@JUDGMENTTAG-ORDER
Rajendra Menon, J.
Challenging the order of dismissal from service, annexure A-17 dated April 16, 2007 passed by the disciplinary authority, on the basis of finding of guilt recorded against the Petitioner in a departmental enquiry and the appellate order annexure A-19 dated April 3, 2008, Petitioner has filed this writ petition.
Petitioner was working as a Officer-cww-Teller in the Respondents'' bank, he was initially appointed as a Clerk on April 3, 1978 in the Khar Branch Office, Mumbai, he was transferred to Branch Office Jabalpur in February, 1984 on passing the appropriate examination of banking conducted by the C.A.I.I.B., Petitioner was made an Officiating Officer and Teller in the year 1985, vide annexure P-16. It is the case of Petitioner that his work was to be supervised by Respondent No. 4 in accordance to the requirement of para-February 6,2010 of the Staff Circular, annexure P-l. It is said that while working at Branch Office, Jabalpur, Petitioner has submitted various complaints with regard to non-payment of officiating allowance to him by the concerned officer of the Branch, annexure A-2 dated March 13, 1990 is one such complaint filed by the Petitioner. It is stated that from Branch Office Jabalpur he was transferred to Branch Office Maharjpur in June, 1990 and on the ground of certain fraud committed, Petitioner was suspended on June 23, 1990. A F.I.R. was lodged, after a complaint was also registered with the Bureau of Economic Offences, Bhopal, in which no action was taken. By placing reliance on annexure P-5 dated July 18, 1990, communication made by the Economic Offences Bureau to the Sessions Judge Bhopal it is the case of Petitioner that the Bureau had clearly indicated that no case is made out against the Petitioner for proceeding in the matter. Reliance in this regard is made on Anr. communication of the Bureau available on record as annexure P-6 dated December 25, 1990. However, it is the case of Petitioner that subsequently a FIR was also lodged, in spite of the opinion of the State Economic Offences Bureau. On the basis of FIR lodged, it is the case of Petitioner that a criminal case was registered against him for offences under Sections 408, 420, 468 and 471 being Criminal Case No. 2191/2001, however without waiting for a final adjudication on the criminal case that was pending in the Court of Judicial Magistrate First Class, Jabalpur, Petitioner was charge-sheeted on February 22, 1993, on the same set of allegations, which constituted his prosecution in the criminal case and after conducting a departmental enquiry in total disregard to and in violation to the provisions of Clause 19.4 of the Bipartite Settlement annexure P-9, Petitioner was dismissed from service on February 29, 1996. Petitioner challenged the said dismissal in a writ petition, W.P. No. 2515/1997 and the said writ petition was decided in favour of Petitioner vide order dated June 21, 2005 by a learned single Bench of this Court. However, on a writ appeal being filed by the Bank, W.A. No. 901/2006, a Division Bench of this Court remanded the matter back to the appellate authority for deciding the case of the Petitioner without being influenced by a report of the handwriting expert. Available on record are copies of the judgment passed by the learned single Judge in W.P. No. 2515/1997 and by the Division Bench in W.A. No. 901/2006. On remand made by the Division Bench vide order dated January 25, 2007, it is stated that: Petitioner submitted further, representations on March 6, 2007, March 30, 2007 and April 1, 2007, vide annexures P-12, P-l 3 and P-15 along with certain documents annexure P-l4 and P-l6. However, without considering the same the disciplinary authority again by the impugned order annexure P-l 7 dated April 16, 2007 rejected the plea of the Petitioner, without proper consideration in accordance to the direction issued by the Division Bench in its order passed on January 25, 2007. An appeal filed by the Petitioner vide annexure P-l8 on February 16, 2008 having been dismissed by the impugned appellate order annexure P-l9 dated April 3, 2008, Petitioner has again filed this writ petition.
Even though various grounds are raised in this writ petition, but during the course of argument, three main contentions were advanced by Shri Sanjay, learned Counsel for the Petitioner and he has also filed a written argument on behalf of Petitioner emphasizing three points, which were canvassed by him during the course of hearing. It is the case of Petitioner that after his dismissal from service initially in the year 1997 i.e. on February 29, 1996 and while pendency of the first writ petition W.P. No. 2515/1997, he was acquitted of the criminal charges by order dated October 30, 2001, annexure P-10, accordingly, placing reliance on the said judgment and order of acquittal passed by JMFC, Jabalpur and placing reliance on the judgment of the Supreme Court in the case of
The second ground urged is to the effect that departmental enquiry is void ab initio, it has been initiated without any complaint from the legal heirs of the original account holder, Late Nand Singh from whose account amount is said to be misappropriated and further placing reliance on a statement of Smt. Indra Shrivastava and the statement of account produced in the criminal case learned Counsel emphasized that guilt of the Petitioner is not established and, therefore, the entire departmental enquiry stands vitiated. It is stated by the Petitioner that all the disputed five payments were countersigned by Respondent No. 4 Shri Subhash Kwatra, the passing officer, who did not detect any defect or fraud in the cheques and, therefore, the charges of misconduct are not proved, these facts have, been ignored by the disciplinary and appellate authority. It is stated that enquiry stands vitiated as findings are perverse and unsustainable. It is further stated that documents demanded for by the Petitioner on July 22, 1994 and July 7, 1995 vide annexures P-23 and P-24 were not supplied during the enquiry, the action taken is contrary to Clause 19.10 and 19.12 of the Bipartite Settlement. The subsequent order of punishment passed by the disciplinary and, appellate authority is ignoring the findings of the Criminal Court. The second ground raised is that the enquiry is vitiated and consequently the punishment is unsustainable.
The third ground is to the effect that Bureau of Economics Offences, Jabalpur having refused to register any criminal case against the Petitioner, action taken by the Respondents is unsustainable and the litigation before Criminal Courts accounts to vexatious litigation and unsustainable, accordingly on the aforesaid grounds Shri Sanjay Sanyal prays for interference into the matter and grant of relief.
Shri Ajay Mishra, learned senior counsel for the Respondents'' bank took me through the findings recorded by Criminal Court, the witnesses examined in the criminal case, the charges considered by the Criminal Court, the charges levelled against the Petitioner in the departmental proceeding and argued that the departmental enquiry and the criminal case are entirely different. Charges in both the cases are different, allegations are founded on different circumstances, witnesses and findings are different and, therefore, there is no bar in proceeding with the enquiry. Taking me through the principles laid down in the case of Jasbir Singh v. Punjab and Sind Bank and Ors. (supra) and G.M. Tank v. State of Gujarat and Ors. (supra) relied upon by Shri Sanjay Sanyal, Shri Ajay Mishra, tried to emphasize that the acquittal in the criminal case will not help the Petitioner, as the acquittal is not an exoneration of Petitioner on merit, but he is acquitted by granting benefit of doubt. Taking me through various findings recorded by the Criminal Court in the order passed on October 30, 2001, Shri Ajay Mishra emphasized that in the criminal case Petitioner was acquitted not on merit, but because the prosecution did not produce the relevant witnesses and documents to establish the guilt of the Petitioner beyond reasonable doubt. It was emphasized by him that in the criminal case certain important witnesses like one Shri I.P.S. Chandok, who had made an entry with regard to the dead account of Late Nand Singh were not examined and, therefore, benefit of acquittal in the criminal case cannot be granted to the Petitioner. Taking me through the law laid down by the Supreme Court of in the case of
So far as declaring the enquiry to be illegal and vitiated on the ground of non-examination of Smt. Indra Shrivastava is concerned, Shri Ajay Mishra argued that Smt. Indra Shrivastava was not a necessary witness and the Bank in the departmental enquiry did not deem it appropriate to examine this witness. If the Petitioner wanted to examine this witness, then Petitioner should have called her as a defence witness and examine her, for reasons best known to the Petitioner, he did not do so. It is stated by Shri Ajay Mishra that statement of Smt. Indra Shrivastava recorded in the criminal case by JMFC, Jabalpur cannot be relied upon for exoneration of the Petitioner in the departmental enquiry. Placing reliance on a judgment of Union of India v. Sardar Bahadur 1972 (I) LLJ l Shri Ajay Mishra, learned Sr. advocate argued that statement of witnesses recorded in the criminal case is not relevant for consideration in the departmental enquiry. It was emphasized by Shri Ajay Mishra that except for contending that the enquiry was vitiated and documents sought for vide annexures P-23 and P-24 have not been produced, nothing is pointed out as to how, in what circumstances and on what basis the non-production of these documents caused, prejudice to the Petitioner and how the enquiry is vitiated. Relying to the findings recorded by the learned Division Bench in W.A. No. 901/2006, Shri Ajay Mishra emphasized that now the Petitioner cannot challenge the procedure followed in the enquiry as in the earlier round of litigation this Court did not find any error in the enquiry conducted. That apart, it was argued by him that scope of judicial review in such matters are very limited and this Court cannot sit over the findings of the Inquiry Officer, as if it is exercising appellate jurisdiction. Placing reliance on a judgment of Supreme Court in the case of
So far as proceeding in the matter after the letter of the Bureau is concerned, Shri Ajay Mishra, taking me through the so-called letters of the Bureau available on record as annexure. P-8, points out that the Economic Offences Bureau had only intimated that on going through the complaints, the Bureau finds that no Economic Offences within the purview of the Bureau is made out and, therefore, bank is at liberty to lodge the FIR and prosecute the Petitioner, apart from taking departmental action against him. Contending that communication of the Bureau with regard to complaint made by bank is of no consequence and will not help the Petitioner, Shri Ajay ''Mishra refuted each and every contentions advanced and sought for dismissal of the writ petition.
In reply to the averments made, Shri Sanjay Sanyal, learned Counsel further made the following contentions by way of rejoinder, arguments Shri Sanjay Sanyal had tried to seek interference on the ground of perversity of finding by the enquiry officer and the appreciation of evidence done by the enquiry officer and argued that the charges are not proved.
Having heard learned Counsel for the parties and on consideration of the fact that have come on record it is clear that the main ground of challenge now in this writ petition is the effect of acquittal of the Petitioner in the criminal case and subsequent action of the Respondents'' bank in ignoring the same, as alleged by the Petitioner in punishing the Petitioner by the impugned orders.
During the course of hearing of this writ petition a objection was raised by learned Counsel for the Respondents Shri Ajay Mishra to the effect that the earlier writ petition of the Petitioner W.P No. 2515/1997 was decided by learned single Bench on June 21, 2005 and before that, Petitioner was already acquitted in the criminal case on October 30, 2001. That being so, it was emphasized that the Petitioner should have raised this ground in the earlier round of litigation and the ground having not been raised, now the principles of constructive res judicata debars the Petitioner from raising; the aforesaid ground.
Admittedly, the first writ petition was filed by the Petitioner in the year 1995 and in that writ petition challenge was made to the. original order of dismissal dated February 29/1996 and February 6, 1997, when these orders were passed acquittal of the Petitioner was not recorded. However, Petitioner was acquitted on October 30, 2001 and before, the writ petition was heard on April 27, 2005 and the judgment" pronounced on June 21,2005, the acquittal was already recorded and, therefore, Shri Ajay Mishra, Sr. counsel may be right in contending that the Petitioner could raise the ground by amending the petition. However, considering" the fact that the acquittal had not come into force when the earlier writ petition was filed in the year 1995, merely because Petitioner did not amend the writ petition and raises the ground which was available to him it is not in the interest of justice to throw out the petition merely on the ground of constructive res judicata. Interest of justice requires that the matter may be looked into on merit, in the facts and circumstances of this case when on an remand ordered by a Division Bench, the orders of dismissal is passed afresh. Accordingly, on the preliminary objection raised by Shri Ajay Mishra, this Court does not deem it appropriate to dismiss the writ petition. That being so, all the three grounds urged at the time of hearing are to be considered.
So far as the first ground is concerned, the same pertains to taking action against the Petitioner in spite of his acquittal in the criminal case, to appreciate and consider this ground it is necessary to take note of the allegation levelled against the Petitioner in the departmental enquiry and the criminal case and thereafter proceed to assess the matter.
A perusal of the impugned order of punishment dated April 16, 2007, the charge-sheet issued and the other material with regard to the departmental enquiry conducted against the Petitioner indicates that one Shri Nand Singh had opened an account bearing S. B. A/c. No. 41 in the Branch Office of Respondents'' bank at Jabalpur on July 3, 1991. The account was opened by initial cash deposit of Rs. 101/-, the said account holder Nand Singh expired on December 27, 1981 and this fact of his death is duly noted in the ledger under. signature of the banks'' officiating officer,'' allegation against the Petitioner is that while working as a officiating officer cum teller between the period February 17, 1986 to April 17, 1986 five withdrawals were permitted by the Petitioner on the basis of signed instruments presented under the signature of Late Nand Singh and verified and payment made by the Petitioner. It is stated that the five withdrawals were made on February 17,1986 for Rs. 500/-, on April 14, 1986 for Rs. 3,000/-, on April 15, 1986 for Rs. 3,000/-on April 17,1986 for Rs. 3,000/-and again on April 17, 1986 for Rs. 3,000/-. The first withdrawal on February 17, 1986 was on a withdrawal form and the remaining four were made on cheque forms, which were loose cheque issued from the branch. It is stated that all these instruments were issued on the dates when the withdrawal were made, they were allegedly containing the forged signature of Nand Singh, whose death was already recorded in the ledger book, the withdrawals were received and payment were made by the Petitioner after verifying the signatures and the person to whom the amount was paid. On the aforesaid allegations departmental enquiry was conducted and after the first dismissal was ordered on February 21, 1996 a learned single Bench of this Court quashed the same, the matter was agitated before a Division Bench in W.A. No. 901/2006 and the Division Bench found that certain reliance placed by the disciplinary authority and findings recorded on the basis of a report of a handwriting expert is unsustainable and, therefore, direction issued by the Division Bench was to ignore the report of the handwriting expert and proceed in the matter afresh. From the allegation levelled against the Petitioner it is seen that the allegation pertains to negligence in the performance of his duty, improper verification of the signature of the account holder, not going through the records properly and taking note of entries made in the ledger with regard to death of Shri Nand Singh''on December 27, 1981 and making the payment in the name of a deceased account holder, on the basis of forged and fabricated documents. The allegations were further to the effect that it is the Petitioner as teller officer, who has issued loose cheque and withdrawal, he had verified the signature of Nand Singh on withdrawal and the payments were made by the Petitioner without proper verification, which amounts to negligence in the performance of his duties.
The main thrust of Petitioner''s argument was that the allegations in the" charge-sheet and the criminal case are identical. In the present petition neither the charge-sheet or the findings of the Inquiry Officer, nor the challan papers, which were filed in the criminal. case are produced. However the original* records of the first writ petition W.P. No. 2515/1997 are available and in the said record the charge-sheet dated February 22, 1993 is annexure P-5 and the report of the enquiry officer is annexure P-29, a perusal of the charge-sheet indicates that the allegations levelled against the Petitioner reads as under:
Charge-sheet
Shri Nandsingh had opened S.B. A/c No. 41 at Napier Town Branch on July 3, 1981 with an initial cash deposit of Rs. 101-00. He died on December 27, 1981 and this fact was duly noted in the ledger under the; signature of an official of the Bank.
In this deceased account you are Teller allowed withdrawal of amounts as under:
Date of withdrawal Amount Withdrawn February 17, 1986 Rs. 500-00 April 14, 1986 Rs. 3,000-00 April 15, 1986 Rs. 3,000-00 April 17, 1986 Rs. 3,000-00 April 17, 1986 Rs. 3,000-00
You have signed all the instruments for having made payments and have also verified the signature of Shri Nandsingh. The first instrument was made out on a withdrawal form and the remaining four were made on cheque forms which were issued in loose. On all these instruments forged signatures of deceased Nandsingh appear as Drawer and also as person receiving payment. Thus you forged all the five instruments in the name of deceased Nandsingh both as drawer and receiver of the proceeds of the instruments.
Your above acts amount to misconduct under the provisions of Bipartite Settlement especially under Clause 19.5(d) and 19.5(j) which are reproduced hereunder:
5(d) wilful damage or attempt to cause damage to the property of the bank or any of its customers;
5(f) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;
You are directed to submit your reply to the Charge-sheet within 15 days of the receipt of the same. In case no reply is received within the stipulated period, it shall be presumed that you have nothing to state and the bank shall proceed accordingly.
The allegation against the Petitioner in the criminal case pertains to offences under Sections 408, 420, 468 and 471 of Indian Penal Code. So far as the allegations in the charge-sheet are concerned, they relate to wilful damage and attempt to cause damage to the property of bank and its customer and acting in manner prejudicial to the interest of the bank, gross negligence or negligence involving or likely to involve serious loss to the bank, in the said charges levelled in the departmental proceeding there is no element of fraud, cheating or misappropriation as alleged by the Petitioner, whereas charges in the criminal case pertains to offences of criminal breach of trust, cheating, forgery and using as genuine a forged documents. The ingredients necessary for constituting these offences in criminal case and allegations in the charge-sheet in the Departmental Enquiry are entirely different and, therefore, the contentions of the Petitioner that the charge-sheet and the allegations in criminal case are identical and similar is not correct.
In support of the allegations levelled in the charge-sheet, the disciplinary authority and the enquiry available have placed heavy reliance on the statement of two witnesses one is M.W.I Shri I.P.S. Chandok and Anr. is M.W.2 Shri Subhash Kwatra, it is, therefore, clear from the proceedings of the departmental enquiry that the charges levelled against the Petitioner in the departmental enquiry does not relate to the act of committing forgery or cheating, but it relates to improper conduct of duties. Petitioner issued blank loose cheque to unauthorized person without proper verification and effected payments of the cheque in an illegal manner and conducted his officiating duty in a manner which is prejudicial to the interest of bank and unbecoming of an officer. The witness relied upon for holding Petitioner guilty in the departmental enquiry are M.W.I I.P.S. Chandok and M.W.2 Subhash Kwatra, if the impugned order of penalty annexure P-17 and appellate authority order annexure P-19 are taken note of, it would be seen that the findings are recorded by these authorities by taking note of the working of the Petitioner as teller, in the branch office Jabalpur, the manner in which he issued the loose cheque, himself received the instruments passed the payment, particularly two payments of Rs. 3,000/-on the same date on April 17, 1986 to the same person, because withdrawal on loose cheque beyond Rs. 3,000/- is not permissible. In this regard the findings recorded by disciplinary authority indicates that Petitioner was a senior officer and he knew that on a loose cheque withdrawal of more than Rs. 3,000/- is not permissible, but by issuing two different loose cheques on the same date on April 17, 1986 two payments of Rs. 3,000/- each i.e. consolidated payment of Rs. 6,000/- was made straight away, which was a material irregularity and the same amounts to milking the depositors account and committing fraud with the bank. It is, therefore, clear that the allegations levelled in the charge-sheet and the material on the basis of which the finding of guilt is recorded, mainly on the illegality committed by the Petitioner in discharging his duties and the finding of the Inquiring Officer are mainly based on the statement of Shri I.P.S. Chandok and Subhash Kwatra. In the backdrop of the above, if the proceeding of criminal case is perused, it would be seen that Petitioner has not placed on record the charge-sheet to show the similarity or identical nature of proceedings held in the criminal case and in the departmental enquiry, the Petitioner has only relied upon the judgment of Criminal Court annexure P-10 dated October 30, 2001 and, therefore, this Court is required to examine the proceeding in the criminal case only on the basis of the judgment of the Criminal Court. The judgment of the Criminal Court indicates that Petitioner was charged with the offence under Sections 408, 420, 468, 471 and 204 of Indian Penal Code and in the criminal case the witnesses examined and the documents relied upon are entirely different, neither Shri Chandok, nor Shri Kwatra are examined in the enquiry. The witnesses examined in the enquiry are P.W.I Tejender Singh Sabarwal, P.W.2 Jitendra Singh, P.W.3 Amarjeet Singh Mukkar, P.W.4 Santosh Kumar Tiwari, P.W.5 Ishdatt Shukla and P.W.6 M.P. Pandey and Petitioner examined one Smt. Indra Shrivastava as D. W. 1. It is, therefore, clear that the witness examined in the enquiry do not include the two persons namely I.P.S. Chandok and Subhash Kwatra, on whose evidence the departmental enquiry proceedings are passed and the disciplinary authority and appellate authority have placed reliance to hold the Petitioner guilty of the charges. These two persons are the officers who have actually witnessed the procedure followed by the Petitioner in the entire transaction. If the findings recorded by Criminal Court with regard to issue No. 3 and 4 and other issues are evaluated, it would be seen that in various portions of the judgment the learned Court has taken note of the fact that the documents are not produced nor the proper witness examined, for e.g., in para 8 it is recorded by the learned Court that certain reports with regard to action taken are not produced by the police station Omti and benefit is granted to the Petitioner, report of the State Examiner of documents and the action taken by ASI Tripathi are not produced. It is also seen that the learned Court below has recorded a finding that death of the account holder Late Nand Singh on December 27, 1981 and entry made in the ledger book are not proved. The witness examined in this regard P.W.3 Amarjeet Singh Mukkar was not possessed of the knowledge with regard to death of the account holder and, therefore, consequently it is held that the knowledge of Petitioner with regard to death of account holder is not established in the absence of proper evidence. Whereas in departmental enquiry Shri I.P.S. Chandok, who had made the entry in the ledger book about death of Late Nand Singh between November 7, 1981 and July 1, 1983 was examined and the findings-recorded is that before July 1, 1983 i.e. before the actual payment of five instruments, death of account holder is recorded in the ledger. Similarly, in various other places like para 9, the learned Court has held that the evidence and material to prove the guilt are not produced and, therefore, the allegations are not proved beyond reasonable doubt by the prosecution and the benefit is extended to the Petitioner. It is, therefore, a case where apart from the fact that acquittal of the Petitioner is not on merit completely but is by extending benefit of doubt due to non-examination of witnesses and documents, the material produced before the Criminal Court and the departmental enquiry are entirely different it is, therefore, keeping in view the aforesaid difference in both the proceeding, the principles of law laid down for taking action on acquittal in the criminal case and a departmental enquiry to be taken note of. In this regard the principle laid down in various cases reflects the following factual scenarios.
In the case of G.M. Tank v. State of Gujarat and Ors. (supra) in para 32 the matter is so dealt with:
32. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of evidence, the Appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Capt. M. Paul Anthony v. Bharat Gold Mines, Ltd. and Anr. (supra) will apply. We therefore, hold that the appeal filed by the Appellant deserves to be allowed.
Again in the case of
5. The orders of both the learned single Judge and the Division Bench suffer from several infirmities. First and foremost, mere acquittal in a criminal case does not have the effect of nullifying the decision taken in the departmental proceedings. They operate in different areas of considerations. This position was recently highlighted by a three-Judge Bench of this Court in NOIDA Enterpreneurs'' Assn. v. NOIDA.
Again in the case of
The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and reinstatement in service has been dealt with by this Court in Union of India and Anr. v. Bihari Lal Sidhana (supra). It was held in paragraph 5 as follows:
5. It is true that the Respondent was acquitted by the Criminal Court but acquittal does not automatically give him the right to be re-instated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the Central Civil Services (Classification, Control and Appeal) Rules or under them Temporary Service Rules. Admittedly, the Respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether, the enquiry into the-conduct is required to be done before directing reinstatement or appropriate-action should be taken as per law, if otherwise, available. Since the Respondent is only a temporary government servant, the power being available under Rule 5(1) of the, Rules, it is always open to the competent authority to invoke the said, power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money.
The ratio of Capt. M. Paul Anthony v. Bharat Gold Mines, Ltd. and Anr. (supra) can be culled out from paragraph 22 of the judgment which reads as follows:
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 as there is no bar in their being conducted 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.
(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 upon the nature of offence, 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 at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them 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 get rid of him at the earliest.
In the case of
12. When the allegation is of cheating or deceiving, whether the alleged act is willful or not depends upon the circumstances of the concerned case and there cannot be any strait jacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the Court held that pre-requisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge''s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See:
In the aforesaid case it is laid down that reliance on a decision has to be made after considering the factual background of a particular case, the principle laid down is that the decision is a precedent of its own fact. That being so, if the three judgments relied upon by Shri Sanjay Sanyal i.e. in the case of Jasbir Singh v. Punjab and Sind Bank and Ors. (supra), G.M. Tank v. State of Gujarat and Ors. (supra) and Copt. M. Paul Anthony v. Bharat Gold Mines, Ltd. and Anr. (supra) are considered, on the basis of the aforesaid principle, it would be seen that in the case of Jasbir Singh v. Punjab and Sind Bank and Ors. (supra) the bank had filed a civil suit against the employee, the civil suit was dismissed and findings of the civil suit operated against the bank. As the departmental enquiry and the civil suit were based on the same set of facts and evidence, Supreme Court interfered in the matter. It was held that the bank having invited adverse finding against them, by filing a civil suit, which had attained finality cannot effect the recovery. Finding the evidences and material in the Civil Suit to be the same as that was adduced in the departmental enquiry, interference was made. Likewise in the case of Capt. M. Paul Anthony v. Bharat Gold Mines, Ltd. and Anr. (supra) and G.M. Tank v. State of Gujarat and Ors. (supra) also interference was made only because the material in the criminal case and the departmental enquiry were identical and similar.
In the case of
We have heard the learned Counsel for the parties and also examined the relevant records of this case. Although the Division Bench had not categorically said that the departmental proceeding could not be continued and punishment could not be imposed on the delinquent employee when the criminal case ended in acquittal, even then the learned Counsel for the Respondents sought to argue this ground before us. In our view, this ground is no longer res integra. In
So far the first point is concerned, namely, whether the disciplinary proceedings could have been continued in the face of the acquittal of the Appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject-matter of the criminal case.
(emphasis supplied)
Similarly in
In the case of N. Selvaraj v. Kumbakonam City Union Bank Ltd. and Anr. (2006) 9 SCC 172: 2006 (IV) LLJ 735, following is held by the Supreme Court:
6. It is contended by the learned Counsel for the Appellant that since the Criminal Court acquitted him, continuity of departmental enquiry is not justified and he should be directed to be paid all the backwages on the basis of the acquittal recorded by the Criminal Court. We are not at all convinced by this contention. By now, it is well settled principle of law that the standard of proof between the criminal trial and the departmental proceedings are quite different. In criminal trial the standard of proof is proved beyond all reasonable doubt, whereas in the departmental proceedings it is preponderance as probability which is taken into consideration. It is also to be noted that in continuation of the earlier order passed by this Court as referred above, the suspension of the Appellant is continuing subject to the final decision that may be made on the basis of second enquiry. It is now well settled principle of law that pay and allowances including backwages will depend on the outcome of the second enquiry to be decided by the disciplinary authority in accordance with relevant financial Rules. See Managing Director EC II, Hyderabad and Ors. v. B. Karunakar and Ors. (1993) 4 SCC 721.
And finally in the case of
17. After going through the order of the Industrial Tribunal, we are of the opinion that the Tribunal has interfered with the findings recorded by the domestic Tribunal as if it was the Appellate Tribunal. There was evidence present on record regarding indecent, riotous and disorderly behaviour of the Respondent towards his superiors. The Management witnesses who were present at the scene of occurrence have unequivocally deposed about the misbehaviour of the Respondent towards his superiors. Their evidence has been discarded by the Tribunal by observing that in the absence of independent evidence, the statements of the workmen who were present at the scene of occurrence could not be believed. The Industrial Tribunal fell in error in discarding the evidence produced by the Management only because the independent witnesses; were not produced.
Similar principles are laid down by the Supreme Court in the case of Union of India v. Binari Lal Sidhana (supra) and Southern Railway Officers Association and Anr. v. Union of India and Ors. (supra) relied upon by Shri Ajay Mishra, learned senior counsel. If the cases are scrutinized and if the principles therein are taken note of, it would be clear that mere acquittal of an employee in the criminal: case by itself does not preclude the employer from taking disciplinary action for misconduct committed in discharging of duties, it has been consistently held that the field of operation, the nature of evidence required for holding the; person guilty in a criminal case and taking action in departmental proceedings are different and that one does not come in the way of proceedings in Anr. matter, even after acquittal in criminal case the law permits an employer to proceed and take departmental'' action after such acquittal. However, the only exemption to the normal rule can be made out from the principles laid down in G.M. Tank v. State of Gujarat and Ors. (supra) and in the case of
The main charges against the Petitioner in the charge-sheet dated February 22, 1993 pertains to wilful damage or attempt to cause damage to the property of the bank and its customers and acting in manner prejudicially to the interest of the bank, gross negligence or negligence involving or likely to involve serious loss to the bank: The allegations in the charge-sheet are, therefore, pertaining to certain misconduct in discharging the duties by the Petitioner and the allegation in the criminal case are pertaining to cheating and fraud. The charge-sheet issued to the Petitioner is for certain misconduct under Clause 19.5(d) and 19.5(j) of the Bipartite Settlement and are not similar to the charges in the criminal case.
Accordingly, in the facts and circumstances of the present case, I am of the considered view that acquittal of Petitioner in the criminal case is of no consequence and the departmental proceeding having proceeded in the matter of taking action on the basis of finding of guilt recorded in the departmental enquiry, the acquittal of Petitioner in the criminal case, does not in any manner whatsoever help the Petitioner.
Accordingly, I am of the considered view that the first ground of attack made by the Petitioner is unsustainable.
So far as the second ground with, regard to declaring the departmental enquiry as void ab initio and interference into the matter is concerned, apart from making statement to the effect that enquiry is vitiated, no specific procedural illegality is pointed out by learned Counsel for the Petitioner. Learned Counsel for the Petitioner has not referred to the proceedings of the enquiry and has not specified as to what is the procedural impropriety or illegality committed. The only alleged illegality is that documents called for vide annexure P-23 and P-24 on July 27,1994 and July 7,1995 were not supplied, the procedure followed under Bank''s Law Circular i.e. annexure P-25 was not followed and the disciplinary authority has; violated Clause 19.10 of the Bipartite Settlement in not keeping the entire record of criminal proceeding before passing the orders impugned. Apart from the aforesaid illegalities nothing is pointed out to hold the enquiry to be vitiated.
So far as supply of documents called for vide annexures P-23 and P-24 are concerned, Petitioner has not pointed out as to how and in what manner these documents are relevant and how their non- production adversely effected the right of Petitioner for defending him in the departmental proceeding, before seeking to challenge a departmental enquiry to be vitiated, Petitioner is not only required to show as to what is the illegality committed, but the consequential prejudice caused thereof and its effect on the final outcome of entire proceedings has to be pleaded and demonstrated before this Court, the said principle is laid down by Supreme Court in the case of
There is Anr. aspect of the matter with regard to procedural impropriety alleged by the Petitioner. In the earlier round of litigation, which culminated in passing of the order by the Division Bench on January 25, 2007 in W.A. No. 901/2006. If the order passed is taken note of, it would be seen that there is nothing to hold that the proceeding stood vitiated due to any procedural impropriety. If the enquiry stood vitiated due to any procedural impropriety, the same being a subject-matter of the earlier round of litigation, then in the earlier proceedings this Court would have interfered with the departmental enquiry on any such procedural illegality, that being so, now Petitioner cannot be permitted to raise the aforesaid ground.
As far as the assessment of evidence and consideration of the finding of the enquiry officer and appreciation of the same by the learned single Judge is concerned, the Hon''ble Division Bench did not find any defect in the finding of the enquiry officer, nor did it interfere with the action on the procedural impropriety. The only defect found was that the report of the handwriting expert was not supplied to the Petitioner and that has caused prejudice to him, in this, regard the observations made by the Division Bench in paras 12, 13 and 14 may be taken note of, which reads as under:
It is not disputed before us that the report of the handwriting expert was taken into consideration by the disciplinary authority while recording his finding of guilt against the Respondent in the order dated February 29, 1996. It, however appears from the order dated February 29, 1996 of the disciplinary authority that the opinion of the handwriting expert was obtained because of the objection of the Respondent that the signatures on the exhibited document were not put by the Respondent and the disciplinary authority held in the order dated February 29, 1996 that the opinion of the handwriting expert that the signatures on the documents were put by the Respondent corroborates the finding of the Inquiry Officer on the charge. Thus, the opinion of the handwriting expert was not the sole basis on which the disciplinary authority had come to the conclusion that the signatures on the exhibited documents were put by the Respondent. Besides the opinion of the handwriting expert the Inquiry Officer had also given the finding that the signatures on the relevant documents were put by the Respondent. Since copy of the report of the handwriting expert was not made available to the Respondent and the handwriting expert not available for cross-examination, the opinion of the handwriting expert has to be left out of the consideration. Accordingly, we direct that the disciplinary authority will exclude the report of the handwriting expert and will record a finding afresh as whether or not the signatures on the relevant documents were put by the Respondent or whether the Respondent was guilty of any of the charges.
Since we are remitting the matter to the Disciplinary Authority, we would not like to express any opinion on the other findings of the Disciplinary Authority which have not found favour with the learned single Judge in the impugned order. The fact remains that witnesses have been examined in the enquiry on various charges against the Respondent and some documents have been produced and the Disciplinary Authority has to record a fresh finding whether or not the charges against the Respondent stand proved. Suffice it to say that the learned single Judge has exceeded his jurisdiction under Article 226 of the Constitution inasmuch as he has re-appreciated the evidence and has come to the conclusion that the charges against Respondent have not been proved. As has been held by the Supreme Court in State of Andhra Pradesh v. Sree Ram Rao (supra) and Yoginath D. Bagde v. State of Maharashtra (supra). The High Court while exercising its power of judicial review under Article 226 of the Constitution does not sit as an appellate authority over the finding of the disciplinary authority or the Inquiry Officer and conclusion reached by the disciplinary authority or the Inquiry Officer could be interfered with only if there is no evidence on record in support of the conclusion.
For the aforesaid reasons, we set aside the impugned order dated June 21, 2005 of the learned single Judge in W.P. No. 2515/1997 and quash the order dated February 29, 1996 of the Disciplinary Authority and the order dated February 6, 1997 of the appellate authority and remit the matter to the Disciplinary Authority to record a finding on the charges against the Respondent after excluding the opinion of the handwriting expert and after affording an opportunity to the Respondent to make further representations against the findings of the Inquiry Officer in the enquiry. Since the Respondent has remained out or service since 1996, this exercise will be completed by the Disciplinary Authority within a period of three months from the date of receipt of the certified copy of this order from the Respondent. The appeal is accordingly disposed of."
(emphasis supplied)
It would be clear from the aforesaid that the learned Division Bench has recorded a opinion that the learned single Judge while deciding W.P. No. 2515/1997 has exceeded his jurisdiction under Article 226 of the Constitution in re-appreciating the evidence and has come to the conclusion that the charges against the Petitioner are not proved. The finding with regard to scope of judicial review under Article 226 of the Constitution and appreciation of evidence as observed by the learned Division Bench, negates the contention advanced by Shri Sanjay Sanyal now with regard to enquiry being void-ab-initio, on the ground that the findings are perverse. The scope of judicial review in the matter as canvassed by Shri Ajay Mishra on the basis of principles laid down in Bank of India v. Degala Suryanarayana (supra) and the principles laid down in the case of
So far as the finding of the enquiry officer is concerned, the enquiry officer has considered the material adduced before him by Shri Jagmohan Tuteja, Presenting Officer, the two witnesses I.P.S. Chandok and Subhash Kwatra and it is found that in the ledger-sheet an entry is made with regard to death of Shri Nand, Singh and the said entry is found to be made between November 17, 1981 to July 1, 1983 That apart, the signature of Late Nand Singh is found to be improperly verified by the Petitioner and conduct of Petitioner in issuing loose cheque is also held to be contrary to the banking norms and regulations. It is, therefore, clear that the findings in the departmental enquiry is based on due appreciation of material and evidence available.
Accordingly in the present case it has to be held that the findings recorded by the disciplinary authority in the impugned order annexure P-17 and the reasons given by the authority for disagreeing with the representation of Petitioner and holding the Petitioner guilty are based on material available on record, they are neither perverse, nor contrary to a prudent man''s approach warranting interference now in this writ petition, accordingly, the second ground of attack is also unsustainable.
So far as the prayer made by the Petitioner for interfering in the matter, after appreciating the statement of D. W. 1 Smt. Indra Shrivastava recorded in the criminal case before the JMFC, Jabalpur is concerned, it may be suffice to conclude that Smt. Indra Shrivastava was not examined by the Petitioner as a defence witness and if she had appeared in the enquiry as a defence witness, she could be available for cross-examination by the Bank, this having not being done, her statement cannot be considered. Further in view of the law laid down in Union of India v. Sardar Bahadur (supra) the said contention cannot be accepted.
So far as the third ground with regard to the inaction of exoneration of Petitioner by Economic Offences Bureau is concerned, the communication of the Bureau only indicates that the Bureau had expressed their reluctance to proceed the matter as no economic offence is made out, merely because the Economic Offences Bureau did not interfere in the matter, it is not a ground for this Court to interfere in the matter now.
Accordingly, finding no case for interference on the grounds raised, the petition is dismissed without any order so as to costs.
