When this second appeal brought from the judgment and decree of learned 6th Additional District Judge, Ernakulam in A.s. No.48 of 2009 came up for admission, respondent who had filed a caveat entered appearance through counsel. The first appeal arose from judgment and decree passed by learned Additional Sub Judge, Ernakulam in O.S. No.369 of 2007. The issue involved is whether departmental enquiry initiated by respondent No.1 against the appellant should be injected till trial of the criminal case against the appellant should be injected till trial of the Criminal case against him involving one of the incidents referred to in the memo of charges is over. Though learned counsel for respondents submitted that no question of laws and much less any substantial questions of law is involved in the second appeal, after hearing both sides, the appeal is admitted on the following substantial questions of law:

1. When the Supreme Court of India has declared law and laid down the precedent in Capt.M. Paul Anthony’s case (1999 (3) SCC 679) that when criminal case is pending on similar facts and issues constituting the cause of action, it is desirable to stay the departmental proceedings till culmination of trial in the criminal case, has not the first appellate court erred in distinguishing the dictum laid down in Captain Paul Antony’s case which has the effect of nullifying the dictum laid down by in Supreme Court?

2. Is the first appellate court justified in reversing the decree passed by the trial court on the ground that the trial in criminal case is delayed inspite of specific direction from this court of dispose the criminal case with in the time frame fixed, especially when criminal trial is at the fag end and many of the prosecution witnesses are already examined?

2. Short facts are necessary for a decision of the above substantial question of law are:

Appellant/plaintiff was working as Assistant Manager with respondent No.1, Federal Bank at its Marine Drive Branch till 16.01.2007. That day, he was sent on deputation to the Regional Office of respondent No.1. Case is that on 21.01.2007 when officials of respondent No.1 checked the ATM counter cash chest under the Marine Drive Branch (where appellant had been the Assistant Manager till 16.01.2007) there was found to be a shortage of Rs.1,13,500/-. The then Manager of Marine Drive Branch lost no time in preferring a complaint to the Central Police who registered case as crime No.119 of 2007 and started investigation. Appellant was arrested on 21.01.2007 and questioned by the police. On the information allegedly given by the appellant 227 currency notes, all of 500 rupee denomination (total value is Rs.1,13,500/-) were recovered from his house by the Investigating Officer on 21.01.2007. Investigation revealed, according to the respondent No.1 that on 19.01.2007 at about 12.05 pm appellant unauthorisedly entered the ATM counter, opened the cash chest and dishonestly removed the said amount. Appellant was place under suspension on 22.02.2007. Respondent No.1 issued ext.A4, memo of charges to the appellant raising various allegations and misconduct on his part including the alleged theft of Rs.1,13,500/-from the cash chest of the ATM counter. Appellant replied by Ext.A5. Since that reply was not satisfactory, respondent No.1 initiated disciplinary action and a domestic enquiry was ordered. Respondent No.2 was appointed as Enquiry Officer. Appellant approached the second Additional Sub Court, Ernakulam with the suit, O.S. No.369 of 2007 stating that conduct of domestic enquiry before completion of trial of the criminal case is unjust, would prejudice him and that he will be constrained to disclose all his defences in the criminal case which would affect him prejudicially in the domestic enquiry and praying that conduct of domestic enquiry be injuncted until completion of trial of the criminal case. Learned 2nd Additional Sub Judge granted an order of temporary injunction restr