ORDER
1. The petitioner, a Branch Management of Vardhaman Sahakari Bank Ltd., Kareli Baug Branch, Vadodara filed this writ petition before this Court challenging Order D/- April 8, 1994 of the learned 5th Joint Civil Judge, (S. D.)., Vadodara passed in Regular Civil Suit No. 143/94 where the said court was pleased to dismiss the application of the petitioner for stay of departmental inquiry instituted against him in pursuance of notice of inquiry dated January 10, 1994 in respect of charges mentioned in the chargesheet-cum-show cause notice dated December 11, 1993 till hearing and final disposal of the suit, as well as of the Order of Joint District Judge, Vadodara dated May 27, 1994 in Civil Misc. Appeal No. 103/94 confirming the order of the Trial Court.
2. The petitioner in the suit has come up with the case that in respect of same charges criminal proceedings have also been initiated by the Bank and as the departmental proceeding and criminal proceeding arise out of same facts and circumstances the departmental enquiry should be stayed till proceedings are over before Criminal court.
3. The respondent No. 1 is a financial institution dealing with the finance and Banking activity. It is the case of the Bank that the petitioner, Branch Manager, is involved in defalcation of Rs. 13,00,000.00, therefore, the criminal complaint was lodged against the petitioner in the Court of Judicial Magistrate, Ist Class, Vadodara for the offences under Sections 403, 406, 408, 409, 420, 465, 466, 468, and 471, I.P.C. The learned Magistrate has referred this complaint to the police for investigation under Section 156(3) of Code of Criminal Procedure, 1973. The complaint is still under investigation and ultimately, until now no charge-sheet has been put before Criminal Court. Before filing criminal complaint the Bank authority had also made a preliminary inquiry against the petitioner. Wherein the petitioner had been found involved in serious defalcation of fund of the huge amount and, therefore, his explanation was also called for. The petitioner during the course of furnishing his explanation had admitted his fault or the act of defalcation in writing and not only that but 1 he had also further carried out and implemented by paying some amount to the Bank towards the misappropriation of the Bank amount and also prayed for giving instalments for the purposes of making payment for rest of defalcation funds. The charge-sheet-cum-show cause notice dated December 11, 1993 was served upon the petitioner for embezzlement and defalcation of Rs. 13,62,162.00. The charge-sheet has been served upon the petitioner only with a view to ascertain whether the petitioner has committed misconduct or not and if committed, whether his act unbecoming of an employee of financial institution like respondent No. 1 Bank or not
4. The learned Trial Court after considering the pleading and documentary evidence produced on record and hearing the learned counsel of both the sides came to conclusion that the plaintiff had no prima facie case and balance of convenience is also not in his favour. Application for the ad interim temporary injunction filed by the petitioner was rejected by the Trial Court vide its order dated April 8, 1994 and refused to stay the departmental proceedings against the petitioner. Appeal filed by the petitioner against the order of the Trial Court has also been dismissed by the Appellate Court hence this writ petition. Heard learned counsel for the parties Learned counsel for the petitioner has argued that both the Courts below have committed, a serious illegality in refusing to say the departmental proceedings when the criminal proceedings arise out of same set of facts and circumstances pending before the Criminal Court. In support of his argument the learned counsel placed reliance on the decision of the Apex Court in the case of P. J. Sundarajan v. Unit Trust of India reported in (1993-I-LLJ-168) and decision of this Court in the Case of N. R. Waghela v. Principal, Sainik School reported in 1990 (2) GLH (UJ) 16.
5. On the other hand learned counsel for the Bank contended that both the Courts below after considering all the evidence and pleadings of the parties declined to grant temporary injunction and this Court will not sit as an Appellate Court over findings recorded by the learned Trial Court and first Appellate Court. It has been next contended that powers under Order 39 Rules 1 and 2, C. P. C. 1908 are discretionary and when both the learned Courts below did not consider it to be a fit case to grant temporary injunction no interference of this Court calls with the orders passed by the learned Court below, under Article 226 or 227 of the Constitution of India. Lastly the learned counsel for the Bank argued that there could be no legal bar for simultaneous proceedings of departmental enquiry and criminal proceedings being taken. It is not the law of land that where simultaneous proceedings are taken the disciplinary proceedings should always be stayed in case the delinquent prayed for the same in the Court. In support of his contentions the learned counsel for the Bank relied upon the following decisions (i) Kusheshwar Dubey v. Bharat Coking Coal Ltd. (1988-II-LLJ-470)
(ii) Purshottam Bhai Premji Bhai and Patelrao v. Superintending Engineer (O and M) GEB 1989 (2) GLH 213
(iii) Vasant Lal N. Shah v. Punjab National Bank., Rajkot 1990 (1) GLH 276.
6. I have considered the contentions of the learned counsel for the parties made at Bar.
7. The case of P. J. Sundarajan (supra) proceeded on its own facts. After perusal of the record of that case the Apex Court in the case of P. J. Sundarajan (supra) stayed the departmental enquiry. In the case of P. J. Sundarajan (supra) earlier decision of the Apex Court in the case of Kusheshwar Dubey (supra) was not cited in the case of N. R. Waghela (supra) though this Court stayed the departmental enquiry pending criminal prosecution lodged in respect of the same subject matter, but none of the counsel who appeared in this case brought to the notice of the Court decision of the Apex Court in the case of Kusheshwar Dubey (supra) and two decisions of this Court in cases of Purshottambhai Premjibhai and Vasantlal N. Shah (supra). In the case of Kusheshwar Dubey the Apex Court observed that while there could be no legal bar for simultaneous proceedings being taken, yet there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. The Court further observed that in the later class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstances of a 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 a particular case as to whether disciplinary proceedings should be interdicted, pending criminal trial. The Apex Court in this case held that it is neither possible nor advisable to evolve a hard and fast, straight-jacket. Formula valid for all cases and of general application without regard to the particularities of individual situation. In this case the Apex Court had not laid down any general guidelines. In the case of Kusheshwar Dubey (supra) after considering its, previous decisions in the cases, Delhi Cloth and General Mills, AIR 1960 SC 806, Tata Oil Mill AIR 1965 SC 155 and Jang Bahadur AIR 1969 SC 30 the Apex Court arrived at the conclusion that there could be no legal bar for simultaneous proceedings of departmental enquiry and criminal trial being taken. But at the same time in an appropriate case on the application of the delinquent the Court may stay the departmental enquiry initiated against him pending trial of criminal case or same charges against him, in individual cases after considering the facts and circumstances of that case. So law appears to be settled that stay of the departmental enquiry by the Court in the case of simultaneity of the proceedings is not automatic as a rule more on asking by the delinquent. The Court on approach of the delinquent in such case may grant or may not grant stay or injunction against disciplinary proceedings. So, ultimately it is Court's judicial discretion in such matter. In this case the learned Courts below after considering the facts and circumstances of the present case did not consider it to be an appropriate case to stay the disciplinary proceedings started against the petitioner by the Bank pending the criminal case. This Court is not sitting as appellate forum against the orders impugned in this writ petition by the petitioner. Both the learned lower Courts, have after observing the due process of law and considering the pleadings of the parties and documentary evidence produced reached consistently and concurrently a conclusion which otherwise cannot be interfered with by this Court while exercising extraordinary Jurisdiction under Article 226 of the Constitution of India, except in a limited situation which does not exist in this case. As held by the Supreme Court in Harbanslal v. Jagmohan Saran, AIR 1986 SC 302 : a writ in the nature of certiorari may be issued if the order of the inferior Tribunal or subordinate Court suffers from the error of jurisdiction, or from breach of principles of natural justice or vitiated by manifest or apparent error of law. It is not the case of the petitioner that the Courts below have no jurisdiction to refuse temporary injunction or stay otherwise also the petitioner has failed to make out any case of error apparent on the face of orders impugned of law or fact. The learned counsel for the petitioner has tried to convince this Court that in the present case on the given facts and circumstances other view to stay disciplinary proceedings could have also possibly been taken. It is difficult to accept this contention of the counsel for the simple reason that sitting under Article 226 of the Constitution this Court will not interfere with the orders of the learned lower Courts as the view taken by them could have been taken. The departmental enquiry is started for the purpose of satisfying as to whether, in fact, the delinquent, is guilty of any misconduct or delinquency. As observed by this Court in the case of Vasantlal (supra) the scope of departmental enquiry is to determine whether a public i servant has committed a misconduct of delinquency and, even if the same constitutes, from one point of view, a crime to consider, the question whether the, delinquent deserves to be retained in public service or to be reverted or to be reduced in rank or otherwise suitably dealt with for the delinquency concerned. The scope of an enquiry in a criminal trial is to determine whether an offence against the law of the land has taken place and, if so to punish the person who has been guilty of that offence. In the case of Purshottambhai Premjibhai (supra), in para 6 at page 215 this Court observed.
'In the present case taking into consideration the fact that the matter was pending investigation for a number of months and thereafter, it is pending before the Criminal Court only for framing of charge, it is apparent that there is no progress in the criminal case. If further delay is permitted in holding departmental proceedings, it may cause inconvenience to the department. If the departmental proceedings are further delayed it may happen that some evidence may not be, available after lapse of long period..... If he is held guilty, then appropriate action could be taken otherwise the petitioner would be kept under a suspension, for years together and the department would have to pay subsistence allowance or salary to the petitioner without taking any work from him till the criminal case is finally decided not only by the Trial Court but also by the Appellate Court. So suspension for a long period of a civil servant would not be in the public interest in maintaining the efficiency of the service and also it would not be in the interest of the petitioner as well as the department. Hence taking into consideration the aforesaid circumstances this would not be a fit case for staying the departmental proceeding.'
8. In the case in hand the criminal complaint has been sent by the Criminal Court for investigation to police and investigation is lying at its initial stage. It is not the case of the petitioners that the police has completed the investigation in this case. Then matter will come before trial Court and one can have estimate of the period which is likely to be taken by the Criminal Court in trial of the case against the petitioner in normal circumstances. There are very serious charges of embezzlement and defalcation of Rs. 13,62,146/- of public money, being a money of financial institution i.e. Bank. In case the departmental enquiry started against the petitioner would have been stayed then he will get premium for his defalcation and embezzlement money by remaining in service though may be under suspension and will receive monetary benefits in the shape or form of subsistence allowance till the Criminal Court decides the case pending before it against the petitioner. From the facts which have been brought on record by the Bank in this case it is clear that to some extent the petitioner has admitted defalcation of Bank money. Not only this but further he had deposited some money against this defalcated amount and prayed for payment of rest of the money in instalments.
9. Indisputably charges alleged against the petitioner are very serious. In case a Bank Officer, who has been chargesheeted with the serious charges of misappropriation, embezzlement and defalcation of Bank amount to the tune of Rs. 13,62,146/- is set free on departmental enquiry initiated against him is kept in abeyance till the decision of the criminal case filed on the alleged same charges it will prejudicially affect the public confidence and faith in the Banking Institutions. Having a look at the newspapers and the cases which are coming up before the Courts it is a matter of knowledge and information that cases of misappropriation, embezzlement and defalcation of money of Bank by its officer or employees are exceptionally of large number. The Courts, while dealing with the prayer of delinquent, who has been charged with allegations of misappropriation, embezzlement and defalcation of money of Banking or financial institutions, for stay of departmental enquiry pending criminal case should draw a reasonable distinction with the case of the delinquent who has been chargesheeted with formal charges. When the deliquencies alleged against the delinquent have direct impact and relation to the public money and the accountability of the financial institution to the public at large the Courts should be slow to exercise its discretionary powers in favour of the charged officer. The Courts while dealing with such a case should have to draw a reasonable balance in between the public interest and interest of institution on one hand and the right of the delinquent much stress has been put by the learned counsel for the petitioner that in case departmental enquiry proceeds the petitioner has to disclose his defence which is likely to prejudice his defence in the criminal case.
10. I have given my thoughtful consideration to this contention of the learned counsel. This Court in the case of Vasantlal (supra) observed that the criminal proceedings are entirely different in nature and its object is to punish the accused for the offence committed by him. The rules relating to the admissibility and appreciation of evidence in two proceedings, D. C. and Criminal proceedings are different. Proceedings in a criminal trial would be as per the Criminal Procedure Code and the Evidence Act. Certain statements of the accused would be inadmissible in evidence in criminal trial. The Trial Court and the Court of first appeal while deciding the case of the petitioner were conscious of this plea of the petitioner. After going through the orders passed by the learned Court below in his case, I am satisfied that taking into consideration totality of facts and circumstances of this case the Courts have not acted arbitrarily to decline to exercise their discretionary power in favour of the petitioner. Looking to the fact that the petitioner has agreed to deposit some amount against the defalcated amount and further prays for indulgence to deposits more amount though in instalments. I am of the opinion that no prejudice, whatsoever will cause to the delinquent petitioner in case departmental enquiry pending against him is not stayed. On contrary if in such a case departmental enquiry is stayed it will have wide impact and effect on the public faith and confidence in the Banking institutions as well as accountability of these institutions to the public. This Court while sitting under Article 226 of the Constitution of India will not interfere with the order of the subordinate Courts if it is satisfied that there being no failure of justice to the petitioner. In this connection, reference, may be had to two decisions of the Supreme Court reported in AIR 1957 SC 227 and AIR 1960 SC 407 where their Lordships of the Supreme Court have declined to interfere with the matter, even on finding that there was some force in the contention regarding jurisdiction but there being no failure of justice.
11. The learned counsel for the petitioner having argued matter at length failed to make out any case which warrants interference of this Court in the orders passed by the Courts below. It is not the case where in the orders made by the learned subordinate Court could befall in the categories of palpable wrong of perverse or arbitrary orders. The view which have been taken by the learned Courts below in the given facts and circumstances of the present case could have been taken by men of reasonable prudence. The orders passed by the learned subordinate Courts in this case and which are subject of challenge in this special Civil Application are just reasonable and fair and have appropriately been passed in the facts and circumstances of this case which have been brought on record by the parties.
12. In the result this special Civil Application fails and same is dismissed with costs of Rs. 2000/- (two thousands).
13. The notice is discharged. On discharge of the notice the ad interim relief in terms of para No. 9 granted by this Court on June 3, 1994 stands automatically vacated.