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2011 Supreme(Mad) 3977
High Court of Judicature at Madras
T. RAJA
R.N. Prasad
Versus
Indian Overseas Bank, rep. By its Chairman and Managing Director & Others
Writ Petition No.39807 of 2002
Decided on : 19-09-2011
For the Petitioner:C.R. Chandrasekar, Advocate.
For the Respondents:N.G.R. Prasad, Advocate.
Ratios
a. Before the trial of a criminal case commenced, the employee facing departmental proceeding on the same fact could not seek for stay of such departmental proceeding by showing the pendency of criminal case.
b. Deposing as a witness in a criminal case to speak about the sanction for prosecution granted by the officer who granted sanction for prosecution would not be a bar for such officer to conduct departmental enquiry.
Headnote:(A)Constitution of India-Art.14, 226-Service-Disciplinary proceeding-Criminal case-Trial-Bar-Disciplinary authority-Sanction-Evidence-Propriety-Petitioner was accused of issuing antedated drafts to the customers of the bank and FIR was registered against him by CBI in the year 1994, final report was filed in the year 2000 which was taken cognizance in the year 2005-In the year 2002, when the bank issued a notice to the petitioner asking him to appear before the enquiry officer to proceed with enquiry, he challenged it by filing writ petition-Petitioner contended that when the criminal case was pending, continuation of the departmental proceeding was bad and enquiry officer had granted sanction for prosecution and he had deposed in the criminal prosecution and thus enquiry by him was bad-Respondent resisted it by contending that mere appearance as a witness to speak about sanction given by him would not vitiate the enquiry by him and the trial had not commenced when the enquiry was scheduled and thus the petitioner would not be prejudiced by participating in the departmental enquiry-Held, deposing as a witness in a criminal case to speak about the sanction for prosecution granted by him would not be a bar for conducting departmental enquiry by such officer-When the trial had not commenced, on the same set of facts, departmental enquiry could be proceeded-Writ Petition was dismissed.
(B)Constitution of India-Art.14, 226-Service-Disciplinary proceeding-Criminal case-Trial-Bar-Before the trial of a criminal case commenced, the employee facing departmental proceeding on the same fact could not seek for stay of such departmental proceeding by showing the pendency of criminal case.
As to the allied issue viz., in the given case, whether there is any bar in proceeding with the departmental proceedings during pendency of the criminal proceedings which not yet reached the trial stage despite the court taking cognizance during the year 2005 itself, it is worthwhile to refer to the decision of the Apex Court in 2008 (1) SCC 650 (Indian Overseas Bank v. P.Ganesan), wherein, it is categorically held that a departmental proceeding pending criminal proceedings does not warrant an automatic stay. Para 7a
(C)Constitution of India-Art.14, 226-Service-Disciplinary proceeding-Criminal case-Trial-Bar-Disciplinary authority-Sanction-Evidence-Propriety-Deposing as a witness in a criminal case to speak about the sanction for prosecution granted by the officer who granted sanction for prosecution would not be a bar for such officer to conduct departmental enquiry.
The authority had appeared before the court to honour the legal obligation saddled on him as failure to appear for court proceedings may amount to contempt of court. He would be tendering evidence as any other witness concerned with the particular case totally independent of the departmental proceedings. Had the disciplinary authority concerned in any manner given a statement or tendered evidence in the course of the departmental enquiry, the petitioner is right and justified in making a claim against the officer concerned. But participation of an authority in a court proceeding in fulfilling a legal obligation can never be said to be adverse to the interests of the domestic enquiry launched at the hands of the Officer. Para 8
1. The petitioner herein, a Special Cadre Assistant in the respondent/Indian Overseas Bank of its Bokara Steel City Branch, challenges the charge memo/show case notice, dated 17.07.2000, issued by the Bank requiring the petitioner to show cause in writing as to why disciplinary action should not be taken against him on the allegation of criminal conspiracy and fraudulent act by the petitioner against the Bank in issuing antedated pay orders from the accounts of the private persons and enabling them to obtain delivery of coal from Bharat Coking Coal Limited (BCCL), Dhanbad, on priority basis; and also the subsequent Communication of the Bank, dated 10.10.2002 (received by the petitioner on 17.10.2002), calling upon the petitioner to attend the departmental enquiry proceedings by informing him that there is no bar for the Bank to continue the departmental enquiry against the petitioner as the criminal case launched against him and other co-delinquents before the CBI Court at Dhanbad has not yet reached the trial stage.
2. For better appreciation, it would be of much relevance to refer to the factual backdrop in which the impugned proceedings emanated from the respondent-Bank as against the petitioner/delinquent employee and other co-delinquents.
On 27.07.1994, the Central Bureau of Investigation (CBI) registered an FIR on the basis of a complaint lodged by the respondent/Bank to the effect that, during the year 1991-92, the petitioner and co-delinquents/other employees of the Bank at Dhanbad Branch, entered into a criminal conspiracy and, in furtherance of the same, by abusing their respective official positions, they issued 49 Nos. of ante-dated Pay Orders/Bankers Cheque worth Rs.2,06,44,853/- in favour of BCCL on the application of private parties in order to facilitate advance booking of coal at Sales and Marketing Division of Dhanbad; thereby, the delinquent employees had allowed persons known to them to obtain pay orders previous to the date of application and remittance of cash and enabled them to dishonestly utilise the pay orders for purchase of coal from BCCL after expiry of dates of offer. The CBI conducted investigation and ultimately filed a charge sheet on 31.05.2000 to the effect that ante-dated pay orders were fraudulently and dishonestly issued in fictitious names and addresses by the delinquent employees of the Bank to unduly favour some private individuals with a specific conclusion that, had the pay orders not been ante dated, the coal could not have been released to the accused persons in the name of private parties, thereby offences u/s.120-B, 420, 467, 468, 471 & 477A of IPC and Section 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 are attracted. Since the accused persons including the petitioner were not put on trial for a long time, the respondent/Bank thought it fit to proceed against them by initiating departmental proceedings. Consequently, the petitioner herein was issued with the impugned show cause notice/charge sheet in DO:DGM(JKG):2000, dated 17.07.2000, stating that he had caused damage to the property of the Bank and its customers and thereby committed gross misconduct within the meaning of para 17.5 (d) of the Bipartite Settlement, dated 14.12.1966, entered between the Bank and its workmen as amended upto date, and was called upon to show cause within 10 days from the date of receipt of the charge memo as to why disciplinary action should not be taken against him on the charges contained therein.
After receiving the charge memo, dated 17.07.2000, the petitioner sent a protest letter dated 22.06.2002, requesting the Enquiry Officer to stay the domestic enquiry proceedings as the criminal case that has been filed by the CBI is pending before the CBI Court, Dhanbad, on the same set of charges and further, the Court has taken cognizance and persons also started appearing before Court, therefore, in terms of what is provided under the Bipartite Settlement, it may not be
