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Judgment
Aravind Kumar, J.—This appeal is by the defendants challenging the order passed by the V Additional City Civil Judge, Bangalore, in O.S. No. 8921/2012, dated 11.01.2013, whereunder I.A. No. 1 filed by the plaintiff praying for grant of order of temporary injunction restraining defendant No. 2 not to proceed with the domestic enquiry during the pendency of the suit has been allowed. I have heard the arguments of Sri. C.K. Subramanya, learned counsel appearing for the appellants i.e., defendant Nos. 1 and 2 and Sri. T. Narayanaswamy, learned counsel appearing for respondent-plaintiff.
Contention of Sri. C.K. Subramanya, learned counsel appearing for the appellants i.e., defendant Nos. 1 and 2 is that trial Court committed a serious error in restraining the Management from proceeding with the domestic enquiry which was based on a charge-sheet issued to the delinquent employee for misappropriation of funds, falsification and fabrication of records by diverting consignment meant for the Company use and disposing of the said consignment and misappropriating the amounts realized therefrom has no connection whatsoever to the criminal prosecution launched by the jurisdictional police and as such, it cannot be construed that criminal prosecution as well as domestic enquiry proceedings are on the same set of facts. He would submit that proceedings with domestic enquiry would in no way prejudice the delinquent employee on account of the pendency of the criminal proceedings as they are entirely on different set of facts. He would also further draw the attention of the Court to the communication dated 30.07.2012 submitted by the delinquent employee to the Management whereunder he has agreed to the guilt and as such he prays for setting aside the order passed by the trial Court and allow the appeal. He would further submits that in a domestic enquiry the degree of proof which is required to be tendered stands on different footing than in a criminal case which requires the prosecution to prove the guilt beyond reasonable doubt and as such he submits that trial Court could not have granted an order of injunction.
Per contra, Sri. T. Narayanaswamy, learned counsel appearing for the respondent-plaintiff i.e., delinquent employee would support the order passed by the trial Court and contends that it does not suffer from any infirmity whatsoever inasmuch as criminal prosecution has been initiated by the jurisdictional police at the behest of defendant-Management for offences punishable under Sections 406 and 420 of IPC on the ground that 77 tones of raw material to be supplied to the defendant''s company had been diverted in the midst and by selling the same, the delinquent employee had unlawfully earned Rs. 66,00,000/- which is also the imputation made in the charge-sheet issued to the delinquent employee and in the event of delinquent employee disclosing his defence in a domestic enquiry proceeding, his right of defence in the criminal prosecution would be jeopardised or it would prejudice his defence in criminal proceeding and as such he seeks for affirming the order passed by the trial Court by dismissing the appeal filed by the Management with exemplary costs. In support of his submission he relies upon the following judgments:
1) State Bank of India and Others Vs. R.B. Sharma, .
2) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, .
3) Judgment in W.P. Nos. 8487-8491/2012 and W.P. No. 9381/2012.
Having heard the learned advocates and on perusal of the order passed by trial Court and on bestowing my careful attention to the case-laws cited, I am of the considered view that following point would arise for my consideration.
(1) Whether order of temporary injunction granted by the trial Court restraining the appellant from proceeding with the domestic enquiry requires to be set aside or affirmed?
(2) What order?
RE POINT NO: 1
Parties are referred to as per the rank in the trial Court. Plaintiff has filed a suit for perpetual injunction to restrain the defendants from proceeding with the domestic enquiry and from continuing with the enquiry proceeding on the basis of the charge sheet-cum-show cause notice dated 21.08.2012 issued to the plaintiff till the disposal of the criminal case in Crime No. 351/2012 pending on the file of VIII Additional Chief Metropolitan Magistrate Court, Bangalore, contending interalia that he was working as an employee in the defendant-Company and a charge-sheet came to be issued to him on 21.08.2012 alleging certain acts of misconduct namely falsification and fabrication of records causing financial loss of Rs. 66,00,000/- to the Company during the period from 01.01.2009 to 31.07.2012 and it was also contended that a criminal complaint also came to be filed by the defendant-Management before the jurisdictional police on the lieu of charge-sheet which came to be registered in Crime No. 351/201.2 and it is at the stage of investigation. It is now contended a charge-sheet has been filed for the offences committed by the plaintiff under Sections 406 and 420 of IPC and the charges levelled against the delinquent employee in the charge sheet-cum-show cause notice by the Management as well as charge made by the prosecution in the criminal case namely C.C. No. 20115/2013 are one and the same and hence the defendants should be restrained from proceeding with the enquiry. Trial Court has accepted the contention of the delinquent employee and on appreciation of material produced by the parties, also the view that there being a prima facie case in favour of the plaintiff granted an order of temporary injunction restraining the Management from proceeding with the enquiry.
As to whether the Management would be entitled to proceed with the domestic enquiry during the pendency of the criminal prosecution launched against the plaintiff-delinquent employee on the same set of alleged facts or not is no more resintegra. The Hon''ble Apex Court in the case of State Bank of India and Others Vs. R.B. Sharma, , has held that departmental proceeding can go on simultaneously except where the departmental proceeding and the criminal case are based on the same set of facts and the evidence in both the proceedings is common. It has been held by the Hon''ble Apex Court as under:
It is a fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common.
In this background, let me examine as to whether the charge sheet-cum-show cause notice issued to the delinquent employee is also the subject matter of the criminal prosecution in C.C. No. 20115/2013 and it would constitute same set of facts. For the purpose of convenience, it is tabulated herein below in the following tabular column.
A bare perusal of the charge sheet-cum-show cause notice issued for proceeding against the delinquent employee in the domestic enquiry as well as criminal prosecution launched against the delinquent employee by the jurisdictional police would leave no doubt but to arrive at a conclusion that the criminal case launched against the delinquent employee is based on the same set of facts as alleged in the charge sheet-cum-show cause notice issued for proceedings initiated to conduct a domestic enquiry against plaintiff. A perusal of charge-sheet filed by Police would clearly indicate that charges alleged against accused-plaintiff is substantially similar to the charges levelled by Management-defendant in the charge-sheet-cum-show cause notice. Hence disclosing of defence by the delinquent employee in a domestic enquiry which charge is also subject matter of criminal prosecution would definitely prejudice his right in the criminal prosecution. The Hon''ble Apex Court in State Bank of India case referred to supra has held as under:
A bare perusal of the impugned order xxxxx this conclusion. Though elaborate reasoning may not be necessary ......... substantially the same. On the contrary, xxxxxxx criminal case.
Since the learned Single Judge ........ fresh consideration.
Thus, in the background of law laid down by the Hon''ble Apex Court and the facts on hand as discussed herein, would clearly indicate that charges alleged against the delinquent employee in departmental enquiry as well as charge made by the prosecution in the criminal case in C.C. No. 20115/2013 are one and the same and by no stretch of imagination it can be construed that they are different or facts stand on a different footing as sought to be canvassed by the learned counsel appearing for the defendants. I do not find any merit in this appeal. Hence, I pass the following.
ORDER
I) Appeal is hereby dismissed.
II) Order dated 11.01.2013 passed by the V Additional City Civil Judge, Bangalore, in O.S. No. 8921/2012, is hereby affirmed.