KUSHESHWAR DUBEY

v.

A

BHARAT COKING COAL LTD. & ORS.

SEPTEMBER 6, 1988

(RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.) B

Disciplinary and criminal pr;;ceedings-Holding of-Simul­

taneously-Whether legal bar-Not advisable to evolve a hard and fast

rule valid for all

cases.

The appelJant, an employee of Respondent No. 1; was subjected to

disciplinary proceedings as also a criminal prosecution simultaneously C

on the allegation that he physically assaulted a supervising officer. He

tiled a civil action in the trial court asking for injunction against the

disciplinary action pending criminal trial. The trial court stayed

further proceedings in the disciplinary action till disposal of the crimi-

nal case.

In appeal, the appellate court affirmed the aforesaid order. D

However, the High Court allowed the Revision Application of the

Respondent and set aside the impugned order on the ground that there

is no

bar for an employer to proceed with the departmental proceeding

with

regard to the same allegation

for which a criminal·case is pending.

Allowing the appeal

to this Court, E

HELD: 1. The order of the High Court is vacated and that of the

trial court as affirmed in appeal is restored. The criminal action and the

disciplinary proceedings were grounded upon the same set of facts. The

disciplinary proceedings

should have been stayed and the High Court

was not right in interfering with the trial court's order of injunction F

which had been affirmed in appeal. [826A-B)

2(i) While there could be no legal bar for simultaneous proceed­

ings being taken, yet, there may be cases where it would be appropriate

to defer disciplinary proceedings a.waiting disposal of the criminal case.

In the latter class of cases it would be open to the delinquent-employee G

to seek such an order of stay or injunction from the couri. [825E-F)

J 2(ii) 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 discipli-H

821

822 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

A nary proceedings should be interdicted, pending criminal trial. [825F·G]

B

c

The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, [1960] 3

SCR 227; Tata Oil Mills Co. Ltd. v. Its Workmen, [1964] 7 SCR 555

and Jung Bahadur Singh v. Baij Nath Tiwari, [1969] 1SCR134, relied

upon.

Rama

P. C. v. Superintendent of Police, Kolar & Anr., AIR 1967

54 Mysore 220; Ali Mohd. & Ors. v. Chairman T.A. & C. Udhampur,

[1981] 2 SLR 225; Moulindra Singh v. The Deputy Commissioner &

Ors., [1973] LIC 6 1564; Shaikh Kasim v. Superintendent of Post

Office, Chingletut, AIR 1965 Mad. 502; Khusi Ram v. Union of India,

[1974] LIC 553 and Project Manager, ONGC v. Lal Chand Wazir

Chand Chandna,

[1982] I SLR 654, referred to.

3.

It is neither possible nor advisable to evolve a hard and

fast, straight-jacket· formula valid for all cases and

<1f general

application without regard to the particularities of the individual·

D situation.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3129

of 1988

From the Judgment and Order dated 7.7.1987 of the Patna High

E

Court in Civil Revision No. 128 of 1987 (R).

R.K. Jain, Rakesh K. Khanna and R.P.

Singh for the Appellant.

R.N. Sachthey and Anip Sachthey for the Respondents.

F The following Order of the Court was delivered:

ORDER

Special leave granted ..

G The appellant is an employee in the Balihari Colliery of the

Respondent No. 1 and in

1986 was working as an electrical helper.

On

the allegation that .he physically assaulted a supervising officer by [

name S.K. Manda!, he was subjected to disciplinary proceedings as

also a criminal prosecution. Since the disciplinary proceeding as also

the criminal trial were taken simultaneously, the appellant filed a

civil

H action in the court of Munsif at Dhanbad asking for injunction against

]

K. DUBEY v. BHARAT COKING COAL LTD. 823

the disciplinary action pending criminal trial. On 6.12.1986, the

Munsif made an order staying further proceedings

in the disciplinary

action till disposal

of the criminal case. The appeal of the Respondent

No. 1 against the order of learned Munsif

was dismissed on 3 lst

March,

1987, by the appellate court. Thereupon the Respondent No. 1

moved the High Court in its revisional jurisdiction, The High Court by

its

order dated 7. 7 .1987 held:

"First information report was lodged against the opposite

party (appellant) and the same

was pending before the

competent court. Meanwhile the petitioners (respondents)

started departmental proceeding against the opposite

party. The opposite party filed a suit before the trial court

for declaration that appointment of the Enquiry

Officer

was illegal and for restraining the petitioners permanently

from continuing with the departmental proceeding during

the pendency of the criminal case. That

was allowed by the

trial court and confirmed by the lower court. There

is

rio

bar for an employer to proceed with the departmental

proceeding with regard to the same allegation for which a

criminal case

is pending.

I am, therefore, of the opinion that the courts below

· were wrong in granting in junction in favour of the opposite

party. -

In the result, this application is allowed and the order

impugned

is set

aside."

According to Mr. Jain for the appellant, the legal position settled

A

B

c

D

E

by this Court supported the stand that the disciplinary action had to be F

stayed till the criminal case

was over. He relied upon the decisions in

The Delhi Cloth and General Mills Ltd. v. Kushal Bhan, [1960] 3 SCR

227 and Tata

Oil Mills Co. Ltd. v. Its Workmen, [1964] 7 SCR 555. He

also referred

in the course of his submission to the decisions of diffe­

rent High Courts in support of his propositions. Two cases out of the

several ones of the High Courts he relied upon are Khusi Ram

v. G

Union of India, [1974] LIC 553 and Project Manager, ONGC v. Lal

Chand Wazir Chand Chandna,

[1982] 1 SLR 654. Pathak CJ., as he

then

was', in the Himachal case indicated that· fair play required the

postponing of the criminal trial and Thakkar J.

as

our learned.brother

then was in the Gujarat case had also taken a similar view.

H

A

B

c

D

E

F

G

H

824 SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

We would like to point out that there are also authorities in

support of the position that there is nothing wrong in parallel proceed­

ings being

taken-one by way of the disciplinary proceeding and the

other in the criminal court. Reference may be made to decision of this

Court in Jang Bahadur Singh v. Baij Nath Tiwari, [1969]

I SCR 134

and some decisions of High Courts such as Rama P. C. v. Superinten­

dent

of Police, Kolar & Anr., AIR 1967 54 Mysore

220; Ali Mohd. &

Ors. v. Chairman I.A. & C. Udhampur, [1981] 2 SLR 225; Moulindra

Singh

v. The Deputy Commissioner &

Ors., [1973] LIC 6 1564 and

Shaikh Kasim

v. Superintendent of Police

Office, Chingletut, AIR 1965

Mad. 502.

Mr. Jain ~on tended that we should settle the law in a straight

jacket formula as judicial opinion appeared to be conflicting. We do

not propose to hazard such a step as that would create greater hardship

and individual situations may not be available to be met and thereby

injustice

is likely to ensue.

In the Delhi Cloth & General Mills' case (supra), it was pointed

out by this Court:

"It is true that very often employers st&y 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 crimi­

nal trial court before taking action against an employee. In

Shri Bimal Kanta Mukherjee

v. Mis. Newsman's Printing

Works,

[1956] LAC 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 or

law, which are not simple, it would be advisable for the

employer to await the decision

of

lhe trial court, so that the

defence of the employee in the criminal case may not be

prejudiced

.....

".

In Tata Oil Mills' case (supra), Gajendragadkar, CJ, spoke for a

three Judge Bench thus:

"There is yet another point which remains to be consi­

dered. The Industrial Tribunal appears to have taken the

view that since criminal proceedings had been started

against Raghavan, the domestic enquiry should have been

stayed pending the final disposal of the said criminal pro-

[

J

K. DUBEY v. BHARAT COKING COAL LTD. 825

ceedings. As this Court has held in the Delhi Cloth and

General Mills Ltd.

v. Kushal Bhan, it is desirable that if the

incident giving rise to a charge framed against a workman

in a domestic enquiry is being tried in a criminal court, the

employer, should stay the domestic enquiry pending the

final disposal of the criminal case

.....

".

ln _Jang Bahadur's case {supra) this 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 deci­

sion

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 con­

tinuation 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 disci­

plinary authority

is free to exercise its lawful

powers."

A

B

c

D

E

The view expressed in the three cases of this Court seem to

support the position that while there could be

no legal bar for simul­

taneous proceedings being taken, yet, there may

be cases where it

would be appropriate to defer disciplinary proceedings awaiting dis­

posal of the criminal case. In the latter class of cases it would be open F

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 proceed­

ings would then receive judicial consideration and the Court

will

decide in the given circumstances of a particular case as to whether the

disciplinary

proceedin-gs should be interdicted, pending criminal trial. G

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. H

A

B

c

826

SUPREME COURT REPORTS [1988] Supp. 2 S.C.R.

In the instant case, the criminal action and the disciplinary pro­

ceedings are grounded upon the same set of facts. We are of the view

that the disciplinary proceedings should have been stayed and the

High Court was not right in interfering with the trial court's order of

injunction which had been affirmed

in appeal.

The appeal

is allowed and the order of the High Court is vacated

and that

of the trial court as affirmed in appeal is restored. The appel­

lant shall be entitled to costs. Hearing fee

is assessed at

Rs.2,000.

We would like to point out that for the first time in this Court, the

enquiry report in the disciplinary proceedings

was produced. We

express no view about it.

M.L.A. Appeal allowed.

(