IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7428 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- AHMEDABAD MUNICIPAL TRANSPORT SERVICE Versus BALDEVSINH AJITSINH ZALA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7428 of 2004 MR HS MUNSHAW for Petitioner No. 1 MR VM DHOTRE for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 23/08/2004 ORAL JUDGEMENT Rule. Learned advocate Shri V.M.Dhotre waives service of notice of rule on behalf of the respondent. At the request of the learned advocates appearing for the parties, the petition is heard for final disposal today. 2. In the present petition, the petitioner has challenged the order dated 2.4.04 passed by the Industrial Tribunal, Ahmedabad below Ex.2 in Complaint (IT) No.297/03. 3. The short facts leading to the present petition are that the respondent-workman while working as a Driver with the petitioner, Ahmedabad Municipal Transport Service, is alleged to have had an altercation with one Dahyabhai Haridas Patel who was working as a Conductor with the petitioner Corporation on 9.9.02. Said Shri Dahyabhai Patel, therefore, filed a criminal complaint against the respondent alleging offences punishable under section 325, 323 and 427 of the Indian Penal Code. It is also the case of the petitioner that due to the assault by the respondent on Dahyabhai Patel, said Shri Dahyabhai received physical injuries and had to be hospitalised. 4. While the said criminal complaint was being investigated by the Police and chargesheet was being filed before the criminal court, the petitioner Corporation issued a departmental chargesheet dated 8.11.02 against the respondent in which it is alleged that on 9.9.02, the respondent was assigned the duty of route No.130, bus No.614 in the first shift. Shri Dahyabhai Patel was assigned route No.130, bus No.523 also in the first shift. When said Shri Dahyabhai after completion of his duty and after depositing the fare collected by him in the cash cabin at Hatkeshwar Depot had taken out his bicycle from the stand and when he was preparing to leave to go home, the respondent had also completed his duties and had come to Hatkeshwar Depot with his bus and after parking his bus had come near him (Dahyabhai) and told him about certain report published in a newspaper and made certain remarks about the women of his community. Shri Dahyabhai had, therefore, told him not to make general comments against the community, upon which the respondent had started shouting and had got excited and assaulted him. He had given two to three slaps to Shri Dahyabhai. In the ensuing scuffle Shri Dahyabhai's shirt as well as pocket was torn off and a cash of Rs.1700/= was found missing. To separate them, some of the staff members had intervened. It is further alleged that on account of assault by the respondent, Shri Dahyabhai had received fracture in two fingers for which he had to take treatment in the LG Hospital. It is alleged that in the past also, the respondent had beaten up other staff members. It was, therefore, alleged that the respondent had committed misconduct by assaulting a co-employee and had used vulgar language, intimidated him and had also acted in arrogant manner. It was, therefore, alleged that he had committed misconduct as defined in clause 25(a), (b), (m) and (u) of the Standing Orders. 5. Upon receipt of the said chargesheet, the respondent workman filed Complaint (IT) No.297/03 before the Industrial Tribunal in pending reference Nos.137/01 and 140/03. In the said complaint, the respondent also filed application Ex.2 seeking interim injunction to the effect that till the final outcome in his compliant or till the outcome of the criminal case pending against him, the department should stay the proceedings of the departmental inquiry initiated pursuant to the said chargesheet dated 8.11.02. 6. By the order dated 2.4.04 passed below Ex.2 in Complaint (IT) No.297/03, the Industrial Tribunal, Ahmedabad was pleased to direct that the employer i.e. the petitioner would be entitled to continue with the Departmental Inquiry against the respondent workman, but till the outcome of the criminal proceedings and without taking into account the decision therein and without permission of the Court, the employer shall not be entitled to pass any order against the respondent workman. It is this order dated 2.4.04 which has been challenged by the petitioner in the present petition, as mentioned above. 7. The learned advocate Shri H.S.Munshaw appearing for the petitioner has submitted that the Industrial Tribunal has gravely erred in law in directing that the petitioner shall not pass any final orders in the departmental inquiry till the outcome of the criminal case is known. He has also submitted that the charge in the criminal case as well as in the departmental inquiry being simple in nature, it is not necessary or desirable to stay the departmental proceedings till the final outcome of the criminal case. He has submitted that the respondent had in the past also similarly assaulted other co-workers and that, therefore, it is not desirable to stay the departmental proceedings for unlimited period. He, however concedes that in view of the pending reference and in view of the provisions of section 33(2)(b) of the Industrial Disputes Act, if the petitioner decides to dismiss or discharge the respondent pursuant to the departmental proceedings, it would be necessary to seek approval from the concerned Industrial Tribunal. 8. On the other hand, learned advocate Shri V.M.Dhotre appearing for the respondent-workman has supported the impugned order dated 2.4.04. He submits that the safeguards provided by the Industrial Tribunal in the impugned order are just and call for no interference. It is the contention of the learned advocate Shri Dhotre that the criminal case as well as the departmental proceedings initiated against the respondent-workman are based on identical set of facts and that therefore, it is necessary in the interest of justice to stay the departmental proceedings till the final outcome in the criminal case. He submits that in view of pendency of reference (IT) Nos.137/01 and 140/03, the respondent cannot be dismissed from service without seeking permission of the Industrial Tribunal. 9. Learned advocate Shri Dhotre has also submitted that the allegations contained in the chargesheet even if taken on the face value do not constitute misconduct. It is his case that the term "misconduct" has been defined in standing order 25 in the Certified Standing Orders promulgated by the petitioner Corporation. He points out that in the chargesheet itself, it is alleged that by his conduct, the respondent has committed misconduct as defined in standing order 25 (a), (b), (m) and (u) of the Standing Orders. He submits that ex facie, the act alleged to have been committed by the workman cannot be covered under clause (a), (b) or (m) of Standing Order 25 of the Standing Orders. He further submits that on correct interpretation of clause (u) of Order 25, the only conclusion possible is that the allegations levelled against the respondent workmen would not amount to misconduct under the said clause also. 10. In view of the controversy and the rival contentions, following three questions arise for determination in the present petition: (i) Whether the Industrial Tribunal was justified in directing that though the departmental inquiry may proceed, the final order thereon should not be passed till the outcome in the criminal proceedings and without taking into account the orders passed therein. (ii) Whether the Industrial Tribunal was justified in directing that no final order in the departmental proceedings against the respondent be passed without the permission of the Tribunal. (iii) Whether the allegations levelled against the respondent in the chargesheet dated 8.11.02 even if taken on face value do not constitute misconduct as contended by the learned advocate for the respondent. 11. With respect to first question, it can be noted at the outset that there is no dispute about the fact that the charges levelled against the respondent-workman in the departmental chargesheet dated 8.11.02 are similar and based on the same set of facts as contained in the criminal case against him initiated vide complaint dated 9.9.02 filed by Shri Dahyabhai Patel. Though neither the criminal complaint filed on 9.9.02 by Shri Dahyabhai Patel nor the chargesheet issued in the said criminal case are produced on record of the present petition, there is no dispute raised by either parties that the background facts leading to the departmental chargesheet dated 8.11.02 and filing of the criminal case against the respondent are based on identical set of facts. The question, however, that is required to be considered in the present petition is whether in the facts of the present case, it is necessary or desirable to stay passing of the final order in the departmental proceedings against the respondent till the final outcome of the criminal case. 12. The law on the question of proceeding simultaneously against an employee departmentally when a criminal case based on same set of facts is pending in a criminal court is by now well settled. In the decision reported in AIR 1988 SC 2118 (Kusheshwar v. M/s.Bharat Coking Coal Ltd.), the Hon'ble Supreme Court observed that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In para 6 of the said decision, following observations have been made: "6. The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight-jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case, we do not think it necessary to say anything more, particularly when we do not intend to lay down any general guideline." 13. The issue has been considered by the Hon'ble Supreme Court many times thereafter also. In a decision reported in AIR 1997 SC 13 (State of Rajasthan v. B.K.Meena) the Hon'ble Supreme Court considered all earlier decisions on the point and observed that staying of disciplinary proceedings is a matter to be determined having regard to the facts and circumstances of a given case. The Hon'ble Supreme Court further observed that the approach and objective in the criminal proceedings and 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 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 should not be a matter of course. It will be useful to reproduce some of the observations made by the Hon'ble Supreme Court in the said decision: "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 no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions 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 which will go in 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 ever 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 demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is inquired 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 official 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 misdemeanor should be continued in office indefinitely, that is 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 decision taken keeping in view the various principles laid down in the decisions referred to above. 15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him. xxxxxxx xxxxxxx 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, 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." 14. A similar issue once again came up before the Hon'ble Supreme Court and it was decided in the decision reported in AIR 1997 SC 2232 (Depot Manager, A.P.S.R.T. Corpn. V. Mohd. Yousuf Miya). Relying on the case of B.K. Meena (supra), the Hon'ble Supreme Court observed that there would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Following observations of the Hon'ble Supreme Court in para 6 can be noted : ................ We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes 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. It is not, therefore, desirable to law down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. 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 in accordance with proof of the offence as per the evidence defined under the provisions of Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings 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 the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, the prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence is also different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. 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 circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings." 15. In yet another decision of the Hon'ble Supreme Court reported in AIR 1999 SC 1416 (M. Paul Anthony v. Bharat Gold Mines Ltd.), the above decisions came up for consideration and after examining the law on the point, the Hon'ble Supreme Court noted the conclusion which are deducible from various decisions on the point and observed as follows: "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 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 chargesheet. (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." 16. From the above decisions of the Hon'ble Supreme Court, it can be seen that departmental proceedings and criminal case can proceed simultaneously against an employee and that there is no bar for the same being conducted simultaneously. It would be desirable to stay the departmental proceedings till the conclusion of the criminal case if the charge in the criminal case against the delinquent employee is of grave nature involving complicated questions of law and fact. Even in such cases, the situation cannot be considered in isolation to stay the departmental proceedings and due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. 17. Applying the above principles to the facts of the present case, it can be seen that the charge against the respondent herein is that on 9.9.02 he had