Kashinath Gopal Khamble and Others vs Bombay Dyeing and Mfg. Co. Ltd. and Others

A.V. Savant, J.—Heard Mr. Ganguli for the petitioners and Mr. Rele for respondent No. 1 Employer.

This is a petition against the order of dismissal of the complaint on 2nd June, 1993. The main grievance in the complaint was that the departmental inquiry should be stayed in view of the subsequent criminal proceeding adopted by the injured person in respect of an incident which occurred on the 29th August, 1992. In respect of this incident in which the workman assaulted one Bhikaji Massage, the employer served charge-sheet on the workmen on the 26th December, 1992. After some adjournments in the month of January, 1993, inquiry commenced on 13th February, 1993, in the sense that the injured Bhikaji Massage was examined on that day. The inquiry was adjourned for cross-examination on 26th February, 1993, on which date the said Bhikaji Massage was cross-examined. He was further cross-examined on 5th March, 1993 and 18th March, 1993. One Sunita Chavan, who tried to rescue the said Bhikaji Massage, was the second witness, who was examined on 31st March, 1993. She was also cross-examined on that day. The matter was adjourned on certain dates in April, 1993. As far as the incident of assault is concerned, these are the only two witnesses which the management wants to examine.

In view of the above facts, the complaint has been filed in the Industrial Court in the month of March, 1993 alleging that in view of the subsequent criminal proceedings initiated by Bhikaji Massage, departmental inquiry should be stayed. This complaint has been dismissed by the Industrial Court. The Industrial Court has extensively discussed the relevant Supreme Court decisions regarding the holding of a departmental inquiry simultaneously with the criminal prosecution. Relaying upon the observations in Para 6 of the Supreme Court decision in the case of Kusheswar Dubey v. M/s. Bharat Coking Coal Ltd. & Ors. 1988 II CLR 497 (S.C.) the Industrial Court has held that there was no legal bar for simultaneous proceedings being taken and the rule in this behalf cannot be stated in the strait jacket formula. In a given case, it may be that the holding of a departmental inquiry may prejudice the defence of the accused in a criminal trial. That, however, is not the situation here, The departmental inquiry commenced as far back as in December 1992 and the evidence of the injured Bhikaji Massage was recorded in February, 1993. The evidence of the only other eye-witness Sunita Chavan have been recorded in March, 1993, after which, it appears that criminal proceedings have been initiated. No application was made for stay of the inquiry in February or in March, 1993 on the ground that the defence of the workmen in the criminal trial is likely to be prejudiced. The injuries and the eye-witness were both examined and cross-examined. The parties had therefore disclosed their cases in the departmental proceedings in the month of February and March, 1993 itself. I am in respectful agreement with the observation of the supreme Court in Kusheswar Dubey''s case and particularly, those in Para 6 of the judgment at page 498 of the Report.

That apart, it is not un-known that criminal proceedings take a very ling time. Irrespective of the decision in criminal proceedings a departmental proceeding can be initiated. In-ordinate delay has the result of causing the evidence to disappear in some cases. In my view, it is not necessary in each and every case to stay the departmental inquiry merely because subsequently criminal proceedings are initiated. The view I am taken is also consistent with the view taken by a division bench of this Court in Writ Petition No. 836 of 1989, decided on 29th March, 1989. Needless to say that the said view is on the basis of the Supreme Court decision in Kusheswar Dubey''s case. In this view of the matter, I find no merit in the Writ Petition, which is accordingly rejected.

At this stage Mr. Ganguly states that the workman should be given liberty to challenge the findings recorded in the departmental inquiry on merit. I do not think that the dismissal of this Writ Petition can come in the way of nay challenge on merits to the findings recorded in the departmental inquiry.