Nature and character of proof in domestic enquiry.

This is an application under section 561-A of the Code of Criminal Procedure, in which the petitioner, an employee of the Travancore-Cochin Chemicals, Ltd., Eloor, prays that the Departmental enquiry pending against him be suspended pending disposal of C.C. No. 884 of 1972 on the file of the Sub-Magistrate’s Court, Parur, on identical facts.

2. The facts of the case are: On 30th April, 1972 at about 8.15 a.m. the petitioner was intercepted by the gateman when he was going on his scooter when it was found that he had committed theft of mercury. Disciplinary proceedings were taken against him by the 2nd respondent. The accused was also charge-sheeted under section 379, Indian Penal Code on a complaint made to the police. On 30th April, 1972 the petitioner was suspended pending enquiry.

3. The 2nd respondent issued a notice to the petitioner to which the latter replied on 4th May, 1972 asking for time upto 17th May, 1972, or account of alleged ill-health. Accordingly, the enquiry was adjourned to 18th May, 1972. The enquiry was adjourned from, time to time, all at the request of the petitioner and ultimately on 13th July, 1972 the petitioner presented before the enquiry officer, the 2nd respondent here, and one witness was examined from the side of management. The enquiry was adjourned to 17th July, 1972 on which date the first witness was re-examimd and the 2nd witness was also examined. Thereafter, the enquiry stood posted to 20th July, 1972. Again, the petitioner adopted delaying tactics and the case ultimately was posted to 7th August, 1972. On that day, six witnesses were examined on the side of management. At the petitioner’s request the enquiry was adjourned to 28th August, 1972. Thereafter. he made this application to this Court and obtained stay of further proceedings before the 2nd respondent.

4. The questions for consideration are: (1) whether the pendency of a criminal case on identical facts constitutes a bar for proceeding with the domestic enquiry; and (2) whether this is a fit case for the exercise of jurisdiction by this Court under section 561-A. Criminal Procedure Code.

5. The learned Counsel for the 2nd respondent submitted that both the questions have to be answered against the petitioner. According to him, this is not a fit case for interference under section 561-A, Criminal Procedure Code. The powers of the Court under the said section should not be invoked against orders and proceedings strictly administrative in character. The 2nd respondent in dealing with the domestic enquiry is not acting as a criminal Court. It is also submitted that the nature and scope of the domestic enquiry and the case before the criminal Court are entirely different.

6. The learned Counsel for the 2nd respondent brought to my notice the following decisions of the Supreme Court bearing on this question in Delhi Cloth and General Mills Ltd. v. Kushal Bhan1, their Lordrhips of the Supreme Court had to consider a more or less identical case. The Supreme Court observed:

“It is true that very often employers stay enquiries pending decisions of the criminal trial Courts and that is fair. But it could not be said that principles of natural justice require that an employer must wait for the decision at least of the trial Court before taking action against an employee. If the case is of a grave nature or involves questions of facts or law, which are not sure, it would be advisable for the employer to await the decision of the trial Court so that the defence of the employee in the criminal Court may not be prejudiced.

When the concerned workman was charged with the misconduct of theft, his refusal to participate in the domestic enquiry on the ground that criminal proceedings were pending against him in respect of the same subject-matter, could not be held justified. When the employer found such workman guilty of the misconduct alleged against him on the basis of the evidence recorded at such ex parte enquiry, his application for approval