated by the plaintiff that the law as applicable by the decisions of the Supreme Court is that if the subject matter of the criminal case and the departmental proceedings is same, the departmental proceedings should be stayed. Hence, the plaintiff has filed the present suit for permanent injunction restraining the defendant bank from continuing the domestic enquiry against him till the criminal cases reach their conclusion. The interim relief is sought in the present application seeking the same relief till the disposal of the suit.
4. In reply to the application, the defendant bank has stated that the plaintiff is holding CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 2 of 9 the post of Deputy Manager and various lapses, negligence, omission and other acts were committed by him which resulted in the loss of more than Rs. 110 crores to the defendant bank for which chargesheet dated 31 st December 2011 for lapses, negligence and omission/commission in discharge of duties as the desk officer of Foreign Exchange Department of the IBM Branch was issued to him and the plaintiff was asked to submit his reply within 15 days but he failed to file any satisfactory reply in respect of charges levelled against him. Subsequently, the domestic enquiry was constituted by the defendant bank in accordance with State Bank of Mysore Officer's Service Regulations, 1979 and the plaintiff is not participating in the domestic enquiry despite several opportunities being given to him and the plaintiff has filed the suit only to delay the enquiry proceedings which is being held in accordance with the Regulations of the defendant bank.
5. It is further stated in the reply that it is a settled law that the criminal proceedings and the disciplinary proceedings can be continued simultaneously. It is also stated in the reply that the Special Court, CBI have taken cognizance of the chargesheets filed by the CBI and the cases are fixed for framing of charges. It is also stated that the plaintiff cannot allege that the witnesses in the domestic enquiry and the criminal cases are the same as three different cases have been filed by the CBI and only one chargesheet was filed for domestic enquiry proceedings. It is also stated in the reply that apart from the plaintiff, there are other officers including two Branch Heads and the Chief Manager who have been chargesheeted by the defendant bank and domestic enquiry have been constituted against them. These officers participated in the enquiry proceedings and the enquiry proceedings have been concluded against them.
6. This court has heard Sh. Somnath Bharti, Ld. Advocate for the plaintiff/applicant and Shri Jitender Kumar, Ld. Advocate for the defendant and perused the record. CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 3 of 9 Ld. Advocate for the plaintiff relied upon the decisions in State of NCT of Delhi v. Ajay Kumar Tyagi (Criminal Appeal No. 1334 of 2012, Supreme Court), Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, CBI v. V K Bhutani (Criminal Appeal No. 1354 of 2007, decision dated 11 th August 2009, Supreme Court) and SBI v. R B Sharma (2004) (7) SCC 247. After relying upon these decisions, he submitted that the departmental proceedings should be stayed if the subject matter of the domestic enquiry conducted by the employer and the criminal proceedings against the employee are on the same subject matter. He also submitted that if the subject matter is complex and mala fide intention of the employer is shown, the domestic enquiry proceedings should be stayed. He submitted that all these three requirements are satisfied in the present case and the plaintiff is entitled to the relief of injunction in his favour. Therefore, he has a strong prima facie case and the interim injunction should be granted to him against the defendant.
7. On the other hand, Shri Jitender Kumar relied upon the decisions in M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 and Indian Overseas Bank v. P Ganesan (2008) 1 SCC 650 to submit that it is not an automatic rule that departmental enquiry should be stayed because of the pendency of the criminal case and both can continue side by side. He also submitted that the circumstances of the present case are such that the plaintiff is not entitled to the relief of injunction in his favour. He also submitted that the departmental proceedings will be unduly delayed if the relief sought for by the plaintiff is granted. Therefore, the plaintiff has no prima facie case against him.
8. This court has heard learned Advocate for the plaintiff/applicant and the defendant and perused the record.
9. For claiming an interim injunction under Order 39 Rules 1 and 2 of CPC, the plaintiff CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 4 of 9 has to satisfy the following three ingredients:
a. the plaintiff should have a prima facie case in his favour and against the defendant.
b. the balance of convenience should lie in favour of plaintiff and against the defendant.
c. the plaintiff would suffer irreparable loss in case the interim relief is not granted to him.
10. In the present case, for determining whether the plaintiff has a prima facie case in his favour, the court has to see whether the facts and circumstances of the present case are such that it will be justified to stay the departmental proceedings till the pendency of the criminal cases against him.
11. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, the Supreme Court has, after referring to various decisions, declared the law on the aspect of continuation of departmental enquiry simultaneously with the criminal trial against the delinquent employee as under: (SCC @p. 691) "22. The conclusions which are deducible 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 chargesheet.
(iv) The factors mentioned at ( ii ) and ( iii ) above cannot be considered in CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 5 of 9 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." (emphasis added)
12. From the above observations of the Supreme Court in M Paul Anthony, what can be culled out is that departmental proceedings and proceedings in a criminal case can proceed simultaneously and there is no bar in their being conducted simultaneously, though separately. The Supreme Court has declared that it would be desirable to stay the departmental proceedings where both the proceedings are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of grave nature involving complicated questions of law and fact. However, the said observation is qualified by further observation that the said factors cannot be considered in isolation and due regard has to be given to the fact that departmental proceedings cannot be unduly delayed.
13. In the present case, the chargesheet in the domestic enquiry against the plaintiff was issued by the defendant bank on 31st December 2011. The chargesheets in the three criminal cases were filed by the CBI on 13th July 2012 in one case (CBI v.
Texcomash International Ltd and others ) and on 30th June 2012 in other two cases(CBI v. Satbir Yadav and ors and CBI v. Yogesh Jain and others). The plaintiff has filed the copies of the chargesheets in the three criminal cases as well as the chargesheet issued to the plaintiff by the defendant bank in the domestic enquiry. During arguments, learned Advocate for the plaintiff had submitted that charges against the plaintiff have been framed in two criminal cases and the third case is CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 6 of 9 listed for arguments on charge.
14. After perusing the record, there is no doubt that these departmental proceedings and the criminal cases pending against the plaintiff are based on identical and similar facts since they deal with transactions between the defendant bank and Texcomash International Limited, Rishab Impex and Nikita Exim. The charge in the criminal case against the plaintiff are under Sections 120 B, 420, 467, 468, 471 of IPC and Section 13 (2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1989. These charges are grave in nature. However, as observed by the Supreme Court in the decision of M Paul Anthony, these factors cannot be considered in isolation and this court has to see whether the departmental proceedings can be unduly delayed if a stay is granted. The intention to not stay departmental proceedings where it appears that it will be unduly delayed is further coming from further observations made in M Paul Anthony by the Supreme Court that if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings can be resumed 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.
15. A perusal of record would show that the CBI has filed list of witnesses in all the three chargesheets. In the first case, being case number RC/BD1/2011/E/0002 (against Tecomash International Ltd. And others), the list of witnesses shows that there are 30 witnesses to be called by the CBI. Similarly, in second case, being case number RC/BD1/2011/E/0001 (against Satbir Yadav and others) there are 43 witnesses mentioned in the list of witnesses and in the third case, being case number RC/BD1/2011/E/0001 (against Yogesh Jain and others), there are 54 witnesses to be called. Having knowledge of the number of witnesses which are more than atleast 30 witnesses in each of the three criminal cases, this court has to CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 7 of 9 take a pragmatic approach to decide whether granting stay of domestic enquiry would unduly delay the same. The proceedings of the three criminal cases is at the stage of framing of charge and, as per the submissions of learned Advocate for the plaintiff, charges have been framed in two cases and charges are yet to be framed in the third case. Therefore, the trial in these three criminal cases do not appear to conclude in near future and in short span of time.
16. The relief of injunction is an equitable relief and is discretionary in nature. The record also shows that the plaintiff has participated in the proceedings of the domestic enquiry and it is not a case that the plaintiff sought for stay of the domestic enquiry at the time when the chargesheet against him was filed by the CBI. It has been around eight months after the charge sheet was filed when the plaintiff approached this court to seek injunction and stay of the domestic enquiry against him. Therefore, prima facie the conduct of the plaintiff is also such that he is not entitled to the relief of injunction in his favour in view of Section 41(i) of the Specific Relief Act, 1963.
17. Therefore, for the reasons that the grant of stay of domestic enquiry against the plaintiff till the conclusion of criminal trial will unduly delay the domestic enquiry as the stage of criminal proceedings is only at framing of charge and there are atleast 30 witnesses in all three criminal cases and that the plaintiff has also approached this court after first participating in the domestic enquiry and after around eight months from the time of filing of chargesheet by the CBI against him in all the three cases, there appears to be no prima facie case in his favour for entitlement to the relief of injunction claimed by him. The decisions relied upon by the Ld. Advocate for the plaintiff are distinguishable on material facts.
18. Since the plaintiff has been unable to to make out a prima facie case, there is no need to go into the question of balance of convenience and irreparable loss and CS No.10/13 Pawan Kumar v. State Bank of Mysore Page 8 of 9 injury. In Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy AIR 2010 SC 296, it was observed as under (AIR @ p. 299) :
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted."
(emphasis added)
19. Therefore, the plaintiff has failed to satisfy the ingredients necessary for grant of interim relief in his favour. The opinion expressed in this order shall not be construed as an expression of opinion on the merits of the matter by this Court. The application is dismissed. The Order be uploaded to www.delhidistrictcourts.nic.in.
Announced in the Open Court (Apoorv Sarvaria)
on 22 of April , 2013
nd
Civil JudgeI, New Delhi District/New Delhi
CS No.10/13
Pawan Kumar v. State Bank of Mysore Page 9 of 9