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2013 Supreme(J&K) 618
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.M. Kumar,Hasnain Massodi, JJ.
Jatinder Pal Chandel -Appellant
Versus
State Of J&K & Ors. -Resopndent
LPAOW No. 43-2013, CMA No. 54-2013
Decided On : 11-11-2013
Jatinder Choudhary, Anil Mahajan.
The main legal point established in the judgment is that disciplinary proceedings and criminal proceedings can proceed simultaneously, with the decision to stay the departmental proceedings depending on the nature of the criminal charge and the case launched against the employee.
Headnote:
disciplinary proceedings - simultaneous continuation of criminal and departmental proceedings - 12 of the Letters Patent - Kusheshwar Dubey v. Bharat Coking Coal Ltd. & others, (1988) 4 SCC 319, Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, (2005) 10 SCC 471, Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385 - Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar. If the charge in the criminal case against the employee is of a grave nature involving complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. The nature of the charge in a criminal case and the nature of the case launched against the employee will determine whether the departmental proceedings should be stayed. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings can be resumed and proceeded with.
Fact of the Case:
The appellant was working on the promoted post of Middle Management Grade/Scale-II. After promotion, he was transferred to Central Zone-I and had to report to General Manager, Field Manager, Lucknow on or before 25.07.2011. He was served with a communication dated 03.03.2012 charging him with various acts of omission and commission during his tenure as Branch Manager, Udhampur. Simultaneously, an FIR No. 152 of 2012 was lodged based on a written complaint alleging misappropriation of funds.
Finding of the Court:
The court held that disciplinary proceedings and criminal proceedings can proceed simultaneously, and there is no bar to their simultaneous continuation. The nature of the charge in a criminal case and the nature of the case launched against the employee will determine whether the departmental proceedings should be stayed. In this case, the court found that the criminal case was not of a grave nature involving complicated questions of law and fact, and the departmental proceedings had been unduly delayed due to the appellant's actions.
Issues: The issues involved whether disciplinary proceedings by an employer could continue simultaneously during the currency of criminal proceedings and whether the nature of the criminal charge warranted staying the departmental proceedings.
Ratio Decidendi: The court's decision was based on the principle that departmental proceedings and criminal proceedings can proceed simultaneously, with the decision to stay the departmental proceedings depending on the nature of the criminal charge and the case launched against the employee. The court also emphasized that if the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings can be resumed and proceeded with.
Final Decision: The appeal was dismissed as the court found that the criminal case was not of a grave nature involving complicated questions of law and fact, and the departmental proceedings had been unduly delayed due to the appellant's actions.
"22. (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 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, the administration may get rid of him at the earliest."
The aforesaid view has been followed and applied in subsequent judgments rendered in the cases of Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, (2005) 10 SCC 471 and Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385.
2. Facts of the case in hand fall in a narrow compass. The appellant was working on the promoted post of Middle Management Grade/Scale-II. After promotion he was transferred to Central Zone-I and had to report to General Manager, Field Manager, Lucknow on or before 25.07.2011.
3. He was served with a communication dated 03.03.2012 charging him with various acts of omission and commission during his tenure as Branch Manager, Udhampur. He was placed under suspension with immediate effect pending disciplinary action. However, he was allowed to draw subsistence allowance as per the rules of the respondent-bank. Simultaneously an FIR No. 152 of 2012 was lodged on the basis of a written complaint filed by one Sandeep Singh, Branch Manager, Union Bank of India, Udhampur under Section 409, 420, 467, 468 & 471 RPC. According to the allegations in the FIR an amount of Rs. 15.00 lacs was withdrawn on 03.08.2011 and the same was not deposited with the Bank. As per the statement of account, cash was paid to Mr. Ankush, who was working as clerk/cashier. He had resigned. These instances are set out below in extenso:-
"(i) That an amount of Rs. 15 lacs was withdrawn on 03-08-2011 from bank Union of India Account no. 31128997725 with SBI vide cheque no. 917359 but amount was not deposited with the branch, as per statement of account cash was paid to Mr. Ankush (clerk/cashier) since resigned. T
