LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 20th , 2009. Parties Name Dalbir Singh ...APPELLANT. VERSUS State Bank of Patiala and another ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE T.S.THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Parveen Gupta, Advocate, for Mr. Narender Hooda, Advocate, for the appellant. Mr. H.N. Mehtani, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Jasbir Singh, J. Judgment. Appellant has filed this appeal against judgment dated March 5, 2007, passed by a learned Single Judge of this Court whereby the prayer of the appellant to stay departmental proceedings, till the conclusion of criminal trial against him has been declined and the writ petition dismissed. Records reveal that the appellant was appointed as a Cashier -cum- Clerk with respondent No. 1 (State Bank of Patiala) on August 5, 1985. He was LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -2- promoted as Head Cashier on January 1, 1999. On April 10, 2003, he proceeded on leave for two days, i.e., April 11 & 12, 2003. On April 12, 2003, an FIR No. 147 was registered against him under Sections 409/420 IPC in Police Station Assandh on a report made by respondent No. 2. It was alleged that the appellant had on April 10, 2003, stole the keys of the currency chest and removed an amount of Rs. 1,35,00,000/- from the Bank. A final report was filed in the Court, who framed the following charge against him on September 1, 2003: “That on 10.4.2003, in the area of Assandh, you were entrusted with an amount of Rs. 1,35,00,000/- in your capacity as Head Cashier of State Bank of Patiala, Branch Assandh, as a Government employee and you committed criminal breach of trust in respect of money so entrusted and thereby committed an offence under Section 409 of Indian Penal Code, which is within my cognizance.” Criminal trial is continuing against the appellant in the competent Court at Karnal. As per facts on record, appellant was put under suspension on April 17, 2003. The authority decided to initiate departmental proceedings against him, and an explanation was sought vide letter dated May 19, 2003. In reply, the appellant requested that till conclusion of the criminal proceedings, departmental action be kept in abeyance. The authorities rejected his prayer and instituted a departmental enquiry against him.On September 10, 2003, charge-sheet was also served upon him. In reply to the charge-sheet, the appellant reiterated his request to keep the departmental proceedings in abeyance. His request was again rejected and LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -3- enquiry officer was appointed on October 3, 2003. At that stage, appellant came to this Court in C.W.P. No. 16726 of 2003, wherein a prayer for stay of the departmental proceedings till conclusion of the criminal trial against him was made. The said writ petition has been dismissed vide the impugned order, as noticed earlier. On April 4, 2007, this Court issued notice of motion in this appeal with the interim direction that the departmental proceedings may continue but the final order be not passed till the next date of hearing. Appellant went to the Hon'ble Supreme Court against the said order in S.L.P.(Civil) No. 7893 of 2007. On April 4, 2007, their lordships of the Supreme Court were pleased to stay the departmental proceedings. As per documents on record, the said SLP was dismissed by the Hon'ble Supreme Court on January 21, 2008. It is also an admitted fact that all the grounds, which the petitioner has taken in this writ petition, for stay of the departmental proceedings, were also agitated before the Hon'ble Supreme Court. This fact is apparent from reading of the grounds of SLP, which have been put on record as Annexure RR-1 with CM No. 401 of 2008. In compliance with our order dated November 14, 2008, record of the departmental enquiry was also produced in the Court. Perusal thereof indicates that the departmental enquiry is complete and the Enquiry Officer has submitted his report on August 7, 2008. Enquiry file further shows that after initial hesitation, the appellant had participated in the enquiry proceedings by cross-examining the witnesses, produced by the department, and thereafter he also led evidence in defence. Enquiry report has been submitted, to which he has filed his objections on September 3, LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -4- 2008. It is also an admitted fact that in the meantime, some prosecution witnesses were also examined before the criminal Court and those witnesses were cross-examined by the appellant. Facts indicated above show that the defence, if any, which might be available to the appellant, already stood disclosed by him. In the backdrop of facts, mentioned above, now we have to consider the prayer of the appellant to set aside the impugned order, passed by the learned Single Judge. In departmental proceedings, following charge-sheet was issued to the appellant: “CHARGE SHEET While working as Head Cashier at our Assandh Branch, you are alleged to have committed following acts of omissions and commissions for which you are served upon the following charge-sheet:- From Assandh Branch, you managed to stole the keys of joint custodian from his drawer without his knowledge and removed Rs. 1.35 crores (27 bundles of Rs. 500 denomination) from the currency chest situated at old premises on 10.4.2003, single handedly. While proceeding on leave on 10.4.2003, you did not get cash lying in the bins/almirahs (other than running almirah) verified to the officiating Head Cashier saying that every thing is in order, and threw the keys of all cash almirahs in the presence of Shri B.S. Lather, Joint Custodian and Shri Ishwar Singh Guard and skipped away in the car. Further you used car of your relatives on many times for LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -5- carrying the cash from old premises to new premises and vice versa without the knowledge of Branch Manager/ Joint Custodian and claimed the hiring charges by producing forged bills. You also did not ensure that the cash is being carried in the steel trunks duly locked and chained with vehicle instead the cash was carried in jute/ cloth bags. A large number of unusual credit entries of high value has been found in your current account No. 01090095002 for the period 28.9.2002 to 31.3.2003 while appears to be beyond to your means. Thus the aforesaid acts amount to gross misconduct in terms of clause 5(a)(d)(j) of Memorandum of Settlement on Disciplinary Action procedure for Workmen signed between Indian Bank's Association and the Workman Unions at Bombay on 10.4.2002. Please submit your reply to the aforesaid charge sheet within 10 days from the date of receipt of this letter, failing which it will be presumed that you have nothing to say and matter shall be proceeded with further.” Taking note of the contents of the charge -sheet issued to the petitioner by the Criminal Court and in departmental proceedings, the learned Single Judge has rightly held as under: “The perusal of the charge sheet in the departmental proceedings clearly reveals that it is much wider than the charge sheet framed against the petitioner in the criminal case. LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -6- While in the criminal case, the only charge against the petitioner is embezzlement of Rs. 1.35 crores. The charge sheet in the departmental proceedings reveals that the conduct of the petitioner for throwing the keys of the almirahs, use of car of his relatives by the petitioner would (without) permission or approval of the Manager for carrying the cash from old premises to the new premises, lack of care in carrying the cash in steel trunks duly locked and chained with the vehicle, unusual credit entries of high values found in the current account of the petitioner etc. are also the charges framed against the petitioner. It would be anomalous if the disciplinary proceedings, on the charges which are much wider than the charge on which he is facing trial in the criminal proceedings, are stayed for that reason alone. As discussed, the set of facts are not completely identical. But these are much more than that. Although the facts constituted in the charge sheet in criminal case are also a part of the charge sheet in the disciplinary proceedings. But these are not the same. It also reveals that the charge sheet was framed against the petitioner in the criminal case on 1.9.2003 and not much progress has taken place so far, even after the expiry of more than three years. The departmental proceedings, therefore, cannot be kept in the cold storage, till the pendency of the criminal proceedings, as it is neither in the interest of the employer nor the interest of the petitioner. It has been held in LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -7- the judgments referred to above that it is in the interest of the employer, as well as the petitioner, that the departmental proceedings are conducted expeditiously. The charge against the petitioner is of course grave, but the question of law and facts involved in the two are not complicated. There is a simple charge in the criminal case against the petitioner for having embezzled a sum of Rs. 1.35 crores. Therefore, in the facts and circumstances of the case, it is not a fit case in which the departmental proceedings can be stayed during the pendency of the criminal proceedings, particularly when the criminal proceedings have not made any headway even after the expiry of more than three years.” The finding given above is perfectly justified. The established position in law regarding stay of departmental enquiry pending the disposal of the criminal proceedings is that the matter has to be examined in the context of the facts and circumstances of each case. No hard and fast rule can be laid down in that regard. Further, departmental proceedings can be stayed only in cases where complicated questions of law and facts are involved. Delay caused in the process of criminal proceedings may be one of the factors for staying the departmental proceedings. In the present case, facts involved are not very complicated. As is evident from the documents on record, the primary allegation against the appellant is that he had stolen an amount of Rs. 1,35,00,000/- from the Bank. As per contents of the FIR money was recovered from his house. Furthermore, as has been noticed by this Court in the earlier part of this judgment, by cross-examining witnesses LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -8- of the department in the enquiry and witnesses of the prosecution during criminal trial, what ever defence was available to the appellant, has already been disclosed. As such at this stage, he cannot say that if he is asked to disclose his defence in departmental proceedings, his case before the criminal Court will be prejudiced. It is also established on record that the grounds, which the petitioner has taken in his writ petition, for stay of departmental proceedings, did not find favour with the Hon'ble Supreme Court when his SLP was dismissed vide order dated January 21, 2008. In support of his prayer for stay of the proceedings, heavy reliance has been placed by counsel for the appellant on the judgment of the Hon'ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. & another, 1999(2) Services Law Reporter 338. That decision does not, however, lend any support to the appellant. The following question of law came up for consideration before the Hon'ble Supreme Court, in that case: “Whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously?” Their lordships of the Supreme Court, after noticing various judgments on the subject, arrived at the following conclusions: “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 LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -9- 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.” The above clearly indicates that stay of departmental proceedings in the face of criminal prosecution is not an absolute rule. Various parameters have been laid down for staying the departmental LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -10- proceedings in a given situation. As noticed earlier, the present case does not fall within the parameters laid down by their lordships of the Supreme Court. The learned Single Judge has rightly observed that the departmental proceedings cannot be put on hold given the slow pace of the criminal trial. Criminal proceedings and departmental proceedings are altogether separate from each other. Their object and nature of evidence to be led, in both the cases, is different. Criminal proceedings are launched for an offence committed under a statute whereas departmental proceedings are initiated to maintain discipline and efficiency in service. The learned Single Judge has rightly noticed the distinction and held that any provision existing to the contrary in memoradum of settlement between the employees and the Bank can be of no help to the appellant. Their lordships of the Supreme Court in State of Rajasthan v. B.K.Meena and others, AIR 1997 Supreme Court 13, were also confronted with a similar controversy. After noticing the entire case law on the subject, in paras No. 14 and 17 of the judgment, it was observed as under: “14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -11- as constituting a valid ground for staying the disciplinary proceedings is “that the defence of the employee in the criminal case may not be prejudiced.” This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is not also an invariable rule. It is only a factor will will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry - cannot be and should not be - delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly over reach a prompt conclusion. That is the reality in spite of repeated advise and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good Government LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -12- demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undersirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.” xx xx xx LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -13- 17. There is yet another reason. 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 offences 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 cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.” Ratio of the judgment in B.K. Meena's case (Supra) was approved by a three Judges Bench of the Hon'ble Supreme Court in Depot Manager, A.P.State Road Transport Corporation v. Mohd. Yousuf Miya and others, 1997 Supreme Court Cases (L&S) 548. The learned Single Judge has also placed reliance upon ratio of the judgment in Mohammad Yousuf Miya's case (Supra) to reject prayer made by the appellant. Counsel for the appellant relied upon ratio of a judgment of this Court in B.K.Aggarwal v. State Bank of India and others, 2000 (1) LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -14- Punjab Law Reporter 267. The learned Single Bench has rightly held that benefit of the ratio of the said judgment cannot be extended to the appellant because the same did not find favour with the Division Bench of this Court in Birbal v. Haryana State Electricity Board , Panchkula and others , 2003(1) Recent Services Judgments 436, wherein it was observed as under: “11. The criminal charge relates to a particular incident while departmental proceedings are of general nature. The facts and evidence in both the cases is not so intermingled that it would cause any prejudice to the petitioner. Furthermore, in the interest of the petitioner the departmental proceedings should conclude as expeditiously as possible. The rules framed by the Board also imposes an obligation upon them to conclude the proceedings and in any case, we are of the considered view that continuation of departmental proceedings, would be no way prejudicial to the interest of the petitioner.” In our opinion the controversy in this case is squarely covered by the ratio of the judgment in B.K.Meena's case (supra). It has come on record that the appellant had participated in the departmental proceedings by producing witnesses and placing on record documentary evidence. The enquiry is complete. To the findings given by the Enquiry Officer, he has also filed his detailed objection. As per documents on record, he has also cross-examined witnesses of the prosecution in the criminal trial. Facts of this case are also not very complicated. As such we feel that the findings given by the learned Single Judge are perfectly justified. In the result, this appeal fails and is hereby dismissed. Record of the departmental LETTERS PATENT APPEAL NO. 87 OF 2007 (O&M) -15- proceedings (two files) be returned to counsel for the respondent -Bank. ( Jasbir Singh ) Judge ( T. S. Thakur ) March 20th , 2009. Chief Justice DKC