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Judgment
S.K. Mishra, J
The Petitioner, who is working as Office Assistant at Ratei Branch with the Opposite Party No.1-Bank and is under suspension since 18.11.2014, has preferred the Writ Petition questioning the legality of Order passed by the Opposite Party No.2 in appointing the Enquiry Officer and the Presenting Officer for conducting the disciplinary proceeding initiated against him, so also continuance of the said proceeding simultaneously along with the criminal proceeding initiated against him for the same set of charges.
The factual matrix of the case, which led the Petitioner to file the Writ Petition, is that, the Petitioner while working as Office Assistant at Ratei Branch, under the Opposite Party No.1-Bank, was put under suspension on 18. 11.2014 pending disciplinary action in connection with the incidence of fraud committed during his tenure. On 22. 12.2014, the Opposite Party No.2 lodged an F.I.R. with the Superintendent of Police, Economic Offence Wing (EOW), Government of Odisha, Bhubaneswar based on the report of the Regional Manager, Balasore with regard to an incidence of suspected fraud committed at Ratei Branch. On the basis of the said report, an internal investigation was conducted and prima facie, it was found that the fraud has taken place by affecting fictitious transactions to the tune of Rs.1,91,91,164/- and the likely loss to be suffered by the Bank, because of the said fictitious transactions, was reported to be 1,39,16,355/-. It was further alleged that many fictitious and unauthorized transactions have been made only in the computer system without any supporting vouchers and documents.
In course of investigation, the prosecution arrested the Petitioner on 12.03.2015 and while in custody, he was served with a charge sheet dated 22.12.2015, under Regulation Nos.16, 18 & 20 of Odisha Gramya Bank Officers’ and Employees’ Service Regulation, 2010, which was received by him on 01.01.2016, calling for Show Cause to be filed within ten days of the receipt of the said charge sheet. On receipt of the charge sheet dated 22.12.2015, the Petitioner, through the Superintendent of Jail, submitted an application indicating therein that, as the incidence of fraud as per the charge sheet relates to four years back and since he is in custody, it is not practically possible on his part to submit the Show Cause within the stipulated period. It was further indicated therein that the submission of Show Cause to the charge sheet may not be insisted upon, until the Petitioner personally verifies the transaction records.
Further, after the Petitioner was released on bail, on 04.06.2016, he submitted an application with the Opposite Party No.2 requesting therein to permit him to verify the transaction entries and the concerned data and to take copies of the necessary papers enabling him to file the Show Cause in response to the charge sheet. In reply to the said request made by the Petitioner, the Opposite Party No.2, vide letter dated 14.06.2016, intimated the Petitioner granting permission to visit Ratei Branch to look into the alleged transactions in presence of the Branch Manager. However, his request to take copies of such transactions was refused.
The total number of entries being 1370 and the same was to be inspected in presence of the Branch Manager, as the Branch Manager was making himself available only when there was no work in the branch, it was not possible on the part of the Petitioner to examine all the entries related with the vouchers within the office hours. Hence, the Petitioner sought for further time to inspect the records and file the Show Cause but, to no result. Again the Petitioner on 27. 08.2016, requested the Opposite Party No.2 to grant further time to file Show Cause and to permit him to inspect the transactions in the system, which formed part of the charges. When the matter stood thus, the Petitioner was served with a letter dated 17.11.2016, which has been impugned in the Writ Petition, thereby informing the Petitioner that the Opposite Party Nos.3 & 4 have been appointed as the Enquiry Officer and the Presenting Officer respectively to conduct the departmental enquiry. The said communication dated 17.11.2016, so also initiation of disciplinary proceeding have been challenged on the following grounds:
(i) Keeping in view the nature and gravity of the charges, unless entries made in the system related with the vouchers are not inspected/verified item wise, it is not possible on the part of the Petitioner to file any detailed Show Cause. Though such aspect was found to be reasonable and the Petitioner’s request was accepted, but for non-availability of the Branch Manager during working hours, it was not practically possible on his part to verify and conclude the inspection and despite bringing the said fact to the notice of the Opposite Party No.2, decision was taken to proceed with the enquiry, which is not reasonable and lacks bona fide.
(ii) The very appointment of the Enquiry Officer and Presenting Officer, without giving an opportunity to the Petitioner to file Show demonstrates that the Opposite Party No.2 is determined to conclude the proceeding hastily to help the real culprits. To be more specific, the disciplinary proceeding is to continue against three of the employees in exclusion of the other three employees of the bank against whom, C.T. Case No.2848 of 2014, corresponding to E.O.W, Bhubaneswar P.S. Case No.27 of 2014, is pending in the Court of S.D.J.M., Balasore on the selfsame allegations.
(iii) While issuing the Order as at Annexure-8, the Opposite Party No.2 has failed to take into consideration certain instances as indicated by the Petitioner in his request letter dated 27.08.2016, as at Annexure-7, which would show that the Opposite Party No.2, before issuing letter under Annexure-8, has not applied his mind nor has considered the circumstances and such communication has been made in a mechanical manner.
(iv) Though the prosecution report submitted by the Inspector of Police, E.O.W, CID, CB, Bhubaneswar specifically contended that all the debit entries relating to the transactions in the account of both the Business Correspondence Agent (BCA) were entered and verified by Mr. P.K. Mohanty, the then Branch Manager, Mr. P.C. Purty, the the Field Officer, Mr. S.K. Piri, the then Clerk-cum-Cashier and Mr. Sanyasi Charan Jena, the then Field Officer though system, to bring home the said charges, the departmental proceeding ought to have been initiated against all the four persons as named above. However, the impugned communication as at Annexure-8 well demonstrates that the same was issued to proceed departmentally against three persons including the present Petitioner but excluding Mr. P.K. Mohanty, the then Branch Manager.
(v) The findings and conclusions of the departmental proceeding on the selfsame allegations and materials shall have some role to play in the criminal proceeding particularly, because both the proceedings are closely and intricately related on each and every count. Continuance of the disciplinary proceeding would amount to part adjudication of the criminal trial and is definitely not in the interest of justice and in consonance with the rule of law.
Being noticed, the Opposite Parties have filed a Counter Affidavit reiterating the fact with regard to initiation of disciplinary proceeding, so also lodging of F.I.R. for omissions and commissions done by the Petitioner while working as Office Assistant at Ratei Branch of the Opposite Party No.1-Bank. That apart, it has been specifically pleaded that after release of Petitioner from jail, on his request vide letter dated 04.06.2016, he was permitted to go to Ratei Branch for perusal of the documents/records, by making a communication to the said effect vide letter dated 14.06.2016 and file reply to the charge sheet within ten days of the receipt of the said communication without any further extension of time. However, again the Petitioner, vide his letter dated 28.06.2016, requested for extension of 20 days time to submit his reply to the charge sheet, which he failed to comply. Hence, a common departmental enquiry against the Petitioner and six others was constituted on 17.11.2016. As no order was passed by this Court in the present Writ Petition staying the continuance of departmental proceeding, the enquiry continued. The Petitioner vide letter dated 02.01.2017 requested for appointment of Mr. Dasarathi Acharya, Branch Manager of Mitrapur Branch as Defence Representative. Since as per Regulation 41(c) of Odisha Gramya Bank Officers’ & Employees’ Service Regulation, 2010, shortly, Regulation, 2010, an Officer cannot be the Defence Representative of a charge sheeted employee in a departmental enquiry, the request of the Petitioner was declined and the matter was communicated to the Enquiry Officer vide letter dated 05.01.2017 to intimate the same to the Petitioner. Thereafter, this Court vide Order dated 16.01.2017, directed the Opposite Parties not to take any coercive action against the Petitioner pursuant to the communication dated 17.11.2016 (Annexure-8), vide which the Enquiry Officer, so also the Presenting Officer were appointed to conduct the disciplinary proceeding against the Petitioner.
With regard to the various allegations made in the Writ Petition, the same have been specifically refuted by the Opposite Parties. It has been specifically averred that despite giving the Petitioner sufficient opportunity, as he did not reply to the charge sheet within the stipulated time, so also extended period, it was decided to conduct disciplinary enquiry. So far as allegation of not taking any disciplinary action against Mr. P.K. Mohanty, the then Branch Manager, it has been specifically stated that since Mr. P.K. Mohanty had already retired at the time of detection of such fraud, the disciplinary action could not be initiated against him as per the service rules. However, an F.I.R. was lodged against Mr. P.K. Mohanty for such fraud with E.O.W., Bhubaneswar. Further, it has also been stated in the Counter Affidavit that there is no bar to proceed against the delinquent in departmental enquiry, even if criminal case is pending against the Petitioner. The list of documents and witnesses are not exactly same in the criminal proceeding vis-à-vis departmental proceeding as falsely contended by the Petitioner. Charge sheet has already been filed by the prosecution (EOW) against six accused persons including the Petitioner in the trial Court i.e. learned Sub-Divisional Judicial Magistrate, Balasore vide Case No.6/2016 under Sections 167/467/468/471/477(A)/420/409/120-B I.P.C. Further, it has been detailed in para-7 of the Counter Affidavit as to the list of documents filed and exhibited by the Management before the Enquiry Officer, so also the witnesses, who were examined on behalf of the Management and the Petitioner (delinquent). To be more specific, it has been stated that the Petitioner did not file any document. However, he produced one Golakh Padhi, S/o Prahallad Padhi, Ratei as the sole defence witness. While denying the averments made in Paragraphs-6 & 7 of the Writ Petition, it has also been stated in the Counter Affidavit that the Petitioner was allowed to visit Ratei Branch for verification of records/documents and to submit his reply to the charge sheet vide letter dated 14.06.2016. Being so communicated, the Petitioner visited Ratei Branch on 27.06.2016 and verified the transaction entries there. However, instead of submitting his reply to the charge sheet, he again requested for further twenty days time and the Enquiry Officer, so also Presenting Officer were only appointed after almost five months thereafter i.e. on 17.11.2016. Further, even after elapse of more than two months from the date of second request for extension of time i.e. 27.08.2016, Petitioner did not reply to the charge sheet. Hence, departmental enquiry was constituted on 17.11.2016 to enquire into the charges leveled against the Petitioner and before doing so, sufficient time was allowed to the Petitioner to have his say in response to the charge sheet.
The defence plea of the Opposite Party No.1-Bank is that since the Petitioner was allowed sufficient time to inspect the records/documents at the concerned branch, Petitioner, on his own interest, should have verified the required documents. Charge sheets were framed against all the accused persons namely, Sanayasi Jena, P.C. Purty except Mr. P.K. Mohanty, who had already retired from service at the time of detection of fraud and Regulation, 2010 does not permit to initiate any departmental proceeding against any employee after his retirement. It has also been stated in the Counter Affidavit that since there was no interim order passed by this Court excepting not to take any coercive action against the Petitioner pursuant to the letter dated 17.11.2016 (Annexure-8), after affording adequate opportunities to the Petitioner, the Enquiry Officer has already submitted his report dated 26.05.2017 and the Petitioner also fully participated in the departmental enquiry and also submitted his reply in response to the Enquiry Report on 14.08.2017 and the departmental proceeding is complete in all respect except passing of the final order by the disciplinary authority in view of the interim order dated 16.01.2017 passed by this Court.
In response to the said Counter Affidavit filed by the Opposite Parties-Bank, the Petitioner has filed Rejoinder Affidavit reiterating the facts as detailed in the Writ Petition.
Heard Mr. D. Mohant, learned Counsel for the Petitioner and Mr. K.C. Kanungo, learned counsel for the Opposite Parties.
Both the learned Counsel relied on the Judgments of the apex Court in the case of Stanzen Toyotetsu India Private Limited Vs. Girish V. and others, reported in (2014) 3 SCC 636 and State Bank of India and others Vs. Neelam Nag and another, reported in (2016) 9 SCC 491 to substantiate their respective stand taken in the Writ Petition, so also Counter Affidavit. Admittedly, in Misc. Case No.20787 of 2017, though a prayer had been made to direct the Opposite Parties “not to take any action” pursuant to the order/communication under Annexure-8 during pendency of the Writ Petition, this Court, while issuing notice to the Opposite Parties, as an interim, directed that the Opposite Parties shall not take any coercive action against the Petitioner pursuant to the Order/communication as at Annexure-8, till the next date and the said interim Order was extended from time to time.
As there was no absolute stay Order, the Opposite Party No.3 (Enquiry Officer) proceeded with the enquiry and concluded the same by submitting a report on 26.05.2017 and the said report being communicated to the Petitioner, he also submitted his written response to the Enquiry Report, on 14.08.2017. However, in view of the interim Order dated 16.01.2017, no further action could be taken by the Opposite Party-Management against the Petitioner. As revealed from the averments made in para-7 of the Counter Affidavit, which has not been disputed in the Rejoinder Affidavit, the Petitioner did not file any documents to be exhibited in the enquiry and he being the delinquent, did not choose to examine himself as defence witness. Rather, he produced one Mr. Golakh Padhi, S/O Prahallad Padhi of Village Ratei as the sole defence witness (DW) from his side in the said departmental proceeding.
Mr. Mohanta, learned Counsel for the Petitioner submitted that sufficient opportunity was not accorded to the Petitioner to submit his reply to the charge sheet before taking a decision to appoint the Enquiry Officer, so also the Presenting Officer to conduct departmental proceeding against his client. He further submitted that though pursuant to Order dated 16.01.2017 passed in this case, the authority concerned should not have proceeded further, but the Enquiry Officer proceeded and concluded the departmental enquiry without affording sufficient opportunity to the Petitioner. Further, since the departmental proceeding, so also criminal case are based on same and similar set of facts and the charge in the criminal case against the Petitioner/delinquent employee is of a grave nature, which involves complicated question of law and facts, the departmental proceeding ought to have been stayed till the conclusion of the criminal case and rightly, this Court ordered on 16.01.2017, not to take any coercive action against the Petitioner pursuant to Annexure-8.
Mr. Mohanta relying on the Judgment of the apex Court in the case of State Bank of India (supra) drew attention of this Court to the certified copy of the order sheet in C.T. Case No.2848 of 2014, which is appended to the Date Chart submitted by the Petitioner on 17th February, 2023 and submitted that though the said case is of the year 2014, till date only one prosecution witness namely, Raj Kishore Rout has been examined as P.W.1 in part on 20.08.2022 and his further examination-in-chief got deferred, as the learned Additional Public Prosecutor filed a petition on the said date to call for certain documents. The said petition being allowed by the trial Court, thereafter, till date, the matter is lingering for further examination of P.W.1 because of non-production of documents by the E.O.W, Bhubaneswar Police Station. He, also relying on the Judgment of the apex Court in the case of State Bank of India (supra), submitted that in terms of the said judgment, direction be given to the learned S.D.J.M., Balasore to conclude the trial within a stipulated time frame and till then, the Opposite Parties may not be permitted to take any action against the Petitioner in terms of the Enquiry Report submitted by the Opposite Party No.3 on dated 26.05.2017. Mr. Mohanta further submitted that the defence of the Petitioner in the disciplinary proceeding may cause serious prejudice to his client in the criminal case. In view of the complexity of the facts and the evidence necessary to substantiate the same, it is advisable and essential to protect the Petitioner from being exposed to disclosure of his defence which may be identical to one to be taken in the criminal case or for that matter compel the Petitioner to depose against himself on those facts.
Mr. Kanungo, learned Counsel for the Opposite Parties submitted that there is no bar with regard to continuance of departmental proceeding and criminal case simultaneously, the same being conducted separately. He further submitted that law is well settled that even if, departmental proceeding and criminal case are based on identical and similar set of facts and the charges in the criminal case against the Petitioner/delinquent employee is of a grave nature, which involves complicated questions of law and facts still, if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceeding, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at at any early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. He further submitted that disciplinary proceedings cannot remain stayed for an indefinite long period. Such inordinate delay is neither in the interest of the employer nor the delinquent, who is under suspension and surviving on subsistence allowance. He further submitted that what is required in view of the settled position of law that is also required to be demonstrated by the Petitioner that the case involves complicated questions of law and facts. That requirement does not appear to be satisfied in an adequate measure to call for an unconditional and complete stay of the disciplinary proceeding pending conclusion of the trial. Hence, this Court while passing the interim Order dated 16.01.2017, did not stay the department proceeding and only ordered not to take any coercive action against the Petitioner pursuant to appointment of Enquiry Officer till a particular date and thereafter the same was extended from time to time.
Mr. Kanungo further submitted that pursuant to Order of this Court dated 16.01.2017, since the Petitioner fully participated in the departmental proceeding and choose not to depose as defence witness in the said proceeding and rather, examined an outsider as the sole Defence Witness, no prejudice can be claimed to have caused or will be caused to the Petitioner at this juncture if the departmental proceeding, which is at final stage, as well as criminal proceeding continue simultaneously. He further submitted that in the peculiar facts of the present case, the pendency of the criminal case against the Petitioner cannot be and should not be the sole basis to suspend the disciplinary proceeding initiated against him for an indefinite period and in larger public interest, the Writ Petition deserves to be dismissed permitting the Opposite Parties-Bank to take final action against the Petitioner in terms of the Enquiry Report dated 26.05.2017 as the Opposite Party-Bank will be deprived to impose the punishment, if any, based on the Enquiry Report dated 26.05.2017, once the Petitioner attains the age of superannuation on 31st March, 2023.
It is worthwhile to mention here that before the matter was taken up for final disposal on 16.03.2023, the application filed by the Opposite Parties-Bank for vacation of interim order, so also the petition filed by the Petitioner for amendment of the Writ Petition, were heard and rejected vide separate orders, both dated 20.12.2023.
In the case of Stanzen Toyotetsu India Private Limited (supra), on which both the learned Counsel relied, the apex Court referring to judgment in case of Divisional Controller, Karnataka SRTC Vs. M.G. Vittal Rao, reported in (2012) 1 CC 442 vide paragraph-10 held as follows:
“10. The relatively recent decision of this Court in Karnataka SRTC v. M.G. Vittal Rao, is a timely reminder of the principles that are applicable in such situations succinctly summed up in the following words.
“(i) There is no legal bar for both proceedings to go on simultaneously.
(ii) The only valid ground for claiming that the disciplinary proceedings may be stayed would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts and law.
(iii) Such defence ought not to be permitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings.
(iv) Departmental Proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.”
(emphasis supplied)
Vide para-11 of the said Judgment, referring to decision in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines, Ltd., reported in (1999) 3 SCC 679, it was held/observed as follows:
“11. We may also refer to the decision of this Court in Capt. M. Paul Anthony v. Bharat Gold Mine Ltd., where this Court reviewed the case law on the subject to identify the following broad principles for application in the facts and circumstances of a given case:
“(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.”
(emphasis supplied)
Similarly, in the case of Hindustan Petroleum Corpn. Ltd. Vs. Sarvesh Berry, reported in (2005) 10 SCC 471, the apex Court vide paragraph-8 held as follows:
“8………A crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of a grave nature involving complicated questions of fact and law….. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances.”
(emphasis supplied)
In the case of State of Rajasthan Vs. B.K. Meena, reported in (1996) 6 SCC 417, the apex Court, vide paragraph 14 & 15, observed/held as follows.
“14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case ad that no hard and fat rules can enunciated in that behalf. The only ground suggested in the above questions as constitution a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. and Tata Oil Mills is not also an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending consideration is that the disciplinary enquiry cannot be - and should not be delayed unduly. So far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials or persons holding high public offices involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. 15. We are quite aware of the fact that not all the disciplinary proceedings are based upon true charges; some of them may be unfounded. It may also be that in some cases, charges are levelled with oblique motives. But these possibilities do not detract from the desirability of early conclusion of these proceedings. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him.”
(emphasis supplied)
While relying on the aforesaid Judgments, the apex Court in the case of Stanzen Toyotetsu India Private Limited (supra) on which both the learned Counsel for the parties rely, vide paragraph-16 observed/held as follows:
“16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defense before the criminal Court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The Court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the on-going disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees.”
(emphasis supplied)
In the case of State Bank of India (supra), the apex Court, referring its judgment in case of Karnataka SRTC (supra) and in case of Stanzen Toyotetsu India Private Limited (supra) was of the view that the pendency of the criminal case against the delinquent cannot be the sole basis to suspend the disciplinary proceeding initiated against the delinquent for an indefinite period, and in larger public interest, the order as passed in Stanzen’s case, be followed even in the fact situation of the said case, to balance the equities. Paragraphs 18 and 25 of the said Judgment are extracted below:
“18. In the peculiar facts of the present case, therefore, we accede to the contention of the appellants that the pendency of the criminal case against the respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the respondent for an indefinite period; and in larger public interest, the order as passed in Stanzen’s case be followed even in the fact situation of the present case, to balance the equities.
Be that as it may, the remedy of writ being an equitable jurisdiction and keeping in mind the larger public interests (at least in cases of involvement of the employees of the Public Sector Banks in offence of breach of trust and embezzlement), the arrangement predicated in the case of Stanzen (supra) would meet the ends of justice. For, the disciplinary proceedings instituted against the respondent cannot brook any further delay which is already pending for more than 10 years.”
So far as the challenge to the communication dated 17.11.2016, as to appointment of Enquiry Officer, so also Presenting Officer, since the said allegation made in the Writ Petition has been specifically denied in the Counter Affidavit filed by the Opposite Parties-Bank clearly stating therein as to giving sufficient opportunity to the Petitioner to have his say in response to the charge sheet, the same being disputed questions of facts, this Court is not inclined to entertain the said prayer made in the Writ Petition for quashing of the communication as to appointment of Enquiry Officer, more particularly, in the peculiar facts and circumstances of the present case, as the enquiry has already been concluded since 2017 and the Petitioner, being communicated with a copy of the Enquiry Report dated 26.05.2017, has also submitted his reply/response to the said Enquiry Report on 14.08.2017.
So far as the second prayer in the Writ Petition to direct the Opposite Parties, not to proceed with the departmental proceeding till final adjudication of C.T. Case No.2848 of 2014 corresponding to E.O.W., Bhubaneswar P.S. Case No.27 of 2014, pending in the Court of learned S.D.J.M., Balasore, admittedly the departmental proceeding is almost at the verge of closure, as the Enquiry Officer has already submitted his report on 26.05.2017 and the said Report, being communicated to the Petitioner, he has already submitted his response to the said Enquiry Report. Further, it has been specifically pleaded in the Counter Affidavit that pursuant to the interim Order dated 16.01.2017, passed in Misc. Case No.20787 of 2017, the Petitioner fully participated in the said departmental enquiry and chosen to examine an outsider as the sole defence witness and has already disclosed his defence through the said DW in the departmental proceeding. Further, he himself did not depose as a defence witness in the said departmental enquiry, which has already been concluded on submission of Enquiry Report by Opposite Party No.3 on 26.05.2017. Admittedly, the Petitioner is going to superannuate on 31st March, 2023 and Regulation, 2010 does not permit the management to take any disciplinary action against any employee after his superannuation. In view of the facts, as detailed above, this Court is of the view that question of prejudice to his defence before the criminal Court became redundant. Further, the charges leveled against the Petitioner and other co-accused persons are under Sections 167/467/468/471/477(A)/420/ 409/120-B I.P.C. and only one prosecution witness has been examined in part till date though the criminal case is of the year 2014. Going by the pace at which the trial Court is examining the witnesses and also because of the reason of non-production of documents by the Superintendent of Police, Economic Offence Wing, as was called for by the prosecution, this Court is of the view that the conclusion of trial in near future is uncertain. Law is well settled that the disciplinary action cannot remain stayed for an indefinite long period and the inordinate delay is neither in the interest of the employer nor the employee/delinquent, who is under suspension and surviving on subsistence allowance. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceeding, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with, so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. Since the enquiry proceeding has already been concluded and a report being submitted by the Enquiry Officer (Opposite Party No.3) on 26.05.2017 and a copy of the same being furnished to the Petitioner, he has already submitted his response to the said Enquiry Report on 14.08.2017, in the peculiar facts and circumstances as detailed above, the Writ Petition is disposed of giving liberty to the employer to proceed further in accordance with law. Interim order stands vacated. The parties are left to bear their own costs
Needless to mention here that the Petitioner is at liberty to approach the appropriate forum for redressal of his grievances, including the issue of fairness of departmental proceeding, if the Opposite Party-employer takes any coercive action against him, based on the Enquiry Report dated 26. 05.2017.
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