# Abhai Raj Singh v. Bank of Baroda and another

- **Citation:** (2005) 1 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-01-27
- **Case number:** Civil Misc. Writ Petition No. 7186 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhai-raj-singh-v-bank-of-baroda-and-another-40399
- **Pages:** 7

## Headnote

Constitution of India, Article 226-Service
Law-disciplinary
proceeding-and
the
Criminal proceeding for the same set of
facts-simultaneously
can
go
ondifference between the two-explainedinstant case nothing a whispers as to
how the continuance of departmental
proceeding
would
cause
prejudicepetition dismissed.

Held: Para 11

In the instant case, even though the
criminal
action
and
disciplinary
proceedings are grounded upon the
same sets of fact, in my view, there is no
provision of law empowering the court to
stay
the
departmental
proceedings
merely because criminal prosecution is
pending in the criminal court. In my
opinion,
the
purpose
of
the
two
proceedings are quite different. The
object of the departmental proceedings
is to ascertain whether the delinquent is
required to be retained in service or not.
On the other hand the object of criminal
prosecution is to find out whether the
offence in the penal statute has been
made out or not. Therefore, the area
covered by the two proceedings are not
identical.
The
object
in
both
the
proceedings are different. Whereas the
departmental proceedings are taken to
maintain the discipline and the efficiency
in the service, the criminal proceedings
are initiated to punish a person for
committing an offence violating any
public duty. The Supreme Court has
clearly stated that where the case is of a
grave nature and involves questions of
fact and law, in that event it would be
advisable for the employer to await the
decision of a criminal court. In the
present case, there is no complicated
questions of fact and law involved, nor
any evidence has been led by the
petitioner to show as to how he was
prejudiced in the continuance of the
departmental proceedings. Nothing has
been shown by the petitioner as to how
the proceedings in a criminal trial would
be prejudiced in the event the domestic
inquiry was not stayed.
Case law discussed:
AIR 1960 SC 806
AIR 1965 SC-155
AIR 1969 SC-30
AIR 1988 SC-2118
2004 ILR-950

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
126
order
of
the
Settlement
Officer
Consolidation dated 11.4.2001 and to
grant
any
injunction
against
the
respondents, proposes to dispose of the
writ
petition
in
the
light
of
the
observations as made above.

For the reasons recorded above, writ
petition stands disposed of.
Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 7186 of 2004

Abhai Raj Singh

...Petitioner
Versus
Bank of Baroda & another ...Respondents

Counsel for the Petitioner:
Sri S.N. Dubey

Counsel for the Respondents:
Sri V.B. Singh
Sri Vijay Sinha
Sri Saumitra Singh

Constitution of India, Article 226-Service
Law-disciplinary
proceeding-and
the
Criminal proceeding for the same set of
facts-simultaneously
can
go
ondifference between the two-explainedinstant case nothing a whispers as to
how the continuance of departmental
proceeding
would
cause
prejudicepetition dismissed.

Held: Para 11

In the instant case, even though the
criminal
action
and
disciplinary
proceedings are grounded upon the
same sets of fact, in my view, there is no
provision of law empowering the court to
stay
the
departmental
proceedings
merely because criminal prosecution is
pending in the criminal court. In my
opinion,
the
purpose
of
the
two
proceedings are quite different. The
object of the departmental proceedings
is to ascertain whether the delinquent is
required to be retained in service or not.
On the other hand the object of criminal
prosecution is to find out whether the
offence in the penal statute has been
made out or not. Therefore, the area
covered by the two proceedings are not
identical.
The
object
in
both
the
proceedings are different. Whereas the
departmental proceedings are taken to
maintain the discipline and the efficiency
in the service, the criminal proceedings
are initiated to punish a person for
committing an offence violating any
public duty. The Supreme Court has
clearly stated that where the case is of a
grave nature and involves questions of
fact and law, in that event it would be
advisable for the employer to await the
decision of a criminal court. In the
present case, there is no complicated
questions of fact and law involved, nor
any evidence has been led by the
petitioner to show as to how he was
prejudiced in the continuance of the
departmental proceedings. Nothing has
been shown by the petitioner as to how
the proceedings in a criminal trial would
be prejudiced in the event the domestic
inquiry was not stayed.
Case law discussed:
AIR 1960 SC 806
AIR 1965 SC-155
AIR 1969 SC-30
AIR 1988 SC-2118
2004 ILR-950

(Delivered by Hon'ble Tarul Agarwala, J.)

1. The petitioner is working as a
Head Cashier in Bank of Baroda and is
posted in Tanda Shahabad Branch, in
District Rampur. It transpires that an
account holder in the bank filed a
complaint against the petitioner and two
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1All] Abhai Raj Singh V. Bank of Baroda and another
127
others for committing a fraud in his
account.
Based
on
the
F.I.R.,
an
investigation was made and a report was
submitted to the competent court. The
Court took cognizance of the said report
and a case was registered as case Crime
No. 1402 of 2003 under Section 218, 420,
467, 468, 471 and 409 I.P.C. which is
pending
in
the
court
of
Judicial
Magistrate, Rampur. The respondent bank
also made an in house inquiry and the
disciplinary authority by an order dated
8.10.2003 issued a charge sheet. The
petitioner alleges that subject matter of
the charge sheet in the domestic inquiry
proceedings and that pending before the
criminal court is one and the same and
further contended that the evidence in
both the proceedings would be the same
and if the departmental proceedings are
allowed
to
continue,
the
original
documents which are lying in the criminal
court could not be produced and that the
domestic inquiry would continue without
the production of the original documents.
The petitioner therefore, prayed that the
domestic inquiry proceedings should be
stayed till the decision in crime case No.
1402 of 2003, pending in the court of
Judicial Magistrate, Rampur.

2. Heard Sri S.N. Dubey, the learned
counsel for the petitioner and Sri V.B.
Singh, learned Senior Advocate assisted
by Sri Vijay Sinha, the learned counsel
for the respondent bank.

3. The learned counsel for the
petitioner
submitted
that
since
the
departmental
proceedings
and
the
criminal proceedings are based on the
same facts and that the documents relied
upon would be the same, it would be
appropriate
that
the
departmental
proceedings be kept in abeyance till the
decision of the criminal court. He relied
on the principles of "autre fois acquit"
and the common law rule embodied in the
maxim "Nemo debet bis vexari" (a man
must not be put twice in peril for the same
offence) and the docrine of double
jeopardy and submitted that if the
departmental proceedings are allowed to
continue he would be prejudiced.

4. On the other hand the learned
counsel for the respondents submitted that
the purpose of the departmental inquiry
was merely to help the department to
come to a definite conclusion regarding
the conduct of the delinquent and to
decide what penalty, if any, that could be
imposed upon him. Even assuming that
the charges which the delinquent had been
called upon to meet was in substance the
same, nonetheless there was no bar for
holding
the
disciplinary
proceedings
during the pendency of the criminal trial.
The learned counsel further submitted that
it was for the disciplinary authority to
decide as to whether in a given case it
should be keep a domestic inquiry
pending till the outcome of the criminal
trial or not. The learned counsel submitted
that no such application had been made
by the delinquent petitioner before the
disciplinary
authority
and
that
the
petitioner approached this Hon'ble Court
immediately after the issuance of the
charge sheet. Learned counsel for the
respondents submitted that no evidence
had been led by the petitioner to show as
to how he would be prejudiced if the
domestic inquiry continues during the
pendency of the criminal trial. The
learned counsel for the respondents
further submitted that it was too early for
the petitioner to suggest that the original
documents would not be produced before
the domestic inquiry and it was not open
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
128
to the petitioner to contend that the
domestic inquiry would continue without
the production of the relevant documents.

It is a well settled principle of law
that the degree of proof required in a
departmental inquiry is vastly different
than the degree of proof required to prove
a criminal charge. In the departmental
inquiry the finding can be recorded in
preponderance of probabilities and it is
not necessary that the charge must be
proved to the hilt. The departmental
proceedings and the criminal proceedings
are entirely different in nature. The
operate in different fields and they have
different objectives. The materials or the
evidence in the two proceedings may or
may not be the same and, in some cases,
at least materials or evidence which
would
be
relevant
or
open
for
consideration
in
the
departmental
proceeding, may be irrelevant in the
criminal proceeding. The Rules relating to
the appreciation of the evidence in the
two inquiries may also be different. The
standard of proof, the mode of enquiry
and the rules governing the enquiry and
the trial in both the cases are entirely
distinct and different.

5. The law is well settled that the
inquiry officer can come to a different
conclusion than arrived at by a criminal
court and that it is immaterial whether the
charges were identical or the witnesses
were the same, as long as the power
exercised by the criminal court and the
inquiry under the relevant law and the
service law was distinct and separate.
There is no bar for holding a disciplinary
proceeding during the pendency of the
trial though the basis may be one and the
same. It is for the disciplinary authority to
decide as to whether in a given case it
should keep the domestic inquiry pending
till the outcome of the criminal trial or
not.

6. In Delhi Cloth and General
Mills Ltd. Vs. Kushal Bhan, A.I.R. 1960
SC 806, the Supreme Court held:-

"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 and
employee."

and again held-

"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."

7. Similar view was reiterated by the
Supreme Court in Tata Oil Mills' Co.
Ltd. Vs. The Workmen, A.I.R. 1965 SC
155; Jang Bahadur Singh vs. Baij Nath
Tiwari, A.I.R. 1969 SC 30, Kusheshwar
Dueby vs. M/s Bharat Coking Coal Ltd.
and others, A.I.R. 1988 SC 2118.

In Kushewar Dubey's case (supra),
the Supreme Court held that there was no
legal bar to simultaneous proceedings
being taken against an employee even
though there may be cases where it may
be appropriate to defer the disciplinary
proceedings awaiting the disposal of the
criminal case. The Supreme Court held
that it was neither possible nor advisable
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129
to evolve a hard and fast straight-jacket
formula and that in cases where the
charge against the employee was of a
grave nature and involved complex
questions of law and fact, in that event the
disciplinary
proceedings
could
be
deferred till the decision of the criminal
trial.

8. In Jang Bahadur Singh vs. Baij
Nath Tiwari, A.I.R. 1969 SC 30, the legal
position was summed up by the Supreme
Court 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 willful 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."

In State of Rajasthan vs. B.K.
Mena and others, 1996 (74) FLR 2550
(SC), the entire case law on this issue was
reviewed and the Hon'ble Supreme Court
held-

"It would be evident from the above
decisions that each of them starts with the
indisputable proposition that there is no
legal bar for both proceedings to go on
simultaneously and then say that in
certain
situations,
it
may
not
be
'desirable' 'advisable' or 'appropriate' to
proceed with the disciplinary enquiry
when a criminal case is pending on
identical
charges.
The
staying
of
disciplinary proceedings, it is emphasized,
is a matter to be determined having regard
to the facts and circumstances of a given
case and that no hard and fast rules can be
enunciated in that behalf. The only
ground suggested in the above decisions
as constituting a valid ground for staying
the disciplinary proceeding is "that the
defence of the employee in the criminal
case may not be prejudiced". This ground
has, however, been hedged in by
providing further that this may be done in
cases of grave nature involving questions
of fact and law. In our respectful opinion,
it means that not only the charges must be
grave but that the case must involve
complicated question of law and fact.
Moreover, 'advisability', 'desirability' or
'propriety', as the case may be, has to be
determined in each case taking into
consideration
all
the
facts
and
circumstances of the case. The ground
indicated in D.C.M. and Tata Oil Mills is
not also an invariable rule. It is only a
factor which will go into the scales while
judging the advisability or desirability of
staying the disciplinary proceedings. One
of the contending consideration is that the
disciplinary enquiry cannot be-and should
not be- delayed unduly. So far as criminal
cases are concerned, it is well-known that
they drag on endlessly where high
officials or persons holding high public
offices are involved. They get bogged
down on one or the other ground. They
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
130
hardly ever reach a prompt conclusion.
That is the reality inspite of repeated
advice and admonitions from this Court
and the High Courts. If a criminal case is
unduly delayed that may itself be a good
ground
for
going
ahead
with
the
disciplinary enquiry even where the
disciplinary proceedings are held over at
an
earlier
stage,
the
interests
of
administration and good Government
demand
that
these
proceeding
are
concluded expeditiously. It must be
remembered
that
interests
of
administration demand that undesirable
elements are thrown out and any charge
of
misdemeanor
is
enquired
into
promptly. The disciplinary proceedings
are meant not really to punish the guilty
but to keep the administrative machinery
unsullied by getting rid of bad elements.
The interest of the delinquent officer also
lies in a prompt conclusion of the
disciplinary proceedings. If he is not
guilty of the charges, his honour should
be vindicated at the earliest possible
moment and if he is guilty, he should be
dealt with promptly according to law. It is
not also in the interest of administration
that
persons
accused
of
serious
misdemeanour should be continued in
office indefinitely, i.e., for long periods
awaiting
the
result
of
criminal
proceedings. It is not in the interest of
administration. It only serves the interest
of the guilty and dishonest. While it is not
possible to enumerate the various factors,
for and against the stay of disciplinary
proceedings, we found it necessary to
emphasise
some
of
the
important
considerations in view of the fact that
very often the disciplinary proceedings
are being stayed for long periods pending
criminal proceedings. Stay of disciplinary
proceedings cannot be, and should not be,
a matter of course. All the relevant
factors, for and against, should be
weighed and a decision taken keeping in
view the various principles laid down in
the decisions referred to above."

9. In Capt. M. Paul Anthony vs.
Bharat Gold Mines Ltd. and another,
1999(82) FLR 627, the Supreme Court
after considering all the judgments held-

(i) Departmental proceedings and
proceedings 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
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1All] Abhai Raj Singh V. Bank of Baroda and another
131
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, administration may get rid
of him at the earliest.

10. In State Bank of India and
others vs. R.B. Sharma, 2004 LLR 950,
the Supreme Court held-

"It is fairly well-settled position in
law that on basic principles proceedings
in
criminal
case
and
departmental
proceedings can go on simultaneously,
except where departmental proceedings
and criminal case are based on the same
set of facts and the evidence in both the
proceedings is common.

The purpose of departmental enquiry
and of prosecution are 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 omission of public
duty. The departmental enquiry is 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,
1872
(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 or 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 ZX is required to be seen is whether
the department 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."

11. The law as enunciated by the
Supreme Court leaves no scope for doubt
that all said and done, there is no bar for
simultaneous proceedings being taken
against the delinquent in the form of
criminal action and also disciplinary
proceedings unless
the
charges are
extremely serious and grave requiring the
judicial determination in preference to the
verdict
in
the
domestic
inquiry
proceeding. In the instant case, even
though
the
criminal
action
and
disciplinary proceedings are grounded
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
132
upon the same sets of fact, in my view,
there is no provision of law empowering
the court to stay the departmental
proceedings merely because criminal
prosecution is pending in the criminal
court. In my opinion, the purpose of the
two proceedings are quite different. The
object of the departmental proceedings is
to ascertain whether the delinquent is
required to be retained in service or not.
On the other hand the object of criminal
prosecution is to find out whether the
offence in the penal statute has been made
out or not. Therefore, the area covered by
the two proceedings are not identical. The
object in both the proceedings are
different.
Whereas
the
departmental
proceedings are taken to maintain the
discipline and the efficiency in the
service, the criminal proceedings are
initiated
to
punish
a
person
for
committing an offence violating any
public duty. The Supreme Court has
clearly stated that where the case is of a
grave nature and involves questions of
fact and law, in that event it would be
advisable for the employer to await the
decision of a criminal court. In the present
case, there is no complicated questions of
fact and law involved, nor any evidence
has been led by the petitioner to show as
to how he was prejudiced in the
continuance
of
the
departmental
proceedings. Nothing has been shown by
the petitioner as to how the proceedings in
a criminal trial would be prejudiced in the
event the domestic inquiry was not
stayed.

12. It may also be stated here that
immediately upon the issuance of the
charge-sheet, the petitioner approached
this Court. The petitioner has not even
submitted
his
explanation
and
the
departmental
proceedings
has
not
progressed. It is, therefore, difficult for
the High Court to consider whether the
matter is of such a complex nature that it
would be better to stay the departmental
proceedings pending disposal of the
criminal case. On the other hand judicial
notice can be taken of the fact that
criminal cases of this nature takes a long
time to conclude. The petitioner has
nowhere shown as to how he would be
prejudiced if he disclosed his evidence in
the departmental proceedings. Further the
disciplinary authority is the appropriate
authority to consider whether it is
worthwhile or not to await the decision of
the criminal court. In the present case, the
petitioner
has
not
approached
the
disciplinary authority and came to this
court directly.

13. For the reasons stated aforesaid,
I do not find it to be a fit case for
interference to stay the departmental
proceedings.
Consequently,
in
my
opinion, there is no merit in the case and
is
dismissed
accordingly.
In
the
circumstances of the case there shall be
no order as to cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2004

BEFORE
THE HON'BLE V.C. MISRA, J.

Civil Misc. Writ Petition No. 35099 of 2001

Ram Babu Gupta

...Petitioner
Versus
Presiding Officer, Labour Court, U.P.,
Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri S.N. Dubey