Madhya Pradesh High Court
Shreechand Saraiya vs Central M.P. Gramin Bank on 5 January, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5th OF JANUARY, 2023
WRIT PETITION No. 11765 of 2012
BETWEEN:-
SHREECHAND SARAIYA S/O SHRI SOHANE SINGH SARAIYA, AGED
ABOUT 57 YEARS, PURANI DINDORI, JURKI TOLA, AWAS WARD NO.14
DINDORI (MADHYA PRADESH)
.....PETITIONER
(SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI RAHUL
CHOUBEY - ADVOCATE)
AND
SATPURA NARBADA KSHETRIYA GRAMIN BANK (AJOINT
1. UNDERTAKING OF GOVERNMENT OF INDIA) M.P.GOVERNMENT
AND CENTRAL BANK, HEAD OFFICE, 800/19 SOUTH CIVIL LINES,
CHHINDWARA TH:ITS CHAIRMAN (MADHYA PRADESH)
2. REGIONAL MANAGER SATPURA NARBADA KSHETRIYA GRAMIN
BANK REGIONAL OFFICE MANDLA (MADHYA PRADESH)
MADHYA PRADESH GRAMIN BANK REGIONAL RURAL BANK
3.
(UNDER THE SPONSORSHIP OF BANK OF INDIA) THROUGH ITS
CHAIRMAN HEAD OFFICE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHISH SHROTI - ADVOCATE)
2
WRIT PETITION No. 18409 of 2012
BETWEEN:-
SHREECHAND SARAIYA S/O SOHANE SINGH SARAIYA, AGED ABOUT
57 YEARS, R/O PURANI DINDORI TURKI TOLA AWASWARD NO. 14
DINDORI M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI
RAHUL CHOUBEY - ADVOCATE)
AND
CENTRAL M.P. GRAMIN BANK THROUGH: ITS OFFICER ON
1. SEPCIAL DUTY HEAD OFFICE AT CHHINDWARA (MADHYA
PRADESH)
SHRI P.K. GUPTA OCCUPATION: OFFICER OF SPECIAL DUTY
2.
CENJTRAL GRAMIN BANK HEAD OFFICE (MADHYA PRADESH)
MADHYA PRADESH GRAMIN BANK REGIONAL RURAL BANK
3. (UNDER THE SPONSORSHIP OF BANK OF INDIA) THROUGH ITS
CHAIRMAN HEAD OFFICE INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHISH SHROTI - ADVOCATE)
These petitions coming on for hearing this day, the court passed
the following:
ORDER
1. These writ petitions are filed respectively being aggrieved of decision of the respondents to not release annual increments for the period with effect from 2005 and the chargesheet issued on 6/10/2012.
2. Petitioner's case is that there was no disciplinary enquiry against the petitioner nor any penalty in the nature of withholding of any annual 3 increment was passed, therefore, arbitrarily, respondents chose not to release the annual increments, merely because petitioner was facing criminal prosecution for offences registered against him under Sections 418 and 420 of I.P.C. while he was functioning as a 'Branch Manager' of Satpura Narbada Kshetriya Gramin Bank, Samnapur.
3. It is submitted that petitioner was placed under suspension on 17/09/2005. Later on, vide order dated 23/11/2007, suspension was revoked. Thereafter, petitioner was exonerated in the criminal case in ST No. 1009/08 on 10/09/2008 but respondents despite the fact that petitioner was exonerated in the criminal case did not release the annual increments for the period with effect from 2005 till the date of filing of the writ petition.
4. In the second petition, petitioner's grievance is that respondents had issued memo of chargesheet dated 6/10/2012. It is submitted that respondent no. 2 was working as Officer on Special duty and with effect from 8/10/2012, there was amalgamation of Satpura Narbada Kshetriya Gramin Bank and a new entity being the Central MP Gramin Bank came into effect, therefore, allegation is that a chargesheet was antedated by the authority who was later on posted as Officer on Special Duty in Central MP Gramin Bank, therefore, said chargesheet is nonest in the eyes of law and a prayer is made seeking quashing of the 4 chargesheet Annexure P-1 and the entire action intended to be taken thereon.
5. Learned senior counsel for the petitioner Smt. Shobha Menon submits that disciplinary proceedings start with issuance of chargesheet and not with issuance of a show-cause notice as is the ratio of law laid down by the Supreme Court in Union of India, etc. etc., Vs. K.V. Jankiraman, etc. etc. AIR 1991 SC 2010.
6. Placing reliance on this judgment, it is submitted that since chargesheet was issued in 2012, no disciplinary proceedings was pending prior to that, therefore, as per para 6 of the judgment of the Supreme Court in K.V. Jankiraman (supra), disciplinary/criminal proceedings can be said to have commenced only after charge- memo/chargesheet was issued for adopting a procedure of sealed cover.
7. Accordingly, it is submitted that delay in issuance of a chargesheet is not condonable and the chargesheet be quashed as per the law laid down by the Supreme Court in P.V. Mahadevan Vs. MD, T.N. Housing Board (2005) 6 SCC 636.
8. Shri Ashish Shroti in his turn submits that a chargesheet was issued prior to amalgamation, therefore, in terms of the regulation 39 applicable to the Bank employees of the relevant service regulations, since, chargesheet was issued by the competent authority namely the 5 disciplinary authority, therefore, there is no illegality in the impugned chargesheet calling for quashing on the ground of lack of authority or being antedated.
9. At this stage, Smt. Shobha Menon submits that as per the envelope Annexure P-4 available on record, a chargesheet was dispatched on 12/10/2012, therefore, it was antedated.
10. Shri Ashish Shroti places reliance on the judgment of the Supreme Court in P.V. Shrinivas Sastry and others Vs. Controller and Auditor General and others (1993) 1 SCC 419 to submit that a departmental enquiry can be initiated by any authority superior to the delinquent and in the present case, though, chargesheet is not antedated but even O.S.D. being superior to the petitioner will not vitiate a chargesheet as held by the Supreme Court that Article 311(1) does not say that the departmental proceeding must be initiated only by the Appointing Authority.
11. After hearing learned counsel for the parties and going through the record, it is evident that two claims have been putforth by the petitioner namely suspension on 17/09/2005 and its revocation on 23/11/2007 are not sufficient circumstances to withhold the increments during the pendency of period of suspension or criminal case in which eventually, petitioner was exonerated vide order dated 10/09/2008 6 because order of suspension has been passed only on the ground of petitioner being taken in judicial custody which according to the Regional Rural Bank (Officers and Employees) Service Regulation 2000, Regulation 29(1) makes a provision for deemed suspension.
12. Another aspect which is to be seen and which has been putforth by learned counsel for the parties that whether an undertaking furnished by the petitioner at the time of revocation of suspension on 23/11/2007 that his claims will be subject to outcome of the criminal case and the proposed departmental enquiry, if any, will be binding on the petitioner or not ?
13. The third issue is that whether chargesheet issued on 6/10/2012 will be considered nonest on the allegations of the petitioner that it is antedated inasmuch as on 8/10/2012, merger and amalgamation of Satpura Narbada Kshetriya Gramin Bank had taken place and a new entity Central MP Gramin Bank came into existence.
14. The fourth issue is that whether issuance of a show-cause notice which was issued on 13/08/2008 and which was replied to on 22/09/2008 will be the relevant date for the purposes of initiation of departmental enquiry or the relevant date will be the date on which the chargesheet was issued on 6/10/2012.
15. As far as issue of release of increment is concerned, the first 7 requirement is to understand as to when an employee becomes entitled to release of increment. The increment is a reward for satisfactory services for the preceding one year as increments take effect from the anniversary of the date of appointment.
16. Thus, it is evident that increments are earned on the basis of past services rendered by an employee. If a departmental enquiry is pending or contemplated, inquiring into the conduct of an employee, as to whether he is entitled to release of increments earned, then a decision to release such increment will be subject to satisfaction of the authorities and outcome of the said departmental enquiry.
17. In the present case, in W.P. No. 18409/2012, whereby petitioner has challenged the issuance of a chargesheet dated 6/10/2012, two charges have been levelled on the petitioner namely :-
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18. Thus, it is evident that charges are of serious financial irregularity which is subject matter of enquiry. Due to stay on the proceedings in the departmental enquiry vide order dated 2/11/2012, enquiry could yet not be completed.
19. Since, there is stay in the enquiry, petitioner's claim that he was placed under suspension and then suspension was revoked on an undertaking and thereafter, petitioner was exonerated in the criminal case on 10/09/2008, that precludes the authorities from conducting departmental enquiry is contrary to the law laid down by the Supreme Court in Nelson Motis Vs. Union of India and another AIR 1992 SC 1981, wherein it is held in absolute terms that irrespective of the acquittal of the appellant, the disciplinary proceedings could have been continued or initiated.
20. Infact, the Full Bench of the Orissa High Court in Jayaram 10 Panda Vs. D.V. Raiyani and others (1990) II LLJ 186 (Orissa) has held that even if the delinquent secures acquittal in a criminal case, discretion is left with the authorities and if in the facts and circumstances of the case, the authorities feel that notwithstanding the acquittal, a departmental enquiry is expedient, the court should not ordinarily interfere.
21. Similarly, in the case of Chief Regional Manager State Bank of India Vs. S. Eswara Rao (1995) II LLJ 874 (A.P.) (D.B.), it is held that there are differing objects of holding a departmental enquiry and criminal prosecution.
22. Thus, decision of the authorities to initiate departmental enquiry cannot be criticized or set aside, merely because petitioner was acquitted in a criminal case.
23. It is urged that the delay in proceedings will be fatal for the prosecution but fact of the matter is that mere delay in issuance of a chargesheet for which show-cause notice was already issued on 13/08/2008 will not be fatal, inasmuch as the judgment rendered in P.V. Mahadevan (supra) and relied by the petitioner is distinguishable on facts of the case.
24. In that case, there was inordinate delay of ten years in initiating departmental enquiry. Petitioner therein was subjected to issuance of a 11 chargesheet in the year 2000 for the irregularity committed by him in the year 1990.
25. In the present case, petitioner secured exoneration on 10/09/2008. Thereafter, a chargesheet was issued. Therefore, issuance of a chargesheet for which show-cause notice was issued in August, 2008 and reply was filed in September, 2008 cannot be said to be arbitrary and illegal specially looking to the fact that there are serious allegations of financial irregularity touching upon the functioning of the Bank as a financial institution.
26. It is true that for the purposes of adopting a sealed cover procedure, relevant date is the date of issuance of the chargesheet but in the present case, for the purposes of determining the entitlement for release of increments, relevant date is not the date of issuance of the chargesheet specially when there is an undertaking of an employee/petitioner and there is a specific mention of this fact in the order of revocation of suspension that period of suspension shall be regularized in terms of Regulation 46 subject to the outcome of the pending court case and departmental proceedings. Therefore, the first petition (W.P. No. 11765/2012) seeking release of increments and difference of arrears of salary is subject to the outcome of the disciplinary proceedings which are still pending, therefore, petitioner is 12 not entitled to claim any relief of release of difference of arrears of salary for the period of suspension with interest, inasmuch as, it will be determined on the outcome of the departmental enquiry and, therefore, he will have to wait and cooperate with the departmental authorities to seek early conclusion of the departmental enquiry subject to outcome of which the petitioner's period of suspension will be regularized.
27. Therefore, the first petition (W.P. No. 11765/2012) deserves to be dismissed and is dismissed with an observation that dismissal of the petition will not prejudice the departmental authorities and on conclusion of the departmental enquiry and subject to its outcome, petitioner's claim for regularization of the period of suspension and consequential benefits will be decided by the authorities.
28. The quashing of chargesheet is sought on two grounds namely it is antedated and secondly that there is a delay in initiating disciplinary proceedings.
29. As far as delay is concerned, it is held by Madras High Court in G. Anandam Vs. Tamilnadu Electricity Board and another (1996) II LLJ 1198 Madras that mere delay alone is not sufficient to vitiate disciplinary proceedings. It is necessary for the delinquent employee to show some prejudice caused to him on account of delay.
30. The Supreme Court in case of Secretary to Government, 13 Prohibition and Excise Department Vs. L. Srinivasan (1996) 3 SCC 157 has held that where a chargesheet has been issued and a departmental enquiry is in process, it will be erroneous to set aside the enquiry and quash the chargesheet on the ground of delay in initiation of the proceedings having regard to the nature of the charges namely embezzlement and fabrication of false record which will be liable to take a long time to detect and which should be done in secrecy.
31. In Bharat Coking Coal Limited Vs. Bibhuti Kumar Singh and others 1994 Supp (3) SCC 628, it is held that if there is no any inordinate delay, then the disciplinary proceedings should be permitted to continue particularly when the delinquent is not under suspension.
32. In the case of Deputy Registrar, Cooperative Societies Vs. Sachindra Nath Pandey and others (1995) 3 SCC 134, it is held that where the complaint is of delay, the court is required to consider whether the charges are of serious nature or not ?
33. It is a settled principle of law that the parameters of applicability of rules of evidence to a criminal case and to a departmental proceedings are different. Therefore, mere acquittal in a criminal case is not sufficient to curb the right of the authorities to conduct a departmental enquiry.
34. In view of such settled legal position, once the disciplinary 14 proceedings are initiated by issuance of a chargesheet, the court should be slow to interfere in such departmental proceedings initiated with an object to discover the truth in the allegation of the charges. The judicial review has limited application.
35. In the case of State of Andhra Pradesh and others Vs. S. Sree Rama Rao AIR 1963 SC 1723 so also in the case of B.C. Chaturvedi Vs. Union of India and others (1995) 6 SCC 749 and in the case of High Court of Judicature at Bombay Vs. Shashikant S. Patil and another (2000) 1 SCC 416, it is held that the grounds of judicial review are if violation of principles of natural justice is established or proceedings are shown to be in violation of statutory regulations or a decision to initiate a departmental enquiry is shown to be vitiated by considerations extraneous to the evidence and if the conclusion made by the authority is ex facie arbitrary or capricious that no reasonable person could have arrived at such conclusion, then only power to judicial review should be exercised and not otherwise. When tested on these grounds, none of these grounds are made out by the petitioner.
36. As far as issue of communication of chargesheet is concerned, in Delhi Development Authority Vs. H.C. Khurana AIR 1993 SC 1488 and in State of M.P. Vs. L.P. Tiwari AIR 1994 SC 2175, it is held that a chargesheet is issued once a decision to initiate disciplinary 15 proceedings is taken.
37. "The issue" of the chargesheet in the context of a decision taken to initiate a disciplinary proceeding means the framing of the chargesheet and taking of the necessary action to dispatch the chargesheet to the employee. It does not comprehend the further effect of service of the chargesheet on the employee.
38. Thus, in the light of the decision of the Supreme Court in H.C. Khurana (supra), once the chargesheet is framed and dispatched, it cannot be said to be antedated.
39. The chargesheet was prepared on 6/10/2012 and was forwarded to the concerned Branch Manager, Dindori on 6/10/2012, therefore, it cannot be said that there was any delay in dispatch of the chargesheet, vitiating the chargesheet on face of it.
40. Thus, once the charges are formulated and put into motion prior to 8/10/2012, then it cannot be said that chargesheet has been antedated unless cogent material is produced by the petitioner on record to show it otherwise.
41. Therefore, in view of the law laid down by the Supreme Court in the case of S. Sree Rama Rao (supra), B.C. Chaturvedi (supra) and Shashikant S. Patil (supra), there being a limited scope of judicial review and none of the grounds of judicial review are made out, I do not 16 find it to be a fit case to show indulgence in the matter to quash the chargesheet.
42. Thus, the second petition (W.P. No. 18409/2012) too fails and is dismissed.
(VIVEK AGARWAL) JUDGE vy/-
VAIBHAV YEOLEKAR 2023.01.12 17:23:49 +05'30'