Writ Petition No.1520 of 2013

8th May, 2013

Petitioner Counsel: Mr. Jayprakash Sawant
Respondent Counsel: Mr. M.M. Verma,Mr.Mahendra Agvekar,Mr.Rajesh Gehani,Mr. N.D. Sharma

Cases Cited:
Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry, AIR 2005 SC 1406 [Para 9]
Captain M.Paul Anthony Vs. Bharat Gold Mines Ltd., AIR 1999 SC 1416 [Para 9]

JUDGMENT

F. M. Reis, J. :- Heard learned Counsel for the Petitioner and learned Counsel for the Respondents.

The above Petition inter alia seeks for a Writ of Mandamus or any other Writ in the nature of mandamus calling for the records and proceedings from the Respondent nos.1 to 3 in the matter of impugned orders dated 3.12.2011 at Exhibit A, 10.12.2011 at Exhibit B and 2.1.2012 at Exhibit F issued by Respondent nos. 1 to 3 in the matter of disciplinary proceedings being held in respect of the charges levelled against the Petitioner and on examining the legality therein to quash and set aside the impugned orders dated 3.12.2011, 10.12.2011 and 2.1.2012.

2. Briefly stated facts of the case are that the Petitioner was employed by the Respondent no.1 in its employment w.e.f. 1.7.1987 to the post of Chemical Operator G.R.III. The Petitioner had already been granted promotions to the higher post from time to time and presently he has been working in the post of Chemical Grade II (U) (U). It is the contention of the Petitioner that Respondent no.2 who is the Chief Manager of Respondent no.1 and disciplinary authority in case of the Petitioner by order dated 3.12.2011 placed the Petitioner under suspension w.e.f. 3.12.2011 and allegations is that the Petitioner forged the signature of Shri Sharad D.Patil Dy.General Manager (Personnel) of Respondent no.1 on his letter dated 20.9.2011 and that the said act amounts to serious and grave misconduct as well as criminal offence on the part of the Petitioner.

3. The Petitioner sent his reply dated 16.12.2011 denying the said charges. Thereafter on a criminal case was filed by Respondent no.1 bearing R.C.No.121 of 2011 against the Petitioner in the Court of JMFC, Khalapur, District Raigad alleging that the Petitioner had forged the signature of Shri Sharad D.Patil Dy.General Manager (Personnel) on his letter dated 20.9.2011. Subsequently on 2.1.2012 the Respondent no.2 appointed Mr.S.Bhatarcharjee General Manager (Production) of Respondent no.1 as Presenting Officer in the inquiry to be held in respect of such charge sheet dated 10.12.2011 at Exhibit E. By another letter dated 2.1.2012 (Exhibit F) the Respondent no.3 appointed Arjun H.Patil Advocate Respondent No.4 as an Inquiry Officer to hold and conduct inquiry in respect of the said Charge Sheet dated 10.12.2011. The Petitioner thereafter by his letter dated 13.11.2012 requested the Respondent no.2 to stay the disciplinary proceedings being held against him as the criminal case filed by the Respondent no.1 itself is on the same and similar subject matter alleging that the signature was forged by the Petitioner is pending in the Court of the JMFC. It is further the contention of the Petitioner that both the cases are found on the same set of facts. The Petitioner also called upon the Respondents to revoke the suspension order as the suspension from service is wholly unjust and unwarranted. It was further the contention of the Petitioner that the Expert Opinion dated 30.11.2011 is to be considered and evaluated by the learned JMFC, Khalapur in the said criminal case. The Petitioner as such requested the Inquiry Officer/Respondent No.4 to await the decision of the Respondent nos. 2 to 3 on this letter. But, however the Respondent no.4 rejected the said Application. The Petitioner also raised a contention that there was contravention of the standing orders dated 29.6.1968 as certified under the provisions of the Industrial Employment (Standing Orders) Act, 1946 and thus rendering the Respondent nos. 1 to 3 liable to be penalized as provided under section 13 (2) of the Industrial Employment (Standing Orders) Act, 1946. It was also contended by the Petitioner that the Respondents had appointed Mr.Arjun H.Patil Advocate as an Inquiry Officer who is an outside person in contravention of the Standing order No.38 (C) of the Certified Standing Orders dated 29.6.1968, as per the said Standing Order, the Respondent no.1 can nominate Officer or Officers of the Respondent no.1 to hold such inquiry in the alleged acts of misconduct by the Petitioner. Despite of the correspondence and letters addressed to the Respondent no.1 with that regard and request of the Petitioner to stay the inquiry before the Inquiry officer having been not acceeded to, the Petitioner filed the above Writ Petition seeking for the aforesaid reliefs.

4. The learned Counsel for the Petitioner has raised two grievances with regard to the inquiry being conducted by the Inquiry officer in respect of the charges of misconduct levelled against the Petitioner.

5. His first contention is that as the Respondent no.1 themselves had already filed a Criminal complaint which is pending before the JMFC, Khalapur, District Raigad, question of proceeding in the inquiry on the alleged misconduct is totally misplaced. The learned counsel has pointed out that in case such an exercise is permitted the defence of the Petitioner would be jeopardised as the Petitioner would have to open his defence before the departmental inquiry. The learned counsel further points out that as the alleged complaint of forgery is pending decision before the Criminal Court, it is well settled that the proceedings before the Inquiry Officer deserves to be stayed until the proceedings before the Criminal Court are concluded. The learned counsel further pointed out that grave injustice shall occasion to the Petitioner in case the proceedings before the Inquiry Officer are not stayed.

6. The next contention of the learned Counsel appearing for the Petitioner is that the act of appointing an Advocate as an Inquiry Officer is unlawful as he is an outside person and is in contravention of the Standing Orders in general and the Standing Order No.38 (C) in particular. The learned counsel that as such points out that the suspension of the Petitioner as well as the inquiry being conducted against the Petitioner be quashed and set aside.

7. On the other hand, learned counsel for the Respondents has pointed out that there is no illegality committed by the Respondents in the appointment of the Inquiry Officer. The learned counsel further points out that the Standing Orders have been amended and as such, there is no illegality in the appointment of the Inquiry Officer. The learned counsel further pointed out that the inquiry is at an advance stage and is due for disposal whereas the criminal proceedings are at a very initial stage and as such question of staying the inquiry does not arise. The learned counsel further submitted that it is well settled that the standard of proof in connection with a criminal case are much higher than in an inquiry being conducted by the Inquiry officer. The learned Counsel further submitted that it is well settled that there is no bar if criminal proceedings as well as the inquiry proceed simultaneously. The learned councel for respondents as such submitted that the Petition be rejected.

8. We have considered the submissions of the learned Counsel appearing for the respective parties. We have also gone through the records.

9. With regard to the contention of the learned counsel appearing for the Petitioner that proceedings before the Inquiry officer deserves to be stayed until disposal of the criminal proceedings, we find that the purpose of departmental inquiry and prosecution before the Criminal Court are two different and distinct aspects. There is no bar in case proceedings in a criminal case and departmental proceedings proceed simultaneously though separately. The Apex Court has considered the said aspect in the Judgment reported in AIR 2005 SUPREME COURT 1406 in the case of (HINDUSTAN PETROLEUM CORPORATION LTD VS SARVESH BERRY) wherein the Apex Court observed in para 7 thus:

"The purpose of departmental inquiry 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 to maintain discipline in the service and efficiency of public service. It would, therefore be expedient that the disciplinary 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 1972 (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 departmental 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. "

The Apex Court also considered earlier Judgment in the case of CAPTAIN M.PAUL ANTHONY vs. BHARAT GOLD MINES LTD reported in AIR 1999 SUPREME COURT 1416 while observing at para 11 thus:

"(i) Departmental proceedings and proceeding is 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,

(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, the administration may get rid of him at the earliest."

10. Considering the Judgment of the Apex Court, we find that the contention of the learned counsel appearing for the Petitioner that the inquiry against the Petitioner be stayed until disposal of the criminal proceedings cannot be accepted. The Petitioner has not shown what serious prejudice would be caused to him in case both proceedings are conducted simultaneously. Apart from that, the Charge sheet which has been served on the Petitioner are inter alia for the following acts of the Petitioner:

(i) Writing of pseudonymous letter criticizing superiors of the Company,

(ii) Fraud, misuse or dishonestly in connection with the Employer's business';

(iii) Giving false intimation which tends to bring the company or its employees into disrepute;

(iv) Commission of any act subversive of discipline or good behaviour on the premises of the establishment.

11. In the criminal case, allegations of forgery are levelled against the Petitioner. Considering the misconduct attributed to the Petitioner, we find that there is no reason to defer the inquiry in progress before the Inquiry Officer.

12. Learned counsel for the Respondents has also pointed out that the proceedings before the Inquiry Officer have reached at an advanced stage and as such taking note of the judgments of the Apex Court that departmental proceedings cannot be unduly delayed, we find that there is no case made out by the Petitioner to stay the inquiry in progress before the Inquiry Officer. The said contention of the learned counsel appearing for the Petitioner as such deserves to be rejected and is rejected.

13. With regard to the next contention of the learned Counsel for the Petitioner, we find that the Respondents dispute that the Standing orders did not permit them to appoint the Respondent no.4 as an Inquiry Officer. The complete certified standing orders have not been produced for our perusal. Considering that the Standing orders relied upon by the Petitioner are disputed by the Respondents, we find that the said contention cannot be considered in the present Petition. In any event, the Petitioner can always raise such contentions if so advised at an appropriate stage in accordance with law. The said contention of the learned counsel for the Petitioner is as such left open.

14. In view of the above, we find no merit in the above Petition. No case is made out as such for interference of the Court under Article 226 and Article 227 of the Constitution of India in the order of suspension imposed on the Petitioner or the charge sheet at Exhibit B or the appointment of the Respondent no.4 as the Inquiry Officer at this stage. The Petition stands rejected accordingly.

Petition dismissed.