JUDGMENT
B.P. Singh, J.
1. In this writ application, the petitioner has prayed for issuance of an appropriate writ for quashing the order dated 18-8-) 989 issued under the signature of the Deputy General Manager, Area No. 9 of M/s. Bharat Coking Coal Ltd. (respondent No. 1), whereby and whereunder charges have been drawn up against the petitioner and a departmental proceeding initiated in respect of the alleged misconduct committed by the petitioner.
2. A counter affidavit has been filed on behalf of the respondent No. 1 and thus, having heard the counsel for the parties, we are of the opinion that this writ application can be disposed of at this stage.
3. The facts of the case lie in a very narrow compass.
4. On 7-7-1989, a first information report was lodged by one of the partners of one M/s. Continental Transport and Construction Corporation, Dhanbad, alleging inter alia that the employees of the said firm had committed acts of fraud or dishonesty in collusion and conspiracy with the petitioner, who is an employee of respondent.
5. After lodging of the first information report aforementioned, a departmental proceeding had also been initiated by the respondent No. 1 against the petitioner, wherein if was alleged as follows:
On 6-7-1989 in the 3rd shift a Truck No. BEN-9171 loaded with coal from GOCP at about 3.0 a.m. (7-7-1989) started for ASSY, but by the way the Truck was unloaded midway and the empty truck went to ASSY for necessary entry and punching, etc. as if the truck was loaded. You have taken a very active part in this forged operation and accordingly you were arrested by local police on 12-7-1989 and criminal proceedings against you has been lodged by the police Under Sections 407, 408, 379, 411 and 120 of IPC.
Your above acts constituted misconduct under para 18(i)(A) of the Model Standing order, applicable to you and read as under:
18(i)(A) Theft, fraud or dishonesty in connection with the employers business or property’.
6. Upon receipt of the aforementioned notice, the petitioner filed a show-cause in the said departmental proceeding, whereby and whereunder he, inter alia, denied the allegations made against him, .
7. The petitioner further asserted that he had no concern with loading of coal nor he had any job to perform at the weigh bridge.
8. Mr. Anil Kumar Sinha, the learned Counsel appearing on behalf of the petitioner submitted that the charge-sheet as contained in Annexure-2 to the writ application is liable to be quashed inasmuch as the said departmental proceeding could not have been initiated during the pendency of a criminal case.
9. The learned Counsel, in this connection, has strongly relied upon a decision of the Supreme Court in Kuseshwar Dubey v. Bharat Coking Coal Ltd. and Ors. reported in 1988 (36) BUR 755.
10. From a perusal of the allegations made against the petitioner in the charge-sheet as contained in Annexure-2 to the writ application, it is evident, that the employer was satisfied on the basis of the allegations made against him in a first information report that he actively participated in commission of a crime in conspiracy with the employees of the aforementioned M/s. Continental Transport and Construction Corporation, Dhanbad.
11. It is now well-settled that initation of a departmental proceeding during the pendency of a criminal case can neither be said to be illegal nor can it be said to be without jurisdiction.
12. In such a situation, it is open to the employer to initiate a departmental proceeding as against a delinquent employee.
13. It is now well known that if prima fade, a charge-sheet submitted by the employer against his employee is not found to be wholly without Jurisdiction, the High Court should not quash a show-cause notice by issing a writ of prohibition.
14. Reference in this connection may be made to in State of Uttar Pradesh v. Shri Brahm Datt Sharma and Anr. , wherein it was held as follows:
The High Court was not justified in quashing the show cause notice. When a show-cause notice is issued to a Government servant under a statutory provision calling upon him to show cause, ordinarily the Government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpore of issuing show-cause notice is to afford opportunity of hearing to the Government servant and once cause is shown it is open to the Government to consider the matter in the light of the facts and submissions placed by the Government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show-cause notice.
15. In Kuseshwar Dubey’s case (supra), the Supreme Court did not lay down any general proposition of law that in all cases where a criminal case is pending against a delinquent officer on the same “set of facts, a disciplinary proceeding should not be initiated and/or continued.
16. In the aforementioned case itself refere to its earlier decisions in Delhi Cloth and General Mills Ltd. V. Kushal Bhan and in Tata OH Mills Co. Ltd. v. The Workmen , were made.
17. In the case of Delhi Cloth and General Mills Ltd. (supra), the Supreme Court held as follows:
It is true that very often employers stay enquiries pending the decision of the criminal courts and that far but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Shri Bimal Kanta Mukherjee v. Messers News Men’s Printing Works 1956 Lab AC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves question of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced.
18. Similarly in Tata Oil Mills Co. Ltd. case (supra), the Supreme Court again held that it is desirable to stay the departmental proceeding when the charge against the workman is of a grave character because in such a case it would be unfair to compel the workmen to disclose the defence which he may take before the Criminal Court.
19. In Kuseshwar Dubey’s case (supra), the Supreme Court held as follows:
According to Mr. Jain for the appellant, the legal position settled by this Court supported the stand that the disciplinary action had to be stayed till the criminal case was over. He relied upon the decision in The Delhi Cloth and General Mills Ltd. v. Kushal Bhan and Tata Oil Mills Co. Ltd. v. Its Workmen 1964 (9) FLR 142 (SC). He also referred in the course of his submission to the decisions of different High Courts in support of his propositions. Two cases out of the several ones of the High Courts he relied upon are Kusi Ram v. Union of India (1974) LIC 533 and Project Manager, ONGC v. Lal Chand Wazir Chand Chandra 1982 (1) SLR 654, Pathak C. J., as he then was, in the Himachal case indicated that fair play required the postponing of the criminal trial and Thakkar, J. as our learned brother then was in the Gujarat case had also taken a similar view.
We would like to point out that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken one by way of the disciplinary proceeding and the other in the Criminal Court. Reference may be made to decision of this Court in Jang Bahaur Singh v. Baij Niwari 1961 (17) FLR 300 (SC) and some decisions of High Courts such as Rama P. C. v. Superintendent of Police, Kolar and Anr. A.I.R. 1967 (54) May 2?G ; Ali Mohad. and Ors. v. Chairman T. A. and C, Udhampur 1981 (2) LIC (6) 1564 ; Moulindra Singh v. The Deputy Commissioner and Ors. (1975) LIC (6) 1564 and Shaikh Kasim v. Superintendent of Post Office, Chinglepet A.I.R. 1965 Mad 503.
Mr. Jain contended that we should settle the law in a straight jacket formula as judicial opinion appeared to be conflicting. We do not propose to hazard such a step as that would create greater hardship and individual situations may not be available to b? met and thereby injustice is likely to ensue.
In the Delhi Cloth and General Mill’s case (supra), it was pointed out by this Court:
It is true that very often employers stay enquires pending the decision of the criminal trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must Wait for the decision at least of the Criminal Trial Court before taking action against an employee. In Sri Bimal Kanta Mukherjee v. Newsman Works 1966 LAC 188, this was the view taken by the Labour Appellate Tribunal. 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 await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced….
In Tata Oil Mills’ case (supra), Gajendragadkar, C. J., spoke for a three Judge Bench thus:
There is yet another point which remains to be considered. The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan, (supra) it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a Criminal Court, the employer should stay the domestic enquiry pending the final disposal of the criminal case….
In Jang Bahadur’s case (supra), this Court said:
The issue in the disciplinary proceedings is whether tie employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision is a civil or criminal proceeding pending in a Court. But the pendency of the Court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal Court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending Court proceeding. The employee is free to move the Court for an order restraining the continuation of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of Court. In the absence of a stay order of the disciplinary authority is free to exercise its lawful power.
The view expressed in the three cases of this Court seem to support the postion that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. 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 circumstances of a particular case as to whether the disciplinary proceedings should be interdicated, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline.
20. It is, therefore, clear that the question as to whether the disciplinary proceeding should be stayed by the employer, in a given case or not depends upon the facts and circumstances of each case, and as has been held by the Supreme Court itself that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and/or general application without regard to the particularities of the individual situation. A similar view has been taken by the Madras High Court in a recent decision reported in 1990 (1) Labour Law Notes 121, S. John v. Indian Airlines Corporation.
21. From a perusal of the writ application as also the show-cause filled by the petitioner in the departmental proceeding as contained in Annexure-3 to the writ application, it does not appear that the petitioner contended that the charges against him are grave in nature and the facts thereof are complicated and as such, it would prejudice his defence in the criminal case if he was compelled to disclose his defence in the departmental proceeding.
22. It is further evident that the petitioner has already filed a show cause in the aforementioned departmental proceeding, wherein he has disclosed his defence.
23. The petitioner has not contended even before the enquiry officer and/or before the disciplinary authority that charges against him being grave in nature, it would not be reasonable for the employer to direct him to disclose his defence against the charge. The petitioner has also not prayed before the enquiry officer to stay its hands till the criminal case is disposed of.
24. The first information report itself was lodged on 7-7-1989. As noticed hereinbefore, the charge-sheet was submitted upon the petitioner on 18-8-1989 and he filed a show cause on 1-9-1989. According to the respondent No. i, in terms of the Standing Order applicable to the petitioner, the domestic enquiry ought to have been completed within the period of ten days; but for some unavoidable situation the departmental proceeding could not be completed within the aforementioned period.
25. It is, therefore, absolutely clear that the petitioner submitted himself to the jurisdiction of the enquiry officer without any demur whatsoever and in terms of the provisions contained in a Standing Order applicable to the petitioner, the departmental proceeding should have been completed within the period of ten days from the filing of his show cause. The petitioner has approached this Court and filed this writ application only on 3-10-1989.
26. As noticed hereinbefore, prior to filing of this writ application, the petitioner did not even make a prayer before the enquiry officer and/or the disciplinary authority that the said disciplinary proceeding be stayed.
27. Taking, thus, all facts and circumstances into consideration, we are of the view that the petitioner has failed to make out a case for quashing the charge-sheet as contained in Annexure 2 to the writ application and/or even for a direction that the said disciplinary proceedings be stayed.
28. In the result, there is no merit in this writ application which is dismissed. However, in the facts and circumstances of this case, there will be no order as to costs.