Chattisgarh High Court
M.C.R. Meshram vs State Bank Of Indore Now Sbi on 21 February, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2115 of 2011
• M.C.R. Meshram S/o Guharam Meshram, aged about 53 years, R/o Kota House
No.2 Near Ayurvedic Hospital Raipur CG
---- Petitioner
Versus
• State Bank Of Indore, Now State Bank of India through its Regional Manager,
11/12 MG Road, Raipur (CG)
---- Respondent
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For Petitioner : Shri Yogendra Pandey, Advocate For Respondent : Shri PR Patankar, Advocate
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Hon'ble Shri Justice Parth Prateem Sahu Order on Board 21.02.2022
1. Petitioner by this petition filed under Article 226/227, is challenging the order dated 22.02.2008 (Annexure P1) and order dated 11.04.2008 (Annexure P2) of the Appellate authority, affirming the Order of Disciplinary Authority with following reliefs:
"10.1 That the orders passed by the Respondent dated 22.02.2008, 11.04.2008and 31.08.2010 may please be quashed by issuing writ of Certiorari.
10.2 That the Respondent be command to reinstate Petitioner with full back wages along with allowances and consequential benefits by issuing writ of Mandamus.
10.3 That the respondent be command to pay Petitioner full pay and allowances and all others privileges for the period of suspension issuing writ of Mandamus.
10.4 Grant any other relief that this Hon'ble Court deems fit in the circumstances of the case."
2. Shri Yogendra Pandey, learned counsel for the petitioner submits that petitioner was working with respondent/Bank on the post of Head Cashier in Wps 2115 of 2011 2 the year 1992. On 06.11.1992 in the evening when cash amount was to be deposited in Chest of Bank on its verification, it revealed that there is difference of Rs.2,95,000/-. When the petitioner could not able to explain the cause of difference of huge amount of Rs.2,95,000/-, initially Bank Manager lodged report with concerned Police Station on 07.11.1992, based upon which FIR was registered on 10.11.1992.Petitioner was suspended on 16.11.1992 and after due investigation, Investigating agency submitted charge-sheet before the Court of competent jurisdiction on 30.11.1992. During the pendency of criminal case, department initiated Departmental Enquiry (DE) proceedings and issued charge-sheet on 09.07.1993. He submits that charges levelled in Criminal case as well as in DE proceedings are one and the same. Name of witnesses mentioned in charge-sheet and DE are also one and the same. Even after making several requests by petitioner orally as well as by way of written application to the Enquiry Officer or Department, DE was not stayed. It is further contended that during the pendency of DE, petitioner/delinquent employee made several requests to the Enquiry Officer for permitting him to engage a Lawyer to make proper defence, but that was also denied. Hence the petitioner could not able to make proper defence to the charges levelled against him. DE was concluded on 20.11.1999 without participation of petitioner before Enquiry Officer in inappropriate manner as he could not able to cross-examine witness or adduce any evidence in his support. Petitioner filed a Writ Petition bearing No.435 of 2000 before the High Court of MP which came up for hearing on 04.02.2000. On the said date, considering pleadings and grounds raised by petitioner as well as submission of learned counsel appeared therein for petitioner, interim order of restraining department from passing final order was passed. Later on, department imposed punishment of termination of service of petitioner vide order dated 22.02.2008 (Annexure P1). Petitioner aggrieved by order of punishment preferred appeal. The appellate Wps 2115 of 2011 3 authority dismissed the appeal vide its order dated 11.04.2008 (Annexure P2) by a non- speaking order. There is no discussion of the grounds raised in appeal, findings recorded by Disciplinary Authority and material available in Enquiry report. Appellate authority dismissed the appeal without application of mind, hence Annexures P1 and P2 dated 22.02.2008 and 11.04.2008 respectively, be set aside. With respect to his submission that once DE and also criminal proceedings are initiated against delinquent employee, both proceedings cannot be permitted to continue parallelly as it is prejudicial to the interest of a delinquent employee, he placed reliance in cases of State Bank of India and others Vs Neelam Nag and another, reported in (2016) 9 SCC 491, and Divisional Controller, Karnataka State Road Transport Corporation Vs MG Vittal Rao reported in (2012)1 SCC 442. It is further contended that in a criminal case, which was registered based on complaint of a BranchManager,petitioner was acquitted by the trial Court vide order dated 08.01.2010. As charges against the petition are same in both proceedings, he submitted an application before respondent authorities for reinstatement of his service as he was acquitted from criminal charges, that was also not considered. Hence, petitioner filed this Writ Petition. He submits that once petitioner was acquitted from criminal ch ar ge s, on the ground that prosecution failed to prove the case beyond reasonable doubt, petitioner has to be reinstated. He placed reliance in case of GM Tank Vs State of Gujarat and others reported in (2006) 5 SCC 446. In view of aforementioned ruling of Hon'ble Supreme Court, Writ Petition be allowed and direction be issued to respondent/Bank for reinstatement of petitioner in his service with all consequential benefits.
3. Shri PR Patankar,learned counsel for the respondent/bank vehemently opposes submissions of petitioner and would submit that serious misconduct Wps 2115 of 2011 4 was committed by petitioner of misappropriating huge amount of Rs.2,95,000/-. Petitioner is holding the post of Head Cashier. On each day,at the time of starting work, he is required to make an entry of amount withdrawn by him from the chest of Bank and at the end of day/working hours, it is the duty of Head Cashier of Bank (petitioner) to calculate amount of transaction ie deposit, and withdrawal, to tally with amount withdrawn by him from chest of bank. It is the bounden duty of Head Cashier to reconcile entries of amount made in register on opening day with transactions at the end of day. Looking to seriousness of misconduct of petitioner,Branch Manager initially lodged complaint before concerned Police Station as petitioner has committed financial irregularities and failed to explain regarding difference of amount of Rs.2,95,000/- on 06.11.1992. Police after investigation on the complaint of Branch Manager, submitted charge-sheet before court of competent jurisdiction as petitioner allegedly misappropriated the amount of Rs.2,95,000/-. Respondent/Bank, being an employer of petitioner, decided to initiate DE proceedings against him. After taking approval from competent authority, department issued charge-sheet to petitioner on 19.07.1993. Petitioner did not reply to department's charge-sheet explaining his conduct, thereafter, Enquiry Officer and Presenting Officer were appointed. Petitioner for one or the other reason, made an attempt to somehow stall DE proceeding and thereafter, he avoided to participate in DE proceedings. He contended that after starting DE proceedings, petitioner submitted an application before Enquiry Officer for permitting him to engage lawyer. Charges levelled against petitioner are only with respect to difference of amount on 06.11.1992 at the end of day as the amount which was withdrawn by petitioner in capacity of Head Cashier from Chest of Bank did not reconcile with cash balance which he again deposited in Chest at the end of the day. The charges levelled against petitioner are only factual, there is no serious legal aspect involved and therefore, Enquiry Officer Wps 2115 of 2011 5 justified in rejecting application seeking permission to appoint lawyer in his defence. Petitioner cannot be permitted to raise ground of prejudice in parallel continuing of DE and criminal prosecution after completion of entire DE. Petitioner if aggrieved by parallel continuation of both proceedings, could have filed appropriate proceedings before appropriate forum seeking stay of DE proceedings, immediately after starting DE proceedings. Petitioner chose not to take shelter of Court if he is aggrieved in any manner for continuation of DE proceedings but the Writ Petition was filed only after conclusion of DE. He next contended that submission of learned counsel for the petitioner that petitioner be reinstated because he has been acquitted from criminal charges is not acceptable. Consideration of criminal charges levelled against government employee or bank employee in criminal case is somewhat different from consideration of misconduct alleged against employee in DE proceeding. Even if petitioner was acquitted from criminal charges, then also, he could not have any right to be reinstated in his service based upon order of acquittal. More so, when DE was concluded much earlier than that of decision of criminal Court on 20.11.1999, whereas criminal case registered against petitioner was decided only on 22.01.2008 ie after lapse of about 9 years. In support of his contention, he placed reliance upon the case of Zila Sahkari Kendriya Bank Maryadit, CG Vs TekramNirmalkar reported in ILR 2019 CG 2399 and the judgment passed by Division Bench of this Court in case of CP Sharma Vs Union of India and others reported in 2006(3) CGLJ 592. Lastly, he contended that the Writ Petition is filed with inordinate delay of three years challenging orders of Disciplinary Authority Annexure P1 dated 22.02.2008 as well as Annexure P2 dated 11.04.2008 of appellate authority. This Writ Petition is filed only after order of acquittal passed by the Judicial Magistrate First Class in Criminal Case. In this Writ Petition seeking relief for his reinstatement, petitioner has not raised any ground challenging DE proceedings to be in Wps 2115 of 2011 6 violation of principles of natural justice, perversity in the order of Disciplinary Authority or punishment imposed to be disproportionate. Hence, unless and until any of said grounds are raised by petitioner, no interference in order of punishment based on DE is permissible.
4. I have heard learned counsel for the parties and perused the records of Writ Petition.
5. So far as the submission made by learned counsel for petitioner with respect to ground raised in Writ Petition that respondent/Bank and Enquiry Officer even after several oral requests and by way of written application, have not stayed DE proceedings which was running parallel to criminal proceeding and thereby interest of petitioner is prejudiced is concerned, it is undisputed fact that after filing of charge-sheet in criminal case, department also issued charge-sheet for initiating DE against petitioner on 19.07.1993, though petitioner had made his submission with respect to making his request as well as written application but no such application is placed on record in this petition. Not only that if submission of learned counsel for the petitioner is taken to be correct, then also, if once the application or request made by petitioner/employee before Enquiry Officer or other Officer of respondent/bank was not considered, then petitioner could have very well approached the Court seeking relief of stay of DE proceedings but no such petition or case was filed by petitioner before Court of law till conclusion of DE. Petitioner chose to file Writ Petition only in the year 2000 ie after conclusion of DE proceedings on 20.11.1999. Disciplinary Authority passed order of punishment on 22.02.2008, from perusal of record it appears that in Writ Petition-435 of 2000 filed by petitioner after conclusion of DE, interim order was passed in his favour restraining respondent/Bank from not passing final order. When for a long time, writ petition remain pending before this Court, respondent/bank filed an Wps 2115 of 2011 7 application seeking clarification of order dated 03.11.2000, that whether interim order passed on 04.02.2000 is still continuing in favour of petitioner, so as to avoid any act of respondent/bank authorities of committing contempt of order passed by High Court. Vide order dated 22.01.2008, High Court clarified that interim order granted in favour of petitioner on 04.02.2000 stands vacated on 03.11.2000,and immediately after clarificatory order of High Court, order of punishment was passed by the disciplinary authority on 22.02.2008. Aforementioned factual matrix is sufficient to show that petitioner, who was working as head Cashier in State Bank of Indore, even after pendency of DE for the last 7 years, did not chose to approach the Court of law by way of filing appropriate application or petition seeking relief of staying the DE proceedings, if he was aggrieved in any manner. Hence, in the opinion of this Court, the submission made by learned counsel for petitioner that entire enquiry proceedings including order of punishment be quashed because DE was conducted by Enquiry Officer, during pendency of criminal proceedings is not sustainable and said submission is hereby repelled. The judgment relied upon by learned counsel for the petitioner in cases of Neelam Nag(supra) andMG Vittal Rao(supra), is dealing with the issue where employee filed Writ Petition during pendency of enquiry proceedings. Hence, judgments relied upon by learned counsel for the petitioner are on different facts.
6. Other submission of learned counsel for the petitioner that as petitioner has been acquitted from criminal charges in criminal Case No.1016 of 2009 vide judgment dated 08.01.2010, he be reinstated, based on judgment passed by Hon'ble Supreme Court in case of GMTank(supra), in the opinion of this Court is misplaced.
7. In the case at hand, punishment of termination against petitioner was imposed by disciplinary authority on 22.01.2008, much before passing of final Wps 2115 of 2011 8 judgment by criminal Court. Hence based on subsequent judgment of criminal Court, no relief as prayed for by petitioner can be granted for his reinstatement of service, merely on order of acquittal passed by criminal Court. The law is well settled in this regard, even if employee against whom DE is initiated as well as he was also prosecuted in a criminal case then also,merely,acquittal in criminal case will not grant any right to employee for his reinstatement. Even if initially department has not initiated any DE for misconduct looking to pendency of criminal case, then also, after acquittal from criminal charges, department can initiate DE proceedings. Hon'ble Supreme Court in case of MG Vithal Rao(supra) has considered the issue of reinstatement of an employee only on the basis of his acquittal from criminal charges and held thus:
"11.The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of Article 311 (2) (b) of the Constitution of India, 1950, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.
15. While dealing with a similar issue, a three-Judges Bench of this Court inAjit Kumar Nag v. General Manager (PJ) Indian Oil Corporation Ltd., (2005) 7 SCC 764, held as under:-"
"........In our judgment, the law is fairly well settled. Acquittal by a criminal Court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the Wps 2115 of 2011 9 object of criminal trial is to inflict appropriate punishment on the offender,the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a Court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability."
8. In another case of Commissioner for Police, Delhi Vs Narender Singh, reported in 2006 AIR SCW 1958, Hon'ble Supreme Court has considered that whether the employee after his acquittal from criminal charges has accrued right in his favour for his reinstatement in service and held thus:
"12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. [See Kamaladevi Agarwalv.State ofW.B.and Others, (2002) 1 SCC555]
13. It is now well-settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.
14. In Manager,Reserve Bank of India, Bangalore v.S. Mani and Others [(2005) 5 SCC 100], this Court held:
"It is trite that a judgment of acquittal passed in favour of the employees by giving benefit of doubt per se would not be binding Wps 2115 of 2011 10 upon the employer" [See Bank of India and Another v. Degala Suryanarayana(1999) 5 SCC 762;Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd.,Haldia and Others(2005) 7 SCC 764]
9. Similarly, in case of Noida Entrepreneurs Association Vs Noida and others reported in (2007) 10 SCC 385 considering similar issue and held thus:
"11.A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. (See:TataCellularv.Union of India(1994(6) SCC 651), andTeriOat Estates(P.)Ltd.v.U.T.Chandigarh and Ors. (2004 (2) SCC 130). The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan and Othersv.T.Srinivas(2004(7) SCC 442),Hindustan Petroleum Corporation Ltd. and Othersv.Sarvesh Berry(2005(10) SCC 471) andUttaranchal Road Transport Corpn.v.Mansaram Nainwal(2006(6) SCC366).
"8........The purpose of departmental enquiry and of prosecution is two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance Wps 2115 of 2011 11 with proof of the offence as per the evidence defined under the provisions of the IndianEvidence Act 1872 (in short the 'Evidence Act'). Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the department enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."
15. The position in law relating to acquittal in a criminal case, its effect on departmental proceedings and re- instatement in service has been dealt with by this Court in Union of India and Anr. v. Bihari Lal Sidhana(1997 (4) SCC 385). 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 the 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. Re- instatement would be a Wps 2115 of 2011 12 charter for him to indulge with impunity in misappropriation of public money."
10. Hon'ble Supreme Court in aforementioned cases, has considered that manner of proving charges in DE proceedings and in criminal prosecution is entirely different. Charges in criminal proceedings against an employee/accused are to be proved beyond reasonable doubt, whereas, charges in DE to be proved based on principles of preponderance of probability. Hence submission of learned counsel for petitioner that as the petitioner has been acquitted from criminal charges, the Writ Petition be allowed and respondent/Bank be directed to reinstate the petitioner is not sustainable and it is hereby repelled.
11. Though the petitioner in Writ Petition has sought relief of quashment of orders Annexures P1 and P2, there is no specific pleading or submission made with respect to quashing the entire disciplinary proceedings on the ground of violation of principles of natural justice, perversity in the order passed by Department, settled principle, in holding DE not followed or punishment imposed is disproportionate to charges levelled against him but for that, petitioner was not permitted to engage a lawyer which is discussed in preceding para. As no specific ground is raised and arguments made before this Court challenging DE proceedings or punishment imposed by disciplinary authority,I do not find any merit in this Writ Petition. Further, submission of learned counsel for the petitioner with respect to non-passing of detail order by appellate authority is also not sustainable on the ground that appellate authority after receiving the appeal, has given personal hearing to delinquent employee and only thereafter order in appeal is passed. Hence, in view of nature of allegations of financial irregularities submission of learned counsel for Wps 2115 of 2011 13 the petitioner that appellate authority erred in not passing a speaking order is also not sustainable.
12. For the foregoing discussion and law laid down by Hon'ble Apex Court in aforementioned rulings, I do not find any merit in this Writ Petition, it is liable to be and it is hereby dismissed.
Sd/-
(Parth Prateem Sahu) JUDGE padma