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Judgment
K.A. Swami, Ag.C.J.
At the stage of admission, the respondents have been notified. Accordingly they have put in appearance. As the Appeal lies in a very narrow compass, it is admitted and heard for final disposal.
This Appeal is preferred against the order dated 15th November 1991 passed by the learned single Judge in Writ Petition No. 22356 of 1991. In the Writ Petition, the petitioner-appellant has sought for a Writ in the nature of Prohibition prohibiting the respondents from proceeding further with the departmental inquiry initiated against him and further to issue a Writ in the nature of Certiorari or any other appropriate Writ, order or directions quashing the disciplinary proceedings initiated against him. The learned single Judge, after referring to a Decision of the Supreme Court in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, is of the view that in the instant case, the petitioner- appellant has not brought to the notice of the Court any particular circumstance to indicate as to how the petitioner would be prejudiced if the disciplinary proceedings were to go on simultaneously. Accordingly, the learned single Judge has declined to grant the relief and rejected the Writ Petition. Hence, the petitioner-appellant has come up with this Appeal.
The contention of the appellant is that on the same set of facts, there are three proceedings initiated simultaneously against him viz., a disciplinary proceeding, a criminal proceeding and a civil suit. Further, it is contended that a charge memo was served upon the petitioner-appellant on 2.5.1987 and on 27.2.1988 an additional charge-memo was served upon him; that on a complaint, the police have investigated the matter and filed ''B" Summary report on 8.5.1987 and thereafter, the 1st respondent has filed an application u/s 173 Cr.P.C. on 27.2.1989; and that on 26.2.1989, a suit was filed for recovery of a sum of Rs. 4,11,103-37p on the same charges. The averments made in the application filed u/s 173 Cr.P.C. produced as Annexure ''A'' in the Writ Petition, are identical with the averments made in the suit. A copy of the plaint is also produced as Annexure ''B''.
3.1. As already pointed out, the suit is for recovery of a sum of Rs. 4,11,103-37p. The averments made in paras 6,7,8,10 and 11 of the plaint are similar to the averments made in the application filed u/s 173 Cr.P.C. Similarly, the charges framed against the appellant in the disciplinary proceeding are also based on the same set of facts. Therefore, in order to illustrate the nature of the charges or the nature of the criminal case or the nature of the civil suit, it would be sufficient for us if we refer to the averments contained in the Application filed u/s 173 Cr.P.C., which are as follows:
"3(a) During the audit of accounts at Agro Kendra, Afzalpur, for the period from 1.4.1984 to 2.4.1986, it was noticed that he had fictitiously raised following credit bills in the name of the Assistant Director of Arl., Afzalpur and fraudulently charged off stocks in the stock ledger worth of Rs. 10,355-00:
1984-85
Rs.p
297854/22.6.84
900-00
297875/8.8.84
9455-00
Rs. 10355-00
1985-86
a) 35383/20.10.85
8278-00
b) 35391/8.1.86
20250-00
c) 35392/10.1.86
7950-00
Rs. 36478-00
He has neither forwarded the records to the controlling office District, Sales Office, Gulbarga, for accounting purpose nor informed the recovery position. He had intentionally misused the stock worth of Rs. 36,478/- and misappropriated the said amount for which the accused is held responsible.
He had also issued inputs stock worth of Rs. 2600/- as per the credit bill 35389/14.10.85 raised by him in the name of Divisional Forest Office, Gulbarga. But he has not furnished the details of amount collected from the Department and remitted to Corporation account. He had kept the District Sale Office, Gulbarga, in dark and misused the stock and misappropriated the amount.
b) He had fictitiously charged of following stock in the stock ledgers and without any issues of stock to the extent of Rs. 38600-00 and misappropriated the same.
1) 10 Mts. of Fact 20:20:20 under Bill No. 14575.. Rs. 23400/-
2) 200 Ltrs. of Hildan under Bill No. 14578/30.1.85.. Rs. 15200/-.
c) During 84-85 he had conducted sales of plant protection chemicals under subsidy scheme and claimed bills for subsidy portion for Rs. 84,668/- as against this a sum of Rs. 80,151/- was received payment from the Department, and hence he has misappropriated the balance amount of Rs. 4517/- as detailed in the Annexure ''A'' & ''B'' enclosed.
d) During the audit for the period ended 31.3.1986, revealed that the accused has fraudulently arrived wrong balances depicting less in stock resulting in shortage in stock to the extent of Rs. 35,173-50 as detailed in the Annexure-C. He has misappropriated the stock and misused the value for which he is responsible.
e) The accused has dishonestly deducted cash bills Nos. 263978/13.8.84 and 15101/24.12.85 in twice of folio No.65 and 24 of 1984-85 and 49/66/1 resulting in excess deduction of 50 Kg Fact Urea valued at Rs. 106/- and 1 litre Nuvacron valued Rs. 180/- respectively.
The accused has misappropriated the same amount of Rs. 286/-. Further he has issued one tonne 15 all stock valued at Rs. 2154-60 under cash bill No. 35393/15.3.86 but invigilently and negligently posted to 1 ton of D.A.P. at folio No. 43, thereby he is responsible for difference of amount of Rs. 1095-40 being deducted at higher value of stock. He has misappropriated the said amount.
f) That the accused has not remitted the sales proceed realised to the corporation-account correctly and regularly. During the audit, it reveals he had dishonestly remitted short amount of sales proceeds to the extent of Rs. 2369-33 as detailed in annexure D.D.1 which he has misappropriated the amount.
g) The accused has collected Rs. 288/- towards cost of 4 litres. Regar sold under C.B.No. 297106/dated 14.9.1984 but he had deliberately not remitted to corporation account and misappropriated the same. In the bill No. 17114/9.11.85 against sale of 1 Itr. Nuvacron, he had collected Rs. 180/- but accounted to tally sheet No. 134/12.11.85 for Rs. 80/- only leaving Rs. 100/-unaccounted and misappropriated the same. Under cash bill No. 15274 to 15287/26.12.1985 he has sold 1 ltr. Nuvacron valued Rs. 190/- a sum of Rs. 50/- is the subsidy amount and rest of Rs. 140 be the farmer''s contribution which was being collected by the accused at the time of selling the stock. But he had deliberately accounted for Rs. 130 only instead of Rs. 140 in the tally sheet No. 173/dt.7.1.86. Thereby the accused has fraudulently accounted for less amount of Rs. 10/- in each bill, as a result remitted short amount of Rs. 140/-. He has misutilised the same.
h) During 1985-86 he has conducted sales of PP chemicals under subsidy scheme and out of which subsidy portion amount of Rs. 27,532-70 was yet to be received from the Department. In the IInd spell of sales in the month of December 1985, and January 1986 the accused has raised cash bills in favour of 740 beneficiaries fictitiously. On the pretext of subsidy sales under 50% and 75% valued Rs. 89,036-75 and when questioned by the auditors in the audit, he has neither produced the indent nor shown any acknowledgment obtained from the parties. As against the amount of Rs. 89,036.75 a sum of Rs. 37,527-50 was subsidy amount receivable from the Government, and the balance amount of Rs. 51509-25 towards farmer''s contribution was received by the employee at the time of conducting sales. The accused had dishonestly and fraudulently not remitted the farmer''s contribution amount of Rs. 51,509-25 to the Corporation account at the time of collecting the amount and misused the same. While our departmental auditors verified in detail, it revealed that in the above transaction for the amount receivable from the Government, towards subsidy portion, which amounts to Rs. 65,060-20 (27532-70 + 37527-50) and as against this, the accused has given a fictitious hand receipt for Rs. 66541/- to the Assistant Director of Agriculture, Afzalpur, on the letter head of KAIC Limited with malintention and the amount collected by him was not remitted to corporation account. When questioned, he admitted the misappropriation and assured the authorities that he would make good the amount of misappropriation by the end of 1.3.1987. The undertaking given by the accused himself in his own hand-writing on 7.2.1987 vide enclosed. He had misused the stock by colluding with departmental staff, and manipulated records with ulterior motive/bad intention. He has duped the corporation by conducting irregular and unauthorised sales and misappropriated the amount thus realised which amounts to Rs. 1,16,569-45 (i.e., Rs. 27532-70(S.A.) + Rs. 37527-50(SA) + Rs. 51509-25 (F.C.) in the said transaction.
i) He had deliberately written false accounts of transfer of 12 mtd. of 17 all complex under delivery note No. 16500/25.2.86 (F.85-86-SL-89) as against actual quantity raised in the valid delivery note was 2 mtr. only. Thus he had manipulated the records showing transfer of 10 mts. in excess and reduced the stock in the ledger fraudulently. On enquiry it reveals that he had issued 10 mts. of 17 all complex thus deducted excess to M/s Gurudatta Krishi Bhandar, Afzalpur, unauthorisedly without collecting payment vide acknowledgment given by the party is enclosed. He had indulged in unauthorised dealings. He has misappropriated falsifying the accounts. The value of the said 10 mts. of 17 all complex is Rs. 26,000/-.
D Under supply slip No. 11258/16.12.85 supplied 12 Nos. of 50 Kg capacity gunny bags, valued Rs. 36/- but he had deliberately omitted to account for the same in the ledger. When enquired by the auditors, he had failed to produce the records and misappropriated the same.
k) Further, ten (10) Mts. of sumangala urea 46% stock received under Umada No. 838/dated 5.7.86 (supply slip No. 3676/13.9.86) has not been accounted in ledger. On enquiry with the employee, it revealed that he had issued stock to M/S Gurudattakrishi Bhandara, Afzalpur, unauthorisedly without collecting payments (vide acknowledgment received from party is enclosed). Thus he had indulged in unauthorised sale and misused the stock of 10 Mts. Urea valued Rs. 20600/- and misappropriated the amount.
1) The accused has deliberately failed to take into accounts of closing balance of the following stocks as opening balance to the next financial year:
S.No.
Product
Qty. Held
Value Rs.
1.
Thiodan 1 Itr pack
35 Its on 31.3.85
2,800-00
2.
Moncil 5 Itr pack
5 ltr. On 31.3.1986.
800-00
3.
Dimethoote 30
11 Itr.
31.3.1986
71-35
4.
Fact 20:20:15
0-100 on
24.7.1986
254-00
(actual CB was 5.4 lets but he had wrongly shown as 5.3 Mts. resulting in shortage).
Mixture
17:17:17
50Kg on
14.7.1986
129-00
(actual CB was 50 Kg as on 14.7.86 but shown as nil resulting 50 Kg. shortage).
XXX
XXX
XXX
XXX
XXX
XXX
7) Thus the accused has misappropriated a total sum of Rs. 302062-03 paise by falsifying the accounts caused wrongful loss to the corporation."
Thus, it is a case in which three proceedings are initiated against the petitioner-appellant on the identical set of facts. It is in this background we have to see whether any prejudice would be caused to the appellant-petitioner if disciplinary proceeding is allowed to go on. If the disciplinary proceeding is allowed to go on, he will not be able to put forth his defence effectively because any defence he would be raising in the disciplinary proceeding would also affect the defence in the criminal case as well as in the civil suit. With the result, he will not be free to take a stand to resist the disciplinary proceeding; therefore, his defence would be adversely affected and thereby prejudice would be caused to him. Moreover, the law has been well settled by the Supreme Court in Kusheshwar Dubey''s case (supra). We have already pointed out that the learned single Judge has referred to this very Decision. It appears to us that the purport of the said Decision has not been correctly appreciated. That was a case in which a suit was filed by the appellant against whom a criminal proceeding as well as a disciplinary proceeding were initiated. In the Civil suit, he sought for a permanent injunction restraining the employer from proceeding with the disciplinary proceeding simultaneously with the criminal case. The trial Court stayed the proceedings pending disposal of of the criminal case. The appellant Court affirmed the order of Munsiff but in the Revision, the High Court interfered with the order and set aside the order of the trial Court as well as that of the appellate Court and permitted the disciplinary proceeding to proceed pending disposal of the criminal case. After referring to the two earlier Decisions of the Supreme Court in DELHI CLOTH & GENERAL MILLS LTD. v. KUSHAL BHAN AIr 960 SC 806 and TATA OIL MILLS CO. LTD. v. THE WORKMEN AIR 1965 SC 1555. Their Lordships stated the law thus;
"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.
In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts. We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial Court''s order of injunction which had been affirmed in appeal."
From the aforesaid statement of law made by the Supreme Court, it is clear that mere fact that a criminal case is initiated against an official against whom a disciplinary proceeding is initiated, does not lead to a decision that disciplinary proceeding should be stayed, as there is no legal bar for simultaneous proceedings being taken up. Yet it has been held that in a case where the simultaneous proceedings are based on the same set of facts or in other words, are grounded on the same set of facts, it is necessary to stay the disciplinary proceeding. It is on this ground, the order passed by the High Court has been set aside and the one passed by the trial Court has been affirmed. Therefore, the ratio of the Decision is that in a case where the criminal proceeding and a disciplinary proceeding are grounded on the same set of facts, the disciplinary proceeding should normally be stayed.
No doubt, learned Counsel appearing for the respondents, placed reliance on the several Decisions of this Court to which we will hereinafter advert to. The first one is, SRI RAM v. SUPERINTENDENT OF POLICE, KOLAR AND ANR. 1967(1) Mys.LJ. 12, in which it is held that what constitutes an impediment to a disciplinary proceeding is an acquittal in a prosecution in respect of the same charge and that if there be no such acquittal and even if a criminal prosecution has commenced and is continuing, a disciplinary proceeding in respect of an accusation which forms the subject matter of the charge in the criminal Court, is not forbidden and can be commenced and concluded so long as the prosecution has not ended in an acquittal. Thus, it is clear that in that case the question as to whether in a given case, if the disciplinary proceeding and criminal case are grounded on the same set of facts, both should be permitted to go on is no* considered. What is held is that an order of acquittal would bar the disciplinary proceeding, and not a mere pendency of the criminal case. A reading of the Judgment also makes it clear that it was not at all the case of the petitioner therein against whom a disciplinary proceeding was initiated that the criminal case and the disciplinary proceeding were grounded upon the same set of facts; therefore, it is not possible to hold that the said Decision governs the case on hand.
In Kalyani Vs. Superintending Engineer, this Decision is earlier to the Decision in Kusheshwar Dubey''s case (supra)], the proposition laid, down therein, does not square with the proposition laid down in Kusheshwar Dubey''s case; therefore, we do not consider it necessary to refer to the case in Kalyani v. Superintending Engineer, in a greater detail.
Learned Counsel for the respondents placed reliance on a Division Bench Decision of the High Court of Judicature, Madras, in G. Chandrasekharan Vs. The Chairman, Madras Port Trust and another, In that case, the Decision in Kusheshwar Dubey''s case was distinguished on the ground that the criminal case and the disciplinary proceeding were not grounded on the same set of facts. In para-6 of the Decision, it has been stated thus:
"6. In this case, it is not disputed, as indeed it cannot be, that the gravamen of the charges in the disciplinary proceedings pertain to violations of the Conduct Rules which are not the charges in so far as the criminal case is concerned. The violations include the acquisition of immovable property by an employee of the Madras Port Trust either in his own name or in the names of his family members without the prior permission of the competent authority or without reporting the transaction to him. The violation of the Conduct Rules is, therefore an independent matter as compared to the charges in the criminal case which have been drawn up against the appellant. We are therefore, not satisfied that this is a fit case in which an injunction should be issued in favour of the appellant to stay the departmental proceedings....."
Therefore, it is clear that the aforesaid Decision also does not deal with the case in which the criminal proceedings and the disciplinary proceeding are grounded on the same set of facts. Hence this Decision is not of any assistance to the respondents.
However, it is very strenuously urged before us that the Decision in Kusheswar Dubey''s case has been considered by a Division Bench of this Court in K. RAGHUNATH BHAT v. CANARA BANK W.A.No. 1699 of 1989 DD 27-11-1989 and it has been held that in spite of the fact that the criminal proceeding is pending, the departmental proceedings can go on. We shall now see whether the Decision in K. Raghunath Bhat''s case covers the case on hand.
That was a case in which the learned Single Judge had recorded a finding that the 14 charges framed against the appellant-petitioner therein in the departmental proceedings were quite different from the charges framed in the criminal Court. They had no relation to the charges pending in the criminal Court. The relevant portion of the Judgment having a bearing on the question as to whether the said Judgment covers the case on hand may usefully be quoted:
"More than above this, the 14 charges for which the departmental proceedings have been initiated have no relation to the charges pending in the criminal court. As a matter of fact, the learned Judge himself has gone through the same carefully and found they are different......
This apart, on a careful perusal of the charges, we are in agreement with the learned Single Judge that the 14 charges are different for which the appellant has been hauled up before the criminal Court for a trial. If this is kept in mind, we are unable to see how Sridhara Kumar Vs. K. Ramachandrappa and Others, could ever be made applicable to the facts of the present case. Equally AIR 1964 SC 767 which dealt with the distinction between suspension pending criminal trial and suspension pending departmental enquiry has no application to the facts of the present case. Therefore, we hold that there are no merits in this appeal. It is hereby dismissed."
Therefore, It is clear that in the said case, the charges that were framed in the departmental proceedings and also the facts on which the appellant was hauled up before the criminal court for trial were not based on identical facts. In this case, it is not necessary to consider whether some of the facts overlap each other because it is not disputed in this case that the facts involved in the departmental proceedings as well as the criminal proceedings are one and the same.
In Raghunath Bhat''s case, as the charges involved in the criminal case and the Departmental Proceedings were quite different, it was not necessary to consider the second proposition laid down in Kusheshwar Dubey''s case. In the said Decision, two propositions are laid down:
The first proposition is that there can be no legal bar for simultaneous proceedings being taken. The second proposition is that there may be cases in which it would be just and appropriate to defer the disciplinary proceeding to await the decision of the criminal case, where both the proceedings are grounded on the same set of facts. In the said Decision it has been specifically laid down thus:
"In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts."
Therefore, it was held that the disciplinary proceedings should have been stayed.
It may also be relevant to notice that in that case, the High Court had specifically recorded a finding that there was no bar for an employer to proceed with the departmental proceeding with regard to the same allegation for which a criminal case was pending. This finding was not approved by the Supreme Court in the aforesaid Decision and the order of the High Court was set aside on the ground that if both the proceedings are grounded on the same set of facts, it would be necessary to stay the departmental proceedings until the criminal proceedings are completed.
Therefore, we are of the view that the Decision in K. Raghunath Bhat''s case does not cover the case on hand.
It is contended on behalf of the respondents that in the criminal case, trial has not yet commenced whereas in the disciplinary proceeding, evidence is being recorded. The appellant has also filed his defence in the said proceeding. Therefore, no prejudice would be caused to the appellant if the disciplinary proceeding is allowed to go on.
It is not possible to accept this submission because when two proceedings are initiated upon the same set of facts, both cannot be allowed to go on simultaneously. The fact that the trial in the criminal case has not yet commenced does not mean that there is no criminal case pending against the delinquent official because any defence taken or evidence adduced by the delinquent official in the disciplinary proceeding can very well be used in the criminal trial. Therefore, we are of the view that the fact that the trial in the criminal case has not yet commenced is no ground to refuse to stay the disciplinary proceeding.
It is next contended that the appellant has already put forward his defence in the disciplinary proceeding and evidence is being recorded in the said proceedings, therefore, there is no question of further prejudice being caused to the appellant if the disciplinary proceeding is allowed to go on we are of the view that when the disciplinary proceeding ought not to have proceeded with, the fact that it has been proceeded with would not make any difference or should not deter us from staying the disciplinary proceeding. Therefore, we are of the view that this is a case in which the disciplinary proceeding ought to have been stayed pending disposal of the criminal case.
We may also point out that at a certain stage, the learned Counsel for the respondents submitted that it would be open to them to withdraw the application filed u/s 173 Cr.P.C. and in that event, the criminal case would come to an end because ''B'' Report has already been filed by the concerned police. We do not consider it necessary to express any opinion on this submission. However, we make it clear that as and when the criminal case comes to end in accordance with law, it would be open to the respondents to proceed with the disciplinary proceeding.
For the reasons stated above, the Writ Appeal is allowed. The Order passed by the learned Single Judge in W.P.No. 22356/1991 dated 15.11.1991 is set aside. The respondents are directed not to proceed with the Disciplinary Proceeding against the appellant pending disposal of F.I.R.No. 503/87 (Crime No. 56/1987 of Afzalpur Police Station of Gulbarga District), on the file of the II Additional J.M.F.C. Gulbarga. We also consider it necessary to issue a direction to the II Additional J.M.F.C. Gulbarga to dispose of F.I.R.503/87 (Crime No. 56/1987 on the file of Afzalpur Police Station of Gulbarga District) as expeditiously as possible. We order accordingly.