JUDGMENT
The Court
1. While posted as Branch Manager at the Somajlguda Branch of the Vijaya Bank at Hyderabad, the writ petitioner was placed under suspension on the ground that the Central Bureau of investigation (“CBI” in short) had started a criminal case against him under sections 120B/420 indian Penal Code read with sections 13(2) and 13(l)(d) of the Prevention of Corruption Act, 1988. The suspension was subsequently revoked on 30th October, 1990, although the CBI continued with the criminal case. After revocation of the order of suspension, the writ petitioner was transferred to and posted to Calcutta at the Bank’s Netajl Subhas Road Branch, while the criminal case was pending before the Principal Special Judge at Hyderabad.
2. While working as Scale-II Officer tn the aforesaid Branch at Calcutta, the writ petitioner was served with a charge-sheet dated 22nd April, 1993, informing him that an enquiry was proposed to be held against him under Regulation 6 of the Vijaya Bank Officer Employees’ (Discipline & Appeal) Regulation. 1981, in respect of the imputations of misconduct set out in the Articles of Charge.
3. In this writ petition the writ petitioner has challenged the commencement of the departmental proceedings on several grounds.
4. Appearing in support of the writ petition, Mr. Bikash Ranjan Bhattacharjee submitted that the charges against the petitioner were vague and a fishing enquiry during the departmental proceedings would force the petitioner to disclose his defence which would prejudice him in the criminal proceedings pending before the Principal Special Judge, Hyderabad.
5. Mr. Bhattacharjee submitted that the writ petitioner would be further prejudiced if he was denied the assistance of a lawyer since the prosecution was to be assisted by an inspector of Police, who was legally trained in the matter of prosecution, as the Presenting Officer. Furthermore, the appointment of the Commissioner for Departmental Enquiry, Central Vigilance Commission, Government of india, as the Enquiring Officer was also illegal and void as he was not authorised to hold departmental enquiries of Bank Officers of Class-II scale.
6. Although, the departmental proceedings were challenged on various grounds, Mr. Bhattacharjee laid special stress on the continuance of the criminal proceeding and the departmental enquiry simultaneously. It was urged that since the allegations levelled against the petitioner in the First Information Report filed by the CBI were in substance the same as those indicated in the Charge-sheet served on the petitioner, he would be severely prejudiced in the criminal proceeding if he was forced to disclose his defence in the departmental enquiry.
7. Mr. Bhattacharjee submitted that it was well-settled that where the charges against the employee were the same in the criminal proceedings and the departmental enquiry and the same were of a grave nature and were proceeding simultaneously. It would be proper and in consonance with the principles of natural Justice for the departmental enquiry to be stayed till a decision in the criminal proceeding was arrived at. Referring to the decision of the Hon’ble Supreme Court in the case of Copt. M. Paul Anthony v. Bharat Gold Mines Ltd. & Anr. , and my decision in Dco Kumar Singh v. Union of India (1996(2) CLJ Page 277), Mr. Bhattacharjee urged that in the instant case also it was desirable that the departmental proceedings should be stayed.
8. Opposing the writ petition on behalf of the Bank, Mr. Dipak Ghosh submitted that the writ petition was misconceived and was liable to be dismissed since the charges against the writ petitioner in the criminal case was not substantially the same as those in the departmental proceedings and did not, therefore, come within the scope of the decisions cited by Mr. Bhattacharjee. Mr. Ghosh submitted that many of the allegations made in the FIR had not been included in the Articles of Charge and the petitioner would not be prejudiced in any way if the criminal proceeding and the departmental proceeding were allowed to continue simultaneously.
9. Mr. Ghosh submitted that the other points taken by Mr. Bhattacharjee were also without any basis, since all steps in connection with the departmental proceedings had been taken in keeping with the 1981 Discipline and Appeal Regulations, Mr. Ghosh submitted that Regulation 6 laid down the procedure for imposing major penalties and sub-regulation(2) provides that the Disciplinary Authority may himself inquire into the charges made against an officer or may appoint any other public servant
to take such inquiry. Sub-regulation (6) also empowered the Disciplinary Authority to appoint a public servant as the “Presenting Officer” to present on its behalf the case in support of the articles of charge.
10. Mr. Ghosh urged that the appointment both of the Enquiry Officer and the Presenting Officer had been done by the Bank according to the aforesaid Regulation and sub-Regulations.
11. Mr. Ghosh denied that the charges set out in the Articles of Charge were vague. Mr. Ghosh submitted that the charges were specific and clearly brought out the imputations of misconduct allegedly committed by the writ petitioner.
12. Regarding the simultaneous proceeding of the criminal case and the disciplinary enquiry, Mr. Ghosh submitted that it was the consistent view of the Hon’ble Supreme Court that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously Mr. Ghosh urged that such was also the view taken in Capt. M. Paul Anthony’s case (supra) relied upon by Mr. Bhattacharjee. On instructions he also submitted that evidence on behalf of the prosecution had been closed before the learned Principal Special Judge, Hyderabad.
13. Mr. Ghosh referred to the decision of the Hon’ble Supreme Court in Delhi Cloth & General Mills Ltd. v. Kushal Short where it was observed as follows :–
“It is true that very often employers stay enquiries 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 Bimal Kanta Mukherjee v. M/s. Newsman‘s Printing Works. 1956 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 of involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decislort of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced.”
14. Mr. Ghosh urged that in the absence of any hard and fast rule, each case would have to be considered on its own set of facts, and the facts in this case certainly did not warrant stay of the departmental enquiry during the pendency of the criminal case and the writ petition was liable to be dismissed.
15. The law in relation to continuance of parallel proceedings has been explained by the Hon’ble Supreme Court in various cases, starting from Kushal Bhan’s case (supra) to the case of Depot Manager, Andhra Pradesh State Transport Corporation v. Mohd. Yusuf wherein the principles laid down in the earlier cases were reiterated, namely, that departmental enquiry is to be stayed only if it causes serious prejudice to the employee in his defence in the criminal trial.
16. The said principle was crystallised in Capt. M. Paul Anthony’s case (supra) whereon consideration of the earlier pronouncements in the various cases, the Hon’ble Supreme Court came to the following conclusions :–
“(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 the 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, administration may get rid of him at the earliest.”
17. In the instant case the First information Report was lodged by the CBI on 21st October, 1988 but till today the criminal proceedings have not been concluded, although, evidence on behalf of the prosecution is said to have been closed. The Appeal Court had by its order dated 6th Mny, 1998, directed stay of the departmental proceedings for a period of two months till after the summer vacation and granted liberty to the parties to pray before the single Judge for disposal of the writ application within the said period. The interim stay was extended by the learned single Judge and the departmental proceedings have, therefore, not been continued with.
18. About twelve years have elapsed since the FIR was lodged, which brings the case within the fifth item of the conclusions arrived at the Capt. M. Paul Anthony’s case. Furthermore, as submitted on behalf of the Bank, evidence on behalf of the prosecution has already been closed in the criminal case. The writ petitioner cannot, therefore, be prejudiced in the criminal trial if the departmental enquiry is allowed to be resumed. The stay of the departmental enquiry during the pendency of the criminal trial has served its purpose considering the gravity of the charges in the criminal trial and the departmental proceeding.
19. The writ application is, therefore, disposed of with liberty to the Bank to resume the departmental proceedings against the writ petitioner, but to afford to him all opportunities to defend himself properly, including inspection of all documents on which the management may choose to rely. The interim stay of the departmental enquiry is accordingly vacated.
The learned Principal, Special Judge, Hyderabad, shall also ensure that the criminal trial against the writ petitioner is speedily concluded, if not already concluded in the meantime.
There will be no order as to costs.
All parties will act on a signed copy of the minutes of the operative part of the judgment on the usual undertaking.
20. Petition disposed of
