Jatinder Pal Chandel vs State Of J&K And Ors on 11 November, 2013

[Cites 5, Cited by 2]

Jammu & Kashmir High Court

Jatinder Pal Chandel vs State Of J&K And Ors on 11 November, 2013

1. The first issue raised in the instant appeal filed under Clause 12 of the Letters Patent is whether disciplinary proceedings by an employer could continue simultaneously during the currency of criminal proceedings. The question is no longer res integra in view of the law laid down by Honble the Supreme Court in the cases of Kusheshwar Dubey v. Bharat Coking Coal Ltd. & others, (1988) 4 SCC 319 and Depot Manager, A.P.SRTC v. Mohd. Yousuf Miya, (1997) 2 SCC 699. Honble the Supreme Court did not prefer to lay down any principles of universal application in cases of parallel proceedings in the criminal Court and before departmental authorities. However, in the case Capt. M.Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679, their Lordships of 2 Honble the Supreme Court have summed up the legal position by concluding as under:-

22. (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as they is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical 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. The aforesaid view has been followed and applied in subsequent judgments rendered in the cases of Hindustan Petroleum Corporation Ltd. and others v. Sarvesh Berry, (2005) 10 SCC 471 and Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385.

2. Facts of the case in hand fall in a narrow compass. The appellant was working on the promoted post of Middle Management Grade/Scale-II. After promotion he was 3 transferred to Central Zone I and had to report to General Manager, Field Manager, Lucknow on or before 25.07.2011.

3. He was served with a communication dated 03.03.2012 charging him with various acts of omission and commission during his tenure as Branch Manager, Udhampur. He was placed under suspension with immediate effect pending disciplinary action. However, he was allowed to draw subsistence allowance as per the rules of the respondent-bank. Simultaneously an FIR No.152 of 2012 was lodged on the basis of a written complaint filed by one Sandeep Singh, Branch Manager, Union Bank of India, Udhampur under Section 409 409, 420, 467, 468 & 471 RPC. According to the allegations in the FIR an amount of Rs.15.00 lacs was withdrawn on 03.08.2011 and the same was not deposited with the Bank. As per the statement of account, cash was paid to Mr. Ankush, who was working as clerk/cashier. He had resigned. These instances are set out below in extenso:-

(i) That an amount of Rs.15 lacs was withdrawn on 03-

08-2011 from bank Union of India Account no.31128997725 with SBI vide cheque no.917359 but amount was not deposited with the branch, as per statement of account cash was paid to Mr. Ankush (clerk/cashier) since resigned. The amount was initially entered in the cashier registered and finance but later deleted/round under the ID of the then Branch Manager Mr. Jeetinder Paul Chandel, as per counter file of the cheque bok the said cheque was drawn by Anoop Bhasin Assistant Manager.

ii) That on 30-05-2011 an amount of Rs.1.50 lacs was shown as deposited in the Union Bank of India account with SBI but as per statement of FFFFF, the same has not deposited. As per finacle (accounting software of the bank) the payment was made by debit voucher but no voucher is found in the cash of that day.

iii) That on 15-07-2011 an amount of Rs.3.73 lacs was shown to be deposited in the banks (Union Bank of India) account with SBI but as per SBI statement of account same was not deposited. No voucher is found in cash voucher of that day.

iv) As per statement of bank (Union Bank of India) a/c with J&K Bank, an amount of Rs.5 lacs was withdrawn on 26-07-2011, from bank (Union Bank of India) a/c with that bank vide cheque no.27259987 but said amount was not deposited with the branch. As per statement of a/c cash was paid to Mr. Prem Chand who is armed guard, as per counter foil of cheque beFF.. The said cheque was withdrawn by Anup Bhasin Assistant Manager on 12-05-2011 an amount of Rs.5 lacs was debited fraudulently to 824-2000 (suspense head) and credited to C.D. a/c 101-50029 (suspense head) and credited to C.D. a/c 101-50029 of M/S Raju Engineer Works on 27-05-2011 SBI a/c was debited by Rs.5 lacs and 824-2000 was credited. As per Statement of bank (Union of India) a/c with J&K Bank Ltd., an amount of Rs.9 lacs was withdrawn on 05-10-2011 from Bank account with that bank vide cheque no.27736305 but amount was not deposited with the branch. As per statement of a/c cash was paid to Mr. Prem Chand (Armguard). The alleged accused persons siphoned off banks money through fictitious entries to the debit of account no.626205310001000 of SBI to the tune of Rs.9,59,961/- present manager branch manager has also reported about some missing files pertaining to various advances a/c on scrutiny of these a/c it was observed as the entries disbursement of these accounts were routed through a/c with SBI. The details of these accounts are as under:

M/s Jain communication a/c no.614-20(sic) limit 3 lacs present o/s 3.24 lacs remarks no file on record, only a/c opening forms available. Disburse was made to the credit of SBI a/c (531-1000) on 30-08-2011. On telephonic enquiry by the branch manager, party has denied having raised the loan.

v) M/S Ganesh cosmetics and readymade a/c no.614-

21, limit 3 lacs present o/s 1.63 lacs remarks no file on record, only a/c opening form is available, disbursement was made to the credit of SBI a/c (531-1000) on 30-08-2011, during follow up visit, party has denied raised the loan.

vi) M/S Sharma steel works (prop. (Mr. Kewal Krishan) a/c no.614-19 limit 3 lacs present o/s 2.96 lacs remakrs no file on record, only a/c opening form is available. Disbursement was made to the credit a/c (101-50029) Raju Engg. Works on 06-08-2011, during follow up party has denied having raised the loan. It is pertinent to mention here that on same day Rs.9 lacs was transferred from M/S Raju Engg. Works to SBI a/c Mr. Kewal krishan is also having home loan a/c no.665-16, with o/s of Rs.8 lacs and term loan a/c no.611-1 o/s Rs.2.76 lacs. He claim to have repaid the loan account no.611-1 throughFF Branch Manager Sh. Jeetender Paul Chandel this loan was sanctioned for construction of house but no construction took place. Hence, banks money was misutilised.

vii) M/S Guru Nanak Associates a/c no.614-26 limit 2 lacs present o/s 2.08 lacs remarks no file on record, only a/c opening form is available, disbursement was made to the credit of SBI a/c 10150011 of the party on 26-09-2011 party has assured to adjust the a/c by the end of this financial year but party is reluctant to sign all the security documents.

viii) M/S Mahamaya Stationary (prop. Mr. Anil Khajuria a/c no.614-22 limit 3.00 lacs present o/s 3.24 lacs Remarks no file on record only a/c opening form is available. Disbursement was made to the credit of SBI a/c 531-1000) on 30-08-2011, on visit of inquiry team, party has denied raising of loan.

ix) Emm Kay Traders a/c no.614-17 limit 3 lacs present o/s 2.96 lacs remarks no file on record only a/c opening form is available. Disbursement was made to the credit of SBI a/c (531-1000) on 30-07-2011 party was out of station on contacting over phone he was not sure whether he has denied raised a loan or not.

x) M/S Bhole Agency (prop. Mr. Kewal Krishan a/c no.614-18 unit 3 lacs present o/s 2.98 lacs. Remarks no file on record, only account opening form is available. Disbursement was made to the credit of SBI a/c (531-1000) on 30-0702911 party was out of station. During follow up visit party, has denied raised the loan.

xi) M/S Jatinder Pal Singh (HL) A/C No.665-13 unit 6.00 lacs present o/s 6.33 lacs Remarks no file on record only a/c opening form is available. Disbursement was made to the credit of CD 101-50029 and 401-2 of M/S Raju Engg. Workds Rs. 3 lacs each on 06.08.2011 and 17.08.2011 respectively, it is pertinent to mention that an amount of Rs.9 lacs was debited to 101-50029 and credited to 531- 1000 SBI a/c on the same day. On 17-08-2011 an amount of Rs.10 lacs was withdrawn through four cheques of Rs.2.50 lac each from 401-2 party was out of station, on contacting over phone he denied having raised a loan.

xii) M/S Anil Khajuria (prop. Mahamaya stationary, as mentioned below a/c no.665-14 (HL) limit 6 lacs. Remarks no file on record only a/c opening form is available. Disbursement was made to the credit to CD 101-50029 and 401-2 of M/s Raju Engg Workds Rs. 3 lacs each on 06.08.2011 and 17.08.2011 respectively on visit of investigating team, he denied having raised a loan, it is pertinent to mention that Mr. Anil Khajuria is prop of M/S Mahamaya stationary a/c no.614-22 already mentioned in this list. M/S Raj Kumar Sharma (secured loan) A/c no.703- 18 limit 4.00 lacs remarks no documents, no deposit receipt, Disbursement by way of credit to Raju Engg. Co. security created over DRC a/c no 303-399 of Mr. Rajneesh Raichan, a thirty party.

xiii) M/S Rockey Kumar Gupta (secured loan) a/c no.703- 26 unit 9.00 lacs present o/s 2.46 lacs. Remarks no deposit receipt is available. Disbursement by way of credit to J&K Bank with narration RTGS. Security created over DRC A/c no.303-557 of Mr. Jia Lal (valued customer). 6

4. On the allegations made in the FIR the petitioner was arrested on 08.05.2012 and was released on interim bail on 14.06.2012, which was made absolute on 04.07.2012.

5. The Bank on its part issued a show cause notice to the petitioner-appellant calling upon him to explain the reasons as to why disciplinary action should not be initiated against him for the lapses detailed in the show cause notice dated 26.09.2012 (Annexure-C) The appellant sent his reply by requesting the respondent-Bank to allow him access to the bank accounts under supervision of any officer so as to facilitate reply to the show cause notice (Annexure-D). Reminder were sent on 21.11.2012 and 10.12.2012 (Annexure-E & F). The respondent- Bank had controverted the receipt of any request dated 23.10.2012 (Annexure-G). In respect of petitioner-appellants request for extension of time, it was stated that memorandum dated 26.09.29012 afforded 07 days time to the petitionerappellant to enter his reply. The memorandum was delivered to him on 19.10.2012 and request for extension of time was made after a period of more than one month, which was being done deliberately to cause delay.

6. The learned Judge has rejected the claim of the appellant by highlighting the difference in the nature of two proceedings and their consequences. The view of the learned Single Judge is discernible from the following paras of the judgment:-

A penal offence is committed against the society. When it is alleged that somebody has committed cognizable offence then it becomes duty of the investigating agency to investigate the allegations so as to unearth the truth. The criminal investigation is launched in the interest of society. In criminal trial a person can be convicted and sentenced only when offence is proved beyond all shadow of doubt. The standard of proof of allegation in criminal cases and departmental enquiry are not same.

The departmental enquiry is being conducted in accordance with rules which govern a particular employee. The purpose of conducting departmental enquiry is to inflict appropriate punishment on guilty officer/official so as to safeguard the interest of the establishment/institution. It is of common knowledge that for variety of reasons criminal investigation and criminal trial takes time to reach to its logical conclusion, whereas, the departmental proceedings are concluding in the shortest possible time. The purpose sought to be achieved in criminal investigation and departmental proceedings is all together different. At some stage, criminal investigation and departmental proceedings may over-lap, but that doesnt mean in all circumstances either of the two proceedings shall stay. In criminal trial a guilty person is punished and send to join whereas in departmental proceedings a guilty person is either dismissed from service or is imposed any other lesser punishment. The criminal investigation and criminal trial are conducted as already said in the interest of the society at large, whereas the departmental proceedings are initiated and conducted for the benefit of the establishment in which the delinquent officer(s) is working. The misconduct may be so grave that continuation in service in such circumstances may cause great harm to the institution itself.

7. A perusal of the aforesaid extracts show the conclusion reached by Writ Court holding that proceedings in two spheres sound in different consequences. Therefore, the proceedings could run simultaneously.

8. We have heard learned counsel for the parties at a considerable length and are of the view that principles laid down by Honble the Supreme Court in para 22 of the judgment rendered in the case of Capt. M. Paul Anthony (supra) would lead us to conclude that no relief would be warranted in favour 8 of the petitioner-appellant at our hands. Firstly the principle laid down by Honble the Supreme Court is that departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar. It is only in a case where both the proceedings are based on identical or similar set of facts then some room is created for granting relief to a delinquent employee provided the charge in criminal case against the delinquent employee is of grave nature which involves complicated questions of law and fact. In the present case nature of offence, narration of the charge and the type of proceedings initiated against the appellant would not lead us to conclude that criminal case initiated against the petitionerappellant is of grave nature involving complicated questions of law and fact. The matter pertains to the year 2011 and FIR was registered on 08.05.2012. A period of more than 1 = years has already expired after the registration of the FIR and the issuance of show cause notice. The disciplinary proceedings have been delayed because the petitioner-appellant did not file any reply to the show cause notice seeking his response as to why disciplinary proceedings be not initiated against him. In fact the charge-sheet could not be framed on account of delaying tactics adopted by the petitioner-appellant. Moreover, there are no complicated questions of fact and law which may warrant 9 staying of disciplinary proceedings. The appeal does not merit admission and is thus liable to be dismissed.

9. As a sequel to the above discussion, this appeal fails and same is dismissed along with connected application(s). (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu, 11.11.2013 Vinod.

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