Gujarat High Court
Shah Maheshchandra Gulabchand vs Regional Manager (S.D.R.), Bank Of ... on 9 November, 1995
Equivalent citations: (1996)2GLR458
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. By this petition, the petitioner wants this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution to quash, and set aside departmental proceedings initiated against him by the Bank of Baroda, respondent No. 1. A declaration is sought that an action of the respondents in holding inquiry against the petitioner after acquittal by a Criminal Court is illegal, ultra vires and unconstitutional. A prayer is also made to direct the respondents to pay full back wages and to extend all other benefits to the petitioner.
2. The case of the petitioner is that he was serving as a Clerk in the respondent Bank at Udhna Branch. On February 12, 1988, it was noticed that on a previous day, i.e., on February 11, 1988, there was a shortage of Rs. 20,000/-. The petitioner was asked about the short fall of the amount. No complaint was filed immediately but the petitioner was asked to pay the amount. The petitioner made an offer to pay the amount 'under protest' with a view to maintain prestige of the branch in general public. His offer was, however, not accepted and he was placed under suspension. A criminal case was registered against him for offence punishable under Section 409 of Indian Penal Code ("I.P.C." for short), Departmental proceedings were also initiated by issuing charge-sheet on May 17/19, 1988 vide Annexure-A to the petition. It appears that since a criminal case was pending against the petitioner departmental proceedings were kept in abeyance.
3. The Chief Judicial Magistrate, Surat, who tried Criminal Case No. 5867 of 1993, finally by a judgment and order dated January 31,1994 acquitted the accused. After acquittal of the petitioner, departmental proceedings were revived and fresh charge-sheet was issued on May 19, 1994. It is at this stage that the petitioner has approached this Court by filing the present petition under Article 226 of the Constitution of India for quashing of proceedings.
4. Two contentions were raised by Mr. Kapadia, learned Counsel for the petitioner. It was contended that when a competent criminal Court after appreciating evidence on record acquitted the petitioner for the offence with which he was charged, it is not open to the respondent bank to hold departmental inquiry. It was also argued that though a number of persons were connected with the so-called irregularity, only the petitioner has been charge-sheeted but no similar action is taken against other employees. The impugned act is thus arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
4. I do not see any substance in any of the contentions.
5. The first contention that after acquittal in a criminal trial, no departmental action can be taken, cannot be accepted. It is well settled that the two proceedings-departmental and criminal - are entirely different in nature. They operate in different fields and they have different objectives. In a criminal trial, an incriminating statement made by an accused, in certain circumstances or before certain individuals, is totally inadmissible in evidence. In a departmental proceeding, the enquiry officer is not bound by any such technical rule. The degree of proof which is necessary to record an order of conviction is different from the degree of proof which is necessary to record the commission of a delinquency. The rule relating to appreciation of evidence in the two proceedings is also not identical.
6. In view of the above circumstances, the holding of the departmental inquiry after an order of acquittal recorded by a competent criminal Court cannot be said to be illegal, contrary to law or violative of any of the provisions of the Constitution.
7. When a departmental authority investigates into the same facts, it does not purport to sit in judgment over the order of acquittal, just as, when in legal proceedings, a criminal judgment is not binding on a civil Court and if a civil Court investigates into the same facts already investigated into by a criminal Court, there is no breach of any principle of natural justice, similarly when a departmental authority is investigating into a case already decided by a Criminal Court, he does not commit breach of any principle of natural justice. (Vide State of A.P. v. Venkata Rao ; State of A.P. v. Rama Rao ; Railway Board v. Niranjan Singh .
8. In the leading case of Corporation of Nagpur v. Ramchandra Modak , the Hon'ble Supreme Court observed:
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a mater which is to be decided by the department after considering the nature of the findings given by the criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction (discretion) in any way fettered.
9. It is no doubt true that the petitioner was charged for committing an offence punishable under Section 409 I.P.C. and he was acquitted by a criminal Court. But even while acquitting the accused, the Court recorded a finding that amount of Rs. 20,000/- was missing. The subject-matter before criminal Court was whether the petitioner had committed an offence punishable under I.P.C. Now, before a person can be convicted for an offence under Section 409 I.P.C, the prosecution must establish beyond reasonable doubt (i) the factum of entrustment; and (ii) misappropriation of entrusted property. If both the ingredients are not satisfied, no conviction can be recorded against the accused in a criminal trial. Since the requirements were not fulfilled, the petitioner was acquitted. That, however, does not affect departmental proceedings.
10.So far as the charge-sheet in the departmental proceedings is concerned, it is alleged that the petitioner was a cash clerk at Udhna Branch of the respondent Bank between September 4, 1981 and February 25, 1988. On February 11, 1988, there was a short fall of Rs. 20,000/-. It is not in dispute that at the relevant time, the petitioner was working with the respondent Bank at Udhna Branch. A finding is also recorded by a Criminal Court that there was short fall of Rs. 20,000/-. In para 7 of the charge-sheet, it is stated:
It has been, therefore, decided to institute a departmental enquiry. Accordingly, the Bank charges you as under:
(A) You did an act prejudicial to the interest of the Bank. (B) You did an act of gross negligence involving or likely to involve the Bank in a serious loss. (C) You acted in a manner unbecoming of a Bank employee.
11. On October 20,1994, the Regional Manager (SDR), Disciplinary Authority informed the petitioner:
As the charges framed against Mr. M.G. Shah in the C.C. No. 5867 of 1993 for which he has been acquitted by the Hon'ble Chief Judicial Magistrate are altogether different from the charges framed by the Bank in the departmental enquiry initiated and kept in pendency by the Bank, the undersigned Disciplinary Authority after careful consideration of the entire on record has decided to receive the said departmental enquiry proceedings.
12. After referring to two letters of the petitioner, the enquiry Officer addressed a confidential letter to the petitioner on June 8, 1995. In that letter, it was stated:
In this regard, I inform you that all your contention raised in your aforesaid letters have been examined and considered thoroughly by me and advice you that it will be in order on my part to conduct the departmental enquiry against you though you had been acquitted by the Hon'ble Chief judicial Magistrate, Surat on benefit of doubt. Further the charges framed the against you by the Hon'ble Chief judicial Magistrate, Surat in the criminal case was for 'Criminal breach of trust' whereas in the departmental enquire you are charge-sheeted for gross negligence.
The question before a criminal court was not whether the petitioner was negligent or whether his Act was prejudicial to the interest to the respondent-bank or whether he acted in a manner unbecoming of a bank employee but whether the petitioner had committed offence of criminal breach of trust as defined Section 405 I.P.C. Thus, Ambit and scope of departmental inquire is totally different from the proceedings in criminal Court. There is no question of sitting over an order of acquittal recorded by criminal Court.
13. In my opinion, since the two proceeding are distinct as they operate in defferent filed and their objectives are altogether different, an order of acquittal Recorded by a criminal Court cannot always be regarded as binding in departmental oroceedings. Hence, the decision in Abdul Hakim Ahmad v. Dist. Superintendent of police 1978 GLR 210 and Prafulla Chandra Mohapatra v. State of Orissa , cited by Mr. Kapadia do not carry the case of the petitioner any further.
14. In the instant case, while acquitting the accused, the criminal court recorded certain findings, viz., the petitioner was working with the respondent bank: he was in Udhna branch at the relevant time and there was short fall of Rs. 20,000/-.As the essential ingredients of Section 405 I.P.C. could not be proved by the prosecution, the petitioner came to be acquitted in a criminal trial. But the departmental inquiry does not relate to commission of any offence by the respondent but relate to his negligence, doing of an act prejudicial o the bank and/or acting in a manner unbecoming of a bank employee. None of these question was the subject-mater of inquire before a criminal Court cannot be upheld and is rejected.
15. The second contention complaining breach of Article 14 of the constitution of India is equally ill-founded. Firstly, it must be established that other persons against whom actions were not taken by the respondent bank are similarly situated. For such contention, necessary facts and materials have to be placed on record. In absence of averments in the petition and evidence in support of all allegations, there is no factual foundation and such complaint cannot be entertained. Secondly, as per well settled principle of law, Article 14 cannot be pleaded in support of the contention that though the petitioner has violated law, he should not be dealt with in accordance with law unless actions are taken against other persons also.
16. In Lakshman Kumajibhai Barol v. Commissioner of Police, Ahmedabad and Anr. 1979(2) XX (2) GLR 563, the petitioner, Police Sub-Inspector was suspended pending criminal prosecution. He challenged that action inter alia on the ground that the action was discriminatory inasmuch as several other Police Officers who were involved in serious criminal offences were not suspended. The action was thus violative of Article 14 of the Constitution. Repelling the contention, P.D. Desai, J. (as he then was) stated:
It is difficult to comprehend, under such circumstances, how the order of suspension can be challenged on the ground of violation of Article 14 by reference to some other distinct cases of different Police Officers. One more thing. Merely because the authority has failed to suspend a person who ought to have been suspended in the facts and circumstances of one case, it cannot be precluded from exercising the power of suspension in another like case, although suspension might be justified on the facts of that case, by invoking Article 14. One or two or even series of cases where power of suspension ought to have been exercised but has erroneously not been exercised cannot be relied upon in order to claim the protection of Article 14 in a subsequent case where the power might have been reasonably and bona fide exercised on legitimate grounds. That truly is not the sweep of Article 14.
(emphasis supplied)
17. In Ramkrishna Bus Transport v. State of Gujarat and Ors. 1994(2) XXXV (2) GLR 1371, a similar argument was advanced before me by contending that the Regional Transport Authority had taken action against some Bus Operators but similar actions were not taken against other Operators though they had also violated the provisions of law. Negativing the said contention, I observed:
If one Operator is plying his vehicle in violation of statutory provisions, other Operators relying upon Article 14 of the Constitution of India cannot be allowed to commit breach of law. The Court cannot countenance such plea and permit other Operators also to violate law by invoking equality clause enshrined in Article 14 of the Constitution. That is not the sweep of Article 14.
(emphasis supplied)
18. In my opinion, therefore, it is not open to the petitioner to invoke provisions of Article 14 of the Constitution and to contend that no action can be taken against him. The second contention, therefore, also fails.
19. Finally, I am of the opinion that the present petition requires to be dismissed also on the ground of being premature. No punitive action is taken against the petitioner so far. In Channan Singh v. Registrar, Co-operative Societies AIR 1976 SC 1871, the Hon'ble Supreme Court held that when no punitive action is taken, ordinarily in exercise of extraordinary powers under Article 226 of the Constitution, a High Court should not entertain petition. In that case, inquiry was sought to be reopened after proceedings were terminated in favour of the petitioner. It was contended that the proceedings could not be re-opened after they were finalised. The Supreme Court held that no petition could be entertained at that stage. It would be open to the petitioner to take all the contentions including that of the jurisdiction of authority to reopen inquiry and the authority would pass appropriate order in accordance with law.
20. In the instant case, in my view, there is prima facie case against the petitioner. The allegations in the charge-sheet are different from the allegations made against him in criminal case. They have nothing to do with an order of acquittal recorded by Criminal Court. In my considered opinion, therefore, the petitioner cannot invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution at this stage. Hence, the petition is liable to be dismissed.
21. For the foregoing reasons, I do not find any substance in any of the contentions raised by the learned Counsel for the petitioner and the petition requires to be dismissed and is accordingly dismissed. I may, however, clarify that all the observations made by me hereinabove are made only for disposing of this petition and as and when the inquiry will be conducted against the petitioner, the authorities will pass an appropriate order on merits in accordance with law.
Petition is summarily dismissed.