Karnataka High Court
Narayanaswamy D. vs The Chief Manager And The Disciplinary ... on 27 September, 2005
Equivalent citations: ILR2006KAR569, 2006 LAB. I. C. 264, 2006 (1) AJHAR (NOC) 179 (KAR), 2006 (1) ALL LJ NOC 174, 2005 AIR - KANT. H. C. R. 2952, (2006) 108 FACLR 1086
Author: B.S. Patil
Bench: B.S. Patil
ORDER B.S. Patil, J.
1. In this writ petition, petitioner is questioning the initiation of departmental enquiry into the charges levelled against him on the ground that he has been already honourably acquitted in the criminal proceedings initiated against him in respect of identical charges in C.C.No. 499/2002 disposed of on 29.09.2004.
2. The facts in brief as stated by the petitioner would disclose that when the petitioner was working as peon at Yelahanka branch of the respondent-bank, a complaint was filed before the Yelahanka police station. Criminal proceedings were initiated based on the charge sheet submitted by the police. Simultaneously, the bank framed a charge sheet against the petitioner in order to hold a departmental enquiry against him. A copy of the Articles of Charge issued against the petitioner is produced at Annexure-D. A perusal of the charges would disclose that on 25.05.2002 at around 8.30 p.m., the petitioner attempted to burgle Yelahanka branch of the bank along with one Sri. Padmanabha. Petitioner was arrested by the Yelahanka police and was remanded to judicial custody and was later released on bail which fact he concealed and resorted to submit a leave application. The further allegations made would disclose that he committed nuisance in the premises of the bank and attempted to cause damage to the property of the bank and so on.
3. As criminal proceedings were simultaneously initiated, departmental enquiry came to be stalled. The criminal proceedings ended in acquittal of the petitioner. The Magistrate found that on the basis of the evidence made available, the charges levelled were not proved. After the acquittal, the management has revived the disciplinary enquiry and has proceeded to examine the management witnesses. The petitioner being aggrieved by the conduct of the management in proceeding with the disciplinary enquiry despite decision of the criminal Court has approached this Court challenging the initiation and continuation of the disciplinary enquiry.
4. Learned Counsel appearing for the petitioner contends that the disciplinary enquiry is initiated for the indentical charges which was the subject matter of the criminal case. The acquittal of the petitioner in the criminal case is not on account of benefit of doubt being given to the accused. It is an honourable acquittal. The Court has found that no evidence whatsoever was available to hold the accused guilty. In the face of these findings of the Criminal Court, the counsel contends, the bank was not justified in proceeding with the disciplinary enquiry. The foundation for proceeding with a disciplinary enquiry is the same as the one which fell for consideration before the criminal court. The disciplinary authority cannot sit in judgment over the findings recorded by the Criminal Court in as much as he cannot proceed without giving due deference to the conclusion reached by the court of law is what is contended. He has further submitted that no other fresh materials or evidence is sought to be produced before the Enquiry Officer and it is only the same evidence which was either produced or was available for being produced before the Criminal Court that is sought to be relied upon which cannot be permitted. In support of his contention Learned Counsel has relied on a decision of the Apex Court in the case of M. Paul Anthony v. Bharath Gold Mines Ltd.
5. Per contra, Learned Counsel appearing for the respondent-bank submits that there is no bar for initiation/continuation of the disciplinary enquiry even after the acquittal of the petitioner by the Criminal Court. It is his submission that the acquittal in the instant case is not a clean acquittal nor is it an honourable acquittal. The findings recorded would disclose that the Court did not find sufficient material to hold the accused guilty of the offence alleged. He further contends that the Court has not come to the conclusion that the incident did not happen at all. He has relied on the following judgments of the Apex Court and also of this Court.
i) T.V. Gouda v. State of Mysore and Anr. ILR 1975 KAR 895.
ii) Govind Das v. State of Bihar and Ors. .
iii) Senior Supdt. of Post Offices, Pathananthitta and Ors. v. A. Gopalan AIR 1999 SC 1514.
iv) Secretary, Ministry of Home Affairs and Anr. v. Tahir Ali Khan Tyagi JT 2002 (Suppl. 1) SC 520.
v) Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr.
vi) Thenmozhi (Ms.) v. Chairman and Managing Director of Neyveli Lignite Corporation Office, Neyveli and Anr. 2005 (II) LLJ 499
vii) Allahabad District Co-Operative Bank Ltd., Allahabad v. Vidhya Varidhi Mishara .
6. Placing reliance on the above decisions he submits that the degree of proof required for proving the guilt of an accused in the Criminal Court is totally different from the standard of proof and the nature of evidence that is required to be adduced in a disciplinary enquiry for the purpose of holding the delinquent guilty of the misconduct alleged. Counsel further submits that the charges levelled against the petitioner in the disciplinary enquiry are not identical to the charges for which the petitioner is prosecuted on the criminal side. It is submitted that after the acquittal by the Criminal Court, the accused has participated in the proceedings and as many as 4 witnesses are examined. Placing reliance on the By-partite Settlement, a copy of which is produced at Annexure-R8, he submits that the bank is entitled to proceed against the petitioner even in the face of the order of acquittal by the Criminal Court.
7. Having heard the Learned Counsel appearing for the parties, the only question that arises for consideration in this case is:
Whether the respondent-bank is justified in proceeding with the disciplinary enquiry in the wake of the acquittal of the petitioner by the Criminal Court?
8. Before dealing with the enunciation of law on the point, it is necessary to refer to the findings recorded by the Criminal Court in C.C.No. 499/2002. A perusal of the findings recorded would disclose that on the basis of the evidence adduced before the Magistrate, the Court has come to the conclusion that it was not possible to record a finding that the offence was committed by the accused. That the evidence adduced before the Court was not free from suspicion and that the prosecution failed to prove the guilt of the accused with proper and cogent evidence corroborated by witnesses. It is thus clear that the acquittal is on account of the prosecution failing to provide satisfactory material and evidence to prove the guilt of the accused. It is further necessary to see the nature of the charges for which the disciplinary enquiry is initiated. The article of charges framed do not just confine themselves to the alleged attempt to commit the burglary for which criminal trial took place. Several other charges such as concealing the factum of arrest, detention and the subsequent release on bail of the petitioner, committing acts amounting to nuisance and attempting to commit damage to the property of the bank are the other charges which are not part of the prosecution initiated. The submission of the Learned Counsel for the respondents that the charges framed for which the disciplinary enquiry is held encompass larger field is well founded.
9. The further contention urged by the Learned Counsel for the petitioner that once the petitioner is acquitted by the Criminal Court of the attempted burglary, the bank has no power to proceed in the departmental proceedings in respect of the same charge cannot be accepted in the facts and circumstances of this case particularly because the findings recorded by the Criminal Court disclose that the acquittal was on account of paucity of evidence and failure of the prosecution to prove the charges beyond reasonable doubt. The matter in controversy is no longer res-integra. The Apex Court on innumerable occasions has held that the proceedings in the Criminal Court require high standard of proof beyond reasonable doubt while in the departmental proceedings the standard of proof for proving the charge is preponderance of probabilities. Useful reference can be made to the decisions in this regard of the Apex Court rendered in Govind Das v. State of Bihar and Ors. (Supra). Senior Supdt. of Post Offices, Pathanathitta and Ors. v. A. Gopalan (Supra). and Allahabad District Cooperative Bank Ltd., Allahabad v. Vidhya Varidh Mishra(Supra). Even where the criminal court has honourably acquitted the accused, the Apex Court has held that the initiation and continuation of disciplinary enquiry could be justified in given facts and circumstances. Reliance placed by the petitioner in this regard on the decision rendered by the Apex Court in the case of Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh and Anr. (Supra) is well founded. A full Bench of this Court in the case of T.V. Gouda v. State of Mysore and Anr. (Supra) has held that the scope of enquiry and the nature of evidence required in the criminal trial and for the purpose of establishing the allegations of misconduct in the disciplinary enquiry are totally different and there was no bar for proceeding with the disciplinary enquiry even after the delinquent is acquitted of the charges levelled against him. The enunciation of law by the Apex Court and also by this Court as referred to above would unmistakably show that there is no bar for the bank to proceed with the enquiry in the instant case despite the fact that the Criminal Court has found the accused not guilty. Reliance placed by the counsel for the petitioner on the decision of the Apex Court in M. Paul Anthony's case is not opposite to the facts of the instant case. In this view of the matter, I do not find any merit in the contention urged by the Learned Counsel for the petitioner.
For the foregoing reasons, there is no merit in this writ petition. The same is dismissed with no order as to costs.