Karnataka High Court
S. Jayarajan vs The Reserve Bank Of India And Anr. on 24 July, 1996
ORDER
K.S. Bakthavatsalam, J
1. The petitioner challenges an order of ad-interim suspension vide Annexure-F dated 15.3.1993 and also the charge sheet issued to the petitioner on 17.3.1993 vide Annexure-J on the ground that it violates Articles 14, 16, 21, 23, 42 and 43 of the Constitution of India.
2. The petitioner has joined the services of the respondent-Bank in the year 1971 initially as a Casual Labourer and his services were regularised. It seems, he belongs to the Schedule Caste community, and became the President of the Reserve Bank of India Class-IV Employees Union fighting against the action on the part of the Management in respect of conditions of service. The respondent-Bank placed him under suspension on 21.6.1979 without issuing any charge-memo or held any enquiry and his services were terminated by an order dated 9.2.1980 under Regulation 25(2)(b) of the Reserve Bank of India (Staff) Regulations, 1948. It seems a criminal case is pending against him under Section 307 IPC., and, he was discharged from the allegations by the Criminal Court on 18.6.1980. The petitioner challenges the order of termination stated above in Writ Petition No. 4190/1980 before this Court. In a batch of Writ Petitions Regulation 25(2) of the Regulations was challenged before this Court and by a common order on 17.12.1981 this Court struck-down the regulations as unconstitutional and the order of termination was quashed and a direction was given that the petitioner is entitled to all the benefits in pursuance of the order passed in the Writ Petition. The respondent-Bank preferred an appeal to the Supreme Court in Civil Appeal No. 1948/82. Ultimately, on 11.11.1992 the appeal preferred by the respondent-Bank was dismissed by the Supreme Court-Annexure-A. Subsequently, the petitioner seems to have made a representation on 20.1.1993 Annexure-B to request the respondent to implement the decision of this Court as affirmed by the Supreme Court. On 12.3.93 vide Annexure-D the petitioner was asked to report for duty on any working day and by Annexure-E he was informed that the period during which he was away must be treated as on duty and he must be placed in the scale of Rs. 980-2100 and his basic pay was fixed at Rs. 2245/-. Thereafter, it seems the amount was paid to the petitioner by way of cheque. On the same day, by the impugned order Annexure-F the petitioner was kept under suspension. Subsequently, a charge-memo has been issued to the petitioner on 17.3.1993 Annexure J which the petitioner challenges before this Court.
3. The petitioner alleges the order of suspension passed against the petitioner is arbitrary and violative of Articles 14 and 16 of the Constitution of India. It is also contended by the petitioner, once a person has been exonerated, it is not open to the authorities to take action against him in respect of the same subject matter. As such, keeping the petitioner on suspension and issuing charge-sheet is in flagrant violation of the principles of natural justice. It is also contended by the petitioner that the order of suspension and issue of a charge-sheet is malafide especially when the order of reinstatement itself has been passed after 13 years and the action now sought to be taken after a long lapse of time and after inordinate delay itself proves the malafide intention of the respondent. The petitioner alleges the order of suspension as well as the issue of charge-sheet are mala fides. The petitioner contends that the action against the petitioner is unjustified when the subject matter of the same is pending before the criminal Court. It is stated that no departmental action can be taken against the petitioner when the subject matter of the proceeding is pending before the criminal Court. It is pointed out that, when the petitioner is facing a criminal trial in respect of the same subject matter which is grounded on the same facts, prejudice will be caused to the petitioner in the defence of the criminal proceedings.
4. A statement of objections is filed by the respondent-Bank. It is stated that the Writ Petition challenging the order of suspension and issue of charge-sheet is premature and no final decision has been taken by the respondent. It is pointed out in the statement of objections that the petitioner's services were terminated on 9.2.1980 because of his general unsuitably to the job and because the Bank has lost confidence in him and the petitioner challenges that order before this Court. That was set aside by this Court and was affirmed by the Supreme Court. It is stated that the investigation is with regard to what is called as Soiled note fraud case had indicated that the petitioner colluded with other employees and after reinstatement of service the respondent-Bank has issued charge-sheet for holding a disciplinary proceedings against him. It is pointed out that, this was not the subject matter of the earlier Writ Petition and only the validity of the regulations was questioned before this Court earlier. It is pointed out that, instead of defending himself in the domestic enquiry, the petitioner has challenged that order in this Writ Petition. It was pointed out that the delay for issuing charge-sheet to the petitioner is due to the pendency of the earlier Writ Petition before this Court and also before the Supreme Court. It is stated that no period of limitation is prescribed for instituting disciplinary proceedings, and there was no merit in the contention raised by the petitioner. It is pointed out that, merely because criminal proceedings are pending against the petitioner, there was no bar for holding disciplinary proceedings. It is also stated that the charge-sheet dated 17.3.93 by the Bank is not the subject matter of the prosecution before the Sessions Court. The allegation made by the petitioner that the respondents want to keep the petitioner away from the Bank and harass him is denied and the allegations of mala fides are also denied.
5. When the petition came up for preliminary hearing it has been taken up for final disposal, by consent of parties.
6. The Learned Counsel Mr. Subba Rao after narrating the facts mainly contended, knowing fully well about the limitation, and the jurisdiction of this Court to interfere with the charge memo and the order of suspension, contended mainly that on the same set of facts when the criminal proceedings are pending, it is not open to the respondent-Bank to proceed with the departmental enquiry. According to the Learned Counsel, though the prayer asked for cannot be acceded to in law, this Court can mould the prayer to suit the occasion. According to the Learned Counsel/the petitioner has been kept out of service from 13 years under illegal order of termination which has been set aside by this Court and the judgment of this Court was affirmed by the Supreme Court in 1982. For the very same charge, petitioner has been prosecuted and the criminal case is pending and as such it is not open to the respondent to proceed with the disciplinary enquiry at this stage as it jeopardise the defence of the petitioner in the criminal proceedings. The Learned Counsel relied upon the decision of the supreme Court in the case of KUSHESHWAR DUBEY v. BHARAT COOKING COAL LTD., the proposition that of permissibility of simultaneous criminal trial against the delinquent along with the departmental proceedings. According to the Learned Counsel, the Supreme Court has categorically held that, though there was no legal bar for simultaneous proceedings, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. The Learned Counsel relied upon the division bench decision of this Court which is reported in A.R. KAVI v. KARNATAKA AGRO INDUSTRIES CORPORATION LTD., for the proposition that the facts being same, continuance of disciplinary proceedings causes prejudice affecting defence adversely and the disciplinary proceedings would be normally stayed.
7. Per contra, the Learned Counsel appearing for the respondent-Bank referred me to the decision reported in K. VEERASWAMY v. UNION OF INDIA AND ORS. and contended the Supreme Court has held that the competent authority may allow the prosecution to go on in the Court of law of subject him to a departmental enquiry or subject him to both concurrently and consecutively. Based on this, the Learned Counsel for the respondent-Bank contended that, it is not correct on the part of the petitioner to contend that the departmental enquiry cannot go on and it is open to the respondent-Bank to proceed with the departmental enquiry as the charge-memo has already been issued to the petitioner. It is also contended by the Learned Counsel for the Bank that this Court can hold that such of the evidence which is against the petitioner in the departmental enquiry cannot be used in the criminal proceedings. In that way, if that is done according to the Learned Counsel for the Bank, the departmental enquiry can proceed and the petitioner may not be prejudicated by the departmental enquiry even though a criminal case is going to be held on the same set of charges. The Learned Counsel for the Bank pointed out that the judgment relied upon by him is of the Constitution Bench of the Supreme Court and as such weight has to be given to the law laid down by the Constitution Bench.
8. I have considered the arguments of the Learned Counsel for the petitioners Sri K. Subba Rao and the Learned Counsel for the respondent Sri K. Kasturi. The short point for consideration is, as already stated, I do not think this Court can grant the prayer asked for by the petitioner that is, to set aside the order of ad-interim suspension and the charge-memo. As rightly pointed out in the statement of objections by the Bank, if it is done, it will be premature. Normally, a Court sitting under Article 226 of the Constitution of India should not interfere with the charge-memo or the order of ad-interim suspension. In such circumstances, as pointed out by the Learned Counsel for the petitioner the only relief which could be granted to the petitioner is to direct the Bank to hold up the enquiry till the criminal proceedings are over as the petitioner has been charged on the same set of charges even before the criminal Court. The fact that the very same charges in the charge-memo is the subject matter of the criminal proceedings is not denied. As such, in my view the only relief that can be ground to the petitioner is to direct the Bank to stay the departmental enquiry till the criminal proceedings are over. Law on this aspect has been decided by the Supreme Court in the case of KUSHESHWAR DUBEY v. BHARAT COOKING COAL Ltd.. The Supreme Court at page 2120 discussed the line of cases where it has been held that the departmental proceedings can go on even though criminal proceedings are pending and the other line of cases which it has been held contra as laid down at page-2120 in para-6. A reading of this judgment clearly shows that the Supreme Court has taken note of the cases where it has been held that there can be no legal bar for simultaneous proceedings being taken, but, at the same time the Supreme Court has come to the conclusion that there may be cases where it is appropriate to defer the disciplinary proceedings awaiting disposal of criminal case. 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 circumstance of a particular case as to whether the disciplinary proceedings should be interdicted.
9. In the division Bench had an occasion to consider the very same issue. The ratio of the decision in cited supra as stated by the Division Bench is that, in a case where the criminal proceeding and the disciplinary proceedings are on the same set of facts, the disciplinary proceedings should normally be stayed. The Division Bench has further held that if the facts being same, continuance of disciplinary proceedings causes prejudice affecting defence adversely. However in the case of K. VEERASWAMY v. UNION OF INDIA a Constitution Bench of the Supreme Court considered the question whether Judges could be prosecuted for offences under the PREVENTION OF CORRUPTION Act, 1947. Jagannatha Shetty, J., speaking for himself and Venkatachalaiah J as he then was, while discussing the issue has observed at page-706 as follows:-
"55. The proved "misbehaviour" which is the basis or removal of a Judge under Clause (4) of Article 124 of the Constitution may also in certain cases involve an offence of criminal misconduct under Section 5(1) of the Act. But that is no ground for withholding criminal prosecution till the Judge is removed by Parliament as suggested by counsel for the appellant. One is the power of Parliament and the other is the jurisdiction of a criminal court. Both are mutually exclusive. Even a government servant who is answerable for his misconduct which may also constitute an offence under the IPC or under Section 5 of the Act is liable to be prosecuted in addition to a departmental enquiry. If prosecuted in a criminal court he may be punished by way of imprisonment or fine or with both but in departmental enquiry, the highest penalty that could be imposed on him is dismissal. The competent authority may either allow the prosecution to go on in a Court of law or subject him to a departmental enquiry or subject him to both concurrently or consecutively. It is not objectionable to initiate criminal proceedings against public servant before exhausting the disciplinary proceedings, and a fortiori, the prosecution of a Judge for criminal misconduct before his removal by Parliament for proved mis-behaviour is unobjectionable."
10. The learned Counsel for the petitioner also relied upon the judgment of the Supreme Court in the case of ADM. JABALPUR v. SHUKLA , wherein a Constitution Bench had an occasion to consider the effect of observation of the Supreme Court in the decisions under Article 141 of the Constitution of India, Bhagwati, J., speaking for the Bench held as follows:-
"While considering the observations of a high judicial authority like the Supreme Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand."
11. In my view the observation made by the Supreme Court in the later judgment though not binding as a Preculent as "Obiter" of the Supreme Court has to be given considerable weight. I am of the view the point decided in the later judgment does not run contrary to the view taken by the two judges Bench of the Supreme Court earlier which has been . In both the cases, the learned Judges held that, there could be no legal bar for simultaneous proceedings being taken. So far, I do not think there is any difference note struck by the later judgment which is . But, in the earlier judgment as has been extracted above, that is the conclusion arrived at by the learned Judges at page-2120 of the judgment in that it is for the Court to consider on the facts and circumstances of a particular case, there should or should not be such simultaneity of the proceedings. This aspect of the matter should receive judicial consideration and the Court should decide in given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted pending criminal trial. In my view, on the facts of the case before me, in so far as there is no dispute that on the very same set of charges as that criminal trial is pending in this case, I am of the view that the disciplinary enquiry against the petitioner has got to be stayed pending the criminal trial.
So, the view I take that the departmental enquiry should not proceed pending the criminal trial on the same set of charges, this Court cannot acceed to the prayer for quashing Annexures-F and J. Instead of prayer asked for by the petitioner, and this Court has jurisdiction to mould the prayer to suit the occasion a direction is issued to the contesting respondent not to hold the enquiry is pursuance of the charge-sheet dated 17.3.1993 vide Annexure J, during the pendency of the criminal trial. Except this direction, any other claims made by the petitioner in this Writ Petition, with regard to leave, travel concession etc., are left open.