Prema Simon vs Union Bank of India and another

By consent of both parties, this matter is taken up for final hearing.

Petitioner''s case is that a criminal proceeding is pending against her in respect of a charge which is also the subject matter of a domestic enquiry.

The charge sheet was must issued to her by the employer Union Bank of India, on December 28, 1993. The charge sheet runs into five pages

dealing with various acts of ommissions and commissions of transactions alleged to have been done by the petitioner amounted to misconduct. In

respect of some of those charges, the misconduct were not gross but minor.

Petitioner had filed a writ petition on the very some grounds as those raised in this petition in W.P. No. 18104/94 by which time of enquiry had

commenced after the petitioner had filed her statement of defence denying the s charges. Learned single Judge of this Court dismissed that W.P.

holding that there was no case made out for stay of the departmental enquiry. Two reasons were given namely (1) the charge sheet had not been

filed against the petitioner at the time and (2) that the departmental enquiry had already been commenced and was half way through. It was also

noticed that the petitioner had submitted her explanation. Learned single Judge observed :

..... The petitioner had already submitted a that the completion of the enquiry will prejudice the petitioner''s defence in the criminal trial if any, does

not appeal to me. Therefore, on the facts of the present case, I am not inclined to stay the departmental enquiry pending the criminal proceedings.

That order was made on October 26, 1994. Petitioner had filed the appeal against that order in W.A. No. 1372/1994. The Division Bench after

considering the petitioner''s case held that ...... the learned single Judge is justified in refusing to entertain the writ petition and we see no ground to

interfere with the same.

The Division Bench also observed :

If the disciplinary proceedings is not concluded even before the charge sheet is filed and trial is commenced, it is open to the appellant to invoke

the jurisdiction of this Court under Article 226 of the Constitution of India for appropriate relief.

The charge sheet against the petitioner was on January 28, 1994 and this petition was filed on November 11, 1994. This writ petition came to

be filed immediately thereafter and further proceedings in the departmental enquiry were stayed on December 14, 1994. It is sub-mitted at the Bar

by the counsel that the examination of the witness for the management has been completed and the examination of the witnesses for the delinquent

is to commence.

Learned counsel for the petitioner submitted that this is a fit case where the departmental enquiry should now (sic) be allowed to continue as the

charge sheet had been filed. Counsel referred to a decision of the Supreme Court in the case of State of Rajasthan V. B. K. Meena and others

1996 (2) LLJ 1269 wherein the Court observed tat disciplinary proceedings and enuiry cannot be and should not be delayed on July and stay

should not be granted as a matter of course and that proceedings should be concluded expeditiously.

The Judgment relied on by the counsel is not of any assistance whatsoever to the petitioner. The Court in that case that after respondent had

disclosed his defence in the domestic enquiry initiated, there was no question of any to such a delinquent on the ground that the continuance of the

domestic enquiry would counsel him to disclose the defence in the criminal proceedings prematurely. The Court further held that Further the

approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary

proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the

case may be, whereas in the criminal proceedings the question is whether the offence registered against him under the Prevention of Corruption Act

(and the Indian Penal Code) if any are established, and if established what sentence should be imposed upon him. The standard of proof, the mode

of enquiry and the rules governing the enquiry and trial in both the case are entirely distinct and different"". In the facts of that case, the court set

aside the order of stay that has been granted by the Central Administrative Tribunal and directed continuance of the departmental enquiry.

Learned counsel for the petitioner also placed reliance on the decision rendered by a learned single Judge of the Karnataka High Court in the

case of Kumar Das v. Kudremukh Iron Ore Company Ltd. and others 1997 (1) LLJ 944 decided on August 8, 1995, long prior to the decision of

the Apex Court, already referred to. This decision cannot be of any avail to the petitioner in the light of the law declared by the Supreme Court

subsequently to which reference has already been made.

The law declared in the case of State of Rajasthan was by a Bench of two learned Judges of the Apex Court. That the same view has been

reiterated by a larger Bench of three learned Judges of the Apex Court in the case of Deport Manager Andhra Pradesh State Road Transport

Corporation v. Mohd. Yousuf Miya etc. The Court at para 5 of the Judgment referred to the case of of State of Rajasthan Vs. B.K. Meena and

others, and extracted substantial portions and after having set out the ratio of the Judgment in the case, observed we are in respectful agreement

with the above view. The purpose of departmental en and of prosecution are two different and distinct aspects. The criminal prosecution is

launched for an offence in violation of a duty the offender over to the society or for breach of which law has provided that the offender shall make

satisfaction to the public so crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain

discipline in the service and efficiency of public service It would therefore, be expedient that the disciplinary proceedings are conducted and

completed as expeditiously as possible ....... There would be not bar to proceed simultaneously with the departmental enquiry and tried of a

criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of law and fact Offence generally implies

infringement of public as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should

be accordance with proof of the offence as Perth evidence defined under the provision of the Evidence Act, Converse is the case of departmental

enqiury The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct

defined under the relevant statutory rules or law. That strict standard of proof of applicability of Evidence Act stands excluded is settled legal

position.

The Court after having declared the law laid down the guidelines as under :

Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his

defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstance.

Having regard to the law declared by the Apex Court in the decisions aforementioned, it is clear that the petitioner is not entitled to stay of the

disciplinary proceedings. No question of prejudice to the delinquent arises as the defence statement was filed several year ago, even long proper to

the filing of the report in the criminal court. The enquiry is in midway. Witnesses for the management have already been examined. The

consequence of the domestic enquiry are clearly different from the consequences of conviction in a criminal trial. The duty cast is the public duty in

the criminal trial whereas the relative duties if considered in a domestic enquiry are of a private character. Standards of proof as laid down by the

Apex Court are different in the two proceedings.

Having regard to all these circumstances, I do not find any merit in this writ petition and the same is dismissed. Consequently, WMPs. are

dismissed.