Bombay High Court
Dinkar Hanumant Dokhe vs Shri Saibaba Sanstha Vishwastha ... on 19 July, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9177 OF 2014
Dinkar Hanumant Dokhe,
Age : 57 years, Occu. Service,
R/o Saiprasad Housing Society,
Nimgaon Korhale, Taluka Rahata,
District Ahmednagar PETITIONER
VERSUS
Shri Saibaba Sansthan Vishwastha
Vyavastha, At Post Shirdi,
Taluka Rahata, District Ahmednagar,
through its Chief Executive Officer RESPONDENT
----
Mr. Parag V. Barde, Advocate for the Petitioner
Mr. N.R. Bhavar, Advocate for the Respondent
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 1st JULY, 2016
JUDGMENT PRONOUNCED ON : 19th JULY, 2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule. Rule made returnable forthwith. With
the consent of the learned counsel for the parties, the
petition is heard finally.
2. The petitioner, who was serving as a Ward-Boy
with the respondent since 1978, has been suspended on 9 th
July, 2014 on the allegations of committing theft of
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cash amount while counting the donations received by the
respondent. An FIR No. I-113/2014 came to be registered
against the petitioner in Shirdi Police Station for the
offence punishable under section 379 of the Indian Penal
Code. After investigation, a criminal case bearing
Regular Criminal Case (R.C.C.) No. 225 of 2014 has been
instituted against the petitioner in the Court of the
Judicial Magistrate First Class at Rahata for the said
offence. The said case is still pending.
3. The respondent initiated a regular disciplinary
enquiry against the petitioner and served chargesheet on
him on 14th July, 2014. The said enquiry is being
conducted by the Enquiry Officer, namely, Advocate B.Y.
Kalwaghe. The petitioner filed applications dated 30 th
August, 2014 and 29th September, 2014 before the Enquiry
Officer and prayed for keeping the disciplinary enquiry
in abeyance until final decision of R.C.C. No. 225 of
2014 (Crime No. I-113/2014) on the grounds that the
criminal case has been instituted in respect of the same
incident which is the subject matter of the disciplinary
enquiry. The witnesses in the disciplinary enquiry as
well as in the criminal case are identical. Therefore,
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if he disclosed his defence in the disciplinary enquiry,
his right to get himself defended before the Criminal
Court would be prejudiced. He further prayed that the
Presenting Officer appointed in the disciplinary enquiry
is the Law Officer having thorough knowledge of law. He
has conducted hundreds of disciplinary enquiries. There
is no employee available with the Union of the employees
of the respondent having thorough knowledge of law, who
would represent the petitioner in the disciplinary
enquiry. The petitioner has studied upto 5 th standard
only. He has no knowledge of law and the procedure for
facing the disciplinary enquiry. He, therefore, prayed
that he may be permitted to engage an Advocate on his
behalf to defend himself. Both the applications came to
be rejected by the Enquiry Officer. The application
dated 29th September, 2014 was containing the composite
prayer for staying the disciplinary enquiry and seeking
permission to engage an Advocate to represent the
petitioner. It has been rejected as per the impugned
order dated 2nd October, 2014.
4. The learned counsel for the petitioner pointed
out to the names of the witnesses to be examined in the
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disciplinary enquiry as well as before the Criminal
Court, which are identical, as also the statement of
imputations served on the petitioner and the contents of
the chargesheet in R.C.C. No. 225 of 2014 which also are
identical. Therefore, relying on certain judgments of
the Bombay High Court and that of the Hon'ble the
Supreme Court of India, he submits that the impugned
order may be quashed and set aside and the reliefs
claimed by the petitioner for staying the disciplinary
enquiry until the final decision of R.C.C. No. 225 of
2014 and further to permit the petitioner to engage an
Advocate to defend the petitioner before the Enquiry
Officer, may be granted.
5. The learned counsel for the respondent filed
reply on behalf of the respondent through one Rajendra
s/o Marutirao Jadhav and strongly opposed the petition.
On the basis of the contents of this reply, the learned
counsel for the respondent submits that the petitioner
is participating in the disciplinary enquiry and
availing of full and fair opportunity of hearing. The
said disciplinary enquiry are being conducted in
accordance with the principles of natural justice. He
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states that the Presenting Officer in the disciplinary
enquiry is a Diploma holder in Labour Laws and working
as a Labour Officer. He is not legally trained. The
charges levelled against the petitioner are not complex
or complicated. In the circumstances, he is not
entitled to get assistance of a legal practitioner to
defend himself in the disciplinary enquiry. He submits
that it is not at all necessary to stay the disciplinary
enquiry only because a criminal case based on the same
facts is pending against the petitioner before the
Criminal Court. He supports the impugned order and
prays that the writ petition may be dismissed.
6. As seen from the documents produced on record
in respect of the disciplinary enquiry initiated against
the petitioner and the chargesheet filed against him in
the Court of Judicial Magistrate First Class at Rahata
that both the proceedings are based on the same facts.
The witnesses proposed to be examined before the Enquiry
Officer and before the Criminal Court also are the same.
7. The learned counsel for the petitioner relied
on the decision in the case of Kusheshwar Dubey Vs. M/s
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Bharat Coking Coal Ltd. And others AIR 1988 S.C. 2118,
wherein the criminal action and the disciplinary
proceedings were grounded upon the same set of facts.
Therefore, it was held that the disciplinary proceedings
should be stayed pending the criminal trial. In the
case of State Bank of India and others Vs. R.B. Sharma
AIR 2004 S.C. 4144, it has been observed in paragraph
No. 7 of the judgment that it is 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. On the
same point, the learned counsel for the petitioner also
relied on the judgments in the cases of M/s Stanzen
Toyotetsu India P. Ltd Vs. Girish V and others AIR 2014
S.C. 989 and Surendrasingh Govindsingh Rajput Vs.
Maharashtra State Electricity Distribution Company Ltd.
(MSEDCL), and another, Writ Petition No. 4758 of 2014
(with companion writ petitions), decided by the Bombay
High Court, Bench at Aurangabad on 23 rd September, 2015.
The ratio laid down in these judgments is fully
applicable to the facts of the present case. The facts
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and circumstances of the present case warrant stay to
the disciplinary proceedings during pendency of the
trial instituted against the petitioner in the Court of
Judicial Magistrate First Class, Rahata on the basis of
the same facts which have been proposed to be proved by
the common evidence through common witnesses.
8. The petitioner has been prosecuted for the
offence punishable under section 379 of the Indian Penal
Code. He is bound to take assistance of a legal
practitioner to defend himself before the Criminal
Court. He has been indicted by the Enquiry Officer on
the same facts and the evidence proposed to be adduced
in proof thereof also is the same. The petitioner has
studied upto 5th standard. He cannot be said to have
thorough knowledge of the legal provisions as well as
the procedure governing the disciplinary proceedings.
Considering the grave charges levelled against the
petitioner, it is desirable that he should get
sufficient opportunity to defend himself by engaging an
Advocate on his behalf before the Enquiry Officer. The
petitioner has come with a specific case that the
Presenting Officer Shri M.D. Dhaneshwar is a Law Officer
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who has thorough knowledge of law and procedure. He has
a great experience of conducting the disciplinary
enquiries. If that be so, the principles of natural
justice would demand that the petitioner should be given
necessary opportunity of defending himself by engaging
an Advocate on his behalf.
9. The learned counsel for the petitioner has
rightly relied on the judgment in the case of The Board
of Trustees of the Port of Bombay Vs. Dilipkumar
Raghavendranath Nadkarni and others AIR 1983 S.C. 109
wherein it has been held that where in the enquiry
before a domestic tribunal, the delinquent officer is
pitted against a legally trained mind and if he seeks
permission to appear through a legal practitioner the
refusal to grant this request would amount to refusal of
a reasonable request to defend himself and the essential
principles of natural justice would be violated. He
further cited the judgment in the case of Yeshwant
Harichandra Gharat Vs. M/s Clairant Chemicals (I) Ltd.
and another 2010 (2) ALL MR 875 (Bombay High Court),
wherein it is observed that even if the charges are
simple and apparently uncomplicated, an employee would
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be entitled to the assistance of a legally trained
person, if the Management representative/Presenting
Officer is a legally trained person. To strengthen the
same relief of taking the services of a Legal
Practitioner for defending the petitioner, the learned
counsel for the petitioner placed reliance on the cases
of Chandrakant s/o Shridhar Deshpande Vs. Government of
Maharashtra and another 1990 (1) Bom C.R. 17 and J.K.
Aggarwal Vs. Haryana Seeds Development Corporation
Limited 1991 AIR (SC) 1221.
10. In view of the facts and circumstances of the
case, the impugned order will have to be quashed and set
aside. The respondent will have to be directed to
permit the petitioner to engage an Advocate to defend
himself in the disciplinary enquiry. Moreover, the
disciplinary enquiry will have to be ordered to be
stayed until the final decision of R.C.C. No. 225 of
2014. However, it is well settled that the
disciplinary/departmental proceedings cannot be unduly
delayed if the criminal case does not proceed, as held
by the Hon'ble the Supreme Court in the case of Capt. M.
Paul Anthony Vs. Bharat Gold Mines Ltd. 1999 (3) SCC
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679. It is observed in Para 22, clause (V) of the
judgment in the said case that if the criminal case does
not proceed or its disposal is being unduly delayed, the
disciplinary 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. In view of these observations, in the present
case, while staying the disciplinary enquiry, necessary
directions will have to be given for expeditious
disposal of R.C.C. No. 225 of 2014. In the result, we
allow the writ petition with the following order.
(i) The impugned order dated 2nd October, 2014,
passed by the Enquiry Officer in the
disciplinary enquiry, initiated against the
petitioner by the respondent, is hereby quashed
and set aside.
(ii) The disciplinary enquiry initiated against the
petitioner by the respondent shall remain
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stayed for a period of one year from the date
of this order or until decision of R.C.C. No.
225 of 2014, whichever is earlier.
(iii) The learned Judicial Magistrate First Class,
Rahata shall conclude the trial of R.C.C. No.
225 of 2014 as expeditiously as possible and
preferably within a period of one year from the
date of this order.
(iv) The petitioner shall cooperate with the Trial
Court for early disposal of R.C.C. No. 225 of
2014.
(v) If the trial in R.C.C. No. 225 of 2014 is not
concluded within a period of one year from the
date of this order, the stay granted today
shall stand vacated and the disciplinary
enquiry initiated against the petitioner shall
be resumed and concluded by the Enquiry
Officer.
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(vi) The Enquiry Officer shall permit the petitioner
to engage an Advocate to defend himself in the
disciplinary enquiry.
(vii) The Registrar (Judicial), High Court Bench at
Aurangabad shall communicate this order to the
learned Judicial Magistrate First Class, Rahata
for taking necessary steps for expeditious
disposal of R.C.C. No. 225 of 2014.
(viii) Rule is made absolute in the above terms and
the writ petition is disposed of.
(ix) No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [S.S. SHINDE]
JUDGE JUDGE
npj/wp9177-2014
