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Jharkhand High Court

Surendra Prasad vs Ms Bharat Cocking Coal Limited Through ... on 14 October, 2015

Author: Aparesh Kumar Singh

Bench: Aparesh Kumar Singh

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No. 2193 of 2014

    Surendra Prasad                     .......              Petitioner
                            Vrs.
    1. M/s Bharat Coking Coal Limited, Seraidhela, Dhanbad through
       its Chairman cum Managing Director
    2. Chairman cum Managing Director, M/s BCCL, Dhanbad
    3. Director, Personnel, M/s BCCL, Dhanbad
                                                    ..... Respondents
                            .......
    CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH

    For the Petitioner      : M/s A.K.Sahani, Ajit Kumar
    For the Respondents     : Mr. Amit Kumar Sinha

                      I.A. No. 5571 of 2015

04/14.10.2015

By way of instant interlocutory application petitioner prays for stay of the disciplinary proceeding once again, though on the first date while considering the matter, it was made clear that there is no stay in the disciplinary proceeding. Petitioner has brought on record through supplementary affidavit, thereafter, the statement of articles of charges including the imputation of the misconduct in support thereof.

The grounds urged on behalf of the petitioner to seek stay of the disciplinary proceeding are continuance of the criminal case for the allegation of accepting illegal gratification of Rs.5000/-from the complainant, Khirodhar Mandal ; that not only the charges are same and similar but the witnesses in both the proceedings are common and also the documents which are enclosed to the charge-sheet in the disciplinary proceeding; that if the proceeding is allowed to continue further, petitioner may be compelled to disclose the evidences which might prejudice the case of the petitioner also. Learned counsel for the petitioner has also relied upon a judgment rendered by the Apex Court in the case of Stanzen Toyotetsu India Private Limited Vrs. Girish V. & others reported in (2014) 3 SCC 636 in support of his contention.

Learned counsel for the respondent- B.C.C.L submits that petitioner has also been proceeded against in the disciplinary enquiry for failure to maintain absolute integrity, devotion to duty and contravention of Conduct, Discipline and Appeal Rules. It is submitted that imputation of misconduct are also sufficient to show the offence of misconduct on the part of the petitioner which can always be enquired into by the Employer, irrespective of pendency of the criminal case for some part of the allegations. It is submitted that disciplinary proceedings are judged on the standard of proof of preponderance of probability and on the basis of material evidence produced by the prosecution with opportunity to the delinquent employee. It may well be proved that petitioner was not maintaining absolute integrity and devotion to duty and was guilty of the alleged misconduct. Therefore, enquiry can always proceed even in such circumstances when a criminal case has been instituted. Learned counsel for the respondent- company has relied upon a judgment rendered by the Apex Court in the case of Kendriya Vidyalaya Sangathan & others Vrs. T. Srinivas reported in (2004) 7 SCC 442 in support of his contention. It is also urged that the petitioner is not cooperating in the disciplinary enquiry though Management witnesses were adduced. Management's case has been closed now and it is for the petitioner to adduce any evidence in his defence.

Learned counsel for the petitioner submits that petitioner has undergone some surgery during the pendency of the proceeding at Vellore, which has also been brought to the notice of the Enquiry Officer. Therefore, it is prayed that disciplinary proceeding should be stayed.

Having given considerable thought to the rival pleas of the parties, the underlying principle, which emerges in such matters through the judgment rendered by the Apex Court and as held in the case of Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal Rao reported in (2012) 1 SCC 442 is that each case has to be seen in set of its own fact. While summarizing the principle laid down in the said judgment rendered by the Apex Court, it was also held that there may be instances where disciplinary proceedings are in respect of allegation which goes beyond what has been alleged in the criminal case. The standard of proof in both the proceedings also differs and disciplinary proceedings are to be decided on the basis of standard of proof of preponderance of probability. Para 23 of the said judgment is quoted herein below for better appreciation:-

"Para23:- In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan, this Court reconsidered the issue taking into account all earlier judgments and observed as under: (SCC pp. 766-67, paras 21-22) "21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.and G.M. Tank v. State of Gujarat. However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when:

(i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh, or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank, Jasbir Singh v. Punjab & Sind Bank and Noida Entrepreneurs Assn. v. Noida, SCC at p. 394, para 16).

22. ... '41. We may not be understood to have laid down a law that in all such circumstances the decision of the civil court or the criminal court would be binding on the disciplinary authorities as this Court in a large number of decisions points out that the same would depend upon other factors as well. (See e.g. Krishnakali Tea Estate and RBI v. S. Mani. Each case is, therefore, required to be considered on its own facts."

The complicated question of facts and law might be for another consideration to be gone into for stay of the proceeding in case of pendency of criminal case on similar allegation. In the judgment relied upon by the petitioner in the case of Stanzen Toyotetsu India Private Limited Vrs. Girish V. & others(supra), also it has been reiterated that disciplinary proceeding can continue during the pendency of the criminal case. The fact situation of the said case shows that the Apex Court was not inclined to interfere as the three Courts below had exercised their discretion in favour of staying of the ongoing disciplinary proceeding and the Trial Court was directed to proceed expeditiously with the criminal trial but within one year failing which, disciplinary proceedings were to be resumed.

In the fact of the present case, it can only be said at this stage that the articles of charges and statements of imputation of misconduct show material which goes beyond the allegation relating to incidence of acceptance of illegal gratification by the petitioner from the complainant, Khirodhar Mandal. The conduct of the petitioner in discharge of the duties over a period of time also appears to be under scrutiny. In such circumstances, the continuance of the disciplinary proceeding is well within the discretion of the Employer on the alleged charges. Therefore, this Court is not inclined to stay the pending disciplinary proceeding.

Accordingly, I.A. No. 5571 of 2015 and I.A. No. 4820 of 2015 stand dismissed.

W.P.(S) No. 2193 of 2014

In view of the discussions made herein above, on the question of interim stay, on the same grounds raised to assail the initiation of disciplinary proceeding vide memo no. 277 -5- dated 19.3.2014(Annexure-3) by the petitioner, the writ petition itself deserves to be dismissed.

Learned counsel for the petitioner submits that the factum of surgery during the pendency of the proceeding has already been brought it to the notice of the Enquiry Officer to show the reason for his non- appearance on some of the dates when some of the Management Witnesses were examined. Even then the case of the Management has been closed and the petitioner may not have the opportunity to cross examine the said Management Witnesses. Therefore, the Enquiry Officer may be directed to once again recall the Management Witnesses for cross examination on the part of the petitioner.

Learned counsel for the respondent submits that it is for the Enquiry Officer to consider the petitioner's request taking into account all attendant relevant facts.

Needless to say that on such application being made before the Enquiry Officer, it may be considered on its own merit in accordance with law. However, the challenge to the initiation of the disciplinary proceeding being based upon the same ground that the two proceedings cannot run parallel on the same set of charges already dealt with herein above, the writ petition deserves dismissal. Accordingly, it is dismissed.

         (Aparesh Kumar Singh, J.) A. Mohanty