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Case Number

Civil Order No. 9043(W) of 1987

Attorney(S)

Sri Altamas Kabir, Miss Chhabi Mukherjee and Sri Sahidulla Munshi.
Sri Hirak Mitra, Sri S.N Chowdhury, Sri Pinaki Ghosh and Sri Ajoy Bose.

Judges

Sri Paritosh Kumar Mukherjee, J.

Acts

S. 409 of the Indian Penal Code read with S. 5(2) and S. 5(1)(c) of the Prevention of Corruption Act, 1947.7.
S. 33(2) of the Industrial Disputes Act, 1947.
Order 39 rules 1 and 2 of the Code,
INDUSTRIAL DISPUTES ACT 1947

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Smart Summary

Structured Summary of the Legal Opinion (Amarendra Nath Fan)

Factual and Procedural Background

The writ petition challenges the continuance of departmental (domestic) disciplinary proceedings against Amarendra Nath Fan (the writ-petitioner) while criminal proceedings were pending. The criminal proceedings originated from a first information report dated 23 June 1987 and led to prosecution by the Central Bureau of Investigation (C.B.I.) under Section 409 of the Indian Penal Code and Sections 5(2) and 5(1)(c) of the Prevention of Corruption Act, 1947 (C.B.I., S.P.E., Calcutta, Case No. R.C. 40 of 1987).

Procedurally, on admission of the writ petition an interim ad interim injunction was issued by A.K. Sengupta, J., restraining respondents from continuing the domestic enquiries initiated by respondent 2 (letters dated 2 July 1987 and 12 October 1987) or any domestic enquiry relating to the charges in the CBI criminal proceedings, until disposal of those criminal proceedings (prayer (d) of the writ petition). The petition was subsequently mentioned for early hearing and heard at intervals. During the writ hearing a copy of the CBI charge-sheet was submitted and formed part of the writ petition.

Material factual background relevant to the dispute: the petitioner was appointed chief cashier of United Commercial Bank (now UCO Bank) in 1971 and served in that capacity until 1987. On 2 July 1987 the disciplinary authority proposed a domestic enquiry under regulation 6 of the UCO Bank Officers Employees' (Discipline and Appeal) Regulations, 1976 and enclosed statements of allegations and charges. The petitioner sought inspection of relevant documents, a certified copy of the regulations, and assistance of a lawyer. A letter dated 10 July 1987 informed the petitioner that a domestic enquiry had been decided upon and that document inspection would be allowed when proceedings commenced.

The petitioner was arrested on 14 July 1987 in connection with the CBI case, later released on bail, and on 21 September 1987 was informed by letter dated 24 July 1987 that he was placed under suspension with retrospective effect from 15 July 1987 under regulations 12(1)(b) and 12(3)(2)(a) of the UCO Bank Regulations.

The petitioner asserted that holding the domestic enquiry while the criminal trial was pending would compel him to disclose the defence he intended to use in the criminal trial (because the charges in both proceedings were the same), thereby prejudicing his criminal defence and giving an unfair advantage to the prosecution. The petitioner invoked Article 20(3) of the Constitution (no person accused of any offence shall be compelled to be a witness against himself).

Legal Issues Presented

Whether disciplinary (domestic) enquiries may be continued simultaneously with pending criminal proceedings based on the same charges, or whether such enquiries should be stayed to protect the accused's right under Article 20(3) of the Constitution (privilege against self-incrimination).
Whether it is desirable or expedient, having regard to the risk of prejudice to the accused’s criminal defence and the state of the criminal prosecution (investigation/trial/charge-sheet), for the employer to await the outcome of the criminal trial before proceeding with departmental disciplinary action.

Arguments of the Parties

Appellant / Writ-Petitioner (represented by Sri Altamas Kabir)

Relied on Supreme Court authority in Delhi Cloth and General Mills Ltd. v. Kushal Bhan (A.I.R. 1960 S.C. 806) to argue that where a case is grave or involves non-simple questions of fact or law, the employer should await the decision of the trial court so the employee's criminal defence is not prejudiced.
Relied on subsequent support from other authorities and tribunal decisions (including Abdullais Khan v. State of West Bengal and the underlying Khushi Ram authority) which stated it is expedient to stay departmental enquiry pending criminal proceedings.
Pressed the point that simultaneous departmental enquiry would force disclosure of the criminal defence and thus prejudice the criminal trial (invoking Article 20(3)).

Respondents / Bank Authorities (represented by Sri Hirak Mitra)

Relied on a Karnataka High Court decision, Rama Bahadoor v. Tungabhadra Sugar Works (1979 — II L.L.N 135), where the learned Judge had considered whether parallel departmental and criminal proceedings on the same charge were competent and, on those facts, did not accept the contention that the departmental enquiry must be restrained.
Argued that the criminal trial might take years to conclude (delays by CBI, lack of presiding officer in Special Court) and that departmental proceedings involve other materials apart from the criminal charge-sheet; therefore departmental proceedings should be permitted to proceed.
Pointed to the affidavit-in-opposition asserting that the charges were simple and thus respondents should not have to wait for the final conclusion of the criminal trial.
On enquiry by the Court, however, counsel for the bank could not satisfy the Court why departmental proceedings should not wait until finalisation of the criminal trial, given certain legal consequences (e.g., automatic dismissal upon conviction).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Delhi Cloth and General Mills Ltd. v. Kushal Bhan, A.I.R. 1960 S.C. 806	If a case is grave or involves questions of fact or law which are not simple, it is advisable for the employer to await the decision of the trial court so that the employee's defence in the criminal case may not be prejudiced.	The Court accepted the desirability expressed in this authority and treated it as supporting the position that departmental enquiry should, in appropriate cases, be stayed to avoid prejudice to criminal defence.
Tata Oil Mills Co. v. Their Workmen, A.I.R. 1964 S.C. 155	Reiterated the principle in Delhi Cloth that where an incident giving rise to a charge is being tried in a criminal court, the employer should stay domestic enquiry pending final disposal of the criminal case.	The Court cited this decision as following the same approach and relied on it in framing the desirability of staying departmental enquiry in the present circumstances.
Jang Bahadur Singh v. Baij Nath Tiwari, A.I.R. 1969 S.C. 30	Considered in the context of parallel proceedings and injunctions restraining departmental enquiries when criminal proceedings are pending (referenced in the Karnataka High Court decision).	Referred to as one of the authorities considered by the Karnataka High Court in Rama Bahadoor; the present Court noted this line of authority when reviewing competing precedents.
Rama Bahadoor v. Tungabhadra Sugar Works (Private) Ltd., 1979 — II L.L.N. 135 (Karnataka High Court)	Considered whether parallel proceedings (departmental enquiry during a criminal trial on same charge) were competent; on the facts of that case the learned Judge did not accept the contention that departmental enquiry must be restrained.	The bank relied on this decision to argue that departmental proceedings could continue in parallel; the Court noted the decision but found it distinguishable on its facts and not sufficient to justify allowing the departmental enquiry to proceed here.
Abdullais Khan v. State of West Bengal, 1986 (3) S.L.R. 16 (Central Administrative Tribunal, Calcutta)	Quoted the law (following Khushi Ram) that it is expedient to stay departmental enquiry pending criminal proceedings in the interest of fair play.	The petitioner relied on this Tribunal decision as supporting a stay of departmental enquiry; the Court treated it as part of the authorities favouring a stay pending criminal adjudication.
Khushi Ram v. Union of India, 1974 L. & I.C. 553	Stated that, in the interest of fair play, it is expedient to stay the departmental enquiry pending criminal proceeding.	Quoted and followed by the Central Administrative Tribunal in Abdullais Khan; the Court accepted the relevance of this principle in deciding whether to restrain departmental proceedings here.

Court's Reasoning and Analysis

The Court examined the competing authorities and the submissions of both sides and proceeded as follows:

The Court recognized the petitioner’s apprehension that conducting the departmental enquiry contemporaneously with the criminal trial would compel disclosure of his criminal defence (invoking Article 20(3)) and thereby prejudice the criminal trial, because the charges in both proceedings were the same.
The Court considered Supreme Court authorities (Delhi Cloth; Tata Oil Mills) which indicate it is desirable in appropriate cases for an employer to await the criminal trial to avoid prejudicing the accused's defence. It treated those authorities as supporting restraint on departmental enquiries where necessary to preserve a fair criminal trial.
The Court also considered authorities relied upon by the bank (notably Rama Bahadoor) which found, on their facts, that parallel proceedings could be competent. The Court observed that Rama Bahadoor and the other cited decisions were taken into account but on the facts before the Karnataka High Court the contention was not accepted — implying factual distinctions matter.
The Court examined practical consequences: if the criminal proceedings end in conviction, the petitioner would be automatically dismissed/removed from service without the need for departmental formalities; if the criminal case fails for want of evidence resulting in an order of discharge (and not an acquittal), departmental authorities would still be entitled to proceed with disciplinary enquiry after such discharge. The Court noted that none of the Supreme Court decisions cited had occasion to decide this particular angle fully.
Given that investigation and trial had commenced and a charge-sheet had been filed and placed before the Court during the writ hearing, the Court concluded that it would not be expedient for both proceedings to run in parallel and potentially result in squandering public sector bank funds.
To balance competing interests, the Court directed the Inspector, C.B.I., to expedite the criminal trial and required the petitioner to cooperate and avoid unnecessary adjournments so that the trial may conclude at an early date. Meanwhile, the respondent-bank was restrained from proceeding further with the departmental enquiry in respect of the charges referred to in the charge-sheet.
The Court provided a limited temporal accommodation to the bank by staying operation of the judgment for four weeks so that the bank authorities could test the proposition in the Court of Appeal, subject to the continuance of the interim order previously granted by A.K. Sengupta, J.

Holding and Implications

Core Ruling: The writ petition was disposed of and, during the pendency of the criminal trial, the respondent-bank authorities are restrained from proceeding further with the departmental enquiry in respect of the charges referred to in the charge-sheet.

Direct implications and directions contained in the judgment:

The Inspector, C.B.I., was directed to expedite the criminal trial without taking adjournments and the writ-petitioner was directed to cooperate to facilitate early conclusion of the trial.
The respondent-bank is restrained from proceeding with the departmental enquiry during the pendency of the criminal proceedings (as they relate to the charges in the CBI charge-sheet).
The writ petition was disposed of; there will be no order as to costs.
Operation of the judgment is stayed for four weeks to enable the respondent bank authorities to test the proposition in the Court of Appeal, subject to the continuance of the interim order originally granted by A.K. Sengupta, J., at the time of admission of the writ petition.
The Court observed the practical consequences: conviction in the criminal trial would result in automatic dismissal/removal without need for departmental formalities; if the criminal case results in discharge for want of evidence, departmental authorities may proceed thereafter with disciplinary enquiry.

Broader precedent: The judgment applied and followed existing authorities on the desirability of staying departmental enquiries pending criminal adjudication in appropriate circumstances; the opinion does not purport to lay down a new rule of law beyond applying those principles to the facts before the Court.

End of summarized opinion.

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Amarendra Nath Pan v. Union Of India And Others

1. The continuance of the departmental proceedings simultaneously with the criminal trial initiated on the basis of the first information report, dated 23 June, 1987, against the writ-petitioner, Amarendra Nath Fan, has been challenged in the instant writ petition.

2. At the time of admission of the writ petition, it appears that A.K Sengupta, J., issued civil order, together with interim order in terms of prayer (d) of the writ petition, which is set out hereinbelow:

“(d) Ad interim order of injunction restraining the respondents from continuing with the domestic enquiries initiated against the petitioner in terms of the letters issued by respondent 2, on 2 July, 1987 and 12 October, 1987, and/or any other domestic enquiry relating to the charges in the criminal proceedings, being C.B.I, S.P.E, Calcutta, Case No. R.C 40 of 1987, till the disposal of the said criminal proceedings.”

3. Thereafter, on 16 May, 1988, the writ petition was mentioned for “early hearing” at the instance of both the parties and the writ petition was heard from time to time.

4. It is the case of the writ-petitioner that he was appointed as “chief cashier” of United Commerical Bank, now UCO Bank, at its Bagri Branch, on 6 March, 1971. From 1971 to 1987, the petitioner had been discharging the duties as “chief cashier” of the said branch, without any difficulty. In the course of discharging function as “chief cashier” the petitioner was transferred to the office of the Divisional Manager, West Bengal Division III at 96, Deshpran Sasmal Road, Howrab. While he was working in the said office, the Divisional Manager, West Bengal Division III (hereinafter referred to as the disciplinary authority), served the petitioner with a letter, dated 2 July, 1987, informing that it was proposed to bold “an enquiry,” against the petitioner, under regulation 6 of the UCO Bank Officers Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as the said regulation). Statement of allegations and the charges framed on the basis of the said allegations was also enclosed along with the said letter and the petitioner was directed to submit written statement of his defence within ten days from the receipt of the said letter. On receipt of the said letter and the enclosure, the petitioner wrote back to the disciplinary authority, generally denying the four articles of charges enclosed with the letter, dated 2 July, 1987. However, the petitioner in his reply submitted that inasmuch as all the charges involved matters relating to accounts maintained more than three years ago, it was not possible for the petitioner to file written statement in defence merely from memory and he prayed for inspection of all relevant documents relating to the said four charges. The petitioner, thereafter, requested that he should be supplied with the certified copy of the UCO Bank Officers Employees' (Discipline and Appeal) Regulations, 1976, for the said purpose and he should be allowed opportunity to inspect all relevant documents to be relied on, by the bank in support of the statement of allegations. The petitioner also prayed for appointment of “a lawyer” for his defence before the disciplinary authority and submitted that unless such inspection is made available, the petitioner will not be in a position to defend his case. True copies of the said letters have been annexed as annexures A and B to the present writ petition.

5. By the letter, dated 10 July, 1987, the petitioner was informed by the disciplinary authority that it had been decided to hold a “domestic enquiry” in respect of the charges against the petitioner and that the petitioner would be given an opportunity to inspect the documents, on the basis of which the chargesheet had been framed, when the proceedings would be started by the appropriate enquiring officer.

6. In the meantime, the petitioner was arrested on 14 July, 1987, in connection with C.B.I, S.P.E Calcutta, Case No. R.C 40 of 1987, initiated by the Delhi Special Police Establishment, Calcutta Branch, against the petitioner, on the basis of the first information report, under S. 409 of the Indian Penal Code read with S. 5(2) and S. 5(1)(c) of the Prevention of Corruption Act, 1947.

7. Subsequently, the petitioner was “released on bail” and on 21 September, 1987. while the petitioner was attending the Office of Central Bureau of Investigation, Special Police Establishment, Calcutta Branch, he was served with a copy of a letter, dated 24 July, 1987, written by the disciplinary authority, being respondent 2, informing the petitioner that, inasmuch as the aforesaid criminal proceedings had been initiated against the petitioner, and in connection with which, the petitioner had been remanded in police/jail custody with effect from 14 July, 1987, it had been decided by the disciplinary authority to place the petitioner “under suspension” with “retrospective effect” from 15 July, 1987, under regulations 12(1)(b) and 12(3)(2)(a) of the UCO Bank Officers Employees' (Discipline and Appeal) Regulations, 1976.

8. In Para 10 of the writ petition, the petitioner has categorically stated that by simultaneous holding of the domestic enquiry during the pendency of the criminal trial, the petitioner would be compelled to disclose his defence, which he intends to use in the criminal trial, since the charges on which the domestic enquiry is based, are the same as those In the criminal proceedings. Accordingly, the petitioner has expressed his apprehension that the petitioner would be seriously prejudiced, if the criminal proceedings which are pending at the stage of investigation and no chargesheet has been issued at the time of moving of the writ petition (subsequently chargesheet has been issued during hearing of the writ petition) would give an unfair advantage to the prosecution, which is not intended in a criminal trial.

9. In short, the petitioner tried to make out a case of double jeopardy within the meaning of Art. 20(3) of the Constitution of India, which runs as follows:

“Article 20(3). No person accused of any offence shall be compelled to be a witness against himself.”

10. Sri Altamas Kabir, appearing to support of the writ-petitioner has placed strong reliance on the decision of the Supreme Court in the case of Delhi Cloth and General Mills, Ltd. v. Kushal Bhan, [A.I.R 1960 S.C 806]. It appears that the said decision arises out of a proceeding under the Industrial Disputes Act, 1947, and the same arose in the matter of not granting approval under S. 33(2) of the Industrial Disputes Act, 1947. In the said case, analysing the facts available before their Lordships, the Supreme Court observed as follows

“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.”

11. The said view has been followed by the Supreme Court in the case of Tata Oil Mills Company, Ltd. v. Their workmen, [A.I.R 1964 S.C 155]. In Para. 9 of the said judgment, their Lordships observed as follows:

“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, [A.I.R 1960 S.C 806] (vide supra), 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.”

12. Sri Hirak Mitra, appearing for the bank, has strongly placed reliance on a judgment of the Karnataka High Court in the case of Rama Bahadoor v. Tungabhadra Sugar Works (Private), Ltd., [1979 — II L.L.N 135]. The learned Single Judge of that Court, in dealing with a revision petition under the Code of Civil Procedure and propriety of grant of injunction, in terms of Order 39 rules 1 and 2 of the Code, had considered as to whether parallel proceedings during the enquiry of the criminal trial, on the same charge are competent. It appears from the said decision that the decision in the case of Delhi Cloth and General Mills, [A.I.R 1960 S.C 806] (vide supra), and another decision of the Supreme Court in the case of Jang Bahadur Singh v. Baij Nath Tiwari, [A.I.R 1969 S.C 30], has been taken into consideration. In that case, the plaintiff having filed a suit attempted to restrain the defendant by means of a permanent injunction from proceeding with the departmental enquiry until the termination of the criminal proceedings, being C.C No. 1 of 1978 on the file of the Court of the Chief Judicial Magistrate, Shimoga. The case of the plaintiff was that if during the pendency of the criminal trial, the plaintiff is put to the necessity of facing a parallel departmental enquiry, the defence, in the criminal trial would be disclosed in the departmental enquiry and development of such a situation would jeopardise his defence in the criminal trial. The learned Judge appears not to have accepted the said contention in the facts of that case.

13. Sri Mitra next submitted that the criminal trial might take years to conclude the hearing, as the Central Bureau of Investigation might take much time in presenting the case and the case may be delayed for want of Presiding Officer in the Special Court, and as such, it is desirable that this Court should not interfere with the departmental proceedings, which also involves some other materials, apart from the charge-sheet submitted in the criminal trial.

14. At the hearing, a copy of the charge-sheet which has been submitted by the Central Bureau of Investigation has been submitted in Court and forms a part of the writ petition.

15. Sri Mitra tried to analyse that there are some other materials, other than the four charges, in the departmental proceedings, which did not form part of the charge-sheet and, as such, the departmental authorities should be given green signal to proceed with the departmental enquiry and this Court may not interfere with the same.

16. Sri Mitra referred to the affidavit-in-opposition filed by the bank and submitted that the charges are simple and, as such, the respondents should not wait till the final conclusion of the criminal trial.

17. On being enquired into by the Court, Sri Mitra appearing for the bank authorities, of course, could not satisfy the Court as to why, the departmental proceedings should not wait till finalisation of the criminal trial, as, in view of the accepted principles of law, in the event the writ-petitioner is convicted in the Special Court, in that event, the writ-petitioner would be automatically dismissed and/or removed from service, without taking recourse to formalities in the departmental proceedings and, in the alternative, if the criminal case fails for want of evidence, by order of discharge and not acquittal, in that event also, the departmental authorities would be entitled to proceed with the departmental enquiry, even after passing of such order of discharge by the criminal Court, as, according to this Court, none of the decisions of the Supreme Court cited from the Bar had the occasion to decide the matter from the said angle, but proceeded only with the view that it would be desirable to stay the departmental enquiry, as the defence of the delinquent might be exposed.

18. In reply, Sri Kabir has referred to a decision of the Central Administrative Tribunal, Calcutta, in the case of Abdullais Khan v. State of West Bengl, [1986 (3) S.L.R 16], wherein the Members of the Tribunal in Paras. 37 and 34 of the judgment, after following the case of Khushi Ram v. Union of India, [1974 L. & I.C 553], quoted the law, which is set out hereinbelow:

“Their Lordships, in the interest of fair play observed that it is expedient to stay the departmental enquiry pending criminal proceeding.”

19. It appears, that in the case before the Tribunal, the learned Government Pleader was called upon to submit any authority expressing a contrary view, but no authority was cited. As such, the learned Members of the Tribunal were inclined to follow the said authority in Khushi Ram case, [1974 L. & I.C 553] (vide supra).

20. After having heard the parties at length and having considered the cases cited from the Bar, in my opinion, the respondent-bank authorities will be getting opportunity to start the departmental proceedings in the event the criminal proceedings ends in an order of discharge.

21. As such, in my view, it would not be expedient for both the parties to proceed with the departmental enquiry and thereby squandering money of the public sector bank, as the investigation and trial has already commenced at the instance of Central Bureau of Investigation and chargesheet has been submitted which has been disclosed during the hearing of this case before me.

22. Accordingly, in my opinion, it would be just and proper to direct the Inspector, Central Bureau of Investigation, to expedite the criminal case, as soon as possible, without taking any adjournment and it is also desired that the writ-petitioner will co-operate in the matter, without taking any unnecessary adjournments, so that the trial may be concluded at an early date.

23. However, during the pendency of the criminal trial, the respondent-bank authorities will be restrained from proceeding further with the departmental enquiry, against the petitioner, in terms of the chargesheet, referred to, in the writ petition.

24. The writ petition is thus disposed of.

25. There will be no order as to costs.

26. As prayed for, operation of this judgment shall remain stayed for a period of four weeks in order to enable the respondent bank authorities to have the proposition tested in the Court of Appeal, subject to the continuance of the interim order granted by Ajit Kumar Sengupta, J., at the time of admission of the writ petition.

Amarendra Nath Pan v. Union Of India And Others

Structured Summary of the Legal Opinion (Amarendra Nath Fan)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant / Writ-Petitioner (represented by Sri Altamas Kabir)

Respondents / Bank Authorities (represented by Sri Hirak Mitra)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Amarendra Nath Pan v. Union Of India And Others

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