TMI Blog1999 (3) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex-parte, stand vitiated. The appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, in so far as it purports to allow the Writ Petition, is upheld. - C.A. 1906 OF 1999 - - - Dated:- 30-3-1999 - AHMAD SAGHIR S. AND KHARE, V.N., JJ. JUDGMENT Leave granted. Whether departmental proceedings and proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously is a question which crops up perennially in service matters and has once again arisen in this case in the following circumstances. Bharat Gold Mines Ltd. (Respondent No. 1) is a Govt. undertaking at Kolar Gold Fields in Karnataka, where the appellant was appointed as a Security Officer on 31.10.1983. On 2nd of June, 1985, a raid was conducted by the Superintendent of Police at the hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was dismissed from service. On 3rd of February, 1987, judgment in the criminal case was pronounced and the appellant was acquitted with the categorical findings that the prosecution had failed to establish its case. This judgment was communicated by the appellant to the respondents on 12.2.1987 with a request that he may be reinstated, but respondents, by their letter dated 3.3.1987, rejected the request on the ground that the appellant had already been dismissed from service on the completion of the departmental inquiry which was conducted independently of the criminal case and, therefore, the judgment passed by the Magistrate was of no consequence. The order of dismissal passed by the respondents was challenged in a departmental appeal which was rejected by the Appellate Authority on 22.7.1987. It was, at this stage, that the appellant approached the High Court through a Writ Petition under Article 226 of the Constitution challenging the validity of the order of dismissal on various grounds, including that the departmental proceedings based on the same set of facts on which the criminal case was launched against him, ought to have been stayed awaiting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant who had been placed under suspension was not being paid the Subsistence Allowance with the result that he fell into serious financial difficulties and could not undertake any journey from his home-town in Kerala to Kolar Gold Fields in Karnataka for participating in the departmental proceedings. The Division Bench, it is contended, was not justified in interfering with the judgment passed by the Single Judge who had found it as a positive fact that the departmental proceedings and the criminal case were based on the same set of facts and the evidence in both the cases was common. Learned counsel for the respondents has, however, contended that the respondents were under no obligation to stay the departmental proceedings and await the result of the criminal case as there was no legal bar in holding the departmental proceedings simultaneously with the proceedings in the criminal case, particularly as the level of proof in both the proceedings is different and the purpose with which the departmental proceedings are conducted is also not identical with the purpose with which the criminal case is prosecuted for an offence committed by the employee. This question, as obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vs. M/s Newsman's Printing Works 1956 LAC 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 Company Ltd. vs. Workmen 1964(7) SCR 555 = 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. vs. Kushal Bhan, it is desirable that if the incident giving ris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 vs. Union of India Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions 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. (AIR 1960 SC 806) and Tata Oil Mills (AIR 1965 SC 155) is also not 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 considerations 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 are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality in spite 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary enquiry even though the disciplinary proceedings were held over at an earlier stage. It would not be in the interests of administration that persons accused of serious misdemeanour should be continued in office indefinitely awaiting the result of criminal proceedings. In another case, namely, Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miyan (1997) 2 SCC 699 = AIR 1997 SC 2232, again it was held that there is no bar to proceed simultaneously with the departmental inquiry and trial of a criminal case unless the charge in the criminal case is of a grave nature involving complicated questions of fact and law. The conclusions which are deducible from various decisions of this Court referred to above are : (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 des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be attended by the appellant as he informed the Inquiry Officer that he was ill. His request for adjournment of the departmental proceedings on that ground was not acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charges and was dismissed from service. Learned counsel for the appellant also contended that during the period of suspension the respondents had not paid him the Subsistence Allowance with the result that he could not undertake a journey from his home-town in Kerala to Kolar Gold Fields in Karnataka where the departmental proceedings were being held. This plea has not been accepted by the High Court on the ground that it was not raised before the Inquiry Officer and it was not pleaded before him that it was on account of non- payment of Subsistence Allowance that the appellant could not go to Kolar Gold Fields for participating in the disciplinary proceedings. Before us, it is not disputed on behalf of the respondents nor was it disputed by them before the High Court, that Subsistence Allowance was not paid to the appellant while the proceedings against him were being conducted at the departmental level. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion as explained by this Court in Khem Chand v. Union of India is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance -- generally called subsistence allowance -- which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'Subsist' as given in Shorter Oxford English Dictionary, Vol.II at p. 2171 is to remain alive as on food; to continue to exist . Subsistence means -- means of supporting life, especially a minimum livelihood. (Emphasis supplied) If, therefore, even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. The act of non-payment of Subsistence Allowance can be likened to slow-poisoning as the employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceedings on account of non-payment of Subsistence Allowance may not have been raised before the Inquiry Officer, but it was positively raised before the High Court and has also been raised before us. Since it is not disputed that the Subsistence Allowance was not paid to the appellant during the pendency of the departmental proceedings, we have to take strong notice of it, particularly as it is not suggested by the respondents that the appellant had any other source of income. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex-parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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