Q: I am an employee of a public sector company. Disciplinary proceedings have been initiated against me on the basis of certain charges which are criminal in nature but are false. Criminal action has also been instituted against me by the company on similar charges. The company is proceeding with both simultaneously. Is that legal?
Name withheld
A: Proceedings in a criminal case and in a departmental proceeding operate in distinct and different jurisdictional areas. The standard of proof required is also different in the two cases. Whereas in the departmental proceeding, the standard of proof is one of preponderance of probabilities, in a criminal case, the charges have to be proved by the prosecution beyond reasonable doubt. The conclusions which are deducible from various decisions of the Supreme Court of India and the high courts are as follows:
i) Departmental proceedings and a criminal case can proceed simultaneously, though separately, as there is no bar in the law in that regard.
ii) If the two sets of proceedings are based on identical or similar 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 desirable to stay the departmental proceeding till the conclusion of the criminal case.
iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend on the nature of the offence alleged, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
iv) The factors mentioned in (ii) and (iii) above cannot be considered in isolation to stay the departmental proceeding and due regard has to be given to the fact that a departmental proceeding cannot be unduly and / or indefinitely delayed.
v) If the criminal case does not proceed or its disposal is being delayed, the departmental proceeding, even if the same was stayed on account of pendency of the criminal case, can be resumed and proceeded with so as to conclude the same at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may take appropriate steps against him, including termination of his service if the same is called for, at the earliest.
In your case, whether the two sets of proceedings against you can be conducted simultaneously, will depend on the application of the above principles of law to the facts of your case, details whereof are not mentioned in your query.
Q: About a year ago, I did some interior designing work for the office premises of a partnership firm. My bill for Rs 4 lakh is still pending and it is clear that the firm has no intention of paying up. I understand that a money suit is a long drawn process. Can I file a proceeding for winding up against the firm which I am told is a much speedier process?
Swapan Das
A:A winding up proceeding is maintainable only against a limited company and not against a partnership firm. Hence, your only option is to file a money suit against the said firm, which you must file within three years from the date when your bill became payable. Otherwise, your claim will become barred by limitation. As a pressure tactic, you may also consider filing a criminal case against the partners of the said firm for cheating and other offences cognisable under the Indian Penal Code.
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