Calcutta High Court
Sitaram Kewat And Anr. vs Coal India Ltd. And Ors. on 12 December, 2006
Equivalent citations: (2007)IILLJ894CAL
Author: Tapen Sen
Bench: Tapen Sen
ORDER Tapen Sen, J.
1. This is really a Writ Petition seeking for an Order in the nature of an order of injunction by directing the respondents to stay their hands in relation to the two charge-sheets, both dated June 18, 2006, one being Siduli/Agent/ PNL/2006/211 and the other, being Siduli/ Agent/PNL/2006/212 in respect of the petitioner Nos. 1 and 2 respectively and which have been brought on record vide Annexure P2 (between running pages 20 and 22 of the Writ Petition).
2. In addition to this, the petitioners have also prayed for an Order directing the respondents to stay their hands in respect of the two Notices of enquiry, both dated July 28, 2006. (one being ECL/CMD/C-6B/Enquiry 2:1/662 in respect of the petitioner No. 1 and the other, being ECL/CMD/C-6B/ Enquiry 3:1 /663 in respect of the petitioner No. 2) as contained in Annexure P3 (between running pages 24 and 25 of the Writ Petition).
3. The petitioners have also prayed for stay of the aforementioned charge-sheets and Notices of enquiry till conclusion Andal P.S. case No. 75/06 dated May 17, 2006 pending before the learned A.C.J.M. Durgapur in the District of Burdwan under Sections 447/ 323/353/506 of the Indian Penal Code.
4. The petitioners have further prayed that the authorities should allow them to join their services forthwith and that they should not give effect to the Departmental Proceedings till conclusion of the criminal case.
5. The short facts, stated in paragraph 5 of the Writ Petition, read thus:
one Mr. Manindranath Mukherjee, Sr. P.O. Siduly Colliery lodged one complaint against your petitioners before the local police station with the allegations that when he was busy in his office with official jobs the petitioners alongwith 15-20 outsiders came to his office and assaulted him physically with lathi's without any provocation and petitioners have beaten him severally and brutally and dragged him out from his office and bring him to Durga Mandir with an intention to kill him. And consequent upon such complaint the Andal Police Station case No. 75/2006 dated June 17, 2006 under Section 447/323/353/506 of the Indian Penal Code has been started against the petitioners, and as such the petitioners have been arrested by the Police and enlarged on bail on that day.
(Quoted Verbatim)
6. On the basis of the aforementioned FIR, which is Annexure P1, the impugned Charge-sheets and the Notices of enquiry were issued.
7. It is stated that the petitioners filed their respective replies denying the allegations but without considering the same, the respondents issued the Notices of enquiry whereafter, the petitioners filed individual representations requesting them to stay the disciplinary proceedings till conclusion of the criminal case on the ground that both were based on identical and similar set of facts and that their defence in both the proceedings will be common. The respondents did not pay any attention to these representations and appointed the Enquiry Officer. Affidavit-in-Opposition has been filed by the Senior Personnel Officer of the respondent No. 2 (i.e. Eastern Coal Fields Ltd.) and they have stated inter alia, that the petitioners are interested only in stalling the disciplinary proceedings when there is no bar in continuing with both the proceedings.
8. The learned Counsel for the petitioners has relied upon the case of Kusheshwar Dubey v. Bharat Coking Coal Ltd. and Ors. in support of his contention that since the criminal action and disciplinary proceedings are grounded upon the same set of facts, the disciplinary proceedings should therefore be stayed.
9. He also relies upon the judgment passed by the Supreme Court in the case of State of Rajasthan v. B.K. Meena and Ors. in support of the same contention. The learned Counsel also relies upon the judgment passed by the Division Bench of this Court in the case of Jayati Banerjee v. United Bank of India and Ors. as well as the judgment of a single Judge of this Court passed in the case of Sri Dibakar Das v. Registrar General, Appellate Side, High Court and Anr. reported in 2006 (1) CLJ 59 (Cal).
10. In the cases cited by the learned Counsel appearing for the petitioners, each of the judgments has clearly laid down that there is no hard and fast strait-jacket formula for all cases which makes it mandatory that a disciplinary proceedings should be stayed till conclusion of the criminal case. Consequently, this Court is of the view that the two judgments of the Supreme Court relied upon by the learned Counsel do not help the petitioners at all.
11. Moreover, and as will appear from the following paragraphs, the two judgments of the Supreme Court relied upon by the learned Counsel namely 1988-II-LLJ-470 (supra) and 1997-I-LLJ-746 (supra), in the opinion of this Court, lays down the firm principle that there is no bar and that there is no hard and fast strait-jacket formula that in every case the departmental proceedings must be ordered to await.
12. In the case of Kusheswar Dubey (supra) it has further been held that:
6 while there could be no legal bar for simultaneous proceedings being taken against the delinquent employee against whom disciplinary proceedings were initiated, yet, there may be cases where It would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case.
13. In the other case cited by the learned Counsel, i.e. the case of State of Rajasthan v. B.K. Meena (supra) it has again been held that there is no legal bar for both the proceedings to go on simultaneously, however, in certain situations, it may not be desirable to proceed with the disciplinary proceeding when a criminal case is pending on identical charges. The Supreme Court has further laid down as follows:
The staying of disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of a given case and no hard and fast rules can be enunciated in that behalf. The only valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This may be done in cases of grave nature involving questions of fact and law. 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 the facts and circumstances of the case. One of the contending consideration 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 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 interests 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 interests of the delinquent officer also lies 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 period awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. It is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings. Stay of disciplinary proceedings cannot be and should not be a matter of course. All the relevant factors, for and against, should he weighed and a decision taken.
(italicisation for emphasis)
14. Relying on the aforementioned case of B.K. Meena, (supra), the Hon'ble Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. v. T. Srinivas have laid down, in paragraph 11, wherein while relying upon the aforementioned italicised portion of B. K. Meena's case (supra) quoted above, their Lordships have stated thus:
11. From the above, it is clear that the advisability, desirability or propriety, as the case may be in regard to a departmental enquiry has to be determined in each case taking into consideration all facts and circumstances of the case. This judgment also lays down that the stay of departmental proceedings cannot be and should not be a matter of course.
15. Taking a cue from the aforesaid judgments, this Court is not inclined to accept the arguments of the learned Counsel to the effect that till conclusion of the criminal proceedings, the departmental proceedings should be ordered to be stayed.
16. In this context, it is relevant to mention that the charges as against these two petitioners in this case are extremely serious. The charges are that the petitioners along with 15/20 persons, entered into the office of the Senior Personnel Officer and assaulted him brutally with lathis and then dragged him out and even outside, they continued to beat him up. Under service jurisprudence, with specific reference to the Certified Standing Orders of a Company, such a conduct may amount to a riotous, disorderly or indecent behaviour or fighting at the place of work or assault, attempt to assault, threat to assault, abuse a co-worker or subordinate or superior while on duty. If these charges are proved, then they could lead to the punishments as enumerated in the Standing Orders or the Rules and Regulations framed by a Company. Such proof can be arrived at only in departmental proceedings.
17. However, the note of assaulting a person with lathis and continuously beating him up even outside the office, may amount to an, offence punishable under the Indian Penal Code and if proved, it could lead to conviction and sentence under those provisions of the I.P.C. which have been incorporated in the F.I.R. at the time of registration thereof.
18. Therefore, the object of a criminal proceeding is totally different than the object of a disciplinary proceedings. This aspect has been very clearly and succinctly laid down by the. Hon'ble Supreme Court in Paragraph 12 in the case of Kendriya Vidyalaya Sangathan (supra) In that paragraph, their Lordships have not appreciated the Order of the Tribunal or of the High Court in having stayed departmental enquiry and they have said so in paragraph 14 of the same judgment. In that view of the matter paragraphs 12 to 15 of the judgment of the Hon'ble Supreme Court in the aforesaid case are necessary to be reproduced. They read as follows:
12. In the instant case, from the order of the Tribunal as also from the impugned order of the High Court, we do not find that the two forums below have considered the special facts of this case which persuaded them to stay the departmental proceedings. On the contrary, reading of the two impugned orders indicates that both the Tribunal and the High Court proceeded as if a departmental enquiry had to be stayed in every case where a criminal trial in regard to the same misconduct is pending. Neither the Tribunal nor the High Court did take into consideration the seriousness of the charge which pertains to acceptance of illegal gratification and the desirability of continuing the appellant in service in spite of such serious charges levelled against him. This Court in the said case of State of Rajasthan (supra) has further observed that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. It held that 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 are established and, if established, what sentence should be imposed upon him. The Court in the above case further noted that the standard of proof, the mode of enquiry and, the rules governing the enquiry and trial in both the cases are distinct and different. On that basis, in the case of State of Rajasthan the facts which seems to be almost similar to the facts of this case held that the Tribunal fell in error in staying the disciplinary proceedings.
13. We think the above ratio of law laid down by this Court applies aptly to facts of the present case also. It is also to be noted that in Capt. M. Paul Anthony case (supra), this Court has accepted the principle laid down in Rajasthan case (supra).
14. As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases.
15. We are of the opinion that both the Tribunal and the High Court proceeded on an erroneous legal principle without taking into consideration the facts and circumstances of this case and proceeded as if the stay of disciplinary proceedings is a must in every case where there is a criminal trial on the very same charges, in this background it is not necessary for us to go into second question whether at least charge No. 3 by itself could have been permitted to be decided in the departmental enquiry as contended alternatively by the learned Counsel for the appellant.
(emphasis by italisising)
19. In view of the aforementioned aspect, the Division Bench judgment of this Court passed in the case of Jayati Banerjee (supra) relied upon the learned Counsel and in the case of Sri Dibakar Das v. Registrar General, Appellate Side, High Court and Anr. (supra) cannot apply upon the facts and circumstances of this case.
20. Reliance is placed on yet another judgment of the Supreme Court passed in the case of Hindusthan Petroleum Corporation Ltd. and Ors. v. Sarvesh Berry . This Court is not inclined to accept the contention that in the said judgment the Apex Court has held that Departmental Proceedings should be stayed because in paragraph-7 of the said judgment, the Supreme Court has observed that in such cases, the Court has to decide, taking into account the special features of the case, whether simultaneous continuance of both would be proper or not. The said paragraph reads thus at p. 590 of LLJ:
5. it is a fairly well-settled position in law that on basic principles, proceedings in criminal case and departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. It is in these cases, the Court has to decide taking into account the special features of the case, whether simultaneous continuance of both would be proper.
21. Therefore, it is the Court which has to decide. In other words, there is no strait-jacket formula that in every case the departmental proceedings must be stayed. This Court has already observed that the charges against these petitioners are extremely serious. It has also observed, following the observations of the Supreme Court, that the objects of the two proceedings are totally different. Consequently, this Court is of the firm view that this neither a fit case nor one of those cases where the Departmental Proceedings should be ordered to await the finalisation of the criminal trial.
22. For the foregoing reasons, this Court holds that there is no merit in this Writ Petition. it is accordingly dismissed but in the facts and circumstances, there shall be no order as to costs.
23. Upon appropriate Application(s) 5 being made, urgent xeroxed certified copy of this Order, may be given/issued expeditiously subject to usual terms and conditions.