Full Judgment Text
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CASE NO.:
Appeal (civil) 5369 of 2007
PETITIONER:
Indian Overseas Bank, Anna Salai and Anr.
RESPONDENT:
P. Ganesan and others
DATE OF JUDGMENT: 23/11/2007
BENCH:
S.B. SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) NO. 8683 OF 2006)
S.B. SINHA, J.
1. Leave granted.
2. Whether pendency of a criminal case by itself would be a
sufficient ground for stay of the departmental proceedings is the
principal question which arises for our consideration in this case.
3. The basic fact of the matter is not in dispute.
4. Respondents 1 to 4 herein are the office bearers of the All India
Indian Overseas Bank SC/ST Employees\022 Welfare Association.
Indisputably another association was also operating in the
establishment of the appellant known as All India Indian Overseas
Bank Employees\022 Union of which respondent No.5 is the President.
Registration of similar names gave rise to a dispute between the
parties.
5. Indisputably a first information report was lodged on 27th
January, 2005 with the \023Thousand Lights Police Station, Chennai\024
alleging that L. Balasubramanian, Respondent No.5, herein was
assaulted on 27th January, 2005 at about 12.35 p.m. within the bank
premises by Respondents Nos. 1 to 4 as well as by Mr. P. Rajalingam,
the Deputy Chief Officer working in the Regional Office of the
appellant-bank. All the respondents are indisputably employees of the
bank. Their designations are as under :-
(a) Respondent No.1 (P. Ganesan) is employed as
Assistant Manager, Thiruvottiyur Market Branch.. He is
also the General Secretary of All India Indian Overseas
Bank SC/ST Employees\022 Welfare Association.
(b) Respondent No.2 (S.Vijayakumar) is employed as
a clerk in the Central Clearing Office at Chennai. He is
also the Vice President of the All India Indian Overseas
Bank SC/ST Employees\022 Welfare Association.
(c) Respondent No.3 (R Amalraj) is employed as a
Messenger in the Inspection Department, Central Office
at Chennai. He is also the Organizing Secretary of the
All India Indian Overseas Bank SC/ST Employees\022
Welfare Association.
(d) Respondent No. 4 (A. Dakshinamoorthy) is
employed as an Assistant Manager in the Walltax Road
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Branch, Chennai. He is also the Deputy General
Secretary of the All India Indian Overseas Bank SC/ST
Employees\022 Welfare Association.
(e) Respondent No.5 (L. Balasubramanian) is
employed as \023Special Assistant\024 in Foreign Exchange
Department, Central Office at Chennai. He is also the
President of All India Indian Overseas Bank Employees\022
Union (AIOBEU) as well as the President of the National
Confederation of Bank Employees (NCBE)\024.
6. An enquiry was conducted leading to discovery of certain
additional facts. It may not be necessary for us to take note of the
same at this stage. Respondent No.5 was admitted in the National
Hospital for medical treatment. He remained confined therein for a
period of twelve days. A charge-sheet was filed by the Investigating
Officer in the criminal case against Respondents Nos. 1 to 4 under
Sections 341, 323, 324, 427, 307 and 506 (ii) of the Indian Penal
Code. Respondent Nos. 1 and 3 were arrested. They were, however,
released on bail on 15th February, 2005. Respondents Nos. 2 and 4,
however, absconded. On or about 15th February, 2005 they obtained
anticipatory bail. Another first information was lodged by
Respondent Nos. 1 to 4 against respondent No.5 in the said Thousand
Lights Police Station, Chennai.
7. Respondent Nos. 1 to 4 were placed under suspension by the
appellant-bank by an order dated 28th January, 2005. Charge-sheets
dated 21st February, 2005 were also served upon them. They were
asked to show cause as to why disciplinary action be not taken against
them for their acts of indiscipline, insubordination, unruly and
disorderly behaviour, use of filthy language and most shameful abuses
as well as murderous assault on respondent No.5 within the office
premises of the bank as also causing damage to valuable properties
and serious impairment to the bank\022s prestige and reputation in the
estimation of public at large. Requests were made by the said
respondents to revoke the order of suspension by an application dated
9th March, 2005 assuring the authority that they would fully cooperate
with the authorities of the bank in the disciplinary proceedings
initiated against them. They, furthermore, requested the bank to grant
them one month\022s time to submit their reply to the show cause.
Orders of suspension were revoked on 16th April, 2005. No reply to
the show cause notice, however, was filed by them despite
opportunities granted. Departmental enquiry was held against them
on 18th May, 2005 ; 3rd June, 2005, 17th June, 2005, 28th June, 2005,
8th July, 2005, 19th July, 2005, 29th July, 2005 and 4th August, 2005,
the details whereof, as stated by the appellants in their affidavit before
the High Court, are as under :-
\023(a) \005..The Enquiry was fixed for 18.5.2005 in respect
of which the Respondents had been duly intimated fairly
in advance. However, the said Enquiry was adjourned to
3.6.2005 acceding to the written request dated 16.5.2005
of the respondents.
(b) The Enquiry was further adjourned to 17.6.2005 in
response to the Respondents\022 request for adjournment.
(c) The Enquiry was then fixed for 8.7.2005 in view
of the Respondents\022 written request dated 25.6.2005.
However, the Respondents remained absent on 8.7.2005,
and therefore they were set ex-parte, while adjourning the
Enquiry to 19.7.2005.
(d) Meanwhile, the list of Management Witnesses was
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mailed to the Respondent Nos. 1 to 4 who admitted to
have received the same.
(e) On 19.7.2005, only Respondent Nos.2 and 4
attended the Enquiry Proceedings, and categorically
admitted to have received the List of Management
Witnesses, whereas Respondents Nos.1 and 3 remained
absent.
(f) The Enquiry was then adjourned to 29.7.2005 and
again adjourned to 4.8.2005 when except Respondent
No.3 (R. Amalraj), the other Respondent Nos.1, 2 and 4
attended the proceedings, and requested for further
postponement, while representing that on the next date of
the proceedings, they would either bring their \023Defence
Representative\024 or they would themselves conduct their
\023defence\024 without seeking any further postponement
thereof. Accordingly, the Enquiry was finally adjourned
to 19.8.2005 to be held \023on day-to-day basis until
conclusion\024.\024
8. While on the one hand the respondents were seeking
adjournments and taking time from the Enquiry Officer in the said
disciplinary proceedings, they, on the other hand, moved the High
Court of Madras by filing writ petitions under Article 226 of the
Constitution of India. The said writ petitions were marked as W.P.
Nos. 26176, 26177, 26178 and 26179 of 2005. Interlocutory
applications were also filed therein praying for stay of proceedings in
the departmental enquiry pursuant to the said charge-sheet dated 21st
February, 2005 on the premise that on identical facts criminal cases
had been filed against them. An ad interim order of stay was granted
by the High Court by an order of 16th August, 2005 stating :-
\023Though this Court generally did not entertain Writ
Petitions relating to Charge-memos on the ground that
Criminal proceedings are pending, the question as to
whether the Departmental Proceedings and the Criminal
case are based on identical and similar set of facts and
whether the Charge in the Criminal case is of the grave
nature which involves complicated questions of law and
facts are the factors to be examined in the Writ
Petitions\024.
The said interim order of stay was produced before the Enquiry
Officer. As the interim order of stay was granted only for a period of
four weeks and the same having not been extended the enquiry
proceedings continued. One witness being MW1 was examined on
21st October, 2005. The said departmental enquiry also proceeded on
22nd October, 2005 but the respondents did not participate therein on
which date MW2 was examined. Yet again on 24th October, 2005,
MW3 and MW4 were examined and the matter was adjourned to 25th
October, 2005 when MW5 and MW6 were examined. On 26th
October, 2005, MW7 and MW8 were examined-in-chief and the
enquiry was adjourned to 27th October, 2005. Yet again on 28th
October, 2005, MW9 and MW10 were examined and the enquiry was
adjourned to 29th October, 2005 on which date MW11 was examined.
It is stated that the respondents attended the enquiry on 29th October,
2005 and nominated their Defence Representative to defend them. A
prayer for adjournment made on their behalf, however, was declined
by the Enquiry Officer. MW11 was examined-in-chief on that date.
The enquiry was adjourned to 31st October, 2005 on which date
MW12 and MW13 were examined-in-chief. It was adjourned to 9th
December, 2005 for cross-examination of the Management Witnesses.
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9. The application for vacating the stay filed by the appellants on
6th September, 2005 was dismissed by a learned Single Judge of the
High Court by an order dated 7th December, 2005 stating :-
\023 Once the Learned Single Judge has indicated the
reasons which weighed with him in exercising the extra-
ordinary jurisdiction under Article 226 of the
Constitution of India against the impugned Charge-
Memo, except to expedite the writ them petitions, it may
not be proper for this Court to vacate the Interim Stay at
this stage. Accordingly, the vacate stay petitions, viz.
WPMPs Nos. 2047 to 2050 of 2005 are dismissed. The
Interim stay granted by this Court on 16.8.2005 is made
absolute.
Expedite the Writ Petitions and post the same for
final hearing in the second week of February, 2006.\024
10. Writ appeals preferred by the appellants against that order were
disposed of by a Division Bench of the Court by reason of the
impugned judgment opining :-
\02314. In the instant case, there is no dispute that the
criminal action and the disciplinary proceedings are
founded upon the same set of facts. In fact, the
disciplinary proceedings are solely based upon the
criminal complaint lodged by the president of a rival
union, who is also facing prosecution with regard to the
same incident. It has been conceded before us that the
bank had not conducted any independent enquiry before
initiating the impugned departmental proceedings.
15. In our opinion, in the peculiar facts and
circumstances of the case on hand, fair play requires that
postponing of the departmental proceedings till the
criminal cases are decided. We are, therefore, of the
view that the prayer made by the petitioners for deferring
the departmental proceedings till the conclusion of the
criminal trial has to be accepted and it is ordered
accordingly.\024
11. The appellants are thus before us.
12. Mr. Altaf Ahmed, learned senior counsel appearing on behalf of
the appellants in support of the appeal would, inter alia, submit that
the High Court committed a serious error in passing the impugned
judgment in so far as it failed to take into consideration that as the
enquiry proceedings proceeded to a great extent the same should not
have been stayed. Reliance in this behalf has been placed on
Kendriya Vidyalaya Sangathan and others vs. T. Srinivas : (2004) 7
SCC 442.
13. Mr. G. Prakash, learned counsel appearing on behalf of the
respondents, on the other hand, submitted that the High Court having
exercised its discretionary jurisdiction upon application of law
operating in this behalf, this Court should not exercise its jurisdiction
under Article 136 of the Constitution of India. Learned counsel urged
that in a matter of this nature where rival parties had clashed with
each other and case and counter case have been instituted \026 one
investigated by the Assistant Commissioner of Police and another by
an Inspector of Police, the respondents would be highly prejudiced if
the departmental proceedings are allowed to continue; particularly
when the officers of the appellant-bank have been proceeding with a
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bias. It was contended that the question as to whether there exists any
complicated question of law must be judged from the employees\022
point of view, they being belonging to the weaker section. Learned
counsel would, in support of his contention, strongly relied upon G.M.
Tank vs. State of Gujarat and others : (2006) 5 SCC 446 ;
Hindustan Petroleum Corporation Ltd. and others vs. Sarvesh Berry
: (2005) 10 SCC 471 and Sathi Vijay Kumar vs. Tota Singh and
others : 2006 (14) Scale 199.
14. Before embarking upon the rival contentions of the parties we
may notice that Respondent Nos. 1 to 4 have filed an application for
quashing the order taking cognizance against them before the High
Court under Section 482 of the Code of Criminal Procedure which
was marked as Crl. O.P. No. 18163 of 2006 and by an order dated 17th
July, 2006 further proceedings in the criminal case have been stayed.
15. 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.
16. In Delhi Cloth and General Mills Ltd. vs. Kushal Bhan : AIR
1960 SC 806 this Court while holding that the employer should not
wait for the decision of the criminal court before taking any
disciplinary action against the employee and such an action on the
part of the employer does not violate the principle of natural justice,
observed :-
\023 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 wait the
decision of the trial court, so that the defence of the
employee in the criminal case may not be prejudiced\024.
The same principle was reiterated in Tata Oil Mills Co. Ltd. vs.
The Workmen : AIR 1965 SC 155.
17. In State of Rajathan vs. B.K. Meena and others : (1996) 6 SCC
417 this Court held :-
\023The 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 the facts and circumstances of the case.\024
18. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and
another : (1999) 3 SCC 679 also deserves to be noticed. This Court
therein held that the departmental proceedings need not be stayed
during pendency of the criminal case save and except for cogent
reasons. The Court summarized its findings as under :-
\023(i) Departmental proceedings and proceedings in a
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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.
(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, the
administration may get rid of him at the earliest.\024
19. The issue came up for consideration yet again in T. Srinivas
(supra) where this Court while analyzing B.K. Meena (supra) and
Capt. M. Paul Anthony (supra) held that :-
\023 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.\024
20. 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 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 levelled 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 stayed
of the disciplinary proceedings shall not only prejudice the delinquent
officers but the matter also the matter involves a complicated question
of law.
21. The standard of proof in a disciplinary proceedings and that in a
criminal trial is different. If 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.
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22. Furthermore Respondent Nos. 1 to 4 have now moved the High
Court for quashing of the order taking cognizance of offence against
them in the criminal proceedings. The criminal proceedings have
been stayed. Thus, even applying the principle laid down in Capt. M.
Paul Anthony (supra) the impugned judgment cannot be sustained.
Before the High Court no contention was raised that because
Respondent Nos. 1 to 4 are office bearers of a trade union, the
authorities were biased against them. Nothing has been shown that
any complicated question of law arose for determination in the
criminal case.
23. Reliance placed by Mr. Prakash on Hindustan Petroleum
Corporation Ltd. (supra) is not apposite. There were certain special
features which were noticed by this Court. In that case itself it was
held :-
\023 There can be no straitjacket formula as to in which
case the departmental proceedings are to be stayed.
There may be cases where the trial of the case get
prolonged by the dilatory method adopted by the
delinquent official. He cannot be permitted to, on one
hand, prolong the criminal case and at the same time
contend that the departmental proceedings should be
stayed on the ground that the criminal case is pending.\024
(emphasis supplied)
Therein the departmental proceeding were allowed to continue
despite the fact that the delinquent officer therein had been charged
for commission of an offence under Section 13(1)(e) read with
Section 13(2) of the Prevention of Corruption Act, 1988.
24. In G.M. Tank (supra) this Court was dealing with a case where
the delinquent officer was acquitted. The said decision has no
application in the instant case.
25. Sathi Vijay Kumar (supra) pertains to a case involving election
dispute. The question which arose therein was as to whether despite
the fact that there was no provision in the Representation of the
People Act, 1961 for striking out the pleadings, the Tribunal had the
power to do so. We are not concerned with such a question in this
matter.
26. Furthermore the discretionary writ jurisdiction under Article
226 of the Constitution of India should be exercised keeping in view
the conduct of the parties. Respondents made a representation that in
the event the order of suspension is revoked, they would cooperate
with the Enquiry Officer. They kept on filing applications for
extension of time which were allowed. They took benefit thereof.
Without, however filing show cause, they moved the High Court.
Furthermore before the Enquiry Officer also, as noticed hereinbefore,
although they had appointed the defence counsel, did not cross-
examine the witnesses examined on behalf of the Management. A
large number of witnesses had already been examined on behalf of the
appellants. The disciplinary proceedings, as we have noticed
hereinbefore, have proceeded to a great extent. In such a situation we
are of the firm view that the discretionary jurisdiction should not have
been exercised in favour of Respondents 1 to 4 by the High Court.
27. For the reasons abovementioned the impugned judgment cannot
be sustained which is hereby set aside. The appeal is accordingly
allowed.
28. We would, however, like to observe that in the event any prayer
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is made by the respondents to cross-examine the witnesses examined
on behalf of the appellants, the Enquiry Officer may consider the
same in accordance with law. Keeping in view the conduct of the
respondents they are directed to bear the costs of the appellants both
before the High Court as also before us. Counsel\022s fee assessed at
Rs.25,000/-.