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Judgment
Lokeshwar Singh Panta, J.—this writ petition under Article 226/227 of the Constitution of India, Bhim Sen Datta, petitioner has prayed for issuance of appropriate writ, order or direction restraining the respondent from holding disclipinary inquiry against him till the final conclusion of the criminal proceedings initated on the basis of same set of allegations.
We may briefly state the facts.
Petitioner was appointed as a Clerk-cum-Cashier in the Himachal Gramin Bank (hereinafter the Bank) and was posted at the relevant time at branch office Baijnath, District Kangra. In the year : 1992, the Branch Manager reported to the General Manager of the Bank that cash amount of Rs. 1,55,000 was missing from the Bank Cash-Safe. F.I.R. No.94 of 1992 dated July 10, 1992 (Annexure P-l) was registered. According to the petitioner, he : being Clerk-Cum-Cashier and was being suspected of in league with the Manager of the Bank, both of them were put under suspension. A charge sheet (Annexure P-2) was issued to him on March 3, 1993 making various allegations of misconduct which are mentioned in the charge-sheet. The Petitioner wrote a letter dated April 19, 1993 (Annexure P-3) requesting respondent No. l to allow him the inspection of the original record and also to supply him the copies of the documents to enable him to file reply to the charge-sheet. No reply was recieved by the petitioner. He sent reminders (Annexure P-4, P-5, and P-6) but the copies of the documents were not supplied to him nor inspection was allowed. The grievance of the petitioner is that the Inquiry Officer (Respondent No. 2) fixed the date on September 7, 1993 for recording the prosecution evidence without awaiting the reply of the charge-sheet from him. The petitioner claims that he is the President of Himachal Gramin Employees Union and the Bank Authorities including respondent No. l are not .happy with him because of his Trade Union activities and the present departmental proceeding has been initated against him implicating him falsely. The petitioner has alleged that the charges against him are grave and also involve complicated questions of fact and law and as such, it is desirable that the disclipinary action initated against him is stayed till the verdict of the criminal court. The petitioner also complains that the Bank authorities are biased against him and are bent upon to complete the inquiry in hot-haste manner without affording opportunity to him.
Counter was filed on behalf of respondent No. 1 on the affidavit of Shri R.C. Sharma, Chairman Himachal Gramin Bank, Mandi stating therein that a sum of Rs. 1,55,000 was found missing from Baijnath Branch of the Bank, where the petitioner was working as cashier and in his capacity as such, he was responsible for the misappropriation of the amount. The lodging of the First Information Report was admitted and further stated that since it was not specifically known as to who had committed the mischief, therefore, the F.I.R. had to be lodged on the facts available with the Bank. It was submitted that the petitioner and the Manager were joint custodians of the Safe and both of them held separate keys and that the Safe could not be operated with both the keys simultaneously. The receipts of the letter and reminders sent by the petitioner were admitted. However, it is submitted that the petitioner was authorised to inspect the relevant record at the concerned Branch/Branches of the Bank which he would require for the preparation of his defence. It was also submitted that the remainders issued by the petitioners were duly replied through communication dated June 12, 1993 (Annexure R-I). It is also submitted that the inquiry officer (respondent No. 2) had sent letter dated September 3, 1993 (Annexure P-2) to the petitioner specifying therein that the petitioner will be supplied all relevant documents and list of witnesses by the Presenting officer in the inquiry and he will also be given time to examine the documents and witnesses as per rules. Besides this communication, the Inquiry Officer has also advised the petitioner to collect and inspect documents from the concerned branches of the Bank. It is also submitted that some record of Baijnath Branch relating to this case was taken into possession by the Police with whom the case is pending for investigation and photostat copies of those documents can be inspected by the petitioner. The allegations of mala fide and bias alleged against respondent No. 1 are emphatically denied.
The petitioner has filed rejoinder to the reply reiterating his averments made in the petition.
We have heard the learned counsel for the parties. During hearing, the learned counsel for the petitioner, challenged the departmental inquiry on the ground that the issue in the disclipinary proceeding is the same which is involved in a criminal proceeding pending investigation and therefore, the disclipinary inquiry is not legally maintainable against the petitioner till the criminal proceeding is finally decided by the competent court and that the disclipinary action has to be stayed, In support of his contention, the learned counsel has placed reliance on P.S. Sunder rajan v. Unit Trust of India and Anr., Vol 3 1993 1 DRJ 49.
We have gone through this decision. In that case, the Hon''ble Supreme Court had stayed the departmental proceeding till the trial in the court of the Chief Metropolitian Magistrate, Madras was completed and liberty was reserved to the respondents to proceed with the inquiry, if they so choose after the trial court has rendered its judgement.
Shri A.K.Goel, learned counsel for the respondents has contended that there is no bar in continuing with the parallel disclipinary proceeding being taken one by way of disciplinary proceeding and the other of the criminal proceeding. In support of this position, he has relied upon A.D. Bali Vs. Himachal Pradesh Administration, ;Delhi Cloth and General Mills Ltd. v. Rushal Bhan 1960 1 LU 520 and A.L. Ahuja Vs. Union of India,
In the Delhi Cloth and General Mill''s case (supra), it was pointed by the Supreme Court (at page 807):--
"It is true that very often employers stay enquiries pending the decision of the criminal trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee. In Shri Bimal Kanta Mukherjee v. Newman''s Printing Works 1956 AC 188, this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact i or law, which are not simple, 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 case may not be prejudiced..........."
In Jang Bahadur Singh Vs. Baij Nath Tiwari, the Apex Court said:--
" The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same issue may arise for decision in a civil or criminal proceeding pending in a court. But the pendency of the court proceeding does not bar the taking of disciplinary action. The power of taking such action is vested in the disciplinary authority. The civil or criminal court has no such power. The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding. The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings. If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court. In the absence of a stay order the disciplinary authority is free to exercise its lawful powers."
In Kusheshwar Dubey''s case (supra), the } Supreme Court observed (at page 472) thus :-
"The view expressed in 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."
On a careful perusal of the above noted decisions, the ultimate guidance which this Court could get is that as to whether in the facts and circumstances of a particular case, there should or should not be such simultaneity of the proceedings which would receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether disciplinary proceeding should be interdicted pending criminal trial.
In the instant case, we find from the charge-sheet that the allegations against the petitioner are grave in as much as they indicate that the amount mentioned therein has been misappropriated and there are various other grave irregularities committed by the petitioner in the discharge of his official duties which amount to misconduct in terms of the Bank Staff Service Regulations, 1980 and which are not subject-matter of the First Information Report (Ex. P-1). In matters of this kind, it is not desirable to interfere in the progress of the Departmental proceeding even though the criminal proceeding is pending on the same set of facts. If the petitioner is exonerated in the disciplinary proceeding, he would be entitled to all the benefits from the date of theorder of suspension. Therefore, we are not inclined to accept the contention of the learned Counsel for the petitioner that the Departmental proceeding against the petitioner pending criminal proceeding would be amounting to double jeopardy.
The next contention of the learned Counsel for the petitioner is that the copies of the documents relied upon by the respondents in the Departmental proceedings have not been supplied to him despite the order of this Court passed on March 1, 1994, The petitioner has moved an application being CMP No. 1607 of 1994 praying for issuance of direction to the respondents to supply the legible photo copies of the documents mentioned therein and also allow the petitioner the inspection of the same. In reply, respondent No. 1 has categorically stated that whatever original record was available with the Bank, the same was inspected by the petitioner. Some of the documents are not in the custody of the respondent-Bank. So far as the Cheques demanded by the petitioners are concerned, those are in the custody of the Punjab National Bank Branches Baijnath, Paprola and Palampur and so it is not possible for answering respondent to get those cheques inspected and the copies of the vouchers of these Cheques have been supplied to the petitioner. It is further submitted that the photostat copies of the original documents taken into possession by the Police which were available with the respondent-bank have also been supplied to the petitioner. In view of this reply, we find that the grievance of the petitioner has been met. If any document(s) which has not been supplied to him and may be relied by the authorities concerned during the inquiry, we expect, the Inquiry Officer to supply the copy of the documents(s) to the petitioner and the Inquiry Officer will hold the inquiry in accordance with law and natural justice. No other point was urged before us by the learned Counsel for the parties.
For the foregoing reasons, we find no merit in this writ petition which is accordingly dismissed.
The parties are however, left to bear their own costs.