Delhi High Court
National Insurance Company Ltd. vs Shri Sunil Kumar And Others on 29 March, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : January 20, 2011
Judgment Delivered on: March 29, 2011
+ LPA No. 730 Of 2010
National Insurance Company Ltd. ..... Appellant
Through: Mr. Sudhir Chandra, Senior Advocate
with Mr. Rajinder Dhawan and
Ms.Shafaali Dhawan, Advocates.
Versus
Shri Sunil Kumar and others ..... Respondents
Through: Mr. Raman Gandhi and Mr. Sunil
Satyarthi, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3 Whether the judgment should be reported in the Digest? YES
DIPAK MISRA, CJ
Calling in question the defensibility and justifiability of the order
dated 31.8.2010 passed by the learned Single Judge in W.P.(C)
No.4298/2010 the present intra-Court appeal has been preferred.
LPA 730/2010 page 1 of 24
2. The respondents invoked the jurisdiction of this Court under
Articles 226 and 227 of the Constitution of India praying for stay of the
departmental proceedings instituted against them till the trial, in FIR
No.106/2009 instituted for offences punishable under Sections 323, 341
read with Section 34 of the Indian Penal Code (IPC), was
finalized/pending or till the time cross-examination of the witnesses in the
criminal trial was over.
3. The essential expose of facts are that the respondents are employees
of the appellant company and they have been associated with various
employees associations and have been espousing the case of the
employees. In the year 2006, one Mr.Tobdan joined the appellant
company as a Deputy General Manager and, as alleged, he ill-treated the
employees. On 28.4.2009, an FIR bearing no.106/2009 was lodged by said
Mr.Tobdan against the respondents-employees for offences punishable
under Sections 323/341 read with Section 34 of the IPC. On 29.4.2009, the
respondents employees were suspended and subsequently a chargesheet
was issued to them by the appellant company and the departmental
enquiry commenced. It was urged before the writ court that the
chargesheet in the departmental proceeding was similar to the allegations
LPA 730/2010 page 2 of 24
made in the FIR on the basis of which the criminal prosecution has been
launched. After the issuance of the chargesheet, the departmental
proceeding continued but no material progress could be made as the same
was adjourned from time to time. The matter was adjourned to 28.6.2010
for recording of the evidence of the management witnesses. At that
juncture, the writ petition was filed, wherein the writ court directed the
examination-in-chief of the witnesses who would appear on 28.6.2010 be
recorded but cross examination may not be recorded and the employer
shall not insist on cross-examination.
4. It was contended before the learned Single Judge that the
disciplinary proceeding and the criminal prosecution are based on the
same set of facts and regard being had to the similarity, it would not be
appropriate to carry on with the two parallel proceedings, one by way of
disciplinary action and other by way of criminal prosecution and, hence, it
was desirable to stay the departmental proceeding as carrying on the same
would be detrimental to the defence of the respondents in the criminal
proceeding. Learned Single Judge referred to the decisions rendered in
Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., AIR 1999 SC
1416, Indian Overseas Bank, Annasalai and Anr. v. P. Ganesan and Ors.,
LPA 730/2010 page 3 of 24
(2008) 1 SCC 650 and came to hold that in the case at hand, the FIR as well
as the chargesheet appeared to be initiated in major part on the same set of
facts of incident that took place on 28.4.2009 and continuance of the
departmental enquiry is likely to prejudice the defence of the respondents
herein in the criminal trial pending before the learned Chief Metropolitan
Magistrate with the further stipulation that the criminal proceedings
should be concluded preferably within a period of six months.
5. Assailing the legal substantiality of the aforesaid order Mr.Sudhir
Chandra, learned senior counsel for the appellant has raised the following
contentions:
(a) The learned Single Judge has fallen into a serious error by
expressing the view that the charges levelled against the employees
in the disciplinary proceeding and the allegations in the FIR are
same though a part of the incident relating to unlawful restraint and
assault that occurred outside the office is common, whereas apart
from that the respondents were chargesheeted for other incidents
which took place inside the office of Mr.N. Tobdan, the Deputy
General Manager heading the Delhi regional office of the appellant
LPA 730/2010 page 4 of 24
company. The learned single Judge failed to take note of the fact
that the respondents employees at the relevant time were working in
the divisional offices / branch offices and they left their place of
work without seeking permission of the concerned Divisional
Manager / Branch Manager, which is in the realm of misconduct.
(b) The respondents had filed a report on 29.7.2009 before the Deputy
Commissioner of Police, which on an enquiry could not be
substantiated and the enquiry revealed that the allegations were
made to counter the FIR No.106/2009 which was lodged by
Mr.Tobdan. Thus, the colossal grievance that the respondents
would be prejudiced by revealing their defence melts into
insignificance and should not be given any kind of weightage. After
the police declined to register the FIR, the respondents had filed a
complaint before the learned ACMM which is also to the same
effect.
(c) In the departmental enquiry 17 witnesses have been cited, whereas
10 witnesses have been cited in the criminal case and only 5
witnesses are common in both the proceedings, which aspect has not
LPA 730/2010 page 5 of 24
been taken note of by the learned Single Judge. This makes the
decision sensitively susceptible.
(d) The order of the learned Single Judge suffers from infirmity as in the
chargesheet issued in the departmental proceedings additional
allegations have been made apart from what has been stated in the
FIR and in a writ petition a court is required to keep in mind that the
disciplinary proceeding is not meant to punish the guilty but to keep
the administrative machinery unsullied, by getting rid of the
unwarranted elements.
(e) The doctrine of prejudice is not attracted to the case at hand and,
therefore, the learned Single Judge has fallen into error by directing
stay of the proceedings.
Learned senior counsel to buttress the aforesaid submissions has
placed heavy reliance on State of Rajasthan v. B.K. Meena, (1996) 6 SCC
417, Capt. M. Paul Anthony (supra), P. Ganesan and Ors. (supra).
6. Mr. Raman Gandhi, learned counsel for the respondents resisting
the aforesaid proponements has raised the following contentions:
LPA 730/2010 page 6 of 24
(i) The analysis made by the learned Single Judge that both the
proceedings are initiated on the major part of the same incident
cannot be faulted and once such an opinion has been expressed the
learned Single Judge has appositely directed stay of the
departmental enquiry, which cannot be flawed.
(ii) The imputation of misconduct in the articles of charge in the
disciplinary proceedings and the allegations in the chargesheet in
the criminal proceeding being absolutely same without there being
an iota of difference, the effort made by the appellant-employer to
make a distinction between the two proceedings is an exercise in
futility and, in actuality, it is a maladroit attempt to carry on with
the departmental proceeding to harass the respondents.
(iii) The basic allegation in both the criminal proceeding as well as the
departmental proceeding is the purported assault on Mr.Tobdan
and no other misconduct being required to be proven apart from the
same and hence, it is advisable in law to stay the departmental
proceeding which the learned Single Judge has done and, therefore,
LPA 730/2010 page 7 of 24
the order passed by the writ court is totally invulnerable and
impregnable.
(iv) The delay in disposal of the criminal proceeding sometimes is a
causative aspect/factor for not directing stay of the disciplinary
proceeding and the learned Single Judge has taken care of the said
situation by directing the learned Magistrate to dispose of the trial
within six months.
In support of the aforesaid contentions, the learned counsel for the
respondents has placed reliance on various paragraphs in the case of Capt.
M. Paul Anthony (supra),
7. To appreciate the rivalized submissions raised at the Bar, it is
appropriate to refer to the allegations made in the FIR and the chargesheet
of the departmental proceedings. The relevant part of the FIR, reads as
follows:
"...around 2 PM I received a call from one Mr. Sunil
Kumar, Representative of an SC/ST Association to give
time for discussion of some union matters. I told him
that it may not be possible today. However, he insisted
and I told him at 4 PM they can come and discuss the
matter as I had to take my wife for a doctors‟
LPA 730/2010 page 8 of 24
appointment at 5 PM. At around 4.30 PM they came
and handed over to me an agenda which on office
record for discussion. I was accompanied by Mr. K.
Singh for the discussion. The association representative
were 1) Mr. Pratap, 2) Mr. Sunil Kumar, 3) Mr. Hira Lal,
and 4) 2-3 unknown persons supposed to be from
United Insurance Company. That the first issue of the
agenda was being discussed which is transfer of one
officer Mr. Chaman Lal from DO XI to DO Gurgaon.
When the matter was being discussed Mr. Pratap Singh
started shouting and I told him this was no way to
discuss and the matter would not be discussed if the
shouting continues. On hearing this they went. In the
meanwhile I received a call from one Mr. Punnu Swamy
who spoke to me for a while and told me to discuss the
matter with them either today or the next working day
or to authorize some senior officer to discuss the matter.
Around 5.15 PM I came out of my office to receive my
wife at the Metro Station. I took my car and while just a
few steps away from the gate of the office these men
namely 1) Pratap, 2) Mr. Sunil Kumar, 3) Mr. Hira Lal,
4) 2-3 unknown persons (present earlier in the meeting)
stopped my car and assaulted me for reasons unknown,
in the presence of people on street. I was rescued by
one sikh gentleman who runs a lathe workshop in the
vicinity of the office. I have received internal injuries for
which the medical report is attached. I request you to
take suitable action against these men
aforementioned..."
8. The statement of imputation of misconduct in the chargesheet reads
as follows:
"On 28th April, 2009, during Lunch period, Shri
Bodhakar, and his associates, through Shri Sunil Kumar
Jayenth contacted Shri N. Tobdan, Deputy General
LPA 730/2010 page 9 of 24
Manager, Delhi Regional Office-II, National Insurance
Company Limited, over telephone and sought a time
for meeting for discussion, on the same day, without
specifying the issues. Though, they were informed by
Shri Tobdan to keep the meeting on a next suitable date,
since Shri Tobdan was monitoring submission of yearly
Accounts of RO and also that Shri Tobdan had to leave
office early to take his wife to Doctor, they insisted and
obtained time for meeting scheduled at 4 PM on 28th
April, 2009. Shri Bodhakar, Shri Sunil Kumar Jayenth,
Shri Hira Lal, Shri Bully Burande, an employee of
United Insurance Company Limited, Delhi Office, came
jointly at around 4.40 PM and submitted an agenda in
the letter head of Dalit Bima Karmchari Sangathan,
dated 28.04.2009, signed by Shri Bully Burande and Shri
Sunil Kumar Jayenth.
The issues submitted for discussions were related to the
transfer of four of the employees of National Insurance
Company Limited, posted under DRO - II, none of
whom submitted formal transfer application to the
Appropriate Authority. The details of employees and
related issues are as under:
a) Transfer of Shri Chaman Lal, Administrative
Officer, from Delhi DO-XI to Gurgaon DO. Shri
Chaman Lal is member of General Insurance
Officers‟ All India Association and All India
General Insurance SC/ST Employees‟ Parishad
(Jaymurthy).
b) Transfer of Shri Suresh Shah, Assistant Delhi DO-
XIV to HS Rd Azadpur Branch, Delhi.
c) Transfer of Shri Balbir Singh, Assistant,
Karampura Branch under DO VIII, Delhi to DO-
XXIV, Delhi. Shri Balbir Singh is member of
GIEAIA and All India General Insurance SC/ST
LPA 730/2010 page 10 of 24
Employees Parishad (Gajbiye and Mahender
Singh).
d) Transfer of Ms.Asha Aline Ekka Tirkey, Assistant
from DRO - II to Hauz Khas BO. Ms. Asha is
member of GIEAIA and All India General
Insurance SC/ST Employees Parishad
(Jaymurthy).
Shri Pratap Singh and his associates insisted on transfer
of Shri Chaman Lal, AO(D), presently posted at DO-XIV
to DO Gurgaon which being the first item of the
agenda. The management has shown their inability to
transfer services of Shri Chaman Lal, AO as such
authority only lies with that of HO. No sooner these
words were uttered, Shri Pratap Singh got agitated and
started shouting and also rose from his chair and
insisted for the transfer to be carried out immediately.
Shri Tobdan and Mrs. K. Singh requested them to calm
down and discuss the issues in proper civilized manner
but they continued to be belligerent and no heed was
paid to the request of Shri Tobdan and Mrs. K. Singh.
Subsequently, they left the meeting abruptly, shouting
that "Aap ko dekh lenge" and we will sit for Dharna
here. Thereafter, as Shri Tobdan was to attend to some
other work, he instructed Mrs. K. Singh to attend to Shri
Bodhakar and his associates, in case they turned up to
continue the meeting. However, they did not come.
Shri Bodhakar and his other five associates having
failed to achieve and force the desired result in the
meeting, conspired with union of mind and common
criminal intention to harm and attack Shri Tobdan
physically and to insult Shri Tobdan in public, went
outside the main gate of office premises of Delhi
Regional Office-II, ahead of Shri Tobdan and waited
near the gate for Shri Tobdan.
LPA 730/2010 page 11 of 24
When Shri Tobdan took his car from the office gate and
was to pass by, Shri Bodhakar and his associates
assembled in six number of persons with criminal
intention and preparation. Shri Bodhakar and his
associates blocked the movement of the car by coming
in front of the car, using force and as such restrained
movement of Shri Tobdan. Thereafter, Shri Bodhakar
and his associates, pulled out Shri Tobdan from his car
forcefully and along with all the associates, jointly used
criminal force upon the body and mind of Shri Tobdan
by intimidating, punching, slapping and kicking Shri
Tobdan by using their hands and feet with a criminal
motive of causing injuries, fear and shock to Shri
Tobdan. Shri Bodhakar and his associates thus,
voluntarily caused grievous injuries / hurt on the
person of Shri Tobdan and caused fear and
apprehensions in the mind of Shri Tobdan for future.
Shri Bodhakar and his associates were so callous and
determined to inflict severe and repeated injuries upon
Shri Tobdan that they bye standers and the persons
running nearby shops etc. had to interfere and save the
life of Shri Tobdan.
The injuries and mental agony and fear of danger and
insult was so grave that Mr.Tobdan wept a public and
was not able to do anything for the time being. Most of
the officials and staff of DRO - II, including some
outsiders saw their office superior in extreme pain and
shock due to the injuries inflicted on his body and in
fear and real apprehension of danger on his face and
actions, after the incident. This resulted in fear and
shock to all the employees of DRO-II, and also the
public / clients related to National Insurance Company
Limited."
(emphasis supplied)
LPA 730/2010 page 12 of 24
9. Keeping in view the aforesaid factual matrix, presently we shall
advert to the law on the said subject and issue. In Capt. M. Paul Anthony
(supra) in paragraph 13 it has been stated thus:
"13. As we shall presently see, there is a consensus of
judicial opinion amongst the High Courts whose
decisions we do not intend to refer in this case, and the
various pronouncements of this Court, which shall be
copiously referred to, on the basic principle that
proceedings in a criminal case and the departmental
proceedings can proceed simultaneously with a little
exception. As we understand, the basis for this
proposition is that proceedings in a criminal case and
the departmental proceedings operate in distinct and
different jurisdictional areas. Whereas in the
departmental proceedings, where a charge relating to
misconduct is being investigated, the factors operating
in the mind of the Disciplinary Authority may be many
such as enforcement of discipline or to investigate the
level of integrity of the delinquent or the other staff, the
standard of proof required in the those proceedings is
also different than that required in a criminal case.
While in the departmental proceedings the standard of
proof is one of preponderance of the probabilities, in a
criminal case, the charge has to be proved by the
prosecution beyond reasonable doubts. The little
exception may be where the departmental proceedings
and the criminal case are based on the same set of facts
and the evidence in both the proceedings is common
without there being a variance."
LPA 730/2010 page 13 of 24
10. The aforesaid enunciation of law was made on the backdrop of the
principles laid down in Delhi Cloth and General Mills Ltd. v. Kushal
Bhan, AIR 1960 SC 806, Tata Oil Mills Co. Ltd. v. Workmen, AIR 1965 SC
155, Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30 and
Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd., AIR 1988 SC 2118.
Thereafter, their Lordships referred to the entire case law which was
reviewed again in the case of B.K. Meena (supra). In B.K. Meena (supra),
their Lordships have opined thus:
"14. It would be evident from the above decision 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
LPA 730/2010 page 14 of 24
the case may be, has to be determined in each case
taking into consideration all the facts and circumstances
of the case. The ground indicated in D.C.M. and Tata
Oil Mills is also not 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 inspite 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 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 interest 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 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
LPA 730/2010 page 15 of 24
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."
(Emphasis supplied)
11. Analyzing the same, their Lordships in Capt. M. Paul Anthony
(supra) have observed thus:
"20. This decision has gone two steps further to the
earlier decisions by providing:
(1) The 'advisability', 'desirability' or 'propriety' of
staying the departmental proceedings "go into the scales
while judging the advisability or desirability of staying
the disciplinary proceedings" merely as one of the
factors which cannot be considered in isolation of other
circumstances of the case. But the charges in the
criminal case must, in any case, be of a grave and
serious nature involving complicated questions of fact
and law.
(2) One of the contending considerations would be
that the disciplinary enquiry cannot - and should not be
- delayed unduly. If the criminal case is unduly
delayed, that may itself be a good ground for going
ahead with the disciplinary enquiry even though the
disciplinary proceedings were held over at an earlier
stage. It would not be in the interests of administration
that persons accused of serious misdemeanour should
LPA 730/2010 page 16 of 24
be continued in office indefinitely awaiting the result of
criminal proceedings."
12. After discussing all the decisions in the field, the principles that have
been culled out in Capt. M. Paul Anthony (supra) read as follows:
"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 a 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.
LPA 730/2010 page 17 of 24
(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 found not guilty his honour
may be vindicated and in case he is found guilty,
administration may get rid of him at the earliest."
(Emphasis supplied)
13. In Ganesan & Ors. (supra) the Apex Court in paragraph 18 laid
down thus:
"18. Legal position operating in the field is no longer res
integra. A departmental proceedings pending a criminal
proceedings does not warrant an automatic stay. The
superior courts before exercising its discretionary
jurisdiction in this regard must take into consideration
the fact as to whether the charges as also the evidence in
both the proceedings are common and as to whether
any complicated question of law is involved in the
matter."
Thereafter their Lordships referred to the earlier decisions in the
field and opined thus:
"23. The High Court, unfortunately, although noticed
some of the binding precedents of the Court failed to
apply the law in its proper perspective. The High Court
was not correct in its view in concluding that the stay of
the departmental proceedings should be granted in the
peculiar facts and circumstances of the case without
analyzing and applying the principle of law evolved in
the aforementioned decisions. It, therefore, misdirected
LPA 730/2010 page 18 of 24
itself in law. What was necessary to be noticed by the
High Court was not only existence of identical facts and
the evidence in the matter, it was also required to take
into consideration the question as to whether the
charges leveled against the delinquent officers, both in
the criminal case as also the disciplinary proceedings,
were same. Furthermore it was obligatory on the part
of the High Court to arrive at a finding that the non-stay
of the disciplinary proceedings shall not only prejudice
the delinquent officers but the matter also involves a
complicated question of law.
24. The standard of proof in a disciplinary proceedings
and that in a criminal trial is different. It there are
additional charges against the delinquent officers
including the charges of damaging the property
belonging to the bank which was not the subject matter
of allegations in a criminal case, the departmental
proceedings should not have been stayed."
[Emphasis added]
14. In NOIDA Enterpreneur Association v.s NOIDA & Ors.; JT 2007 (2)
SC 620, the Apex Court has expressed thus:
"12. The purpose of departmental enquiry and of
prosecution is two different and distinct aspects. The
criminal prosecution is launched for an offence for
violation of a duty the offender owes to the society, or
for breach of which law has provided that the offender
shall make satisfaction to the public. So crime is an act
of commission in violation of law or of omission of
public duty. The departmental enquiry is to maintain
discipline in the service and efficiency of public service.
It would, therefore, be expedient that the disciplinary
LPA 730/2010 page 19 of 24
proceedings are conducted and completed as
expeditiously as possible. It is not, therefore, desirable
to lay down any guidelines as inflexible rules in which
the departmental proceedings may or may not be
stayed pending trial in criminal case against the
delinquent officer. Each case requires to be considered
in the backdrop of its own facts and circumstances.
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 duty,
as distinguished from mere private rights punishable
under criminal law. When trial for criminal offence is
conducted it should be in accordance with proof of the
offence as per the evidence defined under the
provisions of the Indian Evidence Act 1872 (in short the
„Evidence Act‟). Converse is the case of departmental
enquiry. The enquiry in a departmental proceedings
relates to conduct or 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. Under these
circumstances, what is required to be seen is whether
the department 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."
[Emphasis supplied]
15. From the aforesaid enunciation of law, it can be stated with certitude
that the scope, effect and consequence of a criminal trial and a
departmental proceedings are distinct and different. Once the employer
LPA 730/2010 page 20 of 24
has reasonable basis regard being had to the sanctity, stability and the
propriety of the administration and to avoid any kind of anarchy or chaos,
it may be under an obligation to initiate departmental proceeding and
simultaneously a criminal prosecution may be launched against the same
delinquent employee. The circumstances should be such that there would
be a warrant for directing stay of the disciplinary proceedings. It needs no
special emphasis to state, the onus is on the delinquent employee that
serious prejudice would be caused, if the parallel proceedings are allowed
to continue. It is well settled in law that the burden of proof in a criminal
trial is quite stringent, as an accused is entitled to benefit of doubt and the
consequent acquittal, but the test of preponderance of possibilities in
departmental proceedings is different. But regard being had to the nature
of proof required in the departmental proceedings enquiry, a charged
employee may not be entitled to exoneration. Regard must be given to the
fact that in the departmental proceeding, the standard of proof is totally
different. The cannons of service jurisprudence require that the
departmental proceedings are put to an end as expeditiously as possible.
The exception carved out is that the delinquent employee should be
exposed to grave prejudice and the charges leveled against him should be
LPA 730/2010 page 21 of 24
so grave and involve complex questions of law and fact, so that it is
undesirable and apposite to invite an interdiction in exercise of inherent
jurisdiction by the Court. As has been stated by their Lordships, there
cannot be any hard and fast rule or a strait jacket formulae and it depends
upon many a factor and facts of each case.
16. In the case at hand as the factual matrix would exposit the statement
of imputation of misconduct in the chargesheet of the departmental
proceeding and the allegations in the FIR though relate to an event of a
particular date but the incidents and the places of occurrence are different
and further the nature of allegations are not self-same. If the statement of
imputation of misconduct is scrutinized in a studied manner, it is vivid
that there is a contour of misconduct regard being had to the behavioral
pattern in the office atmosphere with a senior officer and thereafter alleged
assault outside. Quite a major part of it can be regarded to be in the realm
and sphere of discipline which is paramount to be maintained and
sustained in the area of administration, and the other, allegation of assault
on an individual. One pertains to alleged misdemeanor and the other
alleged offence committed under the Indian Penal Code. The nature of
offence in the criminal case against the delinquent employees is not of
LPA 730/2010 page 22 of 24
grave nature which involves complicated questions of law and fact. The
plea that the defence shall be revealed cannot be the sole ground in the
obtaining factual matrix to attract the concept of desirability or advisability
to stay the departmental proceeding because we really do not perceive that
the matter involves any complicated question of law. As has been held in
the case of P. Ganesan and Ors. (supra), it is obligatory on the part of the
High Court to arrive at a finding that not staying of the disciplinary
proceedings shall not only prejudice the delinquent officers but the matter
also involve a complicated question of law. What is required to be seen is
whether the departmental enquiry would seriously cause prejudice to the
delinquent in his defence at the trial in a criminal case. Mr. Sudhir
Chandra, learned senior counsel appearing for the appellant would submit
that the delinquent employees have already filed a complaint case seeking
a direction in registration of the FIR and, therefore, they have already
disclosed their defence. We do not intend to get into the said facet as the
learned counsel for the respondents would submit that the defences of an
accused cannot be restricted. Thus, we restrain from expressing any
opinion on that score. However, regard being had to the nature of
imputation of misconduct in the departmental proceeding and the nature
LPA 730/2010 page 23 of 24
of allegations in the criminal case, non-involvement of any complicated
question of fact or law, the nature of offences instituted against the
employees, the concept of desirability for staying of the proceeding and
the doctrine of prejudice to be caused to the employees and further the
sanctity of the discipline in an institution, we are inclined to think that this
is not a fit case where a stay of departmental proceeding should have been
granted. Therefore, we are unable to concur with the view expressed by
the learned Single Judge.
17. Consequently, the appeal is allowed; the order passed by the learned
Single Judge is set aside and as a sequittur, the writ petition filed by the
respondents-employees is dismissed. In the facts and circumstances of the
case, there shall be no order as to costs.
CHIEF JUSTICE
MARCH 29, 2011 SANJIV KHANNA, J.
dk LPA 730/2010 page 24 of 24