Calcutta High Court
United Bank Of India vs Swapan Kumar Basu on 8 July, 2009
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :
The Hon'ble Justice Banerjee
And
The Hon'ble Justice Kalidas Mukherjee
08.07.2009
APO 157 of 2009
WP 1737 of 2005
United Bank of India
Vs.
Swapan Kumar Basu
Mr. R.N. Majumdar, Advocate for the appellant
Mr. Sudip Sanyal, Advocate with
Mr. Sukanta Das, Advocate for the respondent
The Court :- In 1987 the respondent no.1 was working as a Clerk in United Bank of India, Old Court House Street Branch. He was charged with the offence of stealing 616 share certificates belonging to a bank's constituent which he allegedly sold through a stock broker M/s. Murarka & Company and purchased in turn new shares in diverse companies, particulars of which would appear from the statement furnished by Murarka & Company appearing at page 253 of the paper book. He was immediately suspended. The bank authority however did not initiate any disciplinary proceeding against him contemporaneously. A criminal case was initiated by the police authority at the instance of the bank. Swapan was not paid the subsistence allowance according to the bipartite agreement between the bank and the employees. On such allegations he approached this Court in the year 2004 by filing a writ petition. After protracted litigation the bank started paying him 50% of his salary as subsistence allowance. Swapan was not satisfied. He filed a further writ petition being WP 1737 of 2005. He also challenged the charge sheet which was issued by the 2 bank belatedly after about 18 years of the incident on April 8, 2005 appearing at pages 236-238 of the paper book. During the pendency of the said writ petition the bank proceeded with the disciplinary proceeding. Swapan however did not participate in the said proceeding although he failed to obtain any order of injunction staying the proceeding. The authority ultimately held him liable for the offence and passed an order of compulsory retirement. The bank approached the Writ Court for leave to publish the result. The learned single Judge heard the said application along with the writ petition and ultimately came to conclusion that the entire proceeding was vitiated by illegality. His Lordship observed that the proceeding was based on stale charges. It was proceeded with undue haste and in any event the result was based upon no evidence. His Lordship quashed the entire proceeding as well as the final order. Being aggrieved by the order of the judgement and order of the learned Single Judge the bank has approached us by preferring the instant appeal.
We have heard Mr. R.N. Majumdar learned Counsel for the bank, Mr. Sudip Sannyal appearing for the Swapan.
On a combined reading of the documents as well as pleadings appearing at the paper book including the records of the disciplinary proceedings we find ultimately no scope for interference on the finding of His Lordship. We, however, join issue when His Lordship quashed the entire proceeding as we are of the opinion that considering the gravity of the charges brought against the delinquent His Lordship should have granted liberty to the bank to start the proceeding de novo.
If we look back we would find that Swapan was charged with a serious allegation of committing theft of 616 shares certificates belonging to a constituent kept in bank's safe custody as a collateral security. In reply to the charge-sheet Swapan admitted to have been transferred to the advance department along with his nine other colleagues. Hence his involvement cannot be 3 brushed aside. However, the bank is duty bound to prove the charges brought against him by calling Murarka and producing him as witness to support the case of sale of those shares by Swapan through Murarka. No attempt was made by the bank on that score.
His Lordship put emphasis on the fact that the bank waited for 18 years. If we examine the sequence of events we would find that there had been inordinate delay in conducting the criminal proceedings by the prosecution. The bank was possibly waiting for the result in the Criminal Court. Ultimately, when the delinquent was pressing hard for full salary as subsistence allowance the bank decided to start the proceeding independently without waiting for the result. By the process 18 years have passed in between. As we have already observed, charges are grave in nature. It must come to a logical conclusion which would be beneficial for both the parties.
We thus wish to remand the matter back to the authority for being heard afresh coupled with a direction upon Swapan to assist the disciplinary authority to have a speedy disposal of the controversy.
Mr. Sannyal appearing for Swapan however, strongly argues that we should grant full wages as subsistence allowance as per the Shastri award. In support he has relied upon clause 19.4 of the bipartite settlement between bank and its employees.
Clause 19.4 is set out below:
"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 4 defined below, provided tht 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 infrarelating 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."
On a plain reading of the Clause quoted supra we ultimately find no support to the submission made by Mr. Sannyal in the instant case. The bank had started the proceeding before the trial ended in a logical conclusion. It is true that there had been some delay on the part of the bank to initiate proceeding, the reason whereof has been discussed by us just before. That does not per se entail the delinquent to get full wages as subsistence allowance.
We are told that he is being paid at the rate of 50%. Let the bank continue to do so for three months and in case proceeding is not complete, he would be paid at the rate of 75% until the proceeding is culminated in a logical conclusion.
5
The appeal thus succeeds and is allowed. The judgement and order under appeal to the extent which did not give the bank liberty to proceed afresh, is set aside. The bank is given liberty to proceed afresh on the basis of the charge-sheet already issued by them. The delinquent would be entitled to submit rejoinder to the reply to the charge-sheet already filed by him. Upon such rejoinder, if any, filed by the delinquent, the bank would start the proceeding de novo from the stage of enquiry. The enquiry officer as well as the disciplinary authority would, however, be entitled to examine the evidence already laid before them in the earlier proceeding. The parties would, however, be at liberty to produce further witness in support of their respective contentions. Similarly, the bank would be duty bound to produce the earlier witnesses for cross-examination by the delinquent.
The entire proceeding must be completed within six months from the date of communication of this order. With these directions, the appeal is disposed of without any order as to cots.
Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Banerjee, J.) (Kalidas Mukherjee, J.) ANC/SP/ 6