Karnataka High Court
Chitradurga Gramin Bank, Jogi Mutt ... vs P. Shiva Kumar on 21 September, 1999
Equivalent citations: ILR2000KAR553, 2000(2)KARLJ6, (2000)IILLJ456KANT
Bench: Ashok Bhan, R. Gururajan
JUDGMENT
1. This appeal is filed by the Chitradurga Gramin Bank (hereinafter referred to as Bank, for short) aggrieved by the order of the learned Single Judge dated 19-10-1998 passed in W.P. No. 10778 of 1996 allowing the writ petition filed by respondent-1, Manager of the appellant-Bank.
2. The respondent, the Manager, was issued with a charge-sheet dated 29-5-1995 making certain allegations against him. The petitioner-respondent submitted an explanation dated 9-6-1995 to the Bank. Thereafter, the appellant-bank has filed a criminal complaint dated 4-6-1995 before Hiriyur Police, which has registered a regular case in Crime No. 268 of 1995, before the Court of Munsiff and JMFC, Hiriyur, the same is pending. The Bank during the pendency of criminal proceedings appointed appellant 2 as an Enquiry Officer and also appointed one Sri P.V. Kondappa as presenting officer to present the case on behalf of the Bank before the Enquiry Officer. The petitioner-respondent submitted a representation dated 29-2-1996 seeking for an assistance by an Advocate.
He also contended that in view of the pendency of criminal proceedings the enquiry may be withheld until the completion of the criminal case. The Enquiry Officer rejected both these requests at Annexure-G. The petitioner filed W.P. No. 10778 of 1996 and sought for quashing of the said order and also sought for direction to permit him to be defended by an Advocate in the Enquiry proceedings. He also sought for a direction to the Bank to set off its hands till the completion of criminal proceedings. Notices were issued and the respondents have entered appearance. Learned Single Judge heard the matter and after hearing the learned Judge has allowed the writ petition. Since the disciplinary proceedings were stayed and the Management was directed to proceed with the disciplinary proceedings only on the conclusion of criminal proceedings. The petitioner/respondent was also given an opportunity to engage a legal practitioner of his choice by learned Judge. Aggrieved by the said order mentioned earlier the Bank has come in an appeal before us.
3. The learned Counsel for the Bank argued at length and contended that the learned Judge is not justified in staying the proceedings of the enquiry on account of the pendency of criminal proceedings, He relied on the following judgments viz., State of Rajasthan v B.K. Meena and Others, Depot Manager, A.P.S.R.T.C. v Mohd. Yousuf Miya and ILR 1997 Kar. 781 (sic). He argued that the disciplinary proceedings and the criminal proceedings stand on different footings. The nature of evidence, the procedural formality differ in both the proceedings. He argued that on the facts of this case the stay of the proceedings is unnecessary. Similarly he contended that in the absence of provision providing for a legal assistance the learned Judge is not right in granting that relief to the petitioner-respondent.
4. Per contra Sri Rajagopal, learned Counsel for the respondent-Manager contended that the Bank is not justified in proceeding further with the enquiry proceedings in view of the pendency of the criminal proceedings. It is his case that his client would be prejudiced and affected if the Bank is allowed to continue with the proceedings in the case on hand. He also stated that the legal assistance is necessary in view of the seriousness of the charges levelled against his client. While concluding he stated that the learned Judge after referring to the various case laws on the subject came to the right conclusion and the same does not call for any interference at our hands. Sri Rajagopal, learned Counsel relied on the latest judgment of the Supreme Court in Copt. M. Paul Anthony v Bharat. Gold Mines Limited and Another.
5. We have heard the learned Counsels at length and perused the material on record and judgments cited at Bar. After hearing at length we pass the following order:
Re: Contention (1): Stay of departmental proceedings during pendency of criminal proceedings.-
The facts of the case reveal that the Bank had issued a charge-sheet dated 29-5-1995. The Bank had also initiated criminal proceedings in Crime No. 268 of 1995. The same is pending. The question is as to whether in view of the launching of criminal proceedings in Cr. No. 268 of 1995 whether departmental proceedings in respect of charge-sheet dated 29-5-1995 is to be stayed or not.
The allegations against the Manager is mentioned in the charge-sheet and the offences in the criminal proceedings. The Supreme Court in the case of Delhi Cloth and General Mills Limited v Kushal Bhan has held as under:
"It is true that very often employers stay enquiries pending the decision of the Criminal Trial Courts and that is fair; hut we cannot say that principles of natural justice require that an employer must wait for the decision at least of the Criminal Trial Court before taking action against an employee. In Bimal Kanta Mukherjee v M/s. Newman's Printing Works , this was the view taken by the Labour Appellate Tribunal. 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 await the decision of the Trial Court, so that the defence of the employee in the criminal case may not be prejudiced".
In Tata Oil Mills Company Limited v The Workmen, the Supreme Court after noticing the Delhi Cloth Mills case, supra, has observed that:
''It is desirable that if the incident giving rise to a charge framed against the workman in an enquiry is being tried in a Criminal Court, the employer should stay the enquiry pending final disposal of the criminal case".
6. The next case a leading one reported in Kusheshwar Dubey v M/s. Bharat Coking Coal Limited and Others, the Supreme Court ruled:
"7. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straitjacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline".
7. The next decision is one of the B.K. Meena's case, supra. The Supreme Court after noticing Delhi Cloth Mills case, supra and Tata Oil Mills case, supra and Kusheshwar Dubey's case, supra, has ruled in para 14 reading as under:
"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable', or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. 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 facts and circumstances of the case. The ground indicated in the cases of Delhi Cloth and General Mills Limited and Tata Oil Mills, supra, is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well-known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interest of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lie in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above".
8. In the very same judgment in para 17 the Supreme Court notices as under:
"There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed".
9. The Supreme Court in the subsequent judgment in the case of Depot Manager, A.P.S.R.T.C., supra, after noticing various case laws including the Delhi Cloth and General Mills case, Tata Oil Mills case and Dubey's case, supra, has ruled in para 6:
"..... There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with the proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse in the case of Departmental Enquiry. The enquiry in a departmental proceedings relates to conduct a breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act, The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 of the IPC. Under these circumstances, the High Court was not right in staying the proceedings".
10. The latest judgment of the Supreme Court as pointed by Mr. Rajagopal, learned Counsel, has considered the various cases referred to above and finally has deduced the conclusions in para 22 reading as under:
"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 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 not found guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest".
11. The Supreme Court in the light of the conclusion referred to in para 22 has ruled finally that the departmental proceedings and the criminal case were the same without there being an iota of difference, the distinction, which is usefully drawn between the departmental proceedings and criminal case on the basis of approach and burden of proof would not be applicable to the instant case.
12. The learned Single Judge has noticed the case of B.K. Meena, supra. After noticing the B.K. Meena's case, supra and judgment of this Court in in S. Jayarajan v Reserve Bank of India and Another and in the case of U.K. Ravindra Rao v Vijaya Bank and Another , has granted first prayer.
13. After giving our careful consideration to the case laws referred to above we find in agreement with the Counsel for the Bank in his contention. The Supreme Court in the case of B.K. Meena, has categorically ruled on the basis of the facts of that case that there is no stay necessary on the facts of that case. In the very same judgment the Supreme Court has noticed the staying of the disciplinary proceedings pending criminal proceedings to repeat should not be a matter of course but a considered decision.
14. In the latest judgment in Capt. M. Paul Anthony's case, supra, the Supreme Court has succinctly deduced the conclusion in para 22 which has been earlier referred to. Therefore, a factual finding is necessary in the light of the various judgments referred to above by a Court of law in the event of the stay of departmental proceedings pending criminal proceedings. In fact the Supreme Court in para 22 has noticed that the departmental proceedings and the criminal case are based on identical and similar set of facts and the case involving complicated questions of law and fact it is desirable to stay proceedings. Again the Supreme Court has stated where the nature of charge in a criminal case is grave and where the complicated questions of facts and law are involved in that case will depend upon the nature of offence. Therefore, what emerges is a factual finding with regard to similarity and the set of facts, the complicated nature of fact and law, nature of offence, the nature of the case launched against an employee are to be considered as a fact before staying the proceedings. In the case on hand we find that no such fact finding is available. In the circumstances we deem it proper to remand the case to a learned Judge for a factual finding on the basis of the facts of this case in terms of the conditions laid down in II and III clauses of para 22 of the judgment of the Supreme Court in Capt. M. Paul Anthony's case, supra. Even the judgment of this Court (W.P. No. 32486 of 1993) on which reliance has been placed by the learned Judge also states that the Departmental Enquiry should not proceed pending criminal trial on the same set of charges. In that case also the learned Judge has come to the conclusion that considering a FIR and the charge memo it is desirable that the disciplinary proceedings are stayed pending criminal proceedings, Therefore, we set aside the direction of the learned Judge and remand the case for a factual finding in terms of para 22 of the judgment of the Supreme Court before issuing any direction in the matter of stay of proceedings before the departmental authorities.
15. Re: Contention (2): Legal assistance.--The learned Single Judge has relied on the judgment of this Court in N. Balasubramanian v Canbank Financial Services Limited, Bangalore, to grant the prayer for legal assistance, in that case also learned Judge came to a conclusion that the petitioner in that case was facing a criminal trial and domestic enquiry on the same allegation. Therefore, the learned Judge granted the prayer. The Supreme Court in the case of Harinarayan Srivastav v United Commercial Bank and Another", considered this question and ruled that unless the allegations are complicated, failure to permit employee to engage an Advocate is not in violation of rules and natural justice. Learned Judge of this Court in W.P. No. 973 of 1993 between B. Badarinarayana v Chitradurga Gramina Bank and Another, considered this very question that unless complicated questions of fact or law is involved there need not be a defence through a legally trained person.
The regulation of the Bank does not provide legal assistance under Regulation 33 of the Regulations. As held by Supreme Court before granting the prayer of legal assistance Court has to come to a conclusion that the charges are complicated in nature, then alone a legal assistance can be granted. So far that aspect of the matter is also concerned the learned Judge has not given any finding with regard to the complicated nature of offence. In the circumstances this again requires a factual finding by the learned Single Judge. In the circumstances we set aside the order and remand the matter for fresh consideration in terms of our discussions above. The writ petition is directed to be posted as per roaster.