LABOUR LAW

INTERNAL ASSESMENT 1: CASE ANALYSIS

NAME OF THE CASE: Jang Bahadur Singh v. Baij Nath Tiwari
CITATION: (1969)1LLJ 567
CORUM: Justices S.M. Sikri and R.S. Bachawat
DETAILS OF STUDENT: SHILPA GAMNANI
DIVISION A
BBA LLB
PRN: 12010124073

FACTS
The facts of the case are given hereunder: -

The appellant was the manager of Hiralal Memorial Intermediate College, the

respondent being the principal of the college.

On December 14, 1963 the respondent drew money from the Boys' Fund of the
college for payment of scholarship to the two Harijan students and sent Form No.
14 to the Harijan Tatha Samaj Kalyan Adhikari, containing a receipt of the

scholarship signed by the two students and countersigned by himself.

The Adhikari subsequently informed the appellant that the students had complained
about not receiving the scholarship, in spite of the submission of Form No. 14.
When the District Inspector of Schools visited the college, he called for an

explanation for the non-payment.

The appellant forwarded the Inspector's letter to the respondent and asked him to
give an explanation. The respondent sent a reply stating that payments were made
to the students and that the delay in payment was due to the absence of the students
from the College and the fact that the register on which receipts had to be obtained

were with the Inspector.

A meeting of the managing committee was called where the respondents
explanation was considered and it was resolved to take disciplinary action against
the respondent. The appellant subsequently passed an order suspending the

respondent pending inquiry.

Consequently, the respondent filed a writ petition in the High Court of Allahabad
questioning the appellants authority to pass the order and praying for quashing the
order of suspension. On the same date the respondent obtained an ex parte order
from the High Court staying the operation of the suspension order, which was later

vacated.
The appellant, meanwhile, served a charge sheet on the respondent, in pursuance of
the inquiry, and asked him to tender his explanation. Instead of submitting his
explanation the respondent filed a petition in the High Court asking for committal
of the appellant for contempt of court. His contention was that the aforesaid charge
was the subject-matter of inquiry in the pending writ petition, and that as the
respondent had launched a parallel inquiry in the matter he had committed
contempt of court. The High Court accepted the contention and held that the

appellant guilty.
The appellant hence filed this appeal after obtaining special leave from this Court.

ISSUES
1. Whether the pendency of court proceeding bars holding of inquiry proceedings by
the employer?
RULE
16-G. Conditions of service of Head of Institutions, teachers and other employees
(3) (a) No Principal, Headmaster or teacher may be discharged or removed or dismissed
from service or reduced in rank or subjected to any diminution in emoluments, or served
with notice of termination of service except with the prior approval in writing of the
Inspector. The decision of the Inspector shall be communicated within the period to be
prescribed by regulations.
(b) The Inspector may approve or disapprove or reduce or enhance the punishment or
approve or disapprove of the notice for termination of service proposed by the
management;
Provided that in the cases of punishment, before passing orders, the Inspector shall give an
opportunity to the Principal, the Headmaster or the teacher to show cause within a
fortnight of the receipt of the notice why the proposed punishment should not be inflicted.
(c) Any party may prefer an appeal to the Regional Deputy Director, Education, against an
order of the Inspector under clause (b), whether passed before or after the commencement
of the Uttar Pradesh Intermediate Education (Sanshodhan) Adhiniyam, 1966, within one
month from the date of communication of the order to that party, and the Regional Deputy
Director may, after such further enquiry, if any, as he considers necessary, confirm, set
aside or modify the order, and the order passed by the Regional Deputy Director shall be
final. In case the order under appeal was passed by the very person holding the office of
Regional Deputy Director, while acting as Inspector, the appeal shall be transferred by
order of the Director to some other Regional Deputy Director for decision, and the
provisions of this clause shall apply in relation to decision by that other Regional Deputy
Director as if the appeal had been preferred to himself.
(5) No Head of Institution or teacher shall be suspended by the Management, unless in the
opinion of the Management

(a) the charges against him are serious enough to merit his dismissal, removal or reduction
in rank; or
(b) his continuance in office is likely to hamper or prejudice the conduct of disciplinary
proceedings against him; or
(c) any criminal case for an offence involving moral turpitude against him is under
investigation, inquiry or trial.
(6) Where any Head of Institution or teacher is suspended by the Committee of
Management, it shall be reported to the Inspector within thirty days from the date of the
commencement of the Uttar Pradesh Secondary Education Laws (Amendment) Act, 1975,
in case the order of suspension was passed before such commencement, and within seven
days from the date of the order of suspension in any other case, and the report shall
contain such particulars as may be prescribed and be accompanied by all relevant
documents.
(7) No such order of suspension shall, unless approved in writing by the Inspector, remain
in force for more than sixty days from the date of commencement of the Uttar Pradesh
Secondary Education Laws (Amendment) Act, 1975, or as the case may be, from the date
of such order, and the order of the Inspector shall be final and shall not be questioned in
any Court.

ANALYSIS
Issue 1:
The court held that pendency of the court proceeding does not bar the taking of disciplinary
action. Since such a power does not vest in the civil or criminal court in the first place, the
initiation or continuation of such proceeding is not calculated to obstruct or interfere with
the course of justice. In other words, an authority holding an inquiry in good faith in
exercise of the powers vested in it by statutory regulations is not guilty of contempt of
court, merely because a parallel inquiry is imminent or pending before a court. This is
because contempt of court has been defined as some 'act done or writing published

calculated to bring a court or a judge of the court into contempt or to lower his authority 1'
or 'something calculated to obstruct or interfere with the due course of justice or the lawful
process of the court2'. The power of departmental inquiry under those sections is vested in
the management of the institute alone. The criminal court cannot make this adjudication.
The issue of the charge sheet and proceedings thereunder are authorized, by the Act and are
not calculated to obstruct the course of justice in any Court and hence cannot possibly
amount to contempt of court.
In the case of Delhi Cloth and General Mills Ltd vs. Kushal Bhan 3 observed that it cannot
be said the 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. They,
however, added 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 defense of the employee in the criminal case may not be prejudiced.
In State of Rajasthan v. B.K. Mena and Ors4, the entire case law on this issue was reviewed
and the Hon'ble Supreme Court stated that 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.
Subsequent judgments such as have upheld the case, stating that, even when the charge is
found to be serious and complicated questions of fact and law that arise for consideration,
the Court will have to keep in mind the fact that departmental proceedings cannot be
suspended
indefinitely or delayed unduly.
There are certain practical difficulties in proceeding with disciplinary action
simultaneously with prosecution of the employee. For instance, where the proof of the
1 Queen Reg v. Grey (1990) 2 QB. 36, 40
2 A. R. Perers v. The King, 1951 AC 482
3 AIR 1960 SC 806
4 AIR 1997 SC 13

allegation depends on documentary evidence, it will not be possible for the department to
obtain the documents which are already in the custody of the Police or the Criminal Court.
During the disciplinary proceedings, the employee may refuse to disclose his defense on
the ground that any incriminating statement given by him may go against him in the
criminal proceedings, and it would be unfair to compel him to do so. Therefore, the
Disciplinary Authority should consider all these factors before taking a decision to proceed
with simultaneous disciplinary proceedings.
In my opinion, the purpose of the two proceedings is quite different. The object of
disciplinary proceedings is to ascertain whether the officer concerned is a person to be
retained in service or not, or to be dealt with by imposing a suitable penalty. On the other
hand, the object of criminal prosecution is to find out whether the ingredients of the
offence as defined in the penal statute have been made out. The holding of a departmental
inquiry during the pendency of a criminal prosecution in respect of the same subject matter
would not amount to Contempt of Court. Only where the employee goes to the Court and
obtains a stay order, a wilful violation of that order alone would amount to Contempt of
Court. If the case is of a grave nature or involves questions of fact and law which are not
simple, it is advisable to await the decision of the Court.
CONCLUSION
This case has analyzed an aspect of law which would come under the concept of double
jeopardy. The concept of double jeopardy is based in the maxim, nemo debet bis vexari i.e.,
no one shall be tried or punished twice in regards to the same offence. The pursuance of
departmental proceedings along with civil or criminal prosecution was often construed to
fall under this principle and was a plea taken by many employees. However, by this
judgment, the ambiguity was cleared.
The government even released circulars clarifying that there is no legal objection to
departmental inquiry being conducted when the matter is under investigation or under trial
and that disciplinary proceedings and criminal proceedings should be processed without
loss of time with a view to avoiding manipulation and loss of evidence 5. The Government
has also directed that the authorities should ensure that departmental action is completed in
the case well before launching of prosecution undertaken by the police and at any rate not
exceeding 3 or 4 months6.
5 Memo.No.689/Ser.C/95-3 G.A. (Ser.C) Dept. dt.16-3-96
6 U.O.Note No.463/Ser.C/85-4 G.A.(Ser.C) Dept. dt.20-12-85