National Insurance Company Ltd. vs Shri Sunil Kumar And Others
2011 Latest Caselaw 1807 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Reserved on :           January 20, 2011
                                Judgment Delivered on:           March 29, 2011

+      LPA No. 730 Of 2010

       National Insurance Company Ltd.              ..... Appellant
                         Through: Mr. Sudhir Chandra, Senior Advocate
                                  with Mr. Rajinder Dhawan and
                                  Ms.Shafaali Dhawan, Advocates.

                                   Versus

       Shri Sunil Kumar and others                     ..... Respondents

Through: Mr. Raman Gandhi and Mr. Sunil Satyarthi, Advocates.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers be allowed to see the judgment? YES

2. To be referred to the Reporter or not? YES 3 Whether the judgment should be reported in the Digest? YES

DIPAK MISRA, CJ

Calling in question the defensibility and justifiability of the order

dated 31.8.2010 passed by the learned Single Judge in W.P.(C)

No.4298/2010 the present intra-Court appeal has been preferred.

LPA 730/2010 page 1 of 24

2. The respondents invoked the jurisdiction of this Court under

Articles 226 and 227 of the Constitution of India praying for stay of the

departmental proceedings instituted against them till the trial, in FIR

No.106/2009 instituted for offences punishable under Sections 323, 341

read with Section 34 of the Indian Penal Code (IPC), was

finalized/pending or till the time cross-examination of the witnesses in the

criminal trial was over.

3. The essential expose of facts are that the respondents are employees

of the appellant company and they have been associated with various

employees associations and have been espousing the case of the

employees. In the year 2006, one Mr.Tobdan joined the appellant

company as a Deputy General Manager and, as alleged, he ill-treated the

employees. On 28.4.2009, an FIR bearing no.106/2009 was lodged by said

Mr.Tobdan against the respondents-employees for offences punishable

under Sections 323/341 read with Section 34 of the IPC. On 29.4.2009, the

respondents employees were suspended and subsequently a chargesheet

was issued to them by the appellant company and the departmental

enquiry commenced. It was urged before the writ court that the

chargesheet in the departmental proceeding was similar to the allegations

LPA 730/2010 page 2 of 24 made in the FIR on the basis of which the criminal prosecution has been

launched. After the issuance of the chargesheet, the departmental

proceeding continued but no material progress could be made as the same

was adjourned from time to time. The matter was adjourned to 28.6.2010

for recording of the evidence of the management witnesses. At that

juncture, the writ petition was filed, wherein the writ court directed the

examination-in-chief of the witnesses who would appear on 28.6.2010 be

recorded but cross examination may not be recorded and the employer

shall not insist on cross-examination.

4. It was contended before the learned Single Judge that the

disciplinary proceeding and the criminal prosecution are based on the

same set of facts and regard being had to the similarity, it would not be

appropriate to carry on with the two parallel proceedings, one by way of

disciplinary action and other by way of criminal prosecution and, hence, it

was desirable to stay the departmental proceeding as carrying on the same

would be detrimental to the defence of the respondents in the criminal

proceeding. Learned Single Judge referred to the decisions rendered in

Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., AIR 1999 SC

1416, Indian Overseas Bank, Annasalai and Anr. v. P. Ganesan and Ors.,

LPA 730/2010 page 3 of 24 (2008) 1 SCC 650 and came to hold that in the case at hand, the FIR as well

as the chargesheet appeared to be initiated in major part on the same set of

facts of incident that took place on 28.4.2009 and continuance of the

departmental enquiry is likely to prejudice the defence of the respondents

herein in the criminal trial pending before the learned Chief Metropolitan

Magistrate with the further stipulation that the criminal proceedings

should be concluded preferably within a period of six months.

5. Assailing the legal substantiality of the aforesaid order Mr.Sudhir

Chandra, learned senior counsel for the appellant has raised the following

contentions:

(a) The learned Single Judge has fallen into a serious error by

expressing the view that the charges levelled against the employees

in the disciplinary proceeding and the allegations in the FIR are

same though a part of the incident relating to unlawful restraint and

assault that occurred outside the office is common, whereas apart

from that the respondents were chargesheeted for other incidents

which took place inside the office of Mr.N. Tobdan, the Deputy

General Manager heading the Delhi regional office of the appellant

LPA 730/2010 page 4 of 24 company. The learned single Judge failed to take note of the fact

that the respondents employees at the relevant time were working in

the divisional offices / branch offices and they left their place of

work without seeking permission of the concerned Divisional

Manager / Branch Manager, which is in the realm of misconduct.

(b) The respondents had filed a report on 29.7.2009 before the Deputy

Commissioner of Police, which on an enquiry could not be

substantiated and the enquiry revealed that the allegations were

made to counter the FIR No.106/2009 which was lodged by

Mr.Tobdan. Thus, the colossal grievance that the respondents

would be prejudiced by revealing their defence melts into

insignificance and should not be given any kind of weightage. After

the police declined to register the FIR, the respondents had filed a

complaint before the learned ACMM which is also to the same

effect.

(c) In the departmental enquiry 17 witnesses have been cited, whereas

10 witnesses have been cited in the criminal case and only 5

witnesses are common in both the proceedings, which aspect has not

LPA 730/2010 page 5 of 24 been taken note of by the learned Single Judge. This makes the

decision sensitively susceptible.

(d) The order of the learned Single Judge suffers from infirmity as in the

chargesheet issued in the departmental proceedings additional

allegations have been made apart from what has been stated in the

FIR and in a writ petition a court is required to keep in mind that the

disciplinary proceeding is not meant to punish the guilty but to keep

the administrative machinery unsullied, by getting rid of the

unwarranted elements.

(e) The doctrine of prejudice is not attracted to the case at hand and,

therefore, the learned Single Judge has fallen into error by directing

stay of the proceedings.

Learned senior counsel to buttress the aforesaid submissions has

placed heavy reliance on State of Rajasthan v. B.K. Meena, (1996) 6 SCC

417, Capt. M. Paul Anthony (supra), P. Ganesan and Ors. (supra).

6. Mr. Raman Gandhi, learned counsel for the respondents resisting

the aforesaid proponements has raised the following contentions:

LPA 730/2010                                              page 6 of 24
 (i)     The analysis made by the learned Single Judge that both the

proceedings are initiated on the major part of the same incident

cannot be faulted and once such an opinion has been expressed the

learned Single Judge has appositely directed stay of the

departmental enquiry, which cannot be flawed.

(ii) The imputation of misconduct in the articles of charge in the

disciplinary proceedings and the allegations in the chargesheet in

the criminal proceeding being absolutely same without there being

an iota of difference, the effort made by the appellant-employer to

make a distinction between the two proceedings is an exercise in

futility and, in actuality, it is a maladroit attempt to carry on with

the departmental proceeding to harass the respondents.

(iii) The basic allegation in both the criminal proceeding as well as the

departmental proceeding is the purported assault on Mr.Tobdan

and no other misconduct being required to be proven apart from the

same and hence, it is advisable in law to stay the departmental

proceeding which the learned Single Judge has done and, therefore,

LPA 730/2010 page 7 of 24 the order passed by the writ court is totally invulnerable and

impregnable.

(iv) The delay in disposal of the criminal proceeding sometimes is a

causative aspect/factor for not directing stay of the disciplinary

proceeding and the learned Single Judge has taken care of the said

situation by directing the learned Magistrate to dispose of the trial

within six months.

In support of the aforesaid contentions, the learned counsel for the

respondents has placed reliance on various paragraphs in the case of Capt.

M. Paul Anthony (supra),

7. To appreciate the rivalized submissions raised at the Bar, it is

appropriate to refer to the allegations made in the FIR and the chargesheet

of the departmental proceedings. The relevant part of the FIR, reads as

follows:

"...around 2 PM I received a call from one Mr. Sunil Kumar, Representative of an SC/ST Association to give time for discussion of some union matters. I told him that it may not be possible today. However, he insisted and I told him at 4 PM they can come and discuss the matter as I had to take my wife for a doctors‟

LPA 730/2010 page 8 of 24 appointment at 5 PM. At around 4.30 PM they came and handed over to me an agenda which on office record for discussion. I was accompanied by Mr. K. Singh for the discussion. The association representative were 1) Mr. Pratap, 2) Mr. Sunil Kumar, 3) Mr. Hira Lal, and 4) 2-3 unknown persons supposed to be from United Insurance Company. That the first issue of the agenda was being discussed which is transfer of one officer Mr. Chaman Lal from DO XI to DO Gurgaon. When the matter was being discussed Mr. Pratap Singh started shouting and I told him this was no way to discuss and the matter would not be discussed if the shouting continues. On hearing this they went. In the meanwhile I received a call from one Mr. Punnu Swamy who spoke to me for a while and told me to discuss the matter with them either today or the next working day or to authorize some senior officer to discuss the matter. Around 5.15 PM I came out of my office to receive my wife at the Metro Station. I took my car and while just a few steps away from the gate of the office these men namely 1) Pratap, 2) Mr. Sunil Kumar, 3) Mr. Hira Lal,

4) 2-3 unknown persons (present earlier in the meeting) stopped my car and assaulted me for reasons unknown, in the presence of people on street. I was rescued by one sikh gentleman who runs a lathe workshop in the vicinity of the office. I have received internal injuries for which the medical report is attached. I request you to take suitable action against these men aforementioned..."

8. The statement of imputation of misconduct in the chargesheet reads

as follows:

"On 28th April, 2009, during Lunch period, Shri Bodhakar, and his associates, through Shri Sunil Kumar Jayenth contacted Shri N. Tobdan, Deputy General

LPA 730/2010 page 9 of 24 Manager, Delhi Regional Office-II, National Insurance Company Limited, over telephone and sought a time for meeting for discussion, on the same day, without specifying the issues. Though, they were informed by Shri Tobdan to keep the meeting on a next suitable date, since Shri Tobdan was monitoring submission of yearly Accounts of RO and also that Shri Tobdan had to leave office early to take his wife to Doctor, they insisted and obtained time for meeting scheduled at 4 PM on 28th April, 2009. Shri Bodhakar, Shri Sunil Kumar Jayenth, Shri Hira Lal, Shri Bully Burande, an employee of United Insurance Company Limited, Delhi Office, came jointly at around 4.40 PM and submitted an agenda in the letter head of Dalit Bima Karmchari Sangathan, dated 28.04.2009, signed by Shri Bully Burande and Shri Sunil Kumar Jayenth.

The issues submitted for discussions were related to the transfer of four of the employees of National Insurance Company Limited, posted under DRO - II, none of whom submitted formal transfer application to the Appropriate Authority. The details of employees and related issues are as under:

a) Transfer of Shri Chaman Lal, Administrative Officer, from Delhi DO-XI to Gurgaon DO. Shri Chaman Lal is member of General Insurance Officers‟ All India Association and All India General Insurance SC/ST Employees‟ Parishad (Jaymurthy).

b) Transfer of Shri Suresh Shah, Assistant Delhi DO-

XIV to HS Rd Azadpur Branch, Delhi.

c) Transfer of Shri Balbir Singh, Assistant, Karampura Branch under DO VIII, Delhi to DO-

XXIV, Delhi. Shri Balbir Singh is member of GIEAIA and All India General Insurance SC/ST

LPA 730/2010 page 10 of 24 Employees Parishad (Gajbiye and Mahender Singh).

               d)    Transfer of Ms.Asha Aline Ekka Tirkey, Assistant
                     from DRO - II to Hauz Khas BO. Ms. Asha is
                     member of GIEAIA and All India General
                     Insurance     SC/ST     Employees      Parishad
                     (Jaymurthy).

Shri Pratap Singh and his associates insisted on transfer of Shri Chaman Lal, AO(D), presently posted at DO-XIV to DO Gurgaon which being the first item of the agenda. The management has shown their inability to transfer services of Shri Chaman Lal, AO as such authority only lies with that of HO. No sooner these words were uttered, Shri Pratap Singh got agitated and started shouting and also rose from his chair and insisted for the transfer to be carried out immediately. Shri Tobdan and Mrs. K. Singh requested them to calm down and discuss the issues in proper civilized manner but they continued to be belligerent and no heed was paid to the request of Shri Tobdan and Mrs. K. Singh. Subsequently, they left the meeting abruptly, shouting that "Aap ko dekh lenge" and we will sit for Dharna here. Thereafter, as Shri Tobdan was to attend to some other work, he instructed Mrs. K. Singh to attend to Shri Bodhakar and his associates, in case they turned up to continue the meeting. However, they did not come.

Shri Bodhakar and his other five associates having failed to achieve and force the desired result in the meeting, conspired with union of mind and common criminal intention to harm and attack Shri Tobdan physically and to insult Shri Tobdan in public, went outside the main gate of office premises of Delhi Regional Office-II, ahead of Shri Tobdan and waited near the gate for Shri Tobdan.

LPA 730/2010 page 11 of 24 When Shri Tobdan took his car from the office gate and was to pass by, Shri Bodhakar and his associates assembled in six number of persons with criminal intention and preparation. Shri Bodhakar and his associates blocked the movement of the car by coming in front of the car, using force and as such restrained movement of Shri Tobdan. Thereafter, Shri Bodhakar and his associates, pulled out Shri Tobdan from his car forcefully and along with all the associates, jointly used criminal force upon the body and mind of Shri Tobdan by intimidating, punching, slapping and kicking Shri Tobdan by using their hands and feet with a criminal motive of causing injuries, fear and shock to Shri Tobdan. Shri Bodhakar and his associates thus, voluntarily caused grievous injuries / hurt on the person of Shri Tobdan and caused fear and apprehensions in the mind of Shri Tobdan for future. Shri Bodhakar and his associates were so callous and determined to inflict severe and repeated injuries upon Shri Tobdan that they bye standers and the persons running nearby shops etc. had to interfere and save the life of Shri Tobdan.

The injuries and mental agony and fear of danger and insult was so grave that Mr.Tobdan wept a public and was not able to do anything for the time being. Most of the officials and staff of DRO - II, including some outsiders saw their office superior in extreme pain and shock due to the injuries inflicted on his body and in fear and real apprehension of danger on his face and actions, after the incident. This resulted in fear and shock to all the employees of DRO-II, and also the public / clients related to National Insurance Company Limited."

(emphasis supplied)

LPA 730/2010 page 12 of 24

9. Keeping in view the aforesaid factual matrix, presently we shall

advert to the law on the said subject and issue. In Capt. M. Paul Anthony

(supra) in paragraph 13 it has been stated thus:

"13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

LPA 730/2010 page 13 of 24

10. The aforesaid enunciation of law was made on the backdrop of the

principles laid down in Delhi Cloth and General Mills Ltd. v. Kushal

Bhan, AIR 1960 SC 806, Tata Oil Mills Co. Ltd. v. Workmen, AIR 1965 SC

155, Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30 and

Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd., AIR 1988 SC 2118.

Thereafter, their Lordships referred to the entire case law which was

reviewed again in the case of B.K. Meena (supra). In B.K. Meena (supra),

their Lordships have opined thus:

"14. It would be evident from the above decision 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 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

LPA 730/2010 page 14 of 24 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 also not 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 considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite 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 undesirable elements are thrown out and any charge of misdemeanour 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 misdemeanour 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

LPA 730/2010 page 15 of 24 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."

(Emphasis supplied)

11. Analyzing the same, their Lordships in Capt. M. Paul Anthony

(supra) have observed thus:

"20. This decision has gone two steps further to the earlier decisions by providing:

(1) The 'advisability', 'desirability' or 'propriety' of staying the departmental proceedings "go into the scales while judging the advisability or desirability of staying the disciplinary proceedings" merely as one of the factors which cannot be considered in isolation of other circumstances of the case. But the charges in the criminal case must, in any case, be of a grave and serious nature involving complicated questions of fact and law.

(2) One of the contending considerations would be that the disciplinary enquiry cannot - and should not be

- delayed unduly. If the criminal case is unduly delayed, that may itself be a good ground for going ahead with the disciplinary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should

LPA 730/2010 page 16 of 24 be continued in office indefinitely awaiting the result of criminal proceedings."

12. After discussing all the decisions in the field, the principles that have

been culled out in Capt. M. Paul Anthony (supra) read as follows:

"22. The conclusions which are deducible from various decisions of this Court referred to above are:

(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.

LPA 730/2010 page 17 of 24

(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)

13. In Ganesan & Ors. (supra) the Apex Court in paragraph 18 laid

down thus:

"18. 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."

Thereafter their Lordships referred to the earlier decisions in the

field and opined thus:

"23. 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 aforementioned decisions. It, therefore, misdirected

LPA 730/2010 page 18 of 24 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 leveled 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-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law.

24. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. It 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."

[Emphasis added]

14. In NOIDA Enterpreneur Association v.s NOIDA & Ors.; JT 2007 (2)

SC 620, the Apex Court has expressed thus:

"12. The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So 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

LPA 730/2010 page 19 of 24 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 grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian Evidence Act 1872 (in short the „Evidence Act‟). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence 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]

15. From the aforesaid enunciation of law, it can be stated with certitude

that the scope, effect and consequence of a criminal trial and a

departmental proceedings are distinct and different. Once the employer

LPA 730/2010 page 20 of 24 has reasonable basis regard being had to the sanctity, stability and the

propriety of the administration and to avoid any kind of anarchy or chaos,

it may be under an obligation to initiate departmental proceeding and

simultaneously a criminal prosecution may be launched against the same

delinquent employee. The circumstances should be such that there would

be a warrant for directing stay of the disciplinary proceedings. It needs no

special emphasis to state, the onus is on the delinquent employee that

serious prejudice would be caused, if the parallel proceedings are allowed

to continue. It is well settled in law that the burden of proof in a criminal

trial is quite stringent, as an accused is entitled to benefit of doubt and the

consequent acquittal, but the test of preponderance of possibilities in

departmental proceedings is different. But regard being had to the nature

of proof required in the departmental proceedings enquiry, a charged

employee may not be entitled to exoneration. Regard must be given to the

fact that in the departmental proceeding, the standard of proof is totally

different. The cannons of service jurisprudence require that the

departmental proceedings are put to an end as expeditiously as possible.

The exception carved out is that the delinquent employee should be

exposed to grave prejudice and the charges leveled against him should be

LPA 730/2010 page 21 of 24 so grave and involve complex questions of law and fact, so that it is

undesirable and apposite to invite an interdiction in exercise of inherent

jurisdiction by the Court. As has been stated by their Lordships, there

cannot be any hard and fast rule or a strait jacket formulae and it depends

upon many a factor and facts of each case.

16. In the case at hand as the factual matrix would exposit the statement

of imputation of misconduct in the chargesheet of the departmental

proceeding and the allegations in the FIR though relate to an event of a

particular date but the incidents and the places of occurrence are different

and further the nature of allegations are not self-same. If the statement of

imputation of misconduct is scrutinized in a studied manner, it is vivid

that there is a contour of misconduct regard being had to the behavioral

pattern in the office atmosphere with a senior officer and thereafter alleged

assault outside. Quite a major part of it can be regarded to be in the realm

and sphere of discipline which is paramount to be maintained and

sustained in the area of administration, and the other, allegation of assault

on an individual. One pertains to alleged misdemeanor and the other

alleged offence committed under the Indian Penal Code. The nature of

offence in the criminal case against the delinquent employees is not of

LPA 730/2010 page 22 of 24 grave nature which involves complicated questions of law and fact. The

plea that the defence shall be revealed cannot be the sole ground in the

obtaining factual matrix to attract the concept of desirability or advisability

to stay the departmental proceeding because we really do not perceive that

the matter involves any complicated question of law. As has been held in

the case of P. Ganesan and Ors. (supra), it is obligatory on the part of the

High Court to arrive at a finding that not staying of the disciplinary

proceedings shall not only prejudice the delinquent officers but the matter

also involve a complicated question of law. What is required to be seen is

whether the departmental enquiry would seriously cause prejudice to the

delinquent in his defence at the trial in a criminal case. Mr. Sudhir

Chandra, learned senior counsel appearing for the appellant would submit

that the delinquent employees have already filed a complaint case seeking

a direction in registration of the FIR and, therefore, they have already

disclosed their defence. We do not intend to get into the said facet as the

learned counsel for the respondents would submit that the defences of an

accused cannot be restricted. Thus, we restrain from expressing any

opinion on that score. However, regard being had to the nature of

imputation of misconduct in the departmental proceeding and the nature

LPA 730/2010 page 23 of 24 of allegations in the criminal case, non-involvement of any complicated

question of fact or law, the nature of offences instituted against the

employees, the concept of desirability for staying of the proceeding and

the doctrine of prejudice to be caused to the employees and further the

sanctity of the discipline in an institution, we are inclined to think that this

is not a fit case where a stay of departmental proceeding should have been

granted. Therefore, we are unable to concur with the view expressed by

the learned Single Judge.

17. Consequently, the appeal is allowed; the order passed by the learned

Single Judge is set aside and as a sequittur, the writ petition filed by the

respondents-employees is dismissed. In the facts and circumstances of the

case, there shall be no order as to costs.

                                                     CHIEF JUSTICE



MARCH 29, 2011                                       SANJIV KHANNA, J.
dk




LPA 730/2010                                                page 24 of 24