Allahabad High Court
Basistha Muni Mishra vs Union Of India And 5 Others on 15 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 24.04.2023 Delivered on 15.05.2023 AFR Neutral Citation No. - 2023:AHC:105392 Court No. - 52 Case :- WRIT - C No. - 57858 of 2016 Petitioner :- Basistha Muni Mishra Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Counsel for Respondent :- A.S.G.I.,S.K.Kakkar,S.K.Shukla,Satish Chaturvedi,Satish Kishore Kakkar,Sumit Kakkar Hon'ble Kshitij Shailendra,J.
1. This writ petition has been filed challenging the award dated 19.07.2016 passed by Industrial Tribunal-cum-Labour Court, Kanpur in Industrial Dispute No.49 of 2006, between Bashishtha Muni Mishra and the Deputy General Manager, State Bank of India. Further orders under challenge are dated 26.10.2004 and 19.01.2005 respectively passed by the Assistant General Manager and Deputy General Manager. By the said orders, the petitioner was respectively dismissed from service and his departmental appeal was dismissed. Further prayer has been made to issue a direction for reinstatement of the petitioner in service with all consequential benefits including arrears of salary from the date of order of suspension.
2. The facts as culled out from the writ petition are that the petitioner was appointed as a Messenger-cum-Water Boy in the respondent bank on 17.02.1979 and was later on promoted as Daftary. Lastly, he was posted at Johnstonganj Branch, Allahabad. It is pleaded that services of the petitioner were governed by Memorandum of Settlement dated 19.10.1966 containing the provisions of disciplinary action and procedure therefor. On 12.03.1999, a new Saving Bank Account No.01190022061 was allowed to be opened in the branch concerned in the name of one Smt. Prema Devi by accepting the reference of one Smt. Maina Devi, the depositor of Saving Bank Account No.58901. The account was opened after completion of necessary formalities and due verification by the bank authorities. On 13.03.1999, Smt. Prema Devi, the depositor of newly opened Account No.01190022061, deposited a cheque dated 16.07.1999 of Rs.67,050/- issued by the Life Insurance Corporation of India in her favour which was collected by the bank through legal officer clearing and crediting the same in the account against which a withdrawal of Rs.65,000/- was done by Smt. Prema Devi on 18.08.1999 which was allowed by the concerned official of the bank. Later on, it stood revealed that cheque in question belonged to some other Prema Devi and Smt. Prema Devi whose Saving Account No. 01190022061 was allowed to be opened was not a genuine lady and her incorrect particulars were given. Concerning the said issue, the Branch Manager of Life Insurance Corporation of India, City Branch, Allahabad informed the Police Station, Kotwali, Allahabad and pursuant thereto, a first information report was registered as Case Crime No.394 of 1999, under Section 419/420 IPC. After completion of investigation, a charge sheet was submitted by the investigating agency before the court on the basis whereof, Criminal Case No.1744 of 2000 was registered against the petitioner and one Rajendra Kumar Dwivedi, within a period of less than six months from the date of registration of first information report. It is further pleaded that the petitioner was arrested by the police on 15.02.2000 but was subsequently bailed out. He was suspended by the bank and, ultimately, acquitted by the Chief Judicial Magistrate, Allahabad under the judgment and order dated 15.10.2009 which has attained finality.
3. In so far as the departmental proceedings are concerned, it is pleaded that the departmental charge sheet was issued to the petitioner on 18.02.2002, the inquiry was cursorily concluded in terms of an inquiry report dated 26.09.2002 in which charges no. 1 and 3 were found to be proved and charge no.2 as partly proved. It is further pleaded that based upon the inquiry report, the Disciplinary Authority took a provisional decision of dismissal of the petitioner on 22.09.2004 under paragraph 6(a) of the Memorandum of Settlement dated 10.04.2002 and called upon the petitioner to show cause against the said penalty. Further pleading is to the effect that prior to issuance of provisional order dated 22.09.2004, no copy of the inquiry report was supplied to the petitioner nor was he provided any opportunity to object the same.
4. It is further pleaded that the petitioner was dismissed from service under the impugned order dated 26.10.2004 against which he preferred an appeal before the appellate court which was also dismissed on 19.01.2005, whereafter the petitioner agitated a dispute under the provisions of Industrial Disputes Act and, ultimately, the matter was referred to the Central Government, Industrial Tribunal-cum-Labour Court, Kanpur, under Section 10(2-A) (i) (d) of the Act, 1947 for adjudication of the dispute as to whether the termination of the petitioner from service on 22.09.2004 was just and according to law and if not, as to what relief the petitioner was entitled to. It is pleaded that during the course of proceedings before the Tribunal, written arguments dated 25.03.2010 were filed on behalf of the petitioner annexing therewith certain authorities as well as the judgment of acquittal passed by the court concerned in the criminal case. It is further pleaded that the Tribunal has, by the impugned award dated 19.07.2016, answered the reference against the petitioner holding that he is not entitled to any relief.
5. The award has been challenged on various grounds which shall be dealt with while dealing with rival contentions after the pleadings exchanged between the parties are referred to.
6. A counter affidavit has been filed on behalf of respondents no.4 to 6 taking a standing that the services of the petitioner were terminated as per the circular dated 26.10.2004 and no bipartite settlement would come in the way of disciplinary action. It has further been pleaded that in case criminal trial does not end within one year of its commencement and charge sheet against an employee is pending, concurrent departmental inquiry can be revived and brought to a conclusion. It is further submitted that the inquiry was conducted under the order dated 26.11.2001 passed by this Court and that on merits, the punishment was perfectly justified and, therefore, none of the orders impugned should be interfered with.
7. The petitioner has filed a rejoinder affidavit reiterating the stand taken in the writ petition and reliance has been placed on a judgment of the Supreme Court in the case of H.P. Electricity Board Vs. Mahesh Dayyia: 2017 (2) ESC 289 in support of the contention that after receipt of the inquiry report, its copy must have been made available to the delinquent employee and it is only after receiving objections from the employee concerned, mind could have been applied by the Disciplinary Authority, however, in the present case, the said procedure has not been followed.
8. I have heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddharth Khare, learned counsel for the petitioner, Sri Arvind Kumar Goswami, learned counsel for respondent No. 1, Union of India, learned Standing Counsel for respondent Nos 2 and 3 and Sri S.K. Kakkar along with Sri Sumit Kakkar, learned counsel representing the respondent Nos. 4 to 6.
9. Sri Ashok Khare, learned Senior Counsel has argued that the services of the petitioner were governed by Bipartite Settlement dated 19.10.1966. He has referred to Chapter XIX of the said Settlement by placing much emphasis on Clauses 19.3 and 19.4 of the same which are quoted herein below:-
"19.3 (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended.
(b) If he be convicted, he may be dismissed with effect form the date of his conviction or be given any lesser form of punishment as mentioned in Clause 19.6 below.
(c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below is Clauses 19.11 and 19.12 infra relating to discharges,. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct.
(d) If he prefers an appeal revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set below in Clauses 19.11 and 19.12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months' pay and allowances in lieu of notice, as directed above.
19.4 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 re3fuses 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 supraf 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."
10. Based upon the aforesaid clauses, the contention of Sri Khare is that since a first information report was lodged against the petitioner in the year 1999 and a charge sheet pursuant to the FIR was submitted by the investigating agency within a period of six months from the date of registration of FIR, the departmental proceedings were liable to be stayed. Sri Khare submits that the departmental charge sheet was filed on 18.02.2002 and since the criminal trial was pending on the date of initiation of departmental proceedings, the same should have been stayed awaiting the decision of the court exercising criminal jurisdiction. Sri Khare further submits that as per Clause 19.3(a) when in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the petitioner may take steps to prosecute him and as per the clause (c), if the employee is acquitted, it shall be open to the management to proceed against him under the provisions set out in Clauses 19.11 and 19.12 which deal with taking of disciplinary action. Sri Khare further submits that as per clause 19.4, if after steps have been taken to prosecute the employee or to get him prosecuted, for an offence, he is not put on trial within a year from the commission of offence, the management may then deal with him as if he had committed an act of "gross misconduct" or of "minor misconduct" provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution, it shall be open for the management to proceed against the employee under the provisions contained in Clauses 19.11 and 19.12.
11. Sri Khare has further argued that in the event of the management deciding after inquiry not to continue the employee in service, he shall be liable to only for termination with three months' pay and allowances in lieu of notice as per Clause 19.3 and if during pendency of the proceedings thus instituted, he is put on trial, such proceedings shall be stayed pending completion of the trial whereafter the provisions mentioned in clause 19.03 shall apply.
12. Sri Khare has vehemently argued that the prohibition under clause 19.4/ clause 4 is couched in a negative language that if after steps have been taken to prosecute an employee, he is not put on trial within a year of the commission of offence, then the management may deal with him as if he had committed an act of gross misconduct. The clear intent of the said negative prohibition is that in case steps have been taken for criminal prosecution for an employee, then the management is obliged to await for a period of one year before commencing disciplinary proceedings. In case the trial commences within this period of one year, then the management is obliged to await the conclusion of the criminal trial. Even in case the disciplinary proceedings are commenced on account of non-commencement of criminal trial within the period of one year from the date of the commission of offence, even then, in case the criminal trial commences thereafter during the pendency of the disciplinary proceedings, disciplinary proceedings have to await till the conclusion of the criminal trial.
13. Sri Khare has further argued that the charge levelled against the petitioner in the departmental enquiry was the same as was the subject matter of the FIR/ criminal trial. In the said criminal proceedings, the petitioner stood acquitted by judgment dated 15.10.2009 (Annexure No.5, page 60 to the writ petition). A perusal of the aforesaid judgment would demonstrate that such acquittal was a honorable acquittal on the ground that there did not exist any evidence in support of the charge levelled against the petitioner. On account of such acquittal, the Labour Court while passing the award dated 19.07.2016 clearly erred in upholding the dismissal from service.
14. On merits of the termination order, Sri Khare has referred to the order dated 22.09.2004 passed by the Assistant General Manager, i.e. the Disciplinary Authority, pursuant to the inquiry report and submission is that the Disciplinary Authority had already made its mind to dismiss the petitioner from service without even complying with the mandatory provisions of law to the effect that whenever an inquiry report is submitted by the inquiry officer, first of all the stand of the employee has to be called for and it is only after considering the same, final opinion can be formed after applying mind. Sri Khare has referred to paragraph 3 of the order dated 22.09.2004, which reads as follows:-
"3. I have gone through the facts and circumstances of the case in its entirety. After applying my mind independently. I am of the view that ends of justice would be met if Shri Bashista Muni Mishra, Duftari (under suspension), be dismissed from the bank's service without notice in terms of para 6(a) of Memorandum of Settlement dated 10.04.2002 entered between Bank and All India SBI Staff Federation. I also order that the period spent by Sri Mishra as suspended will be treated as such and no salary and allowances except the subsistence allowance already paid, will be payable to him. I order accordingly."
15. Sri Khare submits that the enquiry report submitted by the enquiry officer was not immediately supplied to the petitioner for filing objection. Instead, the Assistant General Manager/ Disciplinary Authority proceeded to record findings of guilt and also decided the punishment to be imposed upon the petitioner. It was along with the provisional order dated 22.09.2004 that a copy of the enquiry report was supplied to the petitioner. The procedure so adopted does not comply with the requirement of law. The guilt of the petitioner as indicated in the enquiry report was accepted by the disciplinary authority without supplying the copy of the enquiry report to the petitioner and without affording an opportunity to him to object against the same.
16. In support of his contention, Sri Khare has placed reliance upon the following authorities:-
(i) 2002 SCC Online Cal 25 (Lakshman Kumar Mondal Vs. UCO Bank and others), 24.01.2002;
(ii) 2006 (5) SCC 446 (G.M. Tank Vs. State of Gujrat and others);
(iii) 2019 SCC Online All. 4460 (Sanjay Kishore Vs. State of U.P. and others; and
(iv) 2019 SCC Online All 5794 (Anand Ram Nagar Vs. Banaras State Bank Limited and others);
(v) (2017) 1 SCC 768 (Himachal Pradesh State Electricity Board Ltd. Vs. Mahesh Dahiya).
17. On the contrary, Sri S.K. Kakkar along with Sri Sumit Kakkar, learned counsel for the respondent-bank have vehemently opposed the writ petition and it has been argued that the contention of the petitioner that services were governed by Memorandum of Settlement dated 19.10.1966 is incorrect as the proceedings were held and action was taken against the petitioner in terms of Memorandum of Settlement dated 10.04.2002, a copy whereof has been filed as Annexure No.2 to the writ petition. Sri Kakkar has further argued that the bank did not proceed with criminal prosecution, rather the FIR was lodged by the Branch Manager of Life Insurance Corporation of India and, therefore, the argument advanced with reference to the criminal trial and its effect, has no force. Sri Kakkar has further argued that in so far as the continuance of departmental proceedings is concerned, the same were conducted and completed in furtherance of the order dated 26.11.2001 passed by the High Court and, therefore, the submission of the petitioner that the departmental proceedings could not be held or were liable to be stayed would be contrary to the order passed by the High Court and the Department could not have committed the contempt of the same.
18. On merits of the impugned termination order as well as departmental proceedings, Sri Kakkar has submitted that the order dated 22.09.2004 passed by the Disciplinary Authority was only a tentative order which is apparent from paragraph no.4 of the same, which reads as under:-
"4. However, before taking a final decision in the matter, I give him an opportunity to make submissions, if any, against above order within 07 days of its receipt, failing which it would be deemed that he has nothing to submit in this regard and final order will be passed without any further reference to him.
19. Sri Kakkar, therefore, submits that the petitioner was provided full opportunity to make his submission prior to taking final decision in the matter by the Disciplinary Authority. He has also referred to the final order dated 26.10.2004 with reference to paragraph no.5 of the same where words "I, therefore, confirm my tentative order dated 22.09.2004" have been used. He submits that the charges were proved against the petitioner by recording pure findings of fact which cannot be and should not be disturbed in writ jurisdiction.
20. Sri Kakkar has also argued that the departmental proceedings, even otherwise, cannot be stayed on account of pendency of the criminal trial and both the said proceedings can run simultaneously. He has also placed reliance on following authorities in support of his submissions:-
(i) Union of India and others Vs. Dalbir Singh: (2021) 11 SCC 321;
(ii) State of Karnataka and another Vs. Umesh: (2022) 6 SCC 563;
(iii) State Bank of India and others Vs. R.B. Sharma: (2004) 7 SCC 27;
(iv) Management of Bharat Heavy Electricals Limited Vs. M. Mani: (2018) 1 SCC 285;
(v) West Bokaro Colliery (TISCO Ltd.) Vs. Ram Pravesh Singh: (2008) 3 SCC 729;
(vi) Deputy General Manager (Appellate Authority) and others Vs. Ajai Kumar Srivastava: (2021) 2 SCC 612;
(vii) Gopal Narain Shukla Vs. AGM SBI (Writ Petition No.7737 of 2005) decided on 24.02.2020;
(viii) Priti Chauhan Vs. State of U.P. and others: 2008 (9) ADJ 388;
(ix) Mayank Agarwal Vs. Bareilly Kshestriya Gramin Bank and others: 2013 (3) ADJ 143 (DB).
21. Sri Kakkar has also argued that the Tribunal has recorded a finding in paragraph no.13 of the order impugned that it had framed a preliminary issue on 07.02.2013 to the effect whether the domestic inquiry conducted by the management was just and fair. By order dated 12.08.2015, the Tribunal held that the inquiry conducted by the bank is just and fair and on the same day, authorized representative for the worker moved an application stating that he had no issue with regard to inquiry upto the extent of procedure but the finding of inquiry officer is not tenable in the eyes of law. Therefore, Sri Kakkar has submitted that from the aforesaid finding it is clear that the worker had admitted fairness of the inquiry procedure adopted in the domestic inquiry and has only challenged the findings of the inquiry officer.
22. In this regard, Sri Khare has referred to the order dated 12.08.2015 which has been considered by the Tribunal in the order impugned and has submitted that merely because the authorized representative, by means of an application dated 12.08.2015 submitted that the employee had no issue in regard to the inquiry upto the extent of procedure, the same would not clothe the authorities to act contrary to the established procedure, particularly, when the entire departmental proceedings were co-related to the same charges on which criminal trial was being held and, therefore, any application or statement or argument made on behalf of the authorized representative could not be treated as fatal to the case of the petitioner.
23. I have heard the learned counsel for the parties and perused the record.
24. There is no dispute about the fact that Branch Manager of Life Insurance Corporation of India lodged a first information report on 10.12.1999 and the petitioner was charge sheeted in the criminal proceedings. The submission of Sri Kakkar to the effect that since the FIR was not lodged by the bank and therefore the case would not fall under Clause 19.3 or 19.4 has been replied to by Sri Khare by referring to language used in Clause 19.3(a) of the Memorandum of Settlement of 1966 which uses the words "unless he be otherwise prosecuted" and, therefore, Sri Khare submits that it is immaterial as to who had lodged the first information report, rather what is important is as to whether the prosecution launched against a delinquent employee would have material bearing on the departmental proceedings as per the various clauses of Settlement which contains a provision for departmental proceedings pending criminal trial.
25. In the present case, I find that when the punishment order was passed in the year 2004, the criminal trial against the petitioner was pending. However, when the matter was decided by the Tribunal in the year 2016 under the order impugned, the petitioner had already been acquitted under the judgment dated 15.10.2009. Sri Khare has vehemently argued that written submissions were filed by the petitioner on 25.03.2010 which contained reference of the said acquittal and copy of the judgment dated 15.10.2009 was annexed along with the written submissions, however there is absolutely no consideration of the same in the order of the Tribunal.
26. As regards the contention of Sri Kakkar that the services were not governed by the Memorandum of Settlement of 1966 but by a subsequent Memorandum of Settlement dated 10.04.2002, Sri Khare submits that Clauses 19.3 and 19.4 are parimateria with the terms of the settlement contained in the subsequent Memorandum dated 10.04.2002. For a ready reference, the provisions relating to disciplinary action and procedure therefor, as contained in Memorandum of Settlement dated 10.04.2002, are reproduced herein below:-
Disciplinary Action and Procedure therefor
1. A person against whom disciplinary action is proposed or likely to be taken shall in the first instance, be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. Final-orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view, the following shall apply.
2. By the expression "offence" shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of Law.
3. (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended.
(b) If he be convicted, he may be dismissed with effect from the date of his conviction. He be given any lesser form of punishment as mentioned in Clause 6 below.
(c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clauses 11 and 12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such and allowances as the management may deem proper, pay and the period of his absence shall not be treated as a period spent on duty unless the management so directs.
(d) If he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case. the management shall review his case and may either reinstate him or proceed against against him under the provisions set out below in Clauses 11 and 12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. In the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months pay and allowance in lieu of notice, as directed above.
4. 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 comes 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 11 and 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 3 above. 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 3 above shall apply."
27. I have perused the order of the Tribunal and I find that concluding paragraphs 28, 29, 30, 31, 32, 33, 34 and 35 of the same discuss only one aspect of the matter that is the date of termination order has been shown as 22.09.2004 in the order of reference whereas the petitioner was dismissed from services by order dated 26.10.2004 which has not been challenged by the petitioner and, therefore, the reference appears to be contrary to the factual position. On this score, it was held by the Tribunal that the petitioner is not entitled for any relief.
28. Though the aforesaid observations are quite surprising in nature considering the fact that there might be some discrepancy regarding the date of termination order i.e. 22.09.2004 or 26.10.2004, once the entire matter had travelled right from first stage till the last stage, the Tribunal should not have indulged into finding out discrepancy in the date of termination order and making it a ground for denying relief to the petitioner. Therefore, the observations made in paragraphs 28 to 35 of the Tribunal's order, being hopelessly contrary to the real controversy involved in the matter, are clearly unsustainable and are denounced as such.
29. In so far as the merit part is concerned, I do not find any discussion in the order of the Tribunal regarding the effect of provisions of Clauses 19.3 and 19.4 of the Memorandum of Settlement dated 19.10.1966 or even identical terms contained in the subsequent Memorandum dated 10.04.2002. The Tribunal has not at all discussed as to when the criminal trial commenced and what would be its effect on the departmental proceedings. In so far as the order dated 08.11.2001 passed in Writ Petition No.33817 of 2001 is concerned, although the said order has not been placed by any of the parties to this petition for perusal of the Court, I find that the said writ petition was filed in the year 2001 and was disposed of then and there and at that time even the charge sheet concerning the departmental proceedings was not served upon the petitioner and in the said background, a general direction might have been issued for conducting inquiry. Even if the High Court permitted holding of inquiry at the stage when the petitioner was under suspension, the same, in the opinion of the Court, would not nullify the effect of specific terms and Clauses of the Memorandum of Settlement of 1966 and/or 2004 inasmuch as the validity of the inquiry proceedings has to be examined in the light of specific stipulations contained in the said Settlements.
30. The Tribunal has not even considered the effect of honorable acquittal of the petitioner from the identical criminal charges. The judgment is completely silent about the same. This is an apparent perversity on the part of the Tribunal inasmuch filing of the written submissions on 25.03.2010 has not been disputed by the respondents in the counter affidavit and only this much has been stated in paragraph no.27 of the counter affidavit that written argument (wrongly mentioned as written statement) was filed on wrong and incorrect facts.
31. Now coming the authorities relied upon by the learned counsel for the petitioner, this Court in Lakshman Kumar Mondal (supra) has dealt with the aforesaid Clause 19.4 of the Bipartite Settlement and held that the object of such clause is aimed at ensuring a fair trial and save double jeopardize. It has, in fact, aimed at protecting interest of delinquent, in consonance with the principle culminated in Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited: AIR 1999 SC 1416. The Supreme Court in the case of G.M. Tank (supra), in paragraph nos. 22, 23 and 24, has held as under:-
22. In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In para 34, this Court held as under: (SCC p. 695) "34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom'. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."
23. In R.P. Kapur v. Union of India and another: AIR 1964 SC 787 (V 51 C 101) a Constitution Bench of Supreme Court observed:
"If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable." (emphasis supplied)
24. In Corporation of the City of Nagpur, Civil Lines, Nagpur and another v. Ramchandras and others: (1981) 2 SCC 714 the same question arose before the Apex Court and in para 6 it was held as under:
"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction [discretion] in any way fettered." (emphasis supplied)
32. Similar view has been reiterated in Sanjay Kishore (supra) and Anand Ram Nagar (supra).
33. Regarding non grant of opportunity to the delinquent employee to reply against the inquiry report, reliance has been placed upon the judgment in the case of Himachal Pradesh State Electricity Board Ltd. (supra) where the Apex Court held that before making up mind to punish the delinquent employee on the basis of inquiry report, a copy of the same must be served upon him so as to enable him to submit a reply and it is only after consideration of reply that final order inflicting punishment can be passed.
34. The Constitution Bench in ECIL v. B. Karunakars: (1993) 4 SCC 727, after elaborately considering the principles of natural justice in the context of the disciplinary inquiry laid down the following in paras 29, 30(iv) and (v):
"29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
30.... (iv) In the view that we have taken viz. that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan cases should apply to employees in all establishments whether Government or non-government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.
(v) The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
35. In the present case, I find that the charges against the petitioner forming basis of departmental proceedings were as follows:-
"1. Sri Mishra took special interest in opening of account of so-called Smt. Prema Devi. He took into confidence the account holder Smt. Maina Devi, SB A/c. No.5890 by telling to her that Smt. Prema Devi is his relative and despite her refusal, by taking advantage of his influence and very low literacy of Smt. Maina Devi, he managed to obtain her signatures at the place of introduction in account opening form of Prema Devi despite her saying that she does not know so called Prema Devi.
2. He facilitated the payment of amount of Rs.65000/- as a single transaction from the account of so called Prema Devi by recommending to Sri U.N. Kapoor, Manager (PB) and subsequently Sri Mishra made efforts to obtain relative voucher from Sri Kamal Narain Bhalla, Record-keeper which was declined by Sri Bhalla.
3. He connived with another person Sri Rajendra Kr. Dwivedi, an employee of RMS and perpetrated this fraud.
36. Out of the aforesaid three charges, charges no.1 and 3 were found to be proved and charge no.2 as partly proved.
37. In so far as the criminal prosecution launched on the basis of FIR is concerned, the allegation was identical and rather more grave concerning the aforesaid transaction in relation to Maina Devi/Prema Devi. There is no dispute that the court exercising criminal jurisdiction acquitted the petitioner under the judgment dated 26.09.2010 and the judgment was honorable and clear acquittal and not on the basis of giving benefit of doubt to the petitioner. Even the inquiry officer has referred to the submission of charge sheet in the criminal case against the petitioner as well as his confinement in jail. Therefore, this Court is of the view that both the departmental proceedings and criminal trial were being held in relation to same/identical charges and, therefore, the law referred to herein above regarding effect of acquittal on the departmental proceedings in favour of the delinquent employee supports the case of the petitioner.
38. Now considering the law relied upon by the learned counsel for the respondent-bank, the Supreme Court in the case of Union of India and others (supra) held that power of judicial review by a court in service matters is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. It was held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made and the court is to examine as to whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. It was further held that burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.
39. In the case of State of Karnataka and another (supra) the Supreme Court elaborately discussed the co-relation in between the criminal trial and the departmental proceedings and relying upon various authorities, identical view was taken.
40. In State Bank of India (supra) the Supreme Court held that there can be no straight jacket formula as to in which case the departmental proceedings are to be stayed and there may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent officials and he cannot be permitted to on the one hand, prolong criminal case and at the same time, contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. It was further held that the departmental proceedings and proceedings in a criminal case can run simultaneously as there is no bar in their being conducted simultaneously, though separately.
41. In Management of Bharat Heavy Electricals Ltd. (supra), the Supreme Court held that in a case where the inquiry has been held independently of the criminal proceedings, acquittal in criminal court is of no avail and even if a person stood acquitted by the criminal court, domestic inquiry can still be held.
42. In West Bokaro Colliry (TISCO Ltd) (supra), the Supreme Court was examining a case where the workman had made a statement before the Labour Court that he did not want to challenge the legality, fairness and propriety of the domestic inquiry and was also dealing with the same aspect as to whether the criminal trial and departmental proceedings should run simultaneously and also held that acquittal in a criminal case would not operate as a bar for drawing up of disciplinary proceedings.
43. In Deputy General Manager (Appellate Authority) (supra), the Supreme Court held that power of judicial review of the constitutional courts is an evaluation of the decision making process and not the merits of the decision itself and the said scope cannot be extended to the examination of correctness or reasonableness of a decision of the authority as a matter of fact. The Supreme Court also held that once the findings of inquiry officer were affirmed by the disciplinary authority, they were not liable to be interfered with and the High Court had committed an error with the order of dismissal.
44. In Gopal Narain Shukla (supra) as well as in Priti Chauhan (supra) and Mayank Agrawal (supra) reference of almost all the aforesaid authorities was made and it was held that the departmental proceedings and criminal trial can run simultaneously.
45. Though there is no dispute about the proposition to the effect that criminal trial and the departmental proceedings against a delinquent employee can run simultaneously, however a careful scrutiny of the aforesaid authorities of the Apex Court would make it clear that in case charges under consideration of a court exercising criminal jurisdiction and the charges on which departmental proceedings against a delinquent employee are held, are identical, the effect of honorable acquittal of the delinquent employee would be a relevant factor and cannot be ignored.
46. In the present case, as observed herein above, the charges in both the proceedings were identical and, in fact, charges in the criminal trial were more grave and specific in relation to same transaction(s), therefore, honorable acquittal of the petitioner was certainly a decisive factor in the departmental proceedings.
47. In the present case, the effect of Bipartite Settlement of 1966 and/or Memorandum of Settlement dated 10.04.2002 cannot be ignored and the submission of the learned counsel for the petitioner that once considering the specific Clauses 19.3 and 19.4 of the Settlement of 1966 and identical clauses of Settlement dated 10.04.2002, the departmental proceedings were bound to be stayed awaiting judgment of the criminal case, the order of acquittal would certainly prevail upon the punishment inflicted upon the petitioner. As noted above, the Labour Court has not even touched the judgment of acquittal and its effect or even the aforesaid clauses of Bipartite Settlement though first information report has been referred to in the impugned order. In paragraph 24 of the impugned order, it has been recorded by the Labour Court that after giving anxious consideration on the report of enquiry officer on charge no.3, tribunal is unable to concur with the findings of the enquiry officer mainly for the reasons that the said charge has been proved only on the basis of the statements recorded by the police during the course of investigation. It is further held that it is settled legal position that statements recorded by the police authorities during the course of investigation cannot be made basis for proving the charge in domestic inquiry against the charged employee unless witnesses are examined before the enquiry officer. In paragraph 25 of the order, it was observed that the charge no.3 is not proved as the statements of the witnesses recorded before police authorities is of no help to prove the charge no.3 against the worker.
48. In view of the above, once service rules (herein the Memorandum of Settlement) specifically take care of commencement, pendency, culmination and the conclusion of the departmental proceedings vis-a-vis criminal prosecution, the general principle that criminal trial and departmental proceedings can run simultaneously cannot be strictly applied atleast against the petitioner, otherwise it would be a case where the general conceptions would override specific service rules which, in the opinion of the Court, is not permissible.
49. In view of the above discussion, I find that the departmental authorities should not have commenced the departmental proceedings against the petitioner as the charge sheet in the criminal case had been submitted within a period of one year and even if, by any stretch of imagination, it is held that the departmental proceedings could commence, they were bound to be stayed awaiting decision of the criminal trial. The same having not been done and the effect of judgment of acquittal as well as the clause 19.3 and 19.4 of the Settlement of 1966 and identical clauses of settlement having not been given any consideration, the order impugned does not sustain and is liable to be quashed.
50. Accordingly, the writ petition succeeds and is partly allowed. The impugned award dated 19.07.2016 passed by the Industrial Tribunal-cum-Labour Court, Kanpur, contained in Annexure No.19 to the writ petition, as well as the orders 26.10.2004 and 19.01.2005 respectively passed by the Assistant General Manager and the Deputy General Manager, as contained in Annexures 9 and 11 to the writ petition, are hereby quashed.
51. Since the petitioner, even on the date of filing of petition had attained the age of superannuation, relief of his reinstatement in service cannot be granted. Considering the simultaneous effect of all the proceedings as well as age of the petitioner at the time of passing of the award, it is provided that the petitioner shall be entitled to entire arrears of salary and consequential benefits with effect from the date of termination of his services till the date of his superannuation but without any interest.
52. The petitioner shall also be paid his post retiral benefits along with 6% simple interest from the date of his retirement till date of actual payment computed accordingly within a period of three months from the date a certified copy of this order is produced before the respondent-bank.
53. No order as to costs.
Order Date :- 15.5.2023 AKShukla/-