Jitendra Kumar Misra vs Union of India and Others.

There are certain issues in law which, even though discussed

many times and in myriad forms, call for a fresh consideration

each time a problem touching on that has to be addressed. A

straight jacket formula moulding everything on a homogeneous

cast not being possible the problem frequently surfaces itself in

varied context and appearance.

A recurrent issue in service jurisprudence is whether a

disciplinary proceeding faced by an employee should proceed

during the continuance of a criminal proceeding based on the

same facts. Views are divergent and vary from case to case.

Ultimately, the answer is highly case-specific and must upon a

detailed consideration of its whole factual matrix.

The immediate context of the prolegomenon is one such case

where the oft-discussed issue of service jurisprudence has to be

considered in details to appreciate its ramification. But before that

it is necessary to consider the factual aspect of the case.

The petitioner is an employee of the Railway Protection Force

(RPF, for short). By a memo, dated June 22, 2016, issued by the

Assistant Security Commissioner, RPF, i.e., the respondent no. 4

herein, the petitioner was informed that an enquiry had been

proposed to be held against him. The proposed charges, lists of

documents and witnesses were sent to him.

The charge against the petitioner was that on March 23,

2016 at about 11 a.m. he came to the RPF post in badly

intoxicated condition and started abusing the staff present there in unparliamentary language and created a nuisance. Again, on that

very day at about 2.10 p.m. when a senior official was taking his

lunch along with other staff, the petitioner went there and hit Mr.

Meena, the respondent no. 6, from his back by knife. Mr. Meena

sustained bleeding injury on the left side of the back and tried to

snatch the knife from the petitioner to save himself but the

petitioner again attacked him with knife. This time the respondent

no. 6 sustained bleeding injury in his wrist and in both arms. On

the next day i.e., March 24, 2016, the respondent no. 6 lodged an

FIR in the South Police Station, Asansol, District Burdwan, and a

case under Sections 324 / 326 / 307 / 353 and 427 of the Indian

Penal Code has been initiated against the petitioner. The petitioner

was brought to the Railway hospital for medical check-up where

the doctor examined him for ascertaining drunkenness.

On April 30, 2016, the prosecution submitted a charge-sheet

against the petitioner under Sections 324 / 307 / 353 of the Indian

Penal Code before the Court of the learned Chief Judicial

Magistrate, Burdwan at Asansol. It has been alleged in the charge-

sheet in the criminal case that on March 23, 2016 at 11 a.m. the

petitioner came in a drunken condition and felled bicycle of a staff,

abused him and a departmental proceeding has been taken against him. For the said reason, he took revenge against the respondent

no. 6 with a knife as a result of which the complainant received

injury on his back and left hand.

On August 28, 2016, the petitioner submitted a

representation against the Memorandum dated June 22, 2016, by

which he had denied the charges and requested the authority not

to proceed with the departmental proceeding till the finalization of

the criminal case. On September 2, 2016, the respondent no. 4

issued a speaking order and intimated his decision to initiate a

departmental proceeding, against the petitioner, and enquiry

officer was appointed to conduct the same.

On September 12, 2016, the petitioner again submitted a

further representation to the respondent no. 4 with the similar

prayer as made in the earlier representation. On September 19,

2016, the respondent no. 4 issued a letter intimating him the date,

time and venue of the departmental enquiry with an advice to

attend the same.

Finally, on September 22, 2016, the respondent no. 4

informed the petitioner that there was no bar in simultaneously conducting the departmental enquiry against an employee while a

criminal case has been registered against him.

It is a grievance of the petitioner that on May 2, 2016, his

wife lodged a complaint against the respondent no. 6 and two other

persons under Sections 323 / 324 / 326 / 307 / 120B of the Indian

Penal Code. A criminal case had been lodged against these persons

in respect of the self-same incident that had taken place on March

23, 2016. But no departmental proceeding has been initiated

against them, but the petitioner alone is facing the charge.

Mr. Chakarborty, the learned Advocate appearing for the

petitioner, submitted that charges of the petitioner have already

been framed and very soon the trial would commence. Since the

criminal case and the departmental enquiry are based on the same

set of facts, it is necessary that the departmental proceeding

should be stayed as otherwise the petitioner will have to disclose

his defence.

The Court had given the respondent no. 3 an opportunity to

file a report in the form of an affidavit in response to the

allegations made in the writ petition. Mr. Banerjee, however, specifically submitted that the respondents did not wish to file any

report.

By this writ petition, the petitioner has inter alia prayed for a

writ in the nature of mandamus, commanding the respondents to

rescind and cancel the impugned letter dated September 22, 2016,

issued by the respondent no. 4. Along with that the petitioner has

also prayed for cancellation or withdrawal of the charge-sheet,

dated September 2, 2016.

That the facts of the case both before the departmental

enquiry and in the criminal trial is identical and based on the

same set of facts is an admitted one. As a matter of fact, it is upon

the complaint lodged by the respondent no. 6 in respect of the

alleged incident on March 23, 2016, at 2.10 p.m. that the

departmental enquiry has been initiated against the petitioner and

the criminal case has been started against him.

The question to be addressed is whether the petitioner was

justified in seeking a postponement of the departmental proceeding

during the pendency of the criminal case. As mentioned earlier, the

issue has been variously addressed by courts on various occasions which defies any attempt to follow a single formula, except that the

fate of each such case must necessarily depend upon the facts of a

particular case.

In State of Rajasthan vs. B.K. Meena, reported in (1999) 3

SCC 679, the Supreme Court observed that the prejudice of the

defence of the employee in the criminal case was the only ground

for staying disciplinary proceeding. The validity of the ground was

the pre-condition to be determined by the nature of the case. This

can be done only in cases of grave nature involving questions of

fact and law. The issue concerning desirability and propriety of

staying the disciplinary enquiry has to be determined in each case

taking into consideration the facts and circumstances of the case

and not as a matter of course.

A very common stand, frequently taken by an employer

opposing the employee''s prayer for staying the departmental

proceeding during the pendency of the criminal case, is based on

the observations made in Capt. M. Paul Antony vs. Bharat Gold

Mines Ltd ., reported in AIR 1999 SC 1416. There the Supreme

Court had indicated certain fact situations which should govern

the question whether departmental proceeding should be deferred when a criminal trial was on. In Paragraph 22 of the judgment, the

Supreme Court deduced from various judgments and summarized

the position:

"(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 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 my get rid of him at the earliest."

Mr. Banerjee has relied on the case in Deputy Inspector

General of Police and Another Vs. S. Samuthiram, reported in AIR

2013 SC 14. That case had relied on and quoted the criteria as laid

down in the case of Capt. M. Paul Anthony (Supra).

In the case of M/s. Stanzen Toyotetsu India Private Limited

Vs. Girish V. and Others, reported in AIR 2014 SC 989, also relied

on by the respondent, the Supreme Court again had the occasion

to deal with the said issue, viz., whether a departmental enquiry

should be stayed pending conclusion of criminal case instituted in

respect of the very same incident. After holding that there was no

legal bar to conduct disciplinary proceedings and criminal trial

simultaneously, the Supreme Court held that it would depend

upon the nature of charges in the criminal case and whether the

case involves complicated questions of law and facts. The

possibility of prejudice to the employee accused in the criminal

case on account of parallel disciplinary enquiry going ahead is

another dimension which will have to be addressed while

permitting or staying such disciplinary proceeding. After

considering several judgments delivered on the issue, the Supreme

Court summed up the legal position that disciplinary proceedings

and proceedings in a criminal case can proceed simultaneously in the absence of any legal bar. "It is also evident", the Supreme

Court observed, "that while seriousness of the charge levelled

against the employees is a consideration the same is not by itself

sufficient unless the case also involves complicated questions of

law and fact." At the same time, the Supreme Court observed that

while there is no legal bar to the holding of the disciplinary

proceedings and the criminal trial simultaneously, stay of

disciplinary proceedings may be an advisable course in cases

where the criminal charge against the employee is grave and

continuance of the disciplinary proceedings is likely to prejudice

the defence of the employee before the criminal court.

The response of the respondent no. 4 in his communication

dated September 22, 2016, to the petitioner turning down his

prayer for postponing of the criminal case vary closely follows the

language of the Supreme Court in paragraph 22(1) of the judgment

that departmental proceeding and criminal case can proceed

simultaneously as there was no bar in their being conducted

simultaneously, though separately. However, the subsequent

parameters set out in the said paragraph clearly indicates that the permissibility of simultaneously conducting a departmental

proceeding and criminal case is also not an absolute, universal

and non-relaxable one.

A closer look of the law summarized in paragraph 22 of Capt.

M. Paul Antony (Supra), also makes it quite clear that there may be

cases and cases, circumstances and circumstances and facts and

facts where the absence of absolute bar cannot be applied as an

absolute proposition. It has also been laid down that if the

departmental proceeding 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 the complicated questions of law and fact, it will be

desirable to stay the departmental proceeding till the criminal case

is concluded. This again in turn will depend upon the nature of an

offence, the nature of the case initiated against the employee and

the materials collected against him. The Supreme Court, however,

cautioned that it has also to be borne in mind that the

departmental enquiry cannot be unduly delayed and if the criminal

case does not proceed or is being delayed the departmental

proceeding, even if it was once stayed, can be resumed.

Relying on the State of Rajasthan Vs. B.K. Meena (Supra) the

Supreme Court in the case of Depot Manager, Andhra Pradesh

State Road Transport Corporation Vs. Md. Yousuf Mia, reported in

AIR 1997 SC 2232, laid down certain principles to be borne in

mind while deciding the issue such as the present one. Although

the difference of scope and fundamental nature between a criminal

trial and departmental enquiry was maintained but the overriding

consideration was the requirement to consider whether the

departmental enquiry would seriously prejudice the delinquent in

his defence at the trial in criminal case. The Supreme Court

emphasized that this is a question which cannot be decided

irrespective of factual position and has to be considered in each

separate case depending on the facts and circumstances of it. The

Supreme Court had very specifically held that it was not desirable

to lay down any guideline as inflexible rule in which the

departmental proceeding may or may not be stayed pending trial in

a criminal case against the delinquent officer. There was no bar to

proceed simultaneously with departmental enquiry and trial of a

criminal case unless the charge in the criminal trial is of a grave

nature involving complicated question of law and fact.

Since the Supreme Court had repeatedly held that it is not

desirable to lay down any guideline as inflexible rules, there is no

rule absolutely staying, a departmental proceeding during a

criminal trial. Similarly, there is no absolute rule against the grant

of stay of a departmental proceeding against a delinquent facing a

criminal charge.

That a domestic enquiry can be stayed during the pendency

of a criminal trial was recognized by Supreme Court more than half

a century ago. In the case of Tata Oil Millis Company Ltd. Vs.

Workman, reported in AIR 1965 SC 155, the Supreme Court

observed that it is always desirable that if an incident giving rise to

a charge framed against an employee 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. It

would be, particularly, appropriate to adopt such a course where

the charge against the workman is of a grave character as in such

a case it would be unfair to compel the employee to disclose the

defence which he may take in the criminal case. Again in case of

Kusheswar Dube Vs. Bharat Coal Company Ltd., reported in AIR

1988 SC 21187, the Supreme Court upheld the order of injunction passed by the trial court restraining the employer from holding the

departmental proceeding.

Again in the case of Divisional Controller, Karnataka State

Road Transport Corporation Vs. M. G. Vittal Rao, reported in (2012)

1 SCC 442, the Supreme Court reiterated the legal position that

there was no legal bar for both the criminal and the departmental

proceeding to go on simultaneously. The only valid ground for

claiming that the departmental proceeding may be stayed would be

to ensure that the defence of the employee in the criminal case

may not be prejudiced and that too in cases of complex questions

of facts and law. While emphasizing the necessity for not

unnecessarily delaying the departmental proceeding, the Supreme

Court had held that the departmental proceeding can go a

simultaneously with the criminal trial except where both the

proceedings are based on the same set of facts and the evidence in

both the proceedings is common. This view has been followed by

the Supreme Court in the case of Avinash Sadashiv Bhosale Vs.

Union of India and Others, reported in (2012) 13 SCC 142.

In an earlier judgment in the case of State Bank of India and

Others Vs. R. B. Sharma, reported in AIR 2004 SC 4144, the Supreme Court after reiterating the desirability of not laying down

any guideline as an inflexible rule on the issue, observed that on

basic principles the criminal case and departmental proceedings

can go on simultaneously, except where the two proceedings are

based on the same set of facts and the evidence in both the

proceedings are common. What is required to be seen is whether

the departmental enquiry would seriously prejudice the delinquent

in his defence at the criminal case.

Thus one thing stands out very clearly that even if there is no

absolute bar in proceeding with a departmental enquiry

simultaneously with a criminal trial, the issue has to be examined

in the context of in its own factual background in a given case. A

common and consistent point of law underlying all the judgments

is that no straight jacket rule can be laid down governing the

myriad factual situations with their endless sub-variants as are

reflected in each case. Ultimately, it hinges round the factual

matrix, the identity of the charges, the nature of the evidence

adduced, the nature of the charge and whether the delinquent is

likely to be prejudiced in the criminal case if he has to disclose his

defence in the domestic enquiry.

If we examine the substratum of the criminal prosecution in

the present case as well as initiation of the departmental enquiry,

it cannot be gainsaid that both the proceedings relate to and arise

out of the same fact, i.e., injuring the respondent no. 6 by a knife

as a result of which he sustained bleeding injury in his back and

wrist. The fact of the criminal case and the departmental enquiry is

the same and the criminal case that is pending against him and

the charges framed against the petitioner are also quite serious. He

has been charged under S. 324, i.e., voluntarily causing hurt by

dangerous weapon or means, S. 307, i.e., attempt to murder, if

such act causes hurt to any person and S. 353, i.e., assault or use

of criminal force to deter of a public servant from discharging his

duties. Thus, the charges are grave and savior ones. It is quite

likely that the petitioner will have to disclose his defence at the

departmental enquiry and if he does so the same is bound to

prejudicially affect him in his defence in the criminal case.

It may be mentioned that in that the case of M/s. Stanzen

Toyotetsu (Supra) the charges levelled against the employees were

under Sections 143 / 147 / 323 / 324 / 356 / 427 / 504 / 506 / 114 and

149 of the Indian Penal Code. The Supreme Court observed that

these were no ordinary offences being punishable with imprisonment which may extend up to 3 years besides fine. If the

imprisonment up to 3 years is considered to be not an ordinary

case, the petitioner in the present case being implicated in a case

under Section 307 which is a much graver offence, must

necessarily not to be considered involved in an ordinary case

either.

Thus a very major criteria to be considered for deciding

whether the departmental enquiry shall remain stayed, has been

satisfied, in favour of the petitioner, viz., both the cases are

grounded on the same facts. On the top of that the person alleged

to have received injury is the defacto-complainant. He is the main

witness and if one goes by the allegation made against the

petitioner there shall be an identity of witnesses inasmuch as the

said incident is alleged to have taken place inside the RPF Barrack.

The witnesses in the departmental enquiry as mentioned in the

charge-sheet are all employees of the Railway Protection Force. The

charge-sheet in the criminal case also makes out the case as has

been alleged against the petitioner in the charge-sheet in the

departmental enquiry.

Judged from the settled principles of law, I find no

justification for the response of the respondents turning down the

petitioner''s prayer for stay of the departmental proceedings during

the pendency of the criminal case which was not a very correct

approach. Without anything more, the view expressed by the

respondents that there was no bar in simultaneous conduct of the

departmental enquiry and the criminal case is grossly an

inadequate one. Merely because there is no absolute bar, it cannot

be said that the departmental enquiry must be held

simultaneously regardless of the facts. The parameters for deciding

the same have been very well-settled by various judgments of the

Supreme Court and other courts. The impugned communication

does not reflect the same. On the contrary, only a part of the

principle of law decided has been picked up without consideration

of the other aspects involved in the matter.

If the bank had used a part of the principle laid down in

various judgments, say Capt. M. Paul Antony (Supra), it was equally

important to consider the other principles of law where

circumstances have been recognized as sufficient for not

continuing both the proceedings simultaneously. It was certainly

expected of them to record why they did not consider the case of the petitioner as coming within the other circumstances where it

would not be proper to proceed with the departmental enquiry. The

impugned communication of the respondent no. 4 is all the more

incomplete as the petitioner''s case for seeking stay of the

departmental proceedings, viz., prejudice in defence in the criminal

case, has not been even touched on by the respondent no. 4. The

petitioner made out a definite case for stay of the departmental

proceeding. In reply, he was informed of a legal proposition without

any reference to how it applied to the present case.

The respondent no. 4 could not appreciate that this was a fit

case where the departmental enquiry deserved to be stayed during

the pendency of the criminal case. The apprehension of the

petitioner that in course of the departmental proceeding he will

have to take a defence which is likely to adversely affect him in his

defence in the criminal case seems to be grounded on reality and

is, therefore, eminently justifiable.

I find sufficient merit in the writ petition and equally no

justification for the respondents'' rejecting the petitioner''s prayer

for postponing the departmental enquiry only on the basis of a part

of the legal proposition. The reply given by the respondent no. 4 does not appear to have addressed the issues raised by the

petitioner in his application, dated September 12, 2016. The

disposal of the petitioner''s application by reminding him of a part

of the legal position is, without anything more, an incomplete, if

not a non-speaking one.

In such view of it, the communication made by the

respondent no. 4 on September 22, 2016 does not seem to be a

proper disposal of the petitioner''s application and the same is

hereby set aside and quashed. The respondents are directed not to

proceed with the departmental enquiry against the petitioner till

the disposal of the criminal case.

36 The writ petition is allowed.

There shall be no order as to the costs.

Urgent Photostat certified copy of this order, if applied for, be

supplied to the parties on priority basis upon compliance of all

requisite formalities.