Calcutta High Court
Jayati Banerjee vs United Bank Of India And Ors. on 25 August, 2004
Equivalent citations: 2004(4)CHN376
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT
1. The stay application arises out of an appeal preferred by the writ petitioner against the judgment and order dated 2nd July, 2004 passed by the learned Single Judge in W. P. Nos. 10613(W) of 2004, dismissing the same on the ground that there was no merit in the writ application.
2. In the writ petition the appellant had challenged the simultaneous continuance of disciplinary proceedings and a criminal investigation arising out of a First Information Report dated 8th February, 2004 lodged by the bank under Section 409 of the Indian Penal Code.
3. The learned Single Judge dismissed the application on the finding that since the criminal proceedings were only at an investigation stage, there is absolutely no guarantee that after the investigation the police would file a chargesheet against the petitioner. In such a situation, the learned Judge observed that nobody knew whether at all the writ petitioner would be required to face a criminal trial.
4. Aggrieved by the said order of dismissal of the writ petition filed by the appellant, the appellant has filed the present appeal and has also filed the instant petition for stay of operation of the order of the learned Single Judge as also all further proceedings of the departmental enquiry in respect of the chargesheet dated 11th March, 2004 issued by the Regional Manager, United Bank of India, Burdwan Region, till the disposal of the criminal proceeding, being G. R. No.152 of 2004, arising out of Asansol (South) P. S. Case No. 20 of 2004 under Section 409 IPC.
5. Appearing in support of the application for stay, Mr. Kalyan Bandopadhyay, learned senior counsel submitted that the question which has been raised in the writ application and in the instant appeal, has fallen for consideration of the Hon'ble Supreme Court and other Courts from as far back as in 1960 and that the consistent view which has been taken is that while both disciplinary proceedings and criminal proceeding may go on simultaneously, it would be better for the management to stay its hands in the departmental proceeding when the charges are of grave nature as by proceeding with the departmental enquiry, the employee concerned may be compelled to disclose his defence which could prejudice him in the criminal proceedings.
6. Mr. Bandopadhyay referred to and relied on the latest decision of the Hon'ble Supreme Court in this regard in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., , wherein all the previous decisions on the said question had been considered and in paragraph 22, the substance of all the previous cases has been summarised. The accuracy takes note of the fact that apart from the charge in the criminal case being grave, it would also have to be seen whether the questions involved are complicated questions of fact and law which would be disclosed on the basis of the evidence and materials collected during investigation or as reflected in the chargesheet. It has been indicated that in such a situation the management would be well-advised to stay its hands in the departmental proceedings.
7. Mr. Bandopadhyay pointed out that a safeguard has also been provided in the said judgment in the event the criminal proceedings were delayed for some reason or the other on if the employee concerned employed dilatory tactics to delay the criminal proceedings. Referring to sub-paragraph (v) of paragraph 22, Mr. Bandopadhyay pointed out that the Hon'ble Supreme Court had observed that if the criminal case did not proceed or its disposal was unduly delayed, the departmental proceedings, even if stayed on account of the pendency of criminal case, could be resumed and proceeded with so that the same could be concluded at an early date. Mr. Bandopadhyay urged that in the instant case the charge against the writ petitioner appellant was grave in nature since the punishment vision not clear a sentence of even life imprisonment.
8. Mr. Bandopadhyay submitted that in such a situation, having regard to the observations and findings of the Hon'ble Supreme Court in Capt. M. Paul Anthony's case (supra), the learned Single Judge appears to have gone wrong in dismissing the writ petition only on the ground that no chargesheet had yet been submitted against the writ petitioner appellant on the completion of criminal investigation. Mr. Bandopadhyay submitted that this was a fit case where the departmental proceeding was required to be stayed during pendency of the criminal proceedings.
9. Opposing the prayer for stay on behalf of the bank and its authorities, Mr. R.N. Majumdar, learned advocate, pointed out that apart from the question of gravity of the offence complained of, the Hon'ble Supreme Court had also considered the question as to whether such a charge involved complicated questions of fact and law or not and in the event the charge did not involve complicated questions of law and fact, notwithstanding the gravity thereof, there could be no justification in staying the departmental proceeding during the continuance of a criminal proceeding, inasmuch as, it is uncertain as to when the criminal proceedings would finally be concluded. Mr. Majumdar submitted that the bank had no control over the investigation and it could not expedite the process of filing of chargesheet after completion of the investigation. Mr. Majumdar submitted that in such a situation although the writ petitioner had been placed under suspension, the bank has to continue paying him subsistence allowance despite the fact that no trust could be reposed in him by the bank on account of the charge against him. Mr. Majumdar submitted that the learned Single Judge, had very rightly dismissed the writ application, inasmuch as, nothing tangible had surfaced in the criminal investigation and there was no surety that such investigations would at all end in a chargesheet. Mr. Majumdar submitted that by staying the departmental proceeding, the writ petitioner would be benefited to the severe prejudice of the bank. Mr. Majumdar submitted that not only the stay application was liable to be dismissed but the appeal itself was also liable to be dismissed with costs.
10. We have carefully considered the submissions made on behalf of the respective parties, having particular regard to the nature of' the complaint against the writ petitioner appellant and the fact that he has been charged under section 409 IPC which carries a maximum punishment of life imprisonment, if convicted. There is no doubt that the charge is of grave nature. Whether the charge involves complicated questions of law and/or fact or not is something which will surface after the investigation is completed, but at the same time we are of the view that in the event the departmental proceeding is allowed to continue, during the pendency of the criminal investigation, the appellant may be compelled to disclose his defence which could ultimately prejudice him in the criminal proceeding and/or in the event the chargesheet is filed against him.
11. As pointed by Mr. Bandopadhyay, a safeguard has been provided by the Hon'ble Supreme Court in the decision cited by him. In the event the investigation in the criminal proceeding or the criminal proceeding itself is delayed for some reasons or the other, it will always be open to the authorities of the bank, as indicated hereinabove, to apply to have the order of stay vacated so that the departmental proceeding can be proceeded with, In such circumstances and considering the line of decisions rendered by the Hon'ble Supreme Court right from the decision in the case of Delhi Cloth and General Mills Ltd. vs. Kushal Bhan, , we are of the view that the departmental proceedings should for the present be stayed while the investigation in the criminal case is pending. Such stay, however, will not prevent the investigating agency in the criminal complaint from proceeding with the investigation and/or filing the chargesheet, if thought fit on the materials collected. The departmental enquiry is accordingly stayed during the pendency of the criminal proceeding with liberty to the bank to mention the matter in terms of sub-paragraph (v) of paragraph 22 of the decision in Capt. M. Paul Anthony's case for vacation of such stay should it become necessary to do so in case of delay in the criminal proceeding. The order of the learned Single Judge impugned in the appeal is set aside. Since nothing further remains in the appeal, the same is also treated as on day's list and is disposed of in terms of this order, but we make it clear that in the event it becomes necessary to do so, the bank and its authority will be at liberty to apply before this Court for variation and/or vacating the order of stay herein granted.
12. Let urgent xerox certified copy of the order he made available to the learned advocates for the parties at an early date, if applied for.