Eastern Coalfields Limited vs Rabindra Kumar Bharti

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2794 OF 2022 (Arising out of SLP (C) No.12061/2021)

EASTERN COALFIELDS LIMITED & ORS. APPELLANT(S)

VERSUS

RABINDRA KUMAR BHARTI RESPONDENT(S)

JUDGMENT

K.M. JOSEPH, J.

1. Leave granted.

2. On the basis of the complaint lodged against the

respondent who was employed as a clerk with the

appellant(s) relating to demands for bribe by the

respondent to clear retirement formalities, the

respondent came to be arrested by the Central Bureau of

Investigation on 31st August, 2015. A case was lodged Signature Not Verified Digitally signed by against the respondent under Section 7 (12) & (13), Anita Malhotra Date: 2022.04.13 15:23:01 IST Reason:

sub-section 2 read with Section 13(i)(d) of the

Prevention of Corruption Act, 1988. The appellant also

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passed an order of suspension against the respondent on

3rd August, 2015. This suspension was no doubt revoked

on 15th September, 2015. Appellant served respondent a

notice of the departmental enquiry on 20th March, 2017.

This prompted the respondent to move a writ petition.

In the writ petition, the following order was passed on

29.06.2017: -

“Let the affidavit-of-service filed in

Court today be kept with the record.

Let an affidavit-in-opposition be filed within a period of three weeks. Let an affidavit-in-reply thereto, if any, be filed within a period of one week thereafter.

Let this matter appear for hearing in the Combined Monthly List of August, 2017 within the first 50 matters under that heading.

In the affidavit-in-opposition the respondents shall disclose the nature of the criminal proceeding pending against the petitioner including the names of the witnesses in the criminal proceeding as well as the departmental enquiry.

The respondents shall be at liberty to proceed with the departmental enquiry but shall not pass any final order without the leave of the Court.”

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3. The departmental proceedings accordingly,

continued. According to the appellant(s), the enquiry

was held and the respondent participated in the enquiry

also. At the end of the enquiry, the appellant(s) filed

an application seeking leave to pass the final orders.

This resulted in, the learned Single Judge passing

judgment dated 10th, February 2021. This decision was

impugned by the respondent before the Division Bench.

In the meantime, the respondent’s service came to be

dismissed from service by order dated 2nd March, 2021.

By the impugned judgment the Division Bench has

proceeded to direct that the final order of dismissal

of the respondent be stayed till the disposal of the

criminal case. It was further ordered that the order of

the dismissal against the respondent will become

operative on the criminal proceeding culminating in an

order of conviction. The Court also notes that the

Court was exercising power of the Court of Appeal

provided in Order 41 Rule 33.

4. We have heard the learned counsel for the parties.

The complaint of the appellant(s) is that the Division

Bench of the High Court has erred in not noticing that

principally it is not desirable to delay the

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departmental proceeding on account of pendency of a

criminal case. The principle that it is desirable to

delay the departmental proceeding when a criminal trial

is also pending, is owing to the fact that the employee

would be compelled to disclose his defence before the

departmental proceedings. The principle is

inapplicable. This is for the reason that by virtue of

the order, we have referred to dated 29.06.2007, the

learned Single Judge had permitted the enquiry to go

on. According to the appellant(s), the respondent

participated in the enquiry and thereafter on the

culmination of the enquiry in keeping with the order

passed on 29.06.2017 after the judgment of the Single

Judge dated 10.02.2021 the order of dismissal came to

be passed. The further case of the appellant(s) is that

the order of dismissal was not the subject matter of

appeal. In other words, dismissal of the respondent was

not challenged before the Division Bench.

It is also contended that a verdict of acquittal in

the trial which may occur in the future would not

affect the disciplinary proceedings as these

proceedings have purport different from the

disciplinary proceedings. The principles applicable to

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disciplinary proceedings are different is apparently

the contention.

5. Per Contra, Mr. Mahesh Prasad, learned counsel for

the respondent would point out that the impugned order

does not call for any interference. He would further

submit that the disciplinary proceedings were not

conducted in a proper manner.

It is pointed out that the charges, the witnesses

and evidence in the Criminal case and also in the

departmental proceedings are the same. He relied on

‘Capt. M. Paul Anthony Versus Bharat Gold Mines Limited

& Another1. In M. Paul Antony (supra) it was held as

follows:

20. This decision has gone two steps further than 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.

1 (1999) 3 SCC 679

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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 be continued in office indefinitely awaiting the result of criminal proceedings.

21. In another case, namely, Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya [(1997) 2 SCC 699 : 1997 SCC (L&S) 548 : AIR 1997 SC 2232] again it was held that there is no bar to proceed simultaneously with the departmental enquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law.

6. We may further notice that in the said judgment

this Court took note of the judgment in State of

Rajasthan v. B.K.Meena and Ors2 wherein it was inter

alia held as follows:

“The only ground suggested in the above decisions as constituting a valid ground for setting the disciplinary proceedings is that the findings of the trial court in the

2 (1996) 6 SCC 417

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criminal case may not be prejudiced.” This ground has however been hedged by providing further that this may be done in the cases of grave nature involving question of facts and law”.

7. In Pandiyan Roadways Corpn. Ltd. v. N.

Balakrishnan3 this Court noticed two different streams

of judicial views:

“21. There are evidently two lines of decisions of this Court operating in the field. One being the cases which would come within the purview of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] and G.M. Tank v. State of Gujarat [(2006) 5 SCC 446 : 2006 SCC (L&S) 1121] . However, the second line of decisions show that an honourable acquittal in the criminal case itself may not be held to be determinative in respect of order of punishment meted out to the delinquent officer, inter alia, when: (i) the order of acquittal has not been passed on the same set of facts or same set of evidence; (ii) the effect of difference in the standard of proof in a criminal trial and disciplinary proceeding has not been considered (see Commr. of Police v. Narender Singh [(2006) 4 SCC 265 : 2006 SCC (L&S) 686] ), or; where the delinquent officer was charged with something more than the subject-matter of the criminal case and/or covered by a decision of the civil court (see G.M. Tank [(2006) 5 SCC 446 : 2006 SCC (L&S) 1121] , Jasbir Singh v. Punjab & Sind Bank [(2007) 1 SCC 566 : (2007) 1 SCC (L&S) 401 : (2006) 11 Scale 204]

3 (2007) 9 SCC 755

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and Noida Entrepreneurs' Assn. v. Noida [(2007) 10 SCC 385 :

(2008) 1 SCC (Cri) 792 : (2008) 1 SCC (L&S) 672 : (2007) 2 Scale 131] , para

18).”

8. We may notice a recent judgment in Karnataka Power

Transmission Corpn. Ltd. v. C. Nagaraju and Another4

wherein it was interalia held: -

“9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455]”

9. We would notice that this is a case where there is

a criminal case against the respondent. The

appellant(s) as employer also launched disciplinary

4 (2019) 10 SCC 367

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proceedings. It is undoubtedly true that this Court has

taken the view that when the charges are identical and

gives rise to complicated issues of the fact and law

and evidence is the same, it may not be appropriate to

proceed simultaneously in disciplinary proceedings,

along with the criminal case. The rationale behind the

principle largely is that the employee who is facing

the disciplinary proceeding would necessarily have to

take a stand. This in turn would amount to revealing

his defense and therefore prejudice the employee in the

criminal proceedings. No doubt, this Court has laid

down that it is not an absolute embargo and the

principle is one to be applied based on the facts of

each case.

10. Even applying the principles as such to the

facts, that is, examining its impact on the destiny of

this case, we find as follows:

When the respondent was faced with the

disciplinary proceeding, he approached the High

Court. Apparently, he sought stay of the

proceedings. The High Court did not deem it

appropriate to grant stay of the disciplinary

proceeding. Instead, as noticed by us by order

dated 29.06.2017, the proceedings were allowed to

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be continued. According to the appellant(s) proper

enquiry was held and the respondent participated.

As to whether the enquiry was held properly or not

is not a matter on which we do express our opinion.

However, at the end of the enquiry as held by the

appellant in view of the order passed by the High

Court the appellant sought permission to pass the

final order, or the appropriate order of penalty.

This led to the disposal of the writ petition

itself by the learned Single Judge. The learned

Single Judge in the judgment noticed that this is a

case where the respondent had already revealed his

defence by participating in the proceedings. It is

further found that order dated 29.06.2017, which

permitted the enquiry to be continued was not

challenged. The learned Single Judge accordingly

permitted the disciplinary proceedings to attain

finality at the hands of the disciplinary

authority. The disciplinary authority accordingly

passed an order dismissing the respondent from

service. No doubt this is during the pendency of

the appeal.

11. In the appeal, the order of the disciplinary

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authority dismissing the respondent was not the subject

matter of challenge by way of an amendment in the writ

petition. The Division Bench has posed the question as

to what would happen if the criminal trial culminates

in acquittal and it is thereafter that the High Court

deemed it appropriate also apparently with reference to

its power under Order 41 Rule 33 to pass the order

keeping in abeyance the order of dismissal and it was

to become operative upon the criminal trial going

against the respondent.

12. We would notice that what is most pertinent is the

aspect that in the challenge in the writ petition

against the holding of the disciplinary proceedings,

obtaining of an interim order in the nature of the case

was of relevance and importance to the question at

hand. The principle involved being that when parallel

proceedings are held on the basis of identical charges

and the same evidence, the employee should not be

allowed to disclose his defence. This aspect of the

matter is to be looked into with reference to the

effect of the order dated 29.06.2017. As a result of

the said order passed during the pendency of the writ

petition, the respondent had allegedly participated in

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the enquiry and there would be no scope for applying

that principle as such. In such circumstances, we think

that High Court may not have been justified in

passing the impugned order the result of which is that

though the appellant(s) conducted the disciplinary

proceeding as permitted by the learned Single Judge and

the respondent allegedly participated in it and all

that remained was passing of an order by the

disciplinary authority and what is more during the

pendency of the appeal no doubt the order of the

dismissal has been passed, the appellant is forced to

retain the respondent and the order is to remain in

suspended animation to attain finality only if the

criminal case is decided in the future and it ends in

the conviction of the respondent. We do not think that

the High Court was justified in passing such an order

in the facts of this case.

13. We may also observe that reference made to Order 41

Rule 33 of the Civil Procedure Code may not have been

justified. Order 41 Rule 33 no doubt clothes the

appellate court with an extra ordinary power, which

however is a rare jurisdiction. It is to reach justice

in the special facts of a case. It is not an ordinary

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rule to be applied across the board in all the appeals.

In fact, the principle is interalia no doubt that even

if there is no appeal by any of the parties in the

proceedings, an order can be passed in his favour in

the appeal carried by the other side. Any order which

ought to have been passed can be passed. In this case,

there is no order against the appellant(s) by the

learned Single Judge. The order of dismissal was not

specifically the subject matter of challenge as

noticed. We do not think in the facts of this case,

that it is a fit case where the High Court could have

supported the directions with reference to Order 41

Rule 33.

14. The upshot of the above discussion is that the

impugned judgment cannot be sustained. Accordingly, we

allow the appeal and set aside the impugned judgment.

We, however, make it crystal clear that it will be

without prejudice to the rights of the respondent to

challenge the disciplinary proceeding in any competent

forum. We leave open all remedies and contentions of

the respondent in this regard.

The appeal is allowed as above. There will

be no order as to costs.

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All pending applications stand disposed

of.

……………………………………………. .J. [K.M. JOSEPH]

……………………………………………. .J. [ HRISHIKESH ROY]

NEW DELHI;

APRIL 7, 2022.

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