Syama Ghana Biswal vs General Manager, State Bank of India and Others

P.K. Tripathy, J.—Petitioner is the plaintiff in Title Suit No. 569 of 1998 of the Court of Civil Judge (Sr. Division), Bhubaneswar. He filed that suit claiming the relief of restraining the defendants i.e. the officials of the State Bank of India from conducting departmental proceeding and to pass a final order in such proceeding till disposal of G.R. Case No. 10 of 1998 pending in the file of J.M.F.C., G. Udayagiri. Along with the plaint petitioner filed application under Order 39, Rules 1 & 2 of the Code of Civil Procedure, 1908 (in short ''the Code) for grant of temporary injunction and that was registered as Misc. Case No. 554 of 1998. Learned Civil Judge (Sr. Division), Bhubaneswar on 26.10.1998 allowed that application. As against that opposite party No. 3 filed appeal under Order 43 Rule 1 of the Code and that was registered as Misc. Appeal No. 100 of 1998 in the Court of District Judge, Khurda at Bhubaneswar. On 1.11.2000 that appeal was disposed of vide the impugned judgment.

Learned District Judge has set aside the order of temporary injunction granted by the Civil Judge (Sr. Division) on the ground that pendency of criminal proceeding does not pose an impediment for proceeding with the departmental proceeding. Learned District Judge has also taken note of pendency of the investigation relating to the allegation of embezzlement and the probable delay in disposal of that criminal case which originated in the year 1995. He, therefore, did not find it proper to allow the order of temporary injunction. Accordingly, he vacated the order of temporary injunction.

In course of argument the bone of contention of the petitioner is that in view of the settled position of law in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, the factual determination and legal conclusion derived by learned District Judge for allowing the departmental proceeding to proceed notwithstanding the pendency of the criminal proceeding is illegal and due to failure in due exercise of jurisdiction vested in him. Accordingly, petitioner has prayed to set aside the impugned order and to restore the order passed by learned Civil Judge (Sr. Division).

Learned counsel for the opposite party, on the other hand, referring to the self-same citation argued that the impugned order stands support by the ratio propounded therein. He further argued that in the absence of any illegality or jurisdictional error committed by the lower appellate Court, this Court should not interfere with the said order in exercise of the jurisdiction u/s 115 of the Code.

It appears from the orders of the Courts below and also not disputed by the parties that there is allegation of embezzlement and dereliction in duty by the petitioner as an officer of the State Bank of India. That detection relates to January, 1996. By the date the impugned order was passed, as noted by learned District Judge, investigation of the criminal case was still continuing. No material has been placed before this Court to show or suggest about any further progress in that criminal proceeding.

In the case of Capt. M. Paul Anthony (supra) apex Court has noted that " whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously is a question which crops up perenially in service matters and has once again arisen in this case in the following circumstances. "The circumstance involved in that case are not relevant so far as the present dispute is concerned. The apex Court taking note of series of decisions from the same Court including the case of State of Rajasthan Vs. B.K. Meena and others, has been pleased to sum up in the following manner :

"22. The conclusions which are deducible from various decisions of this Court referred to above are :

(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 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."

When the petitioner puts stress on the above quoted Clauses (ii) & (iii) as the basis of basic law on service matter and for grant of temporary injunction learned counsel for the opposite parties simultaneously has read the Clauses (iv) & (v) to support the impugned order. On a perusal of the impugned order, this Court finds that learned District Judge has taken note of the fact that investigation of the G.R. Case was not completed though the FIR was lodged in the year 1996. In the note of submissions filed by the opposite parties it has also been stated that investigation was not completed till the date of filing of this revision. As noted above, at the stage of argument nothing has been brought on record or to the notice of this Court that investigation has been completed in the meantime or that the criminal proceeding has proceeded further in relation to the allegation of defalcation/misappropriation. Under such circumstance, when the order of learned District Judge is not found to be inconsistent with the above quoted ratio from the apex Court as noted in Clauses (iv) & (v), therefore, this Court finds no illegality or jurisdictional error in the impugned order so as to interfere with the same. Accordingly the Civil Revision is dismissed. Interim order passed relating to stay of departmental proceeding, therefore, stands vacated.