Holding

The Supreme Court held that where the employee has already participated in the departmental enquiry and disclosed his defence, the principle of staying disciplinary proceedings to protect the criminal defence does not apply, and the High Court was not justified in staying the dismissal order under Order 41 Rule 33.

Summary

The respondent, a clerk, was suspended and later dismissed by Eastern Coalfields Ltd. on a complaint that he demanded a bribe to clear retirement formalities, leading to a criminal case under the Prevention of Corruption Act, 1988. The employer initiated departmental proceedings, which the respondent challenged in the High Court, obtaining an order that the enquiry could continue but no final order could be passed without court leave. The Single Judge allowed the enquiry to proceed, the respondent participated, and the disciplinary authority eventually dismissed him; the High Court Division Bench then stayed the dismissal order pending the criminal trial and made it operative only upon a conviction, invoking Order 41 Rule 33 of the CPC. The Supreme Court held that because the respondent had already disclosed his defence in the departmental enquiry, the principle of staying disciplinary proceedings to protect the criminal defence did not apply, and the High Court was not justified in staying the dismissal. Consequently, the Supreme Court set aside the impugned order, allowed the appeal, and restored the dismissal, while leaving the respondent free to challenge the disciplinary action in a competent forum.

Issues considered

When should disciplinary proceedings be stayed pending a parallel criminal trial involving identical charges and evidence?
Does participation of the employee in the departmental enquiry waive the principle of non-disclosure of defence?
Whether Order 41 Rule 33 of the CPC can be invoked to stay a dismissal order in the facts of this case.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 33
Prevention of Corruption Act, 1988s. 13(i)(d), s. 7(12), s. 7(13) sub-section 2

Subjects

departmental enquirydisciplinary proceedingsparallel criminal proceedingsOrder 41 Rule 33Prevention of Corruption Actservice lawsuspensiondismissalnon-disclosure of defenceappellate jurisdiction

Judgment

1084 SUPREME COURT
[2022]REPORTS
4 S.C.R. 1084 [2022] 4 S.C.R.

A EASTERN COALFIELDS LIMITED & ORS.
v.
RABINDRA KUMAR BHARTI
(Civil Appeal No. 2794 of 2022)
B APRIL 07, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Service Law – Departmental proceedings – Respondent,
employed as a clerk with the appellant(s), was suspended by the
appellant on the complaint of demanding bribe to clear retirement
C formalities and also served with a notice of departmental enquiry –
Respondent moved a writ petition – Single Judge of High Court
allowed the appellant to continue with the proceedings but ordered
the appellant to not to pass final order without the leave of the
Court – At the end of the enquiry, the appellant(s) filed an
D application seeking leave to pass the final orders which was allowed
– Appeal before Division Bench of High Court – In the meantime,
respondent was dismissed from service – Division Bench of High
Court directed that the final order of dismissal of the respondent be
stayed till the disposal of the criminal case and also the order of the
dismissal against the respondent will become operative on the
E criminal proceeding culminating in an order of conviction – Held:
Principle involved is 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 – However, Single
Judge permitted the proceeding to go on and respondent participated
F in it – Division bench of High Court was not justified in passing the
impugned order as the order of dismissal was already passed by the
disciplinary authority and appellant was forced to retain the
respondent as a result of which dismissal order was to remain in
suspended animation to attain finality only if the criminal case ends
in the conviction of the respondent – Reference made to Or. 41 r.33
G CPC may not have been justified in the facts of this case – Judgment
of the Division Bench set aside – It will be without prejudice to the
rights of the respondent to challenge the disciplinary proceeding in
any competent forum.
Code of Civil Procedure, 1908: Or.41 r.33 – Scope of –
H Discussed.
1084
EASTERN COALFIELDS LIMITED & ORS. v. RABINDRA KUMAR 1085
BHARTI

Allowing the appeal, the Court A
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 B
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 C
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 D
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
E
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 F
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 G
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]

H
1086 SUPREME COURT REPORTS [2022] 4 S.C.R.

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
B
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
C 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
D 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
E 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
F 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]
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

H
EASTERN COALFIELDS LIMITED & ORS. v. RABINDRA KUMAR 1087
BHARTI

special facts of a case. It is not an ordinary rule to be applied A
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 B
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]
C
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. D
Ltd. v. C. Nagarajuand Another (2019) 10 SCC 367 –
referred to.
Case Law Reference
[1999] 2 SCR 257 referred to Para 5 E
[1996] 7 Suppl. SCR 68 referred to Para 6
[2007] 6 SCR 873 referred to Para 7
(2019) 10 SCC 367 referred to Para 8
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2794
of 2022.
From the Judgment dated 04.03.2021 of the High Court of Calcutta
in M.A.T. No.213 of 2021.
G
Parijat Kishore, Saurabh Tanwar, Advs. for the Appellants.
Mahesh Prasad, Mansha Ram Singh, Shambu Prasad, Naresh
Kumar, Ms. Vaishali, Rajesh Singh Chauhan, Advs. for the Respondent.

H
1088 SUPREME COURT REPORTS [2022] 4 S.C.R.

A The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Leave granted.
2. On the basis of the complaint lodged against the respondent
B who was employed as a clerk with the appellant(s) relating to demands
for bribe by the respondent to clear retirement formalities, the respondent
came to be arrested by the Central Bureau of Investigation on 31st August,
2015. A case was lodged against the respondent under Section 7 (12) &
(13), sub-section 2 read with Section 13(i)(d) of the Prevention of
Corruption Act, 1988. The appellant also passed an order of suspension
C against the respondent on 3rd August, 2015. This suspension was no
doubt revoked on 15th September, 2015. Appellant served respondent a
notice of the departmental enquiry on 20th March, 2017. This prompted
the respondent to move a writ petition. In the writ petition, the following
order was passed on 29.06.2017: -
D “Let the affidavit-of-service filed in Court today be kept
with the record.
Let an affidavit-in-opposition be filed within a period of three
weeks. Let an affidavit-in-reply thereto, if any, be filed within a
period of one week thereafter.
E Let this matter appear for hearing in the Combined Monthly
List of August, 2017 within the first 50 matters under that heading.
In the affidavit-in-opposition the respondents shall disclose
the nature of the criminal proceeding pending against the petitioner
including the names of the witnesses in the criminal proceeding
F as well as the departmental enquiry.
The respondents shall be at liberty to proceed with the
departmental enquiry but shall not pass any final order without
the leave of the Court.”
3. The departmental proceedings accordingly, continued.
G According to the appellant(s), the enquiry was held and the respondent
participated in the enquiry also. At the end of the enquiry, the appellant(s)
filed an application seeking leave to pass the final orders. This resulted
in, the learned Single Judge passing judgment dated 10th, February 2021.
This decision was impugned by the respondent before the Division Bench.
H In the meantime, the respondent’s service came to be dismissed from
EASTERN COALFIELDS LIMITED & ORS. v. RABINDRA KUMAR 1089
BHARTI [K. M. JOSEPH, J.]

service by order dated 2nd March, 2021. By the impugned judgment the A
Division Bench has proceeded to direct that the final order of dismissal
of the respondent be stayed till the disposal of the criminal case. It was
further ordered that the order of the dismissal against the respondent
will become operative on the criminal proceeding culminating in an order
of conviction. The Court also notes that the Court was exercising power
of the Court of Appeal provided in Order 41 Rule 33. B

4. We have heard the learned counsel for the parties. The complaint
of the appellant(s) is that the Division Bench of the High Court has
erred in not noticing that principally it is not desirable to delay the
departmental proceeding on account of pendency of a criminal case.
The principle that it is desirable to delay the departmental proceeding C
when a criminal trial is also pending, is owing to the fact that the employee
would be compelled to disclose his defence before the departmental
proceedings. The principle is inapplicable. This is for the reason that by
virtue of the order, we have referred to dated 29.06.2007, the learned
Single Judge had permitted the enquiry to go on. According to the
D
appellant(s), the respondent participated in the enquiry and thereafter on
the culmination of the enquiry in keeping with the order passed on
29.06.2017 after the judgment of the Single Judge dated 10.02.2021 the
order of dismissal came to be passed. The further case of the appellant(s)
is that the order of dismissal was not the subject matter of appeal. In
other words, dismissal of the respondent was not challenged before the E
Division Bench.
It is also contended that a verdict of acquittal in the trial which
may occur in the future would not affect the disciplinary proceedings as
these proceedings have purport different from the disciplinary
proceedings. The principles applicable to disciplinary proceedings are F
different is apparently the contention.
5. Per Contra, Mr. Mahesh Prasad, learned counsel for the
respondent would point out that the impugned order does not call for any
interference. He would further submit that the disciplinary proceedings
were not conducted in a proper manner.
G
It is pointed out that the charges, the witnesses and evidence in
the Criminal case and also in the departmental proceedings are the same.
He relied on ‘Capt. M. Paul Anthony Versus Bharat Gold Mines Limited
& Another1. In M. Paul Antony (supra) it was held as follows:
1
(1999) 3 SCC 679 H
1090 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 20. This decision has gone two steps further than the earlier
decisions by providing:
1. The “advisability”, “desirability” or “propriety” of staying
the departmental proceedings “go into the scales while judging
the advisability or desirability of staying the disciplinary
B proceedings” merely as one of the factors which cannot be
considered in isolation of other circumstances of the case. But the
charges in the criminal case must, in any case, be of a grave and
serious nature involving complicated questions of fact and law.
2. One of the contending considerations would be that the
C disciplinary enquiry cannot — and should not be — delayed unduly.
If the criminal case is unduly delayed, that may itself be a good
ground for going ahead with the disciplinary 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
D awaiting the result of criminal proceedings.
21. In another case, namely, Depot Manager, A.P. SRTC v.
Mohd. Yousuf Miya [(1997) 2 SCC 699 : 1997 SCC (L&S) 548
: AIR 1997 SC 2232] again it was held that there is no bar to
proceed simultaneously with the departmental enquiry and trial of
E a criminal case unless the charge in the criminal case is of a
grave nature involving complicated questions of fact and law.
6. We may further notice that in the said judgment this Court took
note of the judgment in State of Rajasthan v. B.K.Meena and Ors2
wherein it was inter alia held as follows:
F
“The only ground suggested in the above decisions as constituting
a valid ground for setting the disciplinary proceedings is that the
findings of the trial court in the criminal case may not be
prejudiced.” This ground has however been hedged by providing
further that this may be done in the cases of grave nature involving
G question of facts and law”.
7. In Pandiyan Roadways Corpn. Ltd. v. N. Balakrishnan 3
this Court noticed two different streams of judicial views:

2
(1996) 6 SCC 417
3
H (2007) 9 SCC 755
EASTERN COALFIELDS LIMITED & ORS. v. RABINDRA KUMAR 1091
BHARTI [K. M. JOSEPH, J.]

“21. There are evidently two lines of decisions of this Court A
operating in the field. One being the cases which would come
within the purview of Capt. M. Paul Anthony v. Bharat Gold
Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] and G.M.
Tank v. State of Gujarat [(2006) 5 SCC 446 : 2006 SCC (L&S)
1121] . However, the second line of decisions show that an
B
honourable acquittal in the criminal case itself may not be held to
be determinative in respect of order of punishment meted out to
the delinquent officer, inter alia, when: (i) the order of acquittal
has not been passed on the same set of facts or same set of
evidence; (ii) the effect of difference in the standard of proof in a
criminal trial and disciplinary proceeding has not been considered C
(see Commr. of Police v. Narender Singh [(2006) 4 SCC 265 :
2006 SCC (L&S) 686] ), or; where the delinquent officer was
charged with something more than the subject-matter of the
criminal case and/or covered by a decision of the civil court
(see G.M. Tank [(2006) 5 SCC 446 : 2006 SCC (L&S) 1121], D
Jasbir Singh v. Punjab & Sind Bank [(2007) 1 SCC 566 : (2007)
1 SCC (L&S) 401 : (2006) 11 Scale 204] and Noida
Entrepreneurs’ Assn. v. Noida [(2007) 10 SCC 385 : (2008) 1
SCC (Cri) 792 : (2008) 1 SCC (L&S) 672 : (2007) 2 Scale 131],
para 18).”
E
8. We may notice a recent judgment in Karnataka Power
Transmission Corpn. Ltd. v. C. Nagaraju and Another 4 wherein it
was interalia held: -
“9. Acquittal by a criminal court would not debar an employer
from exercising the power to conduct departmental proceedings
F
in accordance with the rules and regulations. The two proceedings,
criminal and departmental, are entirely different. They operate in
different fields and have different objectives. [Ajit Kumar
Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC
(L&S) 1020] In the disciplinary proceedings, the question is
whether the respondent is guilty of such conduct as would merit G
his removal from service or a lesser punishment, as the case may
be, whereas in the criminal proceedings, the question is whether
the offences registered against him under the PC Act are

4
(2019) 10 SCC 367 H
1092 SUPREME COURT REPORTS [2022] 4 S.C.R.

A established, and if established, what sentence should be imposed
upon him. The standard of proof, the mode of inquiry and the
rules governing inquiry and trial in both the cases are significantly
distinct and different. [State of Rajasthan v. B.K. Meena, (1996)
6 SCC 417 : 1996 SCC (L&S) 1455]”
B 9. We would notice that 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
C 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
D principle is one to be applied based on the facts of each case.
10. Even applying the principles as such to the facts, that is,
examining its impact on the destiny of this case, we find as follows:
When the respondent was faced with the disciplinary proceeding,
he approached the High Court. Apparently, he sought stay of the
E proceedings. The High Court did not deem it appropriate to grant
stay of the disciplinary proceeding. Instead, as noticed by us 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. As to whether the enquiry was
F held properly or not is not a matter on which we do express our
opinion. However, 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
learned Single Judge. The learned Single Judge in the judgment
G 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 learned Single Judge
accordingly permitted the disciplinary proceedings to attain finality
H at the hands of the disciplinary authority. The disciplinary authority
EASTERN COALFIELDS LIMITED & ORS. v. RABINDRA KUMAR 1093
BHARTI [K. M. JOSEPH, J.]

accordingly passed an order dismissing the respondent from A
service. No doubt this is during the pendency of the appeal.
11. 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 B
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.
12. We would notice that what is most pertinent is the aspect that C
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 D
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,
we think that High Court may not have been justified in passing the E
impugned order the result of which is that though the appellant(s)
conducted the disciplinary proceeding as permitted by the learned 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 F
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. We do not think that the High Court was justified in passing
such an order in the facts of this case.
13. We may also observe that reference made to Order 41 Rule G
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 interalia no doubt that even if H
1094 SUPREME COURT REPORTS [2022] 4 S.C.R.

A 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 learned Single Judge. The order of
dismissal was not specifically the subject matter of challenge as noticed.
We do not think in the facts of this case, that it is a fit case where the
B
High Court could have supported the directions with reference to Order
41 Rule 33.
14. The upshot of the above discussion is that the impugned
judgment cannot be sustained. Accordingly, we allow the appeal and set
aside the impugned judgment. We, however, make it crystal clear that it
C will be without prejudice to the rights of the respondent to challenge the
disciplinary proceeding in any competent forum. We leave open all
remedies and contentions of the respondent in this regard.
The appeal is allowed as above. There will be no order as to
costs.
D
All pending applications stand disposed of.

Bibhuti Bhushan Bose Appeal allowed.
(Assisted by : Deepak Panwar, LCRA)

E

F

G

H