Eastern Coalfields Limited & Ors. vs Rabindra Kumar Bharti

HELD: 1.This is a case where there is a criminal case against the respondent. The appellant(s) as employer also launched disciplinary proceedings. It is undoubtedly true that this Court has taken the view that when the charges are identical and gives rise to complicated issues of the fact and law and evidence is the same, it may not be appropriate to proceed simultaneously in disciplinary proceedings, along with the criminal case. The rationale behind the principle largely is that the employee who is facing the disciplinary proceeding would necessarily have to take a stand. This in turn would amount to revealing his defense and therefore prejudice the employee in the criminal proceedings. No doubt, this Court has laid down that it is not an absolute embargo and the principle is one to be applied based on the facts of each case. [Para 9][1092-B-D]

2. When the respondent was faced with the disciplinary proceeding, he approached the High Court. Apparently, he sought stay of the proceedings. The High Court did not deem it appropriate to grant stay of the disciplinary proceeding. Instead, as noticed by order dated 29.06.2017, the proceedings were allowed to be continued. According to the appellant(s), proper enquiry was held and the respondent participated. At the end of the enquiry as held by the appellant in view of the order passed by the High Court, the appellant sought permission to pass the final order, or the appropriate order of penalty. This led to the disposal of the writ petition itself by the Single Judge. The Single Judge in the judgment noticed that this is a case where the respondent had already revealed his defence by participating in the 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 disciplinary proceedings to attain finality at the hands of the disciplinary authority. The disciplinary authority accordingly passed an order dismissing the respondent from service. No doubt this is during the pendency of the appeal. [Para 10][1092-D-H; 1093-A]

3. In the appeal, the order of the disciplinary authority dismissing the respondent was not the subject matter of challenge by way of an amendment in the writ petition. The Division Bench has posed the question as to what would happen if the criminal trial culminates in acquittal and it is thereafter that the High Court deemed it appropriate also apparently with reference to its power under Order 41 Rule 33 to pass the order keeping in abeyance the order of dismissal and it was to become operative upon the criminal trial going against the respondent. [Para 11][1093-A-C]

4. In the challenge in the writ petition against the holding of the disciplinary proceedings, obtaining of an interim order in the nature of the case was of relevance and importance to the question at hand. The principle involved being that when parallel proceedings are held on the basis of identical charges and the same evidence, the employee should not be allowed to disclose his defence. This aspect of the matter is to be looked into with reference to the effect of the order dated 29.06.2017. As a result of the said order passed during the pendency of the writ petition, the respondent had allegedly participated in the enquiry and there would be no scope for applying that principle as such. In such circumstances, High Court may not have been justified in passing the impugned order the result of which is that though the appellant(s) conducted the disciplinary proceeding as permitted by the Single Judge and the respondent allegedly participated in it and all that remained was passing of an order by the disciplinary authority and what is more during the pendency of the appeal no doubt the order of the dismissal has been passed, the appellant is forced to retain the respondent and the order is to remain in suspended animation to attain finality only if the criminal case is decided in the future and it ends in the conviction of the respondent. The High Court was not justified in passing such an order in the facts of this case. [Para 12][1093-C-G]

5. Also, reference made to Order 41 Rule 33 of the Civil Procedure Code may not have been justified. Order 41 Rule 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 special facts of a case. It is not an ordinary rule to be applied across the board in all the appeals. In fact, the principle is inter alia no doubt that even if there is no appeal by any of the parties in the proceedings, an order can be passed in his favour in the appeal carried by the other side. Any order which ought to have been passed can be passed. In this case, there is no order against the appellant(s) by the Single Judge. The order of dismissal was not specifically the subject matter of challenge as noticed. In the facts of this case, it is not a fit case where the High Court could have supported the directions with reference to Order 41 Rule

33. [Para 13][1093-G-H; 1094-A-B]

Capt. M. Paul Anthony v. Bharat Gold Mines Limited & Another (1999) 3 SCC 679 : [1999] 2 SCR 257; State of 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 and Karnataka Power Transmission Corpn. Ltd. v. C. Nagarajuand Another (2019) 10 SCC 367 – referred to.