EASTERN COALFIELDS LIMITED & ORS. versus RABINDRA KUMAR BHARTI on 7 April 2022

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SUPREME COURT REPORTS

[2022] 4 S.C.R.

AEASTERN COALFIELDS LIMITED & ORS.

v.

RABINDRA KUMAR BHARTI

(Civil Appeal No. 2794 of 2022)

BAPRIL 07, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Service Law – Departmental proceedings – Respondent,employed as a clerk with the appellant(s), was suspended by theappellant on the complaint of demanding bribe to clear retirementCformalities and also served with a notice of departmental enquiry –Respondent moved a writ petition – Single Judge of High Courtallowed the appellant to continue with the proceedings but orderedthe appellant to not to pass final order without the leave of theCourt – At the end of the enquiry, the appellant(s) filed anDapplication seeking leave to pass the final orders which was allowed– Appeal before Division Bench of High Court – In the meantime,respondent was dismissed from service – Division Bench of HighCourt directed that the final order of dismissal of the respondent bestayed till the disposal of the criminal case and also the order of thedismissal against the respondent will become operative on theEcriminal proceeding culminating in an order of conviction – Held:Principle involved is that when parallel proceedings are held onthe basis of identical charges and the same evidence, the employeeshould not be allowed to disclose his defence – However, SingleJudge permitted the proceeding to go on and respondent participatedFin it – Division bench of High Court was not justified in passing theimpugned order as the order of dismissal was already passed by thedisciplinary authority and appellant was forced to retain therespondent as a result of which dismissal order was to remain insuspended animation to attain finality only if the criminal case endsin the conviction of the respondent – Reference made to Or. 41 r.33GCPC may not have been justified in the facts of this case – Judgmentof the Division Bench set aside – It will be without prejudice to therights of the respondent to challenge the disciplinary proceeding inany competent forum.

Code of Civil Procedure, 1908: Or.41 r.33 – Scope of –HDiscussed.

Allowing the appeal, the Court

HELD: 1.This is a case where there is a criminal caseagainst the respondent. The appellant(s) as employer alsolaunched disciplinary proceedings. It is undoubtedly true that thisCourt has taken the view that when the charges are identical andgives rise to complicated issues of the fact and law and evidenceis the same, it may not be appropriate to proceed simultaneouslyin disciplinary proceedings, along with the criminal case. Therationale behind the principle largely is that the employee who isfacing the disciplinary proceeding would necessarily have to takea stand. This in turn would amount to revealing his defense andtherefore prejudice the employee in the criminal proceedings.No doubt, this Court has laid down that it is not an absoluteembargo and the principle is one to be applied based on the factsof each case. [Para 9][1092-B-D]

2. When the respondent was faced with the disciplinaryproceeding, he approached the High Court. Apparently, he soughtstay of the proceedings. The High Court did not deem itappropriate to grant stay of the disciplinary proceeding. Instead,as noticed by order dated 29.06.2017, the proceedings wereallowed to be continued. According to the appellant(s), properenquiry was held and the respondent participated. At the end ofthe enquiry as held by the appellant in view of the order passedby the High Court, the appellant sought permission to pass thefinal order, or the appropriate order of penalty. This led to thedisposal of the writ petition itself by the Single Judge. The SingleJudge in the judgment noticed that this is a case where therespondent had already revealed his defence by participating inthe proceedings. It is further found that order dated 29.06.2017,which permitted the enquiry to be continued was not challenged.The Single Judge accordingly permitted the disciplinaryproceedings to attain finality at the hands of the disciplinaryauthority. The disciplinary authority accordingly passed an orderdismissing the respondent from service. No doubt this is duringthe pendency of the appeal. [Para 10][1092-D-H; 1093-A]

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A3. In the appeal, the order of the disciplinary authoritydismissing the respondent was not the subject matter of challengeby way of an amendment in the writ petition. The Division Benchhas posed the question as to what would happen if the criminaltrial culminates in acquittal and it is thereafter that the High Courtdeemed it appropriate also apparently with reference to its powerBunder Order 41 Rule 33 to pass the order keeping in abeyancethe order of dismissal and it was to become operative upon thecriminal trial going against the respondent. [Para 11][1093-A-C]

4. In the challenge in the writ petition against the holdingof the disciplinary proceedings, obtaining of an interim order inCthe nature of the case was of relevance and importance to thequestion at hand. The principle involved being that when parallelproceedings are held on the basis of identical charges and thesame evidence, the employee should not be allowed to disclosehis defence. This aspect of the matter is to be looked into withDreference to the effect of the order dated 29.06.2017. As a resultof the said order passed during the pendency of the writ petition,the respondent had allegedly participated in the enquiry and therewould be no scope for applying that principle as such. In suchcircumstances, High Court may not have been justified in passingthe impugned order the result of which is that though theEappellant(s) conducted the disciplinary proceeding as permittedby the Single Judge and the respondent allegedly participated init and all that remained was passing of an order by the disciplinaryauthority and what is more during the pendency of the appeal nodoubt the order of the dismissal has been passed, the appellant Fis forced to retain the respondent and the order is to remain insuspended animation to attain finality only if the criminal case isdecided in the future and it ends in the conviction of therespondent. The High Court was not justified in passing such anorder in the facts of this case. [Para 12][1093-C-G]

G5. Also, reference made to Order 41 Rule 33 of the CivilProcedure Code may not have been justified. Order 41 Rule 33no doubt clothes the appellate court with an extra ordinary power,which however is a rare jurisdiction. It is to reach justice in the H

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special facts of a case. It is not an ordinary rule to be appliedacross 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 partiesin the proceedings, an order can be passed in his favour in theappeal carried by the other side. Any order which ought to havebeen passed can be passed. In this case, there is no order againstthe appellant(s) by the Single Judge. The order of dismissal wasnot specifically the subject matter of challenge as noticed. In thefacts of this case, it is not a fit case where the High Court couldhave supported the directions with reference to Order 41 Rule33. [Para 13][1093-G-H; 1094-A-B]

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Capt. M. Paul Anthony v. Bharat Gold Mines Limited &Another (1999) 3 SCC 679 : [1999] 2 SCR 257; Stateof Rajasthan v. B.K. Meena and Ors (1996) 6 SCC 417: [1996] 7 Suppl. SCR 68; Pandiyan Roadways Corpn.Ltd. v. N. Balakrishnan (2007) 9 SCC 755 : [2007]6 SCR 873 andKarnataka Power Transmission Corpn.Ltd. v. C. Nagarajuand Another (2019) 10 SCC 367 –referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2794of 2022.

From the Judgment dated 04.03.2021 of the High Court of Calcuttain M.A.T. No.213 of 2021.

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Parijat Kishore, Saurabh Tanwar, Advs. for the Appellants.

Mahesh Prasad, Mansha Ram Singh, Shambu Prasad, NareshKumar, Ms. Vaishali, Rajesh Singh Chauhan, Advs. for the Respondent.

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[2022] 4 S.C.R.

AThe Judgment of the Court was delivered byK. M. JOSEPH, J.

1. Leave granted.

2. On the basis of the complaint lodged against the respondentwho was employed as a clerk with the appellant(s) relating to demandsBfor bribe by the respondent to clear retirement formalities, the respondentcame to be arrested by the Central Bureau of Investigation on 31[st] August,2015. A case was lodged against the respondent under Section 7 (12) &(13), sub-section 2 read with Section 13(i)(d) of the Prevention ofCorruption Act, 1988. The appellant also passed an order of suspensionCagainst the respondent on 3[rd] August, 2015. This suspension was nodoubt revoked on 15[th] September, 2015. Appellant served respondent anotice of the departmental enquiry on 20[th] March, 2017. This promptedthe respondent to move a writ petition. In the writ petition, the followingorder was passed on 29.06.2017: - D“Let the affidavit-of-service filed in Court today be keptwith the record.

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

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

In the affidavit-in-opposition the respondents shall disclosethe nature of the criminal proceeding pending against the petitionerincluding the names of the witnesses in the criminal proceedingFas well as the departmental enquiry.

The respondents shall be at liberty to proceed with thedepartmental enquiry but shall not pass any final order withoutthe leave of the Court.”

3. The departmental proceedings accordingly, continued.GAccording to the appellant(s), the enquiry was held and the respondentparticipated in the enquiry also. At the end of the enquiry, the appellant(s)filed an application seeking leave to pass the final orders. This resultedin, the learned Single Judge passing judgment dated 10[th], February 2021.This decision was impugned by the respondent before the Division Bench.HIn the meantime, the respondent’s service came to be dismissed from

service by order dated 2[nd] March, 2021. By the impugned judgment theDivision Bench has proceeded to direct that the final order of dismissalof the respondent be stayed till the disposal of the criminal case. It wasfurther ordered that the order of the dismissal against the respondentwill become operative on the criminal proceeding culminating in an orderof conviction. The Court also notes that the Court was exercising powerof the Court of Appeal provided in Order 41 Rule 33.

4. We have heard the learned counsel for the parties. The complaintof the appellant(s) is that the Division Bench of the High Court haserred in not noticing that principally it is not desirable to delay thedepartmental proceeding on account of pendency of a criminal case.The principle that it is desirable to delay the departmental proceedingwhen a criminal trial is also pending, is owing to the fact that the employeewould be compelled to disclose his defence before the departmentalproceedings. The principle is inapplicable. This is for the reason that byvirtue of the order, we have referred to dated 29.06.2007, the learnedSingle Judge had permitted the enquiry to go on. According to theappellant(s), the respondent participated in the enquiry and thereafter onthe culmination of the enquiry in keeping with the order passed on29.06.2017 after the judgment of the Single Judge dated 10.02.2021 theorder 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. Inother words, dismissal of the respondent was not challenged before theDivision Bench.

It is also contended that a verdict of acquittal in the trial whichmay occur in the future would not affect the disciplinary proceedings asthese proceedings have purport different from the disciplinaryproceedings. The principles applicable to disciplinary proceedings aredifferent is apparently the contention.

5. Per Contra, Mr. Mahesh Prasad, learned counsel for therespondent would point out that the impugned order does not call for anyinterference. He would further submit that the disciplinary proceedingswere not conducted in a proper manner.

It is pointed out that the charges, the witnesses and evidence inthe Criminal case and also in the departmental proceedings are the same.He relied on ‘Capt. M. Paul Anthony Versus Bharat Gold Mines Limited& Another[1]. In M. Paul Antony (supra) it was held as follows:

1 (1999) 3 SCC 679

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A20. This decision has gone two steps further than the earlierdecisions by providing:

1. The “advisability”, “desirability” or “propriety” of stayingthe departmental proceedings “go into the scales while judgingthe advisability or desirability of staying the disciplinaryBproceedings” merely as one of the factors which cannot beconsidered in isolation of other circumstances of the case. But thecharges in the criminal case must, in any case, be of a grave andserious nature involving complicated questions of fact and law.

2. One of the contending considerations would be that theCdisciplinary enquiry cannot — and should not be — delayed unduly.If the criminal case is unduly delayed, that may itself be a goodground for going ahead with the disciplinary enquiry even thoughthe disciplinary proceedings were held over at an earlier stage. Itwould not be in the interests of administration that persons accusedof serious misdemeanour should be continued in office indefinitelyDawaiting 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 toproceed simultaneously with the departmental enquiry and trial ofEa criminal case unless the charge in the criminal case is of agrave nature involving complicated questions of fact and law.

6. We may further notice that in the said judgment this Court tooknote of the judgment in State of Rajasthan v. B.K.Meena and Ors2wherein it was inter alia held as follows:F

“The only ground suggested in the above decisions as constitutinga valid ground for setting the disciplinary proceedings is that thefindings of the trial court in the criminal case may not beprejudiced.” This ground has however been hedged by providingfurther that this may be done in the cases of grave nature involvingGquestion of facts and law”.

7. In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan3this Court noticed two different streams of judicial views:

2 (1996) 6 SCC 417H3 (2007) 9 SCC 755

“21. There are evidently two lines of decisions of this Courtoperating in the field. One being the cases which would comewithin the purview of Capt. M. Paul Anthony v. Bharat GoldMines 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 anhonourable acquittal in the criminal case itself may not be held tobe determinative in respect of order of punishment meted out tothe delinquent officer, inter alia, when: (i) the order of acquittalhas not been passed on the same set of facts or same set ofevidence; (ii) the effect of difference in the standard of proof in acriminal 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 wascharged with something more than the subject-matter of thecriminal 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] and NoidaEntrepreneurs’ Assn. v. Noida [(2007) 10 SCC 385 : (2008) 1SCC (Cri) 792 : (2008) 1 SCC (L&S) 672 : (2007) 2 Scale 131],para 18).”

8. We may notice a recent judgment in Karnataka PowerTransmission Corpn. Ltd. v. C. Nagaraju and Another[4] wherein itwas interalia held: - “9. Acquittal by a criminal court would not debar an employerfrom exercising the power to conduct departmental proceedingsin accordance with the rules and regulations. The two proceedings,criminal and departmental, are entirely different. They operate indifferent fields and have different objectives. [Ajit KumarNag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC(L&S) 1020] In the disciplinary proceedings, the question iswhether the respondent is guilty of such conduct as would merithis removal from service or a lesser punishment, as the case maybe, whereas in the criminal proceedings, the question is whetherthe offences registered against him under the PC Act are ABC

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Aestablished, and if established, what sentence should be imposedupon him. The standard of proof, the mode of inquiry and therules governing inquiry and trial in both the cases are significantlydistinct and different. [State of Rajasthan v. B.K. Meena, (1996)6 SCC 417 : 1996 SCC (L&S) 1455]”

B9. We would notice that this is a case where there is a criminalcase against the respondent. The appellant(s) as employer also launcheddisciplinary proceedings. It is undoubtedly true that this Court has takenthe view that when the charges are identical and gives rise to complicatedissues of the fact and law and evidence is the same, it may not beappropriate to proceed simultaneously in disciplinary proceedings, alongCwith the criminal case. The rationale behind the principle largely is thatthe employee who is facing the disciplinary proceeding would necessarilyhave to take a stand. This in turn would amount to revealing his defenseand therefore prejudice the employee in the criminal proceedings. Nodoubt, this Court has laid down that it is not an absolute embargo and theDprinciple 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 theEproceedings. The High Court did not deem it appropriate to grantstay of the disciplinary proceeding. Instead, as noticed by us byorder dated 29.06.2017, the proceedings were allowed to becontinued. According to the appellant(s) proper enquiry was heldand the respondent participated. As to whether the enquiry wasFheld properly or not is not a matter on which we do express ouropinion. However, at the end of the enquiry as held by the appellantin view of the order passed by the High Court the appellant soughtpermission to pass the final order, or the appropriate order ofpenalty. This led to the disposal of the writ petition itself by thelearned Single Judge. The learned Single Judge in the judgmentGnoticed that this is a case where the respondent had alreadyrevealed his defence by participating in the proceedings. It is furtherfound that order dated 29.06.2017, which permitted the enquiry tobe continued was not challenged. The learned Single Judgeaccordingly permitted the disciplinary proceedings to attain finalityHat the hands of the disciplinary authority. The disciplinary authority accordingly passed an order dismissing the respondent fromservice. No doubt this is during the pendency of the appeal.

11. In the appeal, the order of the disciplinary authority dismissingthe respondent was not the subject matter of challenge by way of anamendment in the writ petition. The Division Bench has posed the questionas to what would happen if the criminal trial culminates in acquittal andit is thereafter that the High Court deemed it appropriate also apparentlywith reference to its power under Order 41 Rule 33 to pass the orderkeeping in abeyance the order of dismissal and it was to become operativeupon the criminal trial going against the respondent.

12. We would notice that what is most pertinent is the aspect thatin the challenge in the writ petition against the holding of the disciplinaryproceedings, obtaining of an interim order in the nature of the case wasof relevance and importance to the question at hand. The principleinvolved being that when parallel proceedings are held on the basis ofidentical charges and the same evidence, the employee should not beallowed to disclose his defence. This aspect of the matter is to be lookedinto with reference to the effect of the order dated 29.06.2017. As aresult of the said order passed during the pendency of the writ petition,the respondent had allegedly participated in the enquiry and there wouldbe no scope for applying that principle as such. In such circumstances,we think that High Court may not have been justified in passing theimpugned order the result of which is that though the appellant(s)conducted the disciplinary proceeding as permitted by the learned SingleJudge and the respondent allegedly participated in it and all that remainedwas passing of an order by the disciplinary authority and what is moreduring the pendency of the appeal no doubt the order of the dismissalhas been passed, the appellant is forced to retain the respondent and theorder is to remain in suspended animation to attain finality only if thecriminal case is decided in the future and it ends in the conviction of therespondent. We do not think that the High Court was justified in passingsuch an order in the facts of this case.

13. We may also observe that reference made to Order 41 Rule33 of the Civil Procedure Code may not have been justified. Order 41Rule 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 specialfacts of a case. It is not an ordinary rule to be applied across the boardin all the appeals. In fact, the principle is interalia no doubt that even if AB

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Athere is no appeal by any of the parties in the proceedings, an order canbe passed in his favour in the appeal carried by the other side. Any orderwhich ought to have been passed can be passed. In this case, there is noorder against the appellant(s) by the learned Single Judge. The order ofdismissal 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 theBHigh Court could have supported the directions with reference to Order41 Rule 33.

14. The upshot of the above discussion is that the impugnedjudgment cannot be sustained. Accordingly, we allow the appeal and setaside the impugned judgment. We, however, make it crystal clear that itCwill be without prejudice to the rights of the respondent to challenge thedisciplinary proceeding in any competent forum. We leave open allremedies and contentions of the respondent in this regard.

The appeal is allowed as above. There will be no order as tocosts.D

All pending applications stand disposed of.

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Bibhuti Bhushan Bose

(Assisted by : Deepak Panwar, LCRA)

Appeal allowed.

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