SHAMSHER SINGH SON OF LATE SHRI DINA NATH, RESIDENT OF VILLAGE PADYOLA Vs. STATE OF HIMACHAL PRADESH THROUGH SECRETARY

JUDGEMENT

(1.) THE petitioner has challenged show cause notice, Annexure P -9 which has been issued to him calling upon him to show cause as to why his services be not dispensed with. It is not disputed before me that departmental proceedings were instituted against the petitioner for imposing major penalty under the CCS (CCA) Rules. It is also not disputed before me that for the same act, proceedings under Section 307 of the IPC are pending against the petitioner in the Court of learned Sessions Judge, Chamba. Submission was made by the learned counsel appearing for the petitioner that parallel proceedings should and ought not to be allowed. Learned counsel placed reliance upon the judgment of the Supreme Court in Cap. M. Paul Anthony versus Bharat Gold Mines Ltd. And another (1999) 3 SCC 679 to urge that such courses should be avoided. In that case it was held that: - 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. The first decision of this Court on the question was rendered in Delhi Cloth and General Mills Ltd. v. Kushal Bhan, AIR 1960 SC 806, in which it was observed as under (para 3 of AIR) : It is true that very often employers stay 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 criminal trial Court before taking action against an employee. In Bimal Kanta Mukherjee v. M/s. Newsman's Printing Works 1956 L AC 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 the trial Court, so that the defence of the employee in the criminal case may not be prejudiced. This was followed by Tata Oil Mills Co, Ltd. v. Workmen, AIR 1965 SC 155, in which it was, inter alia, laid down as under : There is yet another point which remains to be considered. 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 proceedings. As this Court has held in the Delhi Cloth and General Mills Ltd. v. Kushal Bhan ( AIR 1960 SC 806), 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. The question cropped up again with a new angle in Jang Bahadur Singh v. Baij Nath Tiwari, AIR 1969 SC 30, as it was contended that initiation of disciplinary proceedings during the pendency of a criminal case on the same facts amounted to contempt of Court. This plea was rejected and the Court observed as under: 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 decision 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 continuation 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 disciplinary authority is free to exercise its lawful powers.These decisions indicate that though it would not be wrong in conducting two parallel proceedings, one by way of disciplinary action and the other in the criminal Court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a charge framed against the employee in a domestic inquiry is being tried in a criminal Court. The case law was reviewed by this Court in Kusheshwar Dubey v. M/s. Bharat Coking Coal Ltd. (1988) 4 SCC 319 and it was laid down as under : The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases, it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of 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 particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, strait -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. The Court further observed as under : In the instant case, the criminal action and the disciplinary proceedings 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. Then came the decision in Nelson Motis v. Union of India (1992) 4 SCC 711, which laid down that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. Besides, the Court found that the acts which led to the initiation of departmental proceedings were not exactly the same which were the subject matter of the criminal case. The question was not considered in detail. The Court observed (para 5 of AIR) : So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case. (Emphasis supplied)

(2.) THE entire case law was reviewed once again by this Court in State of Rajasthan v. B. K. Meena, (1996) 6 SCC, wherein it was laid down as under:

(3.) THIS decision has gone two steps further to the earlier decisions by providing :