Madhya Pradesh High Court
Shyam Bali Singh Kushwaha vs Vijaya Bank Thr. on 30 September, 2024
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2024:MPHC-GWL:17289
1 WP-24976-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 30th OF SEPTEMBER, 2024
WRIT PETITION No. 24976 of 2018
SHYAM BALI SINGH KUSHWAHA
Versus
VIJAYA BANK THR. AND OTHERS
Appearance:
Shri Bhanu Prakash Singh, Advocate for the petitioner.
Shri Suresh Agrawal, Advocate for respondents.
ORDER
With the consent of both the parties, matter is heard finally.
2. Petitioner has preferred this writ petition under Article 226 of the Constitution of India seeking following reliefs:-
(i) That, the impugned orders dated 28.9.2018 & 14.3.2018, Annexure P-1 and P-2 may kindly be declared as illegal and the same may kindly be quashed.
(ii) That, a direction may kindly be given to the respondents to reinstate the petitioner with consequential benefits.
(iii) Any other relief, which this Hon'ble Court may deem fit and proper may also be given to the petitioner along with costs.
Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AMNEUTRAL CITATION NO. 2024:MPHC-GWL:17289 2 WP-24976-2018
3. Brief facts of the case are that the petitioner was recruited in Indian Army as a Constable and served in Srilanka and Bhutan also. He was retired from Indian Army in Jan., 2003 and in the year 2007, he has been selected as an Armed Guard in Vijaya Bank respondent No. 1 . Charge-sheet has been committed against the petitioner of a grave misconduct by shooting on the Branch Manager with service gun inside the cabin of Branch Manager on 06.04.2007 and petitioner has been suspended vide order dated 06.04.2017 (Annexure P-4). Charge-sheet has been issued and enquiry officer and presenting officer were also appointed on the same day. After conducting the enquiry, enquiry report was submitted and by the impugned order dated 14.03.2018, petitioner has been removed from the service. On the same charges, petitioner has been prosecuted but vide judgement dated 16.07.2018 passed in Sessions Trial No.391/2017 by the Third Additional Sessions Judge, Gwalior, he has been acquitted for the offence under Section 307 of IPC and High Court has also decided W.P. No.11594/2018 filed by the petitioner with direction to the Appellate Authority to consider and decide the appeal within a period of 30 days. The Appellate Authority has dismissed the departmental appeal filed by the petitioner. Being aggrieved by the aforesaid, petitioner has preferred this petition.
4. Learned counsel for the petitioner contended that as per bipartite settlement dated 10.04.2002, final order in Departmental Enquiry shall be passed after due consideration of all the relevant facts Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 3 WP-24976-2018 and circumstances. In the instant matter, Disciplinary Authority without waiting for reply of the charge-sheet has appointed the Inquiry Officer and Presenting Officer on the same day. Disciplinary Authority and Inquiry Officer function as quasi judicial authority and they are expected to follow the mandates of the law and principle of natural justice. Complainant Branch Manager and eyewitness Saurav Shukla turned hostile in their statements recorded before the Trial Court, which was not considered by the Appellate Authority. No eyewitness has been examined by the Inquiry Officer. Order of termination passed by the respondent is illegal and also beyond jurisdiction, hence, the same deserves to be set aside.
5. Per contra, learned counsel for the respondent opposes the prayer and prayed for its rejection by submitting in their reply that after giving full opportunity of hearing and following due process of law, impugned orders have been passed by the competent authority. Criminal proceedings and Disciplinary Enquiry are having separate mode, hence, only on the basis of acquittal from the criminal charge-sheet, petitioner is not entitled for any relief. Respondent has duly considered the aspect that petitioner has been acquitted from the criminal charges. Charges framed against the petitioners are serious. Petitioner was deployed for the safety of the Bank Officer and the Bank, who himself fired to the Branch Head by his service gun, which is very shameful and grievous act. He has been acquitted by the Criminal Court by giving benefit of Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 4 WP-24976-2018 doubt. The scope of judicial review in disciplinary action is very limited. Petitioner has committed grave misconduct. Hence, counsel for the respondents prays that this petition deserves to be dismissed.
6. Both the parties heard at length and perused the entire record with due care.
7. Petitioner's first contention is that he has been acquitted by the Competent Court after full trial and judgment passed by Competent Court has attained its finality, therefore, the judgment of Competent Court is binding upon the respondents while conducting the Departmental Enquiry against petitioner on the same charges.
8. Hon'ble Apex Court in the case of M. Paul Anthony vs. Bharat Gold Mines Ltd reported in (1999) 3 SCC 679 elucidated the following principles in dealing with departmental and criminal proceedings simultaneously:
a. No bar exits on both proceedings continuing simultaneously, though in an appropriate, separate forum.
b. If said proceedings are on identical/similar facts and if the charges levied against the delinquent employee are of a serious nature, then it would be desirable if the departmental proceedings are stayed till the conclusion of the other.
c. The nature of the charge or the involvement of complex questions of law and fact depends on the facts and circumstances of each case, i.e., the offence, nature of the case launched, evidence Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 5 WP-24976-2018 and material collected.
d. Sole consideration of the above-mentioned factors cannot be the reason to stay the departmental proceedings.
e. It must be remembered that departmental proceedings cannot be unduly and unjustly delayed.
f. If the criminal proceedings are delayed, the other, having been stayed on account thereof, may be resumed to conclude the same at the earliest. This may result in two possibilities: either the vindication of the position of the delinquent employee or he being found guilty, enabling the department concern to show him out the door.
9. The view taken in M. Paul Anthony (supra) was referred to by this Court in Karnataka Power Transmission Corporation Ltd. vs. C. Nagaraju reported in (2019) 10 SCC 367 and later on in the case of State Bank of India & Ors. vs. P. Zadenga by judgment dated 3.10.2023 passed in Civil Appeal No.2518/2012.
10. Hon'ble Apex Court in the case of State of Uttar Pradesh and others VS. Saroj Kumar Sinha reported in (2010) 2 SCC 772 has held as under:-
"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 6 WP-24976-2018 evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, the same could not have been taken into consideration to conclude that the charges have been proved against the respondents.
Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in a punishment being imposed on the employee."
11. In the instant case, the petitioner has been suspended from his services with immediate effect on 06.04.2017 (Annexure P-4). Shri Vinod Kumar Gupta, Assistant Manager, Regional Office, Bhopal was assigned the duty to investigate the matter and the said official, without recording any statement of the eyewitnesses of the incident, such as, Assistant Manager Shri K.C. Saburaj, Assistant Manager Shri Saurav Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 7 WP-24976-2018 Shukla, Customer Shri Mahendra Jain, Customer Shri Achal Vajpai and Shri Jagdish Singh Kushwaha, completed the preliminary enquiry, recorded the statement of the available staff members on 22.06.2017 and completed the enquiry within a short period. It is pertinent to note that entire investigation process has been done behind the back of the petitioner and from perusal of the statements of Mahesh Barar, Piyush, Manish Agrawal, Baladutt Joshi, Shobhna Yadav, it is clear that aforesaid witnesses have not seen the incident and they have heard only noise of the gun. On the basis of aforesaid, Preliminary Enquiry conducted by Shri Vijay Kumar Gupta appears to be biased and principle of natural justice was not followed in the instant matter.
12. Petitioner's education is very limited. He passed only 8th Class and he does not have knowledge of English language but the charge- sheet has been issued in English language and despite his request, respondent has not provided him any document in Hindi language and the Disciplinary Authority without waiting for the reply of the charge- sheet, has issued letter dated 05.12.2017 appointing the Presenting Officer and Inquiry Officer on the same day. Inquiry Officer without giving any opportunity of hearing to the petitioner and without following due procedure for enquiry laid down in bipartite settlement dated 10.04.2002 has concluded the enquiry and submitted the report against the petitioner that charges have been found proved against him and on the basis of the aforesaid report, petitioner has been dismissed from his Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 8 WP-24976-2018 services.
13. From perusal of all these procedures, it appears that Departmental Enquiry has been conducted against the petitioner in very casual manner. Statements of the eyewitnesses were not recorded by the disciplinary authority including the complainant Branch Manager Ganesh Mishra and eyewitness Saurav Shukla. All eyewitnesses who has been examined before the Sessions Court have turned hostile and on the basis of their statements, petitioner has been acquitted in the Sessions Trial, therefore, it appears that enquiry proceedings did not conduct against the petitioner with an open mind and the Inquiry Officer was wholly biased against him. The principle of the natural justice was not duly followed in the instant matter.
14. It is evident that the petitioner has been acquitted in the Sessions Trial for the offence under Section 307 of IPC vide judgment dated 16.07.2018 passed by Third Additional Sessions Judge, Gwalior in Sessions Trial No.391/2017. The concerned Sessions Court has acquitted the petitioner after framing the charges and recording the statements of the witnesses adduced by both the parties, therefore, the findings given by the Sessions Court cannot be ignored, but the respondents have done only mere formalities for conducting the Preliminary Enquiry and Departmental Enquiry against the petitioner. Without recording the statements of the complainant and other eyewitnesses, charges have been proved against the petitioner despite there is no direct or indirect Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 9 WP-24976-2018 evidence available against the petitioner in respect of the aforesaid charges. Therefore, in view of the judgment passed by the learned Sessions Court, enquiry conducted by the respondent against the petitioner does not appears to be just and proper.
15. It is remarkable that the petitioner was served in Indian Army and during service of the Indian Army, he was served in Srilanka during the period of LTTE problem in 1987 and thereafter he was remained in Bhutan for a period of one year in 1989 and after getting retirement from Indian Army, he has been appointed by the Selection Committee of Vijaya Bank on the post of Armed Guard and thereafter he has been served 10 years in the aforesaid Bank and nothing has been proved by the respondent that working period of 17 years of the petitioner in Indian Army and 10 years in Vijaya Bank was unsatisfactory and blemished.
16. In view of the aforesaid, the order of termination dated 14.03.2018 (Annexure P-2) is unsustainable in the eyes of law being stigmatic and not proceeded by affording the reasonable opportunities. Consequently, the same is hereby quashed.
17. It is noteworthy that the petitioner has been acquitted by the Sessions Court by giving the benefit of doubt, but he had not worked during his suspension period, therefore, on the basis of principle "No Work No Pay", he is not entitled for any pay or allowances for the aforesaid period. Further, the petitioner's age is more than 57 years, therefore, looking to his old age, he is not entitled for reinstatement in Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:17289 10 WP-24976-2018 his services with the respondents.
18. With aforesaid directions, the petition stands disposed of.
(ANIL VERMA) JUDGE Abhi Signature Not Verified Signed by: ABHISHEK CHATURVEDI Signing time: 04-10-2024 10:57:45 AM