Orissa High Court
Baladev Panda vs Chairman State Bank Of India on 30 August, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.18797 of 2009
In the matter of applications under Article 226 and 227 of the Constitution
of India.
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Baladev Panda ...... Petitioner
- Versus-
Chairman, State Bank of India ....... Opposite Parties
Counsel for Petitioner :M/s. Pitambar Acharya, B. Bhadra, S. Rath, P.
Pattnaik, B. K. jena and S. Rout.
Counsel for Opp.Parties :M/s. S. patra, P. K. Mohapatra, S. J. Mohanty, D.
Sahu and Mr. D. K. Mishra.
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment: 30.08.2017
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S. N. Prasad, J.The petitioner has approached this court under Article 226 and 227 of the Constitution of India for quashing the order dtd.14.5.2008 passed by the General Manager (Network-I) and Disciplinary Authority whereby and where under in terms of provision of Rule 67(j) of SBIOSR, 1992, the petitioner has been inflicted with the punishment of dismissal from service and the period of suspension will be held as such, i.e. not on duty and the order dtd.17.9.2008 passed by the Chief General Manager and Appellate Authority whereby and where under the appeal has been dismissed. 2
2. The case of the petitioner is that he was working as officer Junior Management Grade Scale-I and during his incumbency as Asst. Manger (Advances) at Buxi Bazar Branch, has been departmentally proceeded for an allegation of irregularities and fraudulent withdrawal of rupees to the tune of Rs.25.92 lakhs from his two overdraft accounts bearing Nos.10546443595 and 10546443607, as such he has been held not fit to be an officer and the same is prejudicial to the interest of the Bank since he has failed to discharge his duty with utmost integrity, honesty, devotion and diligence which contravene the provision of Rule, 50(4) of the State Bank of India Officers Service Rules, 1992 governing his service in the Bank.
The petitioner has participated in the departmental inquiry wherein he has admitted his guilt and shown the reason of doing the irregularities as also deposited the said amount in the bank but the inquiry officer has found the charges leveled against him as proved which has been accepted by the disciplinary authority and after following due procedure as provided under the Rule, has inflicted upon him the punishment of dismissal from service as also not to treat the period of suspension on duty. The petitioner has approached the appellate authority and the appellate authority, while rejecting the appeal, has confirmed the order passed by the disciplinary authority.
3. The case of the petitioner is that along with the departmental proceeding a G.R. case was also instituted against him U/s.409 of the Indian Penal Code ( in short 'IPC') for committing criminal breach of trust, U/s.420 of 3 the IPC for committing cheating and U/s.13(1)(c) of Prevention of Corruption Act for committing dishonest misappropriation of amount to the tune of Rs.26 lakhs approximately from the State bank of India and U/s.13(1)(d of the Prevention of Corruption Act read with section 13(2) of the said Act in which the petitioner has been acquitted by the trial court vide judgment pronounced in this regard on 21.12.2012 in TR case No.31 of 2007 arising out of RC case No.23-A of 2006.
4. Learned Sr. Counsel representing the petitioner has submitted that after acquittal in the criminal case which is based upon the same set of facts and evidence, hence the order of dismissal needs interference by this court on the principle that if the criminal case and the departmental proceeding are based upon same set of facts and evidence, the outcome of the criminal case will govern the departmental proceeding.
He submits by putting reliance upon the judgment rendered by the trial court in the criminal case that the evidence led by the prosecution, i.e. P.W.7, P.W.10 and P.W.13 who have not supported the case of the prosecution, as such the petitioner has been acquitted from the criminal charges which is the honourable acquittal, as such continuance of the petitioner under the order of dismissal is illegal and the dismissal order needs review by this court.
In support of his argument he relied upon the judgment rendered by Hon'ble Apex Court in the case of M. Paul Anthony Vrs. Bharat Gold 4 Mines Ltd. and Another, reported in (1999) 3 SCC 679, G.M. Tank Vrs. State of Gujarat and Others, reported in (2006) 5 SCC 446 and S. Bhaskar Reddy and Another Vrs. Superintendent of Police and Another, reported in (2015) 2 SCC 365 wherein, according to the learned Senior Counsel, on the similar facts and circumstances basis of the judgment of acquittal passed by the trial court, the order of reinstatement has been passed against the delinquent employees. Since the fact of the case in hand is exactly similar, the petitioner deserves to get the same relief.
5. Per Contra learned counsel for Opposite Party - Bank has vehemently opposed the prayer of the petitioner, while arguing, he submits that it is a case wherein the petitioner has admitted his guilt. He submits that the petitioner has mis-utilized his official position by taking out rupees 26 lakhs from the bank which is the public money, as such the same is gross irregularity.
He further submits that the petitioner being a banker is supposed to act with utmost sincerity and honesty and it is settled that the bankers are treated to be a separate class of public servant in comparison to the public servant working under the other establishment since the bankers are dealing with the public money.
He submits that the petitioner has been allowed to participate in the enquiry by providing all opportunity of hearing wherein the disciplinary authority, after accepting the enquiry report, has inflicted him with the 5 punishment of dismissal from service which has been affirmed by the appellate authority.
So far as the contention of recalling the order of dismissal on the ground of his acquittal in the criminal case, he submits that the judgment rendered by the trial court is not an honourable acquittal rather the acquittal is purely technical. By referring to the content of the judgment he submitted that the judgment of acquittal has been passed mainly on the ground that since the amount has been recovered from the accused and there is delay in instituting the FIR, but that does not mean that the part of irregularity which has been committed by him will be said to be rectified.
He relied upon the judgments rendered by Hon'ble Apex Court in the cases of Avinash Sadashiv Bhosale (dead) through LRs. Vrs. Union of India and Others, reported in (2012) 13 SCC 142, Deputy Inspector General of Police and Another Vrs. S. Samuthiram, reported in (2013) 1 SCC 598, Commissioner of Police, New Delhi and Another Vrs. Meher Singh, reported in (2013) 7 SCC 685, General Manager (Operations) State Bank of India and Another Vrs. R. Periyasamy, reported in (2015) 3 SCC 101 and Union of India and Another Vrs. Purushottam, reported in (2015) 3 SCC 779.
6. Heard the learned counsels for the parties and perused the documents available on record.
6
The fact which is not in dispute in this case is that the petitioner has been proceeded departmentally for an allegation of commission of irregularities while working as officer in Junior Management Grade-I under opposite party - bank wherein he has fraudulently withdrawn Rs.25.92 lakhs from two over draft accounts in core banking system, as such this action has been considered to be failing in discharging his duties with utmost integrity, honest, devotion and diligence and thereby contravene the Rule 50(4) of the SBI Officers Service Rules, 1992 governing his service in the bank. The petitioner has admitted his guilt by saying that it is due to urgent need of money this has been done which amount has subsequently been deposited in the bank account. The inquiry officer, on the admission of the allegation by the petitioner, supported by relevant documents, has found the charge proved. The disciplinary authority, after appreciating the finding of the enquiry report, has issued second show cause notice along with copy of the inquiry report asking the petitioner to submit response and thereafter the petitioner has been inflicted with the punishment of dismissal by the disciplinary authority vide order passed in this regard on 14th May, 2008 which has been assailed by the petitioner before the appellate authority who has also affirmed the view of the disciplinary / appointing authority.
The order passed by the appellate authority is dtd.17.9.2008. The petitioner has assailed the order of the disciplinary authority by filing this writ petition on the ground of his acquittal in the criminal case since for the same set of charges and evidence a separate criminal case has been instituted 7 in which the petitioner has been acquitted by the judgment pronounced in this regard by the trial court on 21.12.2012.
The sole contention of the learned Sr. Counsel representing the petitioner that since the criminal case is based upon the same set of facts, allegations and evidence for which disciplinary proceeding has been initiated and since he has been acquitted by the competent court of criminal jurisdiction in the criminal case, as such the order of dismissal needs to be reviewed by recalling it.
Both the parties have relied upon judgments in support of their contention. This court has thought it proper to examine the judgments relied upon by the parties.
7. The petitioner has relied upon the judgment rendered in the case of M. Paul Anthoney Vrs. Bharat Gold Mines Ltd. (supra) wherein the Hon'ble Apex Court, after taking into consideration the fact that the same witnesses were examined in the criminal case and the criminal court, on consideration of entire evidence, came to the conclusion that no search was conducted nor any recovery was made from the residence of the appellant of the said case and therefore the appellant was acquitted and accordingly the Hon'ble Apex Court taking into consideration both the proceeding based upon the same facts and evidence without their being any iota of difference, distinction, as such instead of remitting the matter before the disciplinary authority for initiating a fresh proceeding since the proceeding was concluded 8 ex parte, the Hon'ble Apex Court has taken a view to reinstate the petitioner in service considering the fact that the appellant was undergoing the agony since 1985 despite having been acquitted by the criminal court in the year 1987. In the said case allegation leveled against the appellant was that raid was conducted at the appellant's residence but in course of conducting raid no incriminating material has been found by the raiding party, as such he has been acquitted by considering the cases on merit, as such it is honourable acquittal by the competent court of criminal jurisdiction in which prosecution has failed to prove the charge beyond all reasonable doubt.
The judgment rendered in the case of G. M. Tank (supra) is further been relied upon by the learned counsel for the petitioner, the said judgment has been passed with respect to the allegation of possessing properties which were alleged to be disproportionate to his known source of income and for that a departmental proceeding as well as criminal proceeding had been initiated against him. The appellant of the said case has been acquitted in the criminal case since the prosecuting agency failed to prove the charge beyond all reasonable doubt, as such the acquittal by the criminal court has been treated to be honourable, taking into consideration that aspect of the matter, the Hon'ble Apex Court has been pleased to observe therein that when the appellant has been acquitted in the criminal case wherein the charge has not found to be proved beyond all reasonable doubt, as such in a departmental inquiry wherein the penalty is to be imposed on the finding recorded on the basis of preponderance of probability, hence acquittal of the 9 appellant in the said case has been given benefit of acquittal from the criminal case on the ground that since both the proceedings were based upon same facts and evidence.
The judgment rendered in the case of S. Bhaskar Reddy and another Vrs. Superintendent of Police and Another (supra) wherein the Hon'ble Apex Court, after taking into consideration the judgment rendered in the case of M. Paul Anthony (supra), G. M. Tank (supra), Inspector General of Police Vrs. S. Samuthiram (supra), Joginder Singh Vrs. United Territory of Chandigarh, reported in (2015) 2 SCC 377 and RBI Vrs. Bhopal Singh Panchal, reported in (1994) 1 SCC 541, wherein the meaning of the expression of "honourable acquittal" has been taken into consideration, the Hon'ble Apex Court has been pleased to hold that mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expression 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code.
It has been observed therein that when the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted.
The Hon'ble Apex Court in the case of S. Bhaskar Reddy (supra) has been pleased to take into consideration the acquittal from the criminal 10 case and reversed the order of dismissal to that of compulsory retirement taking into consideration the fact that both the proceedings were based upon same facts and evidence.
8. The learned counsel appearing for the opposite party - Bank has relied upon the judgment rendered in the case of Avinas Sadashiv Bhosale (supra) wherein the Hon'ble Apex Court, after taking into consideration all the judgments on the same issue, has been pleased to hold therein taking into consideration the fact that the case relates to the appellant who happens to be an employee of the State Bank of India, Zonal Office, Mumbai working in the Middle Management Scale -II and found to be indulged in the fraudulent transaction to the tune of Rs.12 crores. The Hon'ble Apex Court, after taking into consideration the nature of duty of the officer working in the bank, has been pleased to observe at paragraph 55 and 56 as follows which is being referred herein below:-
"55. In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted, the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the criminal trial related to the commission of criminal offences under Sections 120-B, 420, 467, 468, 471 and 201 of the Penal Code. The proof of criminal charges depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant along with other persons. In the departmental proceedings, the basic charge was that the appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner unbecoming of a bank officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct.11
56. It must be emphasized that bank officials act as trustees of funds deposited by the public with the bank. They have an obligation to earn the trust and confidence of not only the account-holders but also the general public. The standard of integrity required of the bank officials, particularly the cashiers, accountants, auditors and the management at all levels, is like the Caesar's wife, they must be above suspicion. Mr. Bhosale failed to maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the aforesaid submissions of Mr. Jain."
The Hon'ble Apex Court in the judgment rendered in the case of Deputy Inspector General of Police and Another Vrs. Samuthiram (supra) has been pleased to hold therein at paragraph 23 and 26 that mere acquittal of an employee by a criminal court has no impact on the disciplinary proceeding initiated by the department. If the delinquent employee has not been honourably acquitted by the criminal court but only due to the witnesses having turned hostile and other prosecution witnesses have not been examined, he cannot get advantage of acquittal in the criminal case by passing an order of reinstatement in service. It has further been held therein that in absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement.
Learned counsel for opposite party has also given emphasis upon judgment rendered in the case of General Manager (Operations) State Bank of India (supra) wherein the Hon'ble Apex Court has taken into consideration the meaning of honourable acquittal and by putting reliance upon the same it has been submitted that the acquittal of the petitioner in the criminal case cannot be said to be honourable, rather the acquittal is purely on technical 12 ground that the court has taken into consideration the fact that the petitioner has deposited the entire amount on being detected as also on the ground that the FIR has been instituted after lapse of some delay without having explained the reason for delay, hence it cannot be said to be honourable acquittal.
9. This court has appreciated the judgments relied upon by the parties as discussed herein above and also the factual aspect in this case including the judgment rendered by the competent court of criminal jurisdiction wherein the trial court, after taking into consideration the evidence on record which relates to the 5 account holders who have filed affidavit indicating that the petitioner had not misappropriated any amount from their accounts, as such the court has observed therein that continuation of the criminal proceeding would amount to abuse of process. It seems from the judgment rendered in the criminal case, so far as it relates to the allegation which is subject matter of the instant departmental proceeding which relates to fraudulent withdrawal of Rs.25.92 lakhs from his two overdraft accounts, i.e. Account Nos.10546443595 and 10546443607 in core banking system, the same has been said to be not an offence merely on account of the fact that the petitioner has deposited the entire withdrawal amount along with penal interest, as such the criminal breach of trust has been held to be not legally sustainable. Thus it is evident from the finding of the criminal court that since the amount which has been withdrawn by the petitioner to the tune of Rs.26 lakhs approximately since has been deposited 13 along with interest, the criminal court has acquitted the petitioner by saying that the ingredient of Section 409, 420 of the I.P.C. and Sec.13(1)(d) and 13(1)(c) of Prevention of Corruption Act is not being attracted.
The question herein is that the criminal court has not given a clean cheat to the petitioner regarding non-commission of irregularities of fraudulently withdrawing the said amount, rather in course of leading evidence, it has been proved that there was illegal withdrawal by the petitioner, but however the same has been deposited in the account, hence it is to be considered as to whether an officer holding the rank of Scale-I Manager in the Bank, can be allowed to discharge his duty by mis-utilizing his official position by withdrawing the amount excess to the limit fixed on that overdraft account and that is the reason the petitioner has accepted his guilt before the disciplinary authority, as such the same has been said to be a gross irregularity by the disciplinary authority while giving the finding in the departmental enquiry.
10. The contention raised by the petitioner that on the ground of acquittal in the criminal case the order of dismissal is to be struck down by this court sitting under Article 226 of the Constitution of India but according to the considered view of this court the judgment relied upon by the petitioner is not applicable in the facts and circumstances of the case in hand for the reason that there was honourable acquittal of the delinquent employee related to those cases and further the appellants in those cases were not the Bankers.
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The Hon'ble Apex Court, while dealing with the case of the bankers, has been pleased to hold at paragraph 55 and 56 in the judgment rendered in the case of Avinash Sadashiv Bhosale (supra) wherein it has been held as has been quoted herein above and at the risk of repetition the same is being reiterated that "It must be emphasized that bank officials act as trustees of funds deposited by the public with the bank. They have an obligation to earn the trust and confidence of not only the account-holders but also the general public. The standard of integrity required of the bank officials, particularly the cashiers, accountants, auditors and the management at all levels, is like the Caesar's wife, they must be above suspicion."
This court has further considered the definition of the honourable acquittal as has been discussed by the Hon'ble Apex Court in the judgment rendered in the case of Deputy Inspector General of Police Vrs. S. Samuthiram (supra) wherein the honourable acquittal has been held to be an acquittal which is being passed by the criminal court after full consideration of prosecution evidence and that the prosecution has miserably failed to prove the charges leveled against the accused, then only the accused can be said to be honourably acquitted.
As already been observed herein above, the judgment rendered in the criminal case by the Special Judge, CBI basis upon which the prayer is being made for reinstatement in service by the petitioner cannot be held to be honourable acquittal for the reason that the charges leveled against the 15 petitioner has been found to be proved but merely on account of the fact that since the amount has been deposited so the ingredient of offence leveled against him of the various sections of IPC as well as Prevention of Corruption Act has said to be not attracted and further on the ground that there is delay in filing of FIR, as such it cannot be said to be honourable acquittal.
11. Moreover, relying upon the judgment rendered in the case of Deputy Inspector General of Police Vrs. S. Samuthiram (supra) wherein at paragraph 23 it has been held that mere acquittal of an employee by a criminal court has no impact on the disciplinary proceeding initiated by the department (para-23).
It has further been held therein that in absence of provision in the service rule for reinstatement, if an employee will be honourably acquitted by the criminal court, no right is conferred to the employee to claim any benefit including reinstatement, reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of a disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guild of the accused is on the prosecution and if he fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent.
It is settled law that strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a 16 person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc.
12. This Court, after taking into consideration the fact involved in the instant case and when it has been compared with the ratio laid down by the Ho'nble Apex Court in various judgments, is of the considered view that the petitioner cannot derive any benefit from the judgment of acquittal passed in the criminal case for the reason mentioned herein above.
In view thereof and in the entirety of facts and circumstances as also on the basis of settled proposition by comparing it with the factual aspect involved in this case, in considered view of this court, the writ petition deserves no merit, accordingly writ petition fails and it is dismissed.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 30th August, 2017 / Manas.