Overseas Bank, Anna Salai and Anr. Vs. P. Ganesan and Others  Insc 1172 (23 November 2007)
Sinha & Harjit Singh Bedi
out of SLP (C) NO. 8683 OF 2006) S.B. SINHA, J.
Whether pendency of a criminal case by itself would be a sufficient ground for
stay of the departmental proceedings is the principal question which arises for
our consideration in this case.
basic fact of the matter is not in dispute.
Respondents 1 to 4 herein are the office bearers of the All India Indian
Overseas Bank SC/ST Employees Welfare Association.
another association was also operating in the establishment of the appellant
known as All India Indian Overseas Bank Employees Union of which
respondent No.5 is the President.
of similar names gave rise to a dispute between the parties.
Indisputably a first information report was lodged on 27th January, 2005 with
the Thousand Lights Police Station, Chennai alleging that L. Balasubramanian,
Respondent No.5, herein was assaulted on 27th January, 2005 at about 12.35 p.m.
within the bank premises by Respondents Nos. 1 to 4 as well as by Mr. P. Rajalingam,
the Deputy Chief Officer working in the Regional Office of the appellant-bank.
All the respondents are indisputably employees of the bank. Their designations
are as under :-
Respondent No.1 (P. Ganesan) is employed as Assistant Manager, Thiruvottiyur
Market Branch.. He is also the General Secretary of All India Indian Overseas
Bank SC/ST Employees Welfare Association.
Respondent No.2 (S.Vijayakumar) is employed as a clerk in the Central Clearing
Office at Chennai. He is also the Vice President of the All India Indian
Overseas Bank SC/ST Employees Welfare Association.
Respondent No.3 (R Amalraj) is employed as a Messenger in the Inspection
Department, Central Office at Chennai. He is also the Organizing Secretary of
the All India Indian Overseas Bank SC/ST Employees Welfare Association.
Respondent No. 4 (A. Dakshinamoorthy) is employed as an Assistant Manager in
the Walltax Road Branch, Chennai. He is also the Deputy General Secretary of
the All India Indian Overseas Bank SC/ST Employees Welfare Association.
Respondent No.5 (L. Balasubramanian) is employed as Special Assistant
in Foreign Exchange Department, Central Office at Chennai. He is also the
President of All India Indian Overseas Bank Employees Union (AIOBEU) as
well as the President of the National Confederation of Bank Employees
enquiry was conducted leading to discovery of certain additional facts. It may
not be necessary for us to take note of the same at this stage. Respondent No.5
was admitted in the National Hospital for medical treatment. He remained confined therein for a
period of twelve days. A charge-sheet was filed by the Investigating Officer in
the criminal case against Respondents Nos. 1 to 4 under Sections 341, 323, 324,
427, 307 and 506
the Indian Penal Code. Respondent Nos. 1 and 3 were arrested. They were,
however, released on bail on 15th February, 2005. Respondents Nos. 2 and 4, however, absconded. On or about 15th February, 2005 they obtained anticipatory bail. Another
first information was lodged by Respondent Nos. 1 to 4 against respondent No.5
in the said Thousand Lights Police Station, Chennai.
Respondent Nos. 1 to 4 were placed under suspension by the appellant-bank by an
order dated 28th
Charge-sheets dated 21st
February, 2005 were
also served upon them. They were asked to show cause as to why disciplinary
action be not taken against them for their acts of indiscipline,
insubordination, unruly and disorderly behaviour, use of filthy language and
most shameful abuses as well as murderous assault on respondent No.5 within the
office premises of the bank as also causing damage to valuable properties and
serious impairment to the banks prestige and reputation in the estimation
of public at large. Requests were made by the said respondents to revoke the
order of suspension by an application dated 9th March, 2005 assuring the authority that they
would fully cooperate with the authorities of the bank in the disciplinary
proceedings initiated against them. They, furthermore, requested the bank to
grant them one months time to submit their reply to the show cause.
of suspension were revoked on 16th April, 2005.
No reply to the show cause notice, however, was filed by them despite
opportunities granted. Departmental enquiry was held against them on 18th May,
2005 ; 3rd June, 2005, 17th June, 2005, 28th June, 2005, 8th July, 2005, 19th
July, 2005, 29th July, 2005 and 4th August, 2005, the details whereof, as
stated by the appellants in their affidavit before the High Court, are as under
Enquiry was fixed for 18.5.2005 in respect of which the Respondents had been
duly intimated fairly in advance. However, the said Enquiry was adjourned to
3.6.2005 acceding to the written request dated 16.5.2005 of the respondents.
The Enquiry was further adjourned to 17.6.2005 in response to the Respondents
request for adjournment.
The Enquiry was then fixed for 8.7.2005 in view of the Respondents written
request dated 25.6.2005.
the Respondents remained absent on 8.7.2005, and therefore they were set ex-parte,
while adjourning the Enquiry to 19.7.2005.
Meanwhile, the list of Management Witnesses was mailed to the Respondent Nos. 1
to 4 who admitted to have received the same.
19.7.2005, only Respondent Nos.2 and 4 attended the Enquiry Proceedings, and
categorically admitted to have received the List of Management Witnesses,
whereas Respondents Nos.1 and 3 remained absent.
The Enquiry was then adjourned to 29.7.2005 and again adjourned to 4.8.2005
when except Respondent No.3 (R. Amalraj), the other Respondent Nos.1, 2 and 4 attended
the proceedings, and requested for further postponement, while representing
that on the next date of the proceedings, they would either bring their Defence
Representative or they would themselves conduct their defence
without seeking any further postponement thereof. Accordingly, the Enquiry was
finally adjourned to 19.8.2005 to be held on day-to-day basis until
While on the one hand the respondents were seeking adjournments and taking time
from the Enquiry Officer in the said disciplinary proceedings, they, on the
other hand, moved the High Court of Madras by filing writ petitions under
Article 226 of the Constitution of India. The said writ petitions were marked
as W.P. Nos. 26176, 26177, 26178 and 26179 of 2005. Interlocutory applications were also
filed therein praying for stay of proceedings in the departmental enquiry
pursuant to the said charge-sheet dated 21st February, 2005 on the premise that on identical
facts criminal cases had been filed against them. An ad interim order of stay
was granted by the High Court by an order of 16th August, 2005 stating :-
Though this Court generally did not entertain Writ Petitions relating to
Charge-memos on the ground that Criminal proceedings are pending, the question
as to whether the Departmental Proceedings and the Criminal case are based on
identical and similar set of facts and whether the Charge in the Criminal case
is of the grave nature which involves complicated questions of law and facts
are the factors to be examined in the Writ Petitions.
said interim order of stay was produced before the Enquiry Officer. As the
interim order of stay was granted only for a period of four weeks and the same
having not been extended the enquiry proceedings continued. One witness being MW1
was examined on 21st
October, 2005. The
said departmental enquiry also proceeded on 22nd October, 2005 but the respondents did not participate therein on which
date MW2 was examined. Yet again on 24th October, 2005, MW3 and MW4 were examined and the
matter was adjourned to 25th
October, 2005 when MW5
and MW6 were examined. On 26th October, 2005, MW7 and MW8 were examined-in-chief and the enquiry was adjourned to 27th October, 2005. Yet again on 28th October, 2005, MW9 and MW10 were examined and the
enquiry was adjourned to 29th
October, 2005 on which
date MW11 was examined.
stated that the respondents attended the enquiry on 29th October, 2005 and nominated their Defence Representative to defend them.
A prayer for adjournment made on their behalf, however, was declined by the
Enquiry Officer. MW11 was examined-in-chief on that date.
enquiry was adjourned to 31st
October, 2005 on which
date MW12 and MW13 were examined-in-chief. It was adjourned to 9th December, 2005 for cross-examination of the
application for vacating the stay filed by the appellants on 6th September,
2005 was dismissed by a learned Single Judge of the High Court by an order
dated 7th December, 2005 stating :- Once the Learned Single Judge has indicated
the reasons which weighed with him in exercising the extra- ordinary
jurisdiction under Article 226 of the Constitution of India against the
impugned Charge- Memo, except to expedite the writ them petitions, it may not
be proper for this Court to vacate the Interim Stay at this stage. Accordingly,
the vacate stay petitions, viz. WPMPs Nos. 2047 to 2050 of 2005 are dismissed.
The Interim stay granted by this Court on 16.8.2005 is made absolute.
the Writ Petitions and post the same for final hearing in the second week of
Writ appeals preferred by the appellants against that order were disposed of by
a Division Bench of the Court by reason of the impugned judgment opining :-
14. In the instant case, there is no dispute that the criminal action and
the disciplinary proceedings are founded upon the same set of facts. In fact,
the disciplinary proceedings are solely based upon the criminal complaint
lodged by the president of a rival union, who is also facing prosecution with
regard to the same incident. It has been conceded before us that the bank had
not conducted any independent enquiry before initiating the impugned
our opinion, in the peculiar facts and circumstances of the case on hand, fair
play requires that postponing of the departmental proceedings till the criminal
cases are decided. We are, therefore, of the view that the prayer made by the
petitioners for deferring the departmental proceedings till the conclusion of
the criminal trial has to be accepted and it is ordered accordingly. 11.
The appellants are thus before us.
Mr. Altaf Ahmed, learned senior counsel appearing on behalf of the appellants
in support of the appeal would, inter alia, submit that the High Court committed
a serious error in passing the impugned judgment in so far as it failed to take
into consideration that as the enquiry proceedings proceeded to a great extent
the same should not have been stayed. Reliance in this behalf has been placed
on Kendriya Vidyalaya Sangathan and others vs. T. Srinivas : (2004) 7 SCC 442.
Mr. G. Prakash, learned counsel appearing on behalf of the respondents, on the
other hand, submitted that the High Court having exercised its discretionary
jurisdiction upon application of law operating in this behalf, this Court
should not exercise its jurisdiction under Article 136 of the Constitution of
India. Learned counsel urged that in a matter of this nature where rival
parties had clashed with each other and case and counter case have been
instituted one investigated by the Assistant Commissioner of Police and
another by an Inspector of Police, the respondents would be highly prejudiced
if the departmental proceedings are allowed to continue; particularly when the
officers of the appellant-bank have been proceeding with a bias. It was
contended that the question as to whether there exists any complicated question
of law must be judged from the employees point of view, they being
belonging to the weaker section. Learned counsel would, in support of his
contention, strongly relied upon G.M. Tank vs. State of Gujarat and others : (2006) 5 SCC 446 ;
Petroleum Corporation Ltd. and others vs. Sarvesh Berry : (2005) 10 SCC 471 and Sathi Vijay
Kumar vs. Tota Singh and others : 2006 (14) Scale 199.
Before embarking upon the rival contentions of the parties we may notice that
Respondent Nos. 1 to 4 have filed an application for quashing the order taking
cognizance against them before the High Court under Section 482 of the Code of
Criminal Procedure which was marked as Crl. O.P. No. 18163 of 2006 and by an
order dated 17th July, 2006 further proceedings in the criminal case have been
Legal position operating in the field is no longer res integra. A departmental proceedings
pending a criminal proceedings does not warrant an automatic stay. The superior
courts before exercising its discretionary jurisdiction in this regard must
take into consideration the fact as to whether the charges as also the evidence
in both the proceedings are common and as to whether any complicated question
of law is involved in the matter.
Delhi Cloth and General Mills Ltd. vs. Kushal Bhan : AIR 1960 SC 806 this Court
while holding that the employer should not wait for the decision of the
criminal court before taking any disciplinary action against the employee and
such an action on the part of the employer does not violate the principle of
natural justice, observed :- We may, however, add that if the case is of
a grave nature or involves questions of fact or law, which are not simple, it
would be advisable for the employer to wait the decision of the trial court, so
that the defence of the employee in the criminal case may not be
same principle was reiterated in Tata Oil Mills Co. Ltd. vs. The Workmen : AIR
1965 SC 155.
State of Rajathan vs. B.K. Meena and others : (1996) 6 SCC 417 this Court held
:- The staying of disciplinary proceedings, it is emphasised, is a matter
to be determined having regard to the facts and circumstances of a given case
and that no hard and fast rules can be enunciated in that behalf. The only
ground suggested in the above decisions as constituting 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.
Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and another: (1999) 3 SCC 679
also deserves to be noticed. This Court therein held that the departmental
proceedings need not be stayed during pendency of the criminal case save and
except for cogent reasons. The Court summarized its findings as under :-
Departmental proceedings and proceedings in a criminal case can proceed
simultaneously as there is no bar in their being conducted simultaneously,
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.
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.
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.
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, the administration may get rid of
him at the earliest.
The issue came up for consideration yet again in T. Srinivas (supra) where this
Court while analyzing B.K. Meena (supra) and Capt. M. Paul Anthony (supra) held
that :- From the above, it is clear that the advisability, desirability
or propriety, as the case may be, in regard to a departmental enquiry has to be
determined in each case taking into consideration all facts and circumstances
of the case. This judgment also lays down that the stay of departmental
proceedings cannot be and should not be a matter of course.
The High Court, unfortunately, although noticed some of the binding precedents
of the Court failed to apply the law in its proper perspective. The High Court
was not correct in its view in concluding that the stay of the departmental
proceedings should be granted in the peculiar facts and circumstances of the
case without analyzing and applying the principle of law evolved in the
therefore, misdirected itself in law. What was necessary to be noticed by the
High Court was not only existence of identical facts and the evidence in the
matter, it was also required to take into consideration the question as to
whether the charges levelled against the delinquent officers, both in the
criminal case as also the disciplinary proceedings, were same. Furthermore it
was obligatory on the part of the High Court to arrive at a finding that the
non stayed of the disciplinary proceedings shall not only prejudice the
delinquent officers but the matter also the matter involves a complicated
question of law.
The standard of proof in a disciplinary proceedings and that in a criminal
trial is different. If there are additional charges against the delinquent
officers including the charges of damaging the property belonging to the bank
which was not the subject matter of allegations in a criminal case, the
departmental proceedings should not have been stayed.
Furthermore Respondent Nos. 1 to 4 have now moved the High Court for quashing
of the order taking cognizance of offence against them in the criminal
proceedings. The criminal proceedings have been stayed. Thus, even applying the
principle laid down in Capt. M. Paul Anthony (supra) the impugned judgment cannot
the High Court no contention was raised that because Respondent Nos. 1 to 4 are
office bearers of a trade union, the authorities were biased against them.
Nothing has been shown that any complicated question of law arose for determination
in the criminal case.
Reliance placed by Mr. Prakash on Hindustan Petroleum Corporation Ltd. (supra)
is not apposite. There were certain special features which were noticed by this
Court. In that case itself it was held:- There can be no straitjacket
formula as to in which case the departmental proceedings are to be stayed.
may be cases where the trial of the case get prolonged by the dilatory method
adopted by the delinquent official. He cannot be permitted to, on one hand,
prolong the criminal case and at the same time contend that the departmental
proceedings should be stayed on the ground that the criminal case is
pending. (emphasis supplied) Therein the departmental proceeding were
allowed to continue despite the fact that the delinquent officer therein had
been charged for commission of an offence under Section 13(1)(e) read with
Section 13(2) of the Prevention of Corruption Act, 1988.
G.M. Tank (supra) this Court was dealing with a case where the delinquent
officer was acquitted. The said decision has no application in the instant
Vijay Kumar (supra) pertains to a case involving election dispute. The question
which arose therein was as to whether despite the fact that there was no
provision in the Representation of the People Act, 1961 for striking out the
pleadings, the Tribunal had the power to do so. We are not concerned with such
a question in this matter.
Furthermore the discretionary writ jurisdiction under Article 226 of the
Constitution of India should be exercised keeping in view the conduct of the
parties. Respondents made a representation that in the event the order of
suspension is revoked, they would cooperate with the Enquiry Officer. They kept
on filing applications for extension of time which were allowed. They took
however filing show cause, they moved the High Court.
before the Enquiry Officer also, as noticed hereinbefore, although they had
appointed the defence counsel, did not cross- examine the witnesses examined on
behalf of the Management. A large number of witnesses had already been examined
on behalf of the appellants. The disciplinary proceedings, as we have noticed
hereinbefore, have proceeded to a great extent. In such a situation we are of
the firm view that the discretionary jurisdiction should not have been
exercised in favour of Respondents 1 to 4 by the High Court.
For the reasons abovementioned the impugned judgment cannot be sustained which
is hereby set aside. The appeal is accordingly allowed.
would, however, like to observe that in the event any prayer is made by the
respondents to cross-examine the witnesses examined on behalf of the
appellants, the Enquiry Officer may consider the same in accordance with law.
Keeping in view the conduct of the respondents they are directed to bear the
costs of the appellants both before the High Court as also before us.
Counsels fee assessed at Rs.25,000/-.