Allahabad High Court
Anand Ram Nagar vs The Banaras State Bank Limited And ... on 12 December, 2019
Author: Shamim Ahmed
Bench: Bala Krishna Narayana, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- SPECIAL APPEAL DEFECTIVE No. - 451 of 2011 Appellant :- Anand Ram Nagar Respondent :- The Banaras State Bank Limited And Others Counsel for Appellant :- V.K. Singh,G.K.Singh,Girish Kumar Gupta Counsel for Respondent :- Vipin Sinha,Ashok Trivedi,S.C. Civil Misc. Delay Condonation Application No. 135038 of 2011 Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
This application has been moved on behalf of the applicant with a prayer to condone the delay in filing this appeal before this Court.
The delay condonation application is supported by an affidavit of the petitioner/appellant Anand Ram Nagar.
We have perused the delay condonation application as well as the affidavit filed in support thereof.
We find that the cause shown for delay in filing this appeal in paragraph nos. 3, 4 and 5 of the affidavit accompanying the delay condonation application is sufficient.
The delay condonation application is allowed. The delay in filing this appeal is condoned.
Office is directed to allot regular number to this appeal.
Order Date :- 12.12.2019 KS .
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Court No. - 4Case :- SPECIAL APPEAL DEFECTIVE No. - 451 of 2011 Appellant :- Anand Ram Nagar Respondent :- The Banaras State Bank Limited And Others Counsel for Appellant :- V.K. Singh,G.K.Singh,Girish Kumar Gupta Counsel for Respondent :- Vipin Sinha,Ashok Trivedi,S.C. Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
(By the Court) Heard Sri V.K. Singh, Senior Counsel assisted by Sri Hritudhwaj Pratap Sahi, learned counsel for the appellant and Sri Ashok Trivedi, learned counsel for the respondents.
This special appeal has been filed by the petitioner/appellant against the judgement and order dated 22.12.2010 passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 6889 of 1992 (Anand Ram Nagar Vs. The Banaras State Bank Limited, Varanasi and another) by which the aforesaid writ petition was dismissed in part.
Briefly stated the facts of this case are that while petitioner/appellant Anand Ram Nagar was working as an Accountant in the Banaras State Bank Ltd., Varanasi and when strong room was opened on 24.01.1989, it was found that Rs. 1,00,000/- was short which led to filing of F.I.R. and after obtaining explanation from the petitioner/appellant, a charge-sheet was served on him containing charges of dereliction of duty. The petitioner/appellant submitted his reply denying the charge. However, upon due enquiry, he was found guilty and his services were terminated vide order dated 30.03.1990. Against the order dated 30.03.1990, he preferred a departmental appeal which was dismissed by order dated 16.07.1990. The application filed by the petitioner/appellant for review of the order dated 16.07.1990 was also rejected by order dated 22.10.1990. The aforesaid petition was filed by the petitioner challenging the aforesaid order. At the time of admission, an interim order was passed in favour of the petitioner/appellant staying the impugned orders in pursuance of which the petitioner/appellant continued in service and received salary. In the meantime, the petitioner/appellant was convicted by the criminal court vide judgement and order dated 24.07.1999 and consequently, second termination order dated 27.07.1999 was passed on account of his conviction in the criminal case. However, the appeal preferred by the petitioner/appellant against his conviction was allowed vide order dated 29.05.2000 and the petitioner/appellant was acquitted from all the charges.
Before the writ court, it was urged by the learned counsel for the petitioner/appellant that once the finding of the criminal court to the fact that money was never found short in the strong room of the bank had attained finality, the very basis of the departmental proceedings initiated against the petitioner which culminated into termination of his services, ceased to exist. It was also urged by the learned counsel for the petitioner/appellant that Branch Manager who was also charge-sheeted in respect of the same incident, was let off by award of a minor punishment. It was next urged that the finding recorded by the criminal court shall override the finding recorded in the disciplinary enquiry. Before the writ court, it was lastly urged that since the petitioner/appellant had retired, the extreme punishment of dismissal on the facts of the case was not warranted at all.
Learned Single Judge however, dismissed the writ petition by the order impugned in this special appeal.
Paragraph Nos. 8 to 14 of the judgement and order of the learned Single Judge which are relevant for our purpose are being reproduced hereinbelow :-
8. The petitioner was the second senior most officer in the Branch and as the Branch Manager was busy in other work, he was deputed for closing strong room on 23.1.1989 and in pursuance thereof, he allegedly checked the cash book and signed in lieu thereof showing a closing balance of Rs.6,64,454.24. However, when the strong room was opened in the morning of 24.1.1989 for verification in front of an Inspector of the Reserved Bank of India, the cash was allegedly found short by Rs.one lac consisting of 10 packets of Rs.100/- denomination but there was no tempering of the lock. After seeking his explanation, it was prima-facie found that the petitioner had not verified the cash before closing it and as such the following charge was framed against him.
"Dereliction of duties which is an act detrimental to the interest of the bank [clause 3(i) of Officers Employees Conduct] Regulations, 1986"
9. However, before the Criminal Court, the petitioner was charged under section 406 and 409 IPC and convicted for an offence under section 409 IPC vide order dated 24.7.1999 but the appeal was allowed vide order dated 29.5.2000. It would be appropriate to quote section 409 IPC which is as under:-
"Criminal breach of trust by public servant, or by banker, merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breech or trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
10. Apparently, the charge against the petitioner before the departmental enquiry and before the criminal court is entirely different. It is apparent that before the criminal court the petitioner was charged for criminal breach of trust. The nature of evidence to prove the respective charges is also entirely different. While proving criminal breach of trust, it is imperative to prove mensrea to cause loss to the Bank but in the departmental charge sheet only factum of negligence in exercise of his official duties has to be proved. Thus, assuming, that the criminal court has acquitted the petitioner with the finding that there was, in fact, no shortage but if the petitioner had not followed the standard operating procedure while verifying the cash and closing the strong room, he would still be guilty of dereliction of duty. It is admitted to the petitioner, during the departmental enquiry, that he did not physically verify the position of the cash before signing the closing balance in the strong room, which is the standard normal procedure. Therefore, it cannot be said that if the petitioner has been acquitted on charge under section 409 IPC, he should be absolved of the charge framed by the Bank. The finding of the criminal court would not over ride the findings recorded in the departmental enquiry. The petitioner has relied upon a decision of the Apex Court rendered in the case of G.M. Tank Vs. State of Guarat and others [2006 SCC (L&S) 1121] to contend that the acquittal in the criminal trial would render the departmental findings unsustainable. No doubt if the two charges are identical, the findings of the criminal court would have predominance over those in the departmental proceedings, but that is not the case here. The facts in Tank's case (Supra) are entirely different. The incumbent in that case was charged for the offence of acquisition of moveable and immovable property disproportionate to his known sources of income. This was the also the precise charge before the criminal court under Prevention of Corruption Act, 1947.Therefore, the ratio rendered therein would not apply to the present case. To the contrary, it has consistently been held in several decisions, including in the case of Suresh Pathrella Vs. Oriental Bank of Commerce [AIR 2007 SC 199] that acquittal in a criminal case would be no bar for drawing up disciplinary proceedings against the delinquent officer. In this case, the allegation against the incumbent was that he had defrauded the customer and the Bank of Rs. Ten lacs but he was acquitted in the criminal case on the ground that no loss to the Bank had occurred. Nevertheless, the Supreme court held that it would be no ground to hold that he could not be punished in the departmental enquiry if it is found that he misconducted himself in not complying with the normal operating procedure. Therefore, the argument that merely because the petitioner has been acquitted in the criminal charge, the termination order ought to be set aside, cannot be sustained.
11. So far as the argument that it was only a minor dereliction coupled with the fact that the petitioner has already retired, the penalty of dismissal would be too harsh when compared with the minor punishment awarded to the Branch Manager. The case of the Branch Manager is entirely different and it cannot be compared with that of the petitioner who was the person responsible for physically verifying the cash before signing and closing the books. An Accountant in a Bank holds a position of trust and even a minor dereliction or negligence may not only cause immense harm to the Bank but even its reputation as being custodian of the people's wealth. The petitioner being the officer assigned to close cash and the strong room, should have first verified the information contained in the cash book with actual position of the strong room by physical verification before signing it. The Apex Court in the case of Suresh Pathrella (Supra) itself has held that in the case of Bank employees, even if no loss is caused to the Bank, cannot be a ground to take a lenient view for proved misconduct especially when there was no malafide or violation of principles of natural justice. In such cases, consistent view of the Apex Court has been that the courts need not interfere. A Division bench in the case of D.S. Bishnoi Vs. State Bank of India and others [2004 (1) AWC 640] has held that highest degree of standards or devotion to duty and integrity are required to be maintained in order to maintain public confidence in the case of Banks and the courts should not interfere in findings of fact recorded by the Enquiry Officer. Merely because the petitioner has retired, the nature of misconduct cannot be watered down especially when the High Court is not permitted to re-appreciate the evidence which has been considered by the Enquiry Officer.
12. However, since the second termination order dated 27.7.1999 is based merely on the conviction of the petitioner which has been set aside in appeal, the order dated 27.7.1999 is bound to be quashed.
13. For the reasons above, this petition succeeds partly to the extent as aforesaid but is rejected for the other reliefs claimed.
14. In the circumstances of the case, no order as to cost.
It was contended by Sri V.K. Singh, learned counsel for the petitioner/appellant that once a criminal court came to the conclusion that no such incident as alleged in which cash in the strong room was found short, having taken place and it being settled down that acquittal in criminal trial would render departmental proceeding unsustainable, learned Single Judge erred in taking a view to the contrary and the reliance placed by him on Suresh Pathrella Vs. Oriental Bank of Commerce reported in AIR 2007 SC 199 and D.S. Bishnoi Vs. State Bank of India and others reported in 2004 (1) AWC 640, is wholly misconceived.
Per contra Sri Ashok Trivedi, learned counsel for the respondents made his submissions in support of the impugned order.
We have heard learned counsel for the parties and perused the material brought on record.
Record of this special appeal shows that while the petitioner/appellant was working as Accountant in the respondent-Bank when strong room was opened on 24.01.1989, it was found that Rs. 1,00,000/- was short which led to filing of a F.I.R. against the petitioner/appellant as well as the initiation of departmental proceedings.
After the petitioner/appellant was charge-sheeted, following charge was framed against the petitioner/appellant :-
"Dereliction of duties which is an act detrimental to the interest of the bank [clause 3(i) of Officers Employees Conduct] Regulations, 1986"
The petitioner/appellant submitted his reply in which he stated that keys of the cash chest continuously remained with the Branch Manager and the Chief Cashier and they are the persons who are responsible for checking of the whole amount of cash and so far as the petitioner/appellant was concerned, his job was only to check the day-to-day account upon the debit and credit scroll.
Copy of the charge-sheet was filed as Annexure No. 3 and his explanation was filed as Annexure No. 4 to the writ petition.
After the completion of enquiry, the enquiry report dated 25.08.1989 (Annexure No. 12 to the writ petition) was submitted by the Enquiry Officer in which he had found that the petitioner/appellant in dereliction of his duty had not checked the total amount of cash kept in the safe of the bank. Thereafter, the petitioner/appellant was served with a show-cause notice (Annexure No. 13 to the writ petition) issued by the respondent no. 4 by which he proposed to impose major punishment on the petitioner/appellant dismissing him from services and disqualifying him from future employment.
In response to the show-cause notice, the petitioner/appellant submitted his reply on 30.12.1989 (Annexure No. 14 to the writ petition) and appeared before respondent no. 4. However, respondent no. 4 dismissed the petitioner/appellant from his services by order dated 30.03.1990 (Annexure No. 15 to the writ petition). The petitioner/appellant then preferred an appeal on 16.05.1990 (Annexure No. 16 to the writ petition) against the order dated 30.03.1990 which was also dismissed by the respondent no. 3 by order dated 16.07.1990 (Annexure No. 17 to the writ petition). Thereafter, the petitioner/appellant moved an application on 13.09.1990 (Annexure No. 18 to the writ petition) before the respondent no. 2 with a prayer to review the order dated 16.07.1990 which was also rejected by him by order dated 22.10.1990 (Annexure No. 19 to the writ petition). Thereafter, the petitioner/appellant made a representation (Annexure No. 20 to the writ petition) before the respondent no. 5, Board of Directors, The Banaras State Bank Limited, Laxa Road, Varanasi which was also rejected. During the pendency of the writ petition filed by the petitioner/appellant challenging the aforesaid orders, the petitioner/appellant was convicted by the criminal court which led into passing of second termination order dated 27.07.1999 which was based upon his conviction. The said termination order was also challenged by the petitioner/appellant by amending the writ petition. The conviction of the petitioner/appellant was set-aside by the appellate court with specific finding that the prosecution had failed to prove that any such incident on 24.01.1989, in which upon opening of the strong room, Rs. 1,00,000/- was found short, had taken place.
Since there is no dispute about the fact that the aforesaid finding recorded by the appellate court has attained finality, in our opinion, keeping in view the principles propounded by the Apex Court in G.M. Tank Vs. State of Gujarat and others [2006 SCC (L&S) 1121], learned Single Judge should have allowed the writ petition in toto quashing the impugned order of dismissal and the appellate order also apart from quashing the second termination order on the ground of acquittal of petitioner/appellant in appeal.
Learned Single Judge has held that since the charges in the departmental proceedings and the criminal prosecution were identical, the finding recorded by the criminal court would not prevail over the finding recorded in the departmental proceeding.
In our opinion, the view taken by the learned Single Judge is per se erroneous. The charges framed in the departmental proceedings as well as in the criminal court were based upon the same incident which had taken place on 24.01.1989. The wordings of the charges framed in the criminal court and the departmental proceedings may be different but unless it was proved that any such incident as alleged by the bank had taken place on 24.01.1989, the petitioner/appellant could not be punished departmentally or convicted. The appellate court has recorded a categorical finding that the prosecution had failed to prove that any such incident as alleged by the bank had taken place on 24.01.1989 and no such shortage of cash was ever detected. In view of the aforesaid findings recorded by the appellate court which had attained finality, following the ratio of G.M. Tank (supra), that the acquittal in the criminal trial would render the departmental proceedings unsustainable, we are of the view that the impugned order can not be sustained. The two decisions which have been relied upon by the learned Single Judge namely Suresh Pathrella (supra) and D.S. Bishnoi (supra) for the purpose of upholding the validity of the impugned orders cannot be applied to the facts and circumstances of the present case. In the case of Suresh Pathrella (supra), the delinquent officer was proceeded departmentally on the allegation that he had defrauded a customer thereby causing a loss of Rs. 10,00,000/- to the bank. He was acquitted by the criminal court with a finding that no loss to the bank had occurred. There was no corresponding finding in the aforesaid case that the prosecution had failed to prove that the delinquent employee had defrauded the customer.
Once, the criminal court came to the conclusion that the prosecution had failed to prove that either any incident, as alleged, had taken place on 24.01.1989 or any amount was found short, the very foundation on the basis of which departmental proceedings were initiated against the petitioner/appellant in which he was found guilty of dereliction of duty, disappeared. If no such incident on the basis of which charge of dereliction of duty was framed and found proved against the petitioner/appellant in the departmental proceedings had taken place on 24.01.1989, the petitioner/appellant cannot be held guilty of dereliction of duty. Hence, we have no hesitation in holding that the finding recorded by the criminal court will override the finding recorded against the petitioner/appellant in the departmental enquiry.
Similarly, the principles enunciated in the case of D.S. Bishnoi (supra) that highest degree of standards or devotion to duty and integrity are required to be maintained in order to maintain public confidence in the case of banks and the courts should not interfere in findings of fact recorded by the Enquiry Officer. Merely because the petitioner has retired, the nature of misconduct cannot be watered down especially when the High Court is not permitted to re-appreciate the evidence which has been considered by the Enquiry Officer, is also not applicable to the facts and circumstances of the present case inasmuch as in the present case, the criminal court has recorded findings which are wholly irreconcilable with the findings recorded in the departmental enquiry with regard to the incident which was the basis of dismissal of the petitioner/appellant and his conviction by the trial court.
For the aforesaid reasons, this appeal is allowed and the impugned judgement and order dated 22.12.2010 passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 6889 of 1992 (Anand Ram Nagar Vs. The Banaras State Bank Limited, Varanasi and another) as well as the orders dated 30.03.1990, 16.07.1990 and 22.10.1990 passed by respondent nos. 4, 3 and 2 respectively, are hereby set-aside.
Order Date :- 12.12.2019 KS