D.K. Seth, J.@mdashThe petitioner has challenged the departmental proceedings on the ground that the chargesheet could not be issued and no departmental proceeding could be initiated and proceeded with, in view of Clause 6.3 of the Manual on disciplinary action and related matters of UCO Bank read with Clause 2.1 thereof. According to the petitioner, a disciplinary proceeding starts with the issue of the chargesheet, as is laid down in Clause 2.1 of the Manual. As such, issue of chargesheet is a step for proceeding departmentally. In terms of Clause 6.3, a departmental proceeding cannot be proceeded against a delinquents, if steps have been taken to prosecute an employee or get him prosecuted for an offence involving moral turpitude, unless he is put on trial within a year of commission of offence. According to the learned Counsel for the petitioner, the expression "commission of offence" means the day when the commission of offence is brought to the notice of the prosecuting authority, namely, the date of lodging of the FIR and as such, unless one year expires from the lodging of the FIR, the departmental proceeding cannot be initiated. He also relies on the decision in
2. The learned Counsel for the respondents, on the other hand, points out to clause 19.4 of the Bipartite Settlement on the basis of which Clause 6.3 of the Manual was so incorporated. Relying on the said provision, the learned Counsel for the respondents contends that the one year embargo is related to the date of commission of offence and not the date of lodging of the FIR. He also contends that neither Clause 6.3 nor Clause 19.4 of the settlement proscribe issuing of the chargesheet. It is only the proceeding of the departmental enquiry that is prescribed. Therefore, the chargesheet was rightly issued and it could be proceeded with, since one year from the commission of offence has already expired. The decision in Capt. M. Paul Anthony (supra) does not apply in the present case. Alternatively, he submits that if the period of one year is calculated from the date of commission of offence, in that event, chargesheet that has been issued on 5th March, 2001, is a day long after lapse of one year after commission of offence. As such the same cannot be said to be invalid. He relied on the decision of this Court in Sekhar Chandra Saha v. West Bengal State Warehousing Corporation and Ors., reported in 1994 Lab. I.C.331.
3. I have heard the respective Counsel at length, on the question of extension of Interim Order.
Clause 19.4 of the Bipartite Settlement provides as follows:
"If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the Management may then deal with him as if he had committed an act of ''gross misconduct'' or of ''minor misconduct'', as defined below; provided that if the authority which was to start prosecution proceedings refuses to do so or come to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months pay and allowances in lieu of notice as provided in Clause 19.3 (supra). If within the pendency of the proceedings, thus instituted, he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 19.3 above shall apply."
Whereas Clause 6.3 of the Manual provides as follows:--
"6.3. As per Clause 19.4 of the Bipartite Settlement, dated 19.10.66, as amended if after steps have been taken to prosecute an employee or get him prosecuted for an offence involving moral turpitude, he is not put on trial within a year of the commission of the offence, the Bank may departmentally proceed against him. So when an employee commits an offence involving moral turpitude, the Bank has two options:
(i) either to prosecute the employee or get him prosecuted by filing an FIR with the Police; (unless he is otherwise prosecuted)
or
(ii) to proceed against him departmentally,
But if the Bank opts for (i) first, it has to wait for one year from the date of commission of the offence, if, within this period (one year) the employee is not put on trial the Bank has the liberty to proceed against the employee departmentally."
NOTE: Moral turpitude--The term ''moral turpitude'' has not been defined in any statute of India. It is a Judge made concept. It broadly means any act done, which is contrary to honesty and good morals.
4. These two provisions are almost identical. Clause 6.3 provides that if steps have been taken for prosecuting an employee or get him prosecuted and he is not put on trial within a year of the commission of offence, in respect of moral turpitude, he may be proceeded against departmentally. Thus, it provides of two steps (1) to proceed departmentally straightaway without taking steps for criminal prosecution or (2) to initiate steps for criminal prosecution. If it takes the second step, in that event, it has to wait for one year from the commission of offence, before it can proceed departmentally against him. It is virtually, a reflection of Clause 19.4 of the Bipartite Settlement, which also means the same thing. There is no conflict in between the two. However, Clause 19.4 prescribes that in case during the pendency of enquiry if criminal trial starts, in that event, the departmental proceeding would be stopped. These two provisions are to be read together in order to give the complete meaning to the Rules of Procedures. If read together, the provisions are clear and unambiguous. In case, steps are taken to prosecute criminally, in that event, until one year from the date of commission of offence expires, no departmental proceedings can be proceeded with. If during the departmental proceeding the trial starts, in that event, the departmental proceeding will be stopped as soon the criminal trial starts. In the present case, the offence was alleged to have been committed in 1997. The FIR was lodged on 8th November, 2000. Chargesheet for departmental proceeding was issued on 5th March, 2001.
Clause 2.1 of the Manual provides as follows:--
"2.1. The disciplinary procedure starts from the time a chargesheet is issued and served to an employee....."
5. The Disciplinary Proceeding starts with the issue of the chargesheet. There is no doubt about it. It is also so provided in the Manual. The embargo that has been provided in Clause 6.3 of the said Manual read with Clause 19.4 of the Bipartite Settlement, prescribes departmental proceeding, which is clarified in Clause 6.3 of the Manual to the extent that cannot be proceeded against where steps for prosecution is taken. It does not prohibit commencement of the departmental proceeding in such a case. It cannot be said that there would be an embargo on the initiation of the departmental proceedings. But the embargo is with regard to the proceeding with the departmental action. Therefore, though chargesheet may be issued and reply may be submitted and it may be decided to proceed against departmentally, then it cannot proceed where steps for prosecution has been taken, until one year from the date of commission of offence expires, provided no trial has commenced within the period. In such a case, it can proceed with the departmental proceeding, only after the expiry of the said period and not before and has to stop as soon the criminal trial starts.
The period is limited by the expression "if he is not put on trial within the year of the commission of the offence." The same expression is used in Clause 6.3 as well as in Clause 19.4 respectively. In both these clauses the expressions are identical. The language is clear. It relates to the date of commission of offence alleged. It cannot be treated to be the date of lodging of FIR. The learned Counsel for the petitioner, however, contended that the mere allegation will not do. It should be the date, on which it is alleged and has been put on record by lodging of FIR. According to him, until it is proved, the allegations cannot be said to be an offence and, therefore, there is no question of commission of offence on an alleged date. Therefore, the one year is to be calculated from the date of lodging of the FIR.
6. This contention is devoid of any merit. If such a contention is accepted, in that event, it cannot be proceeded with even after lodging of the FIR. The contents of an FIR are also allegations unproved. The language being clear and unambiguous, and there have been no doubt, and no two constructions being possible, this Court cannot make any other meaning. It has to adopt the simple grammatical meaning. Within the ''one year from the commission of any offence'' means one year from the date, on which the offence is alleged to have been committed. Therefore, the embargo is limited only to the period as provided in Clause 19.4 and Clause 6.3 of the Bipartite Settlement and the Manual respectively.
7. In the present case, the offence was alleged to have been committed in 1997. Therefore, the period of one year, in terms of both the said clauses, would be deemed to have expired within one year from the date of the alleged commission of an offence. As such, the present chargesheet could have rightly been issued on 5th March, 2001, which is long after one year from commission of offence.
8. Be that as it may, even if the contention of the learned Counsel for the petitioner is accepted, the FIR. having been lodged on 8th November, 2000, now i.e., after 8th November, 2001, there is no embargo in proceeding departmentally. Since there is nothing to prevent issuing the chargesheet under Clause 19.4 and Clause 6.3 respectively, the departmental proceeding can be carried though with the chargesheet already issued. However, this is too technical a point. In case the Management decides to proceed, it has to issue a notice for holding the enquiry and if along with the notice, a copy of the chargesheet is again issued, then the petitioner cannot have any grievance, since the period of one year has already expired. Therefore, I do not think that there would be any difficulty in proceeding with the enquiry and it will be open to the Management to issue fresh chargesheet, if so advised. In any event, now, there is no embargo in proceeding with the enquiry as the present situation stands. The decision in Capt.M. paul Anthony (supra) is not applicable in the present case, inasmuch as, it would be relevant only when the trial starts. The learned Counsel for the petitioner relied on paragraph 22 of the said decision, which provides as follows:
"22. The conclusions which are deducible from various decisions of this Court referred to above are:
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of 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 proceedings till the conclusion of the criminal case.
* * * * *".
9. Paragraph 22 provides that there is no bar in proceeding simultaneously with the departmental proceeding as well criminal prosecution. But in case, where charges are grave involving complicated questions of law and of act, it is desirable to stay the departmental proceedings. But the criminal case begins with the beginning of the trial before a Court. It does not begin with or at the stage of police investigation. The said decision never intended that the departmental proceeding would be stayed as soon FIR is lodged and police investigation is continuing and even before the criminal trial starts before a Court. However, the above principle will not apply where there are specific rules provided on the principle laid down through the ratio decidendi. In the present case, the question is governed by the specific provision provided in Clauses 19.4 and 6.3 respectively, which will prevail.
10. Now let us examine whether in view of the specific provision provided, whether the departmental proceeding can be proceeded with. In my view, the mere lodging of the FIR and police investigation does not amount to a criminal trial or a case as contemplated under Clause 19.4 or Clause 6.3, as the case may be. The position is made clear in Clause 19.4 by providing that if within the pendency of the departmental proceeding the trial starts the departmental proceeding shall stop. Therefore, it is only the trial of a criminal case before the Court, which is material and intended in Clauses 19.4 and 6.3 respectively, and not the investigation by police.
11. The object of Clauses 19.4 and 6.3 respectively, was aimed at ensuring a fair deal and save double jeopardy. It had, in fact, aimed at protecting interest of the delinquent, in consonance with the principle culminated in Capt. M.Paul Anthony (supra). The principle enunciated therein, had all along been constantly followed, in many cases, by the High Courts and the Supreme Court. However, the safeguard is meant to be applied when there is a trial. Both these clauses had used the word ''trial''. The prohibition, provided in those clauses with regard to holding or continuing departmental proceedings, is related to the beginning of trial. Therefore, we cannot interpret the object of the said two clauses to an extent, which would stand contrary to the object and purpose.
12. The word investigation, inquiry and trial denote successive stages in a criminal proceeding in the order, in which they are arranged. In order to find out the meaning of the word trial, we may refer to the meaning, as assigned to these words in the Code of Criminal Procedure (Code). Though investigation and inquiry has been defined, the word trial has not been defined either in the Code or in the IPC.
13. Investigation is a proceeding conducted by the Police Officer or by any other person authorized in this behalf by a Magistrate u/s 202(1). The object of investigation is the collection of evidences. This is done in order to form an opinion, as to whether on the materials collected, there is a case for trial and for taking steps, if there be any, for filing of a chargesheet u/s 173 of the Code [
14. The word trial is not defined either in the Code or in the IPC. The definition of ''inquiry'' in Section 2(g) includes every inquiry other than a trial conducted under the Code by a Magistrate or Court. Section 2(h) of the Code defines ''investigation'' to include all proceedings under the Code for collection of evidence, conducted by a Police Officer or by any person, (other than a Magistrate) who is authorized by a Magistrate in this behalf.
15. Thus, ''investigation'' and ''inquiry'' is something other than trial. The very definition of ''inquiry'' suggests that trial is something different from inquiry. However, both inquiry and trial is a proceeding before the Magistrate. A trial is a judicial proceeding, which ends in conviction or acquittal [
16. Thus, having regard to the scope and meaning of trial as contemplated in the Code, we may now interpret Clauses 19.4 and 6.3 above. On the basis of the meaning of the expression trial, the object of Clauses 19.4 and 6.3 was related to trial, to which protection was extended. Therefore, until the case comes to the stage of trial, the prohibition or exception provided in Clauses 19.4 and 6.3 cannot be attracted. Lodging of FIR is not a trial. It is never intended that the domestic inquiry would be forbidden only on the lodging of FIR. The period of one year is to be calculated from the date of commission of offence. If, within the said period, the trial does not commence, the said embargo in Clauses 19.4 and 6.3 would not be attracted to a disciplinary or departmental proceeding. Similarly such departmental proceedings cannot be stayed until the trial begins. Therefore, in the present case trial having hot commenced, there is no impediment in proceeding departmentally against the petitioner.
17. Therefore, I am not inclined to extend the interim order. The interim order is, therefore, vacated. The respondents shall be free to proceed with the disciplinary proceeding, in accordance with Law, having regard to Clauses 19.4 and 6.3 respectively.
18. After the above order was passed, nothing remains to be decided in this writ petition. Therefore, by consent of parties, this matter is treated as on day''s list and is dismissed as above.
19. Let it be noted, that I have not entered into the merits of the case. All points shall remain open to be agitated in appropriate proceeding.
20. There will be no order as to costs.
21. Urgent xerox certified copy of this order, if applied, be supplied within 7 days.
