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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/-.