Calcutta High Court
Shri Amiyo Bhusan Das vs United Bank Of India on 20 August, 2018
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Justice Amrita Sinha
APO 508 of 2017
WP 1050 of 2011
Shri Amiyo Bhusan Das
Vs.
United Bank of India
For the Appellant :- Mr. Srijib Chakraborty,
Mr. Jibantaray Das Roy
For the Respondent :- Mr. R. N. Majumdar,
Mr. Supratim Bhattacharya Judgement On :- 20.08.2018 I.P. MUKERJI, J.:-
This case has some uncommon features. The appellant was an employee of the respondent United Bank of India at Siliguri. The branch, where he worked had a customer Mrinal Kanti Ghosh whose account number was 4901.He alleged that on 13th September, 1993, Rs.23,000/- was missing from that account. The appellant was charged by the bank with misappropriation of the amount, by forgoing the withdrawal slip of that account holder. Disciplinary proceedings were started against him. In or about November, 1993 one Sunil Kumar Sarkar, Secretary of the Association for Prevention of Corruption filed an application under Section 156(3) of the Criminal Procedure Code before the Sub-Additional Judicial Magistrate alleging that the above offence was committed by the appellant. He was charged under Section 460 and 420 of the Indian Penal Code. The learned Judicial Magistrate in his judgment and order dated 30th April, 2010 indicated that the following points fell for his determination:
"1. Whether the accused person forged one Savings Bank Account withdrawal farm of UBI by putting the forged signature of Sri Mrinal Kanti Ghosh with instant to commit cheating as alleged?
2. Whether the accused person cheated Mrinal Kanti Ghosh by way of forgoing his signature in the saving Bank withdrawal form of UBI and withdrewRs.23,000/- from Saving Bank Account No.4901?"
On 11th November, 1993 the appellant was placed under suspension. On 30th March, 1994 a show cause notice was issued by the bank to the appellant asking for an explanation. On 13th April, 1994The petitioner filed a reply denying all allegations.
On 1st August, 1994 a departmental enquiry was initiated against the appellant on the above allegations. He alleged that no opportunity of hearing was given to him. Mr. Majumdar for the bank submits that in spite of notice he did not appear upto 25th February, 1995, when the enquiry report was signed on 23rd September, 2001 the suspension of the appellant was withdrawn. The appellant made his representation against the enquiry report. On 19th August, 2002 on the basis of the enquiry report the bank proposed to terminate his service. On 30th August, 2002 he replied to the show cause notice asking him if he had anything to say on the proposed punishment. On 7th February, 2003 he was removed from service. Against this punishment the appellant preferred an appeal before the appellate authority. On 3rd February, 2004 it dismissed the appeal saying that it did not find any 'cogent reason........to modify the quantum of punishment ..........'. It noted that he did not avail of the opportunity to defend his case.
Then arises the real issue in this case. On 30th April, 2010, the criminal court acquitted the appellant. He says that the acquittal was honourable. The rules of service of the appellant and other fellow employees are governed by a memorandum of settlement on Disciplinary Action Procedure dated 10th April, 2002 between the management of 52 A Class banks represented by their Indian Bank Associations and the workmen represented by three associations.
Rule 3(d) is important and is set out below:
"If he (employee) prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set out below in Clauses 11 and 12 infra relating to discharge,...."
On 15th June, 2010 the appellant made a representation to the disciplinary authority to set aside the order of punishment on the basis of his acquittal by the criminal court. There was no response to this representation. The appellant waited full eleven months before making another representation on 9th May, 2011. To this also there was also no response from the respondents. In those circumstances he filed a writ application in this Court (WP No.684 of 2011) asking for quashing of the punishment order dated 7th February, 2003 as affirmed by the appellate authority on 3rd February, 2004. This Court on 14th July, 2011 disposed of the said writ application by asking the respondents to take a decision on the representations made by the appellant. On 29th September, 2011 the respondents affirmed its earlier decision of punishment against the appellant.
The appellant moved the instant writ application in this Court under Article 226 of the Constitution of India asking for, inter alia, the following reliefs.
"226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article
32."
The first point that Mr. Chakraborty for the appellant argued was that there was violation of the procedure prescribed in the said disciplinary action procedure agreed upon by the bank association and the workmen's union. He referred to Clauses 10 and 12 of the agreement. These clauses are set out below:
"10. In all cases in which action under Clauses 4, 6 or 8 may be taken, the proceedings held shall be entered in a book kept specially for the purpose. In which the date on which the proceedings are held, the name of the employee proceeded against, the charges, the evidence on which they are based, the explanation and the evidence, if any, tendered by the said employee, the finding or findings, with the grounds on which they are based and the order passed shall be recorded with sufficient fullness, as clearly as possible and such record of the proceedings shall be signed by the officer who holds the, after which a copy of such record shall be furnished to the employee concerned if so requested by him in writing.
12. The procedure in such cases shall be as follows :-
(a) An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the Officer conducting the enquiry, to cross-
examine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended -
(i) (x) by a representative of a registered trade union of bank employees of which he is a member on the date first notified for the commencement of the enquiry.
(y) where the employee is not a member of any trade union of bank employees on the aforesaid date, by a representative of a registered trade union of employees of the bank in which he is employed :
OR
(ii) at the request of the said union by a representative of the state federation or all : India Organisation to which such union is affiliated.
OR
(iii) with the Banks permission, by a lawyer.
He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.
(b) Pending such inquiry or initiation of such inquiry he may be suspended, but if on the conclusion of the enquiry it is, decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances, etc.
(c) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances, that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the "gross" type he may be merely discharged, with or without notice or on payment of a month's pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.
(d) If the representative defending the employee is an employee of the same bank at an outstation branch 13 14 AIBEA within the same State, he shall be relieved on special leave (on full pay and allowances) to represent the employee and be paid one return fare. The class of fare to which he will be entitled would be the same as while travelling on duty, In case of any adjournment at the instance of the bank/enquiry officer, he may be asked to resume duty and if so, will be paid fare for the consequential journey. He shall also be paid full halting allowance for the period he stays at the place of the enquiry for defending the employee as also for the days of the journeys which are undertaken at the bank's cost.
Explanation : 'State' for the purpose, shall mean the area which constitutes a political State, but this explanation will not apply to SBI.
(e) An enquiry need not be held if :
(i) the bank has issued a show cause notice to the employee advising him of the misconduct and the punishment for which he may be liable for such misconduct;
(ii) the employee makes a voluntary admission of his guilt in reply to the aforesaid show cause notice; and
(iii) the misconduct is such that even. if proved the bank does not intend to award the punishment of discharge or dismissal. However, if the employee concerned, requests a hearing regarding the nature of punishment, such a hearing shall be given.
(f) An enquiry need not also be held if the employee is charged with minor misconduct and the punishment proposed to be given is warning or censure.
However,
(i) the employee shall be served a show cause notice advising him of the misconduct and the evidence on which the charge is based; and
(ii) the employee shall be given an opportunity to submit his written statement of defence, and for this purpose has a right to have access to the documents and material on which the charge is based;
(iii) if the employee requests a hearing such a hearing shall be given and in such a hearing he may be permitted to be represented by a representative authorised to defend him in an enquiry had such an enquiry been held.
(g) Where an employee is charged with a minor misconduct and an enquiry is not held on two previous occasions, an enquiry shall be held in respect of the third occasion.
He said that the letter dated 30th March, 1994 was a show cause notice and not a proper charge-sheet. The appellant was asked to show cause in writing. The enquiry report was submitted by the enquiry officer on 25th February, 1995. Mr. Chakraborty complains that there was no formal charge-sheet. The appellant was not given an opportunity to properly represent his case.
We reject this contention. We do not know how the show cause notice was different from a formal charge-sheet against the appellant. The rules of natural justice demand that the charges insufficient detail are to be indicated to an alleged delinquent and sufficient opportunity is to be given to him to answer them. If this is done the requirements of natural justice are complied with. A show cause imputing the charges against him in sufficient detail was duly served on him. The appellant was given an opportunity to meet those charges by a written response. We have ascertained that the appellant did not appear during the disciplinary proceedings. It does not lie in his mouth to say that he was not allowed to participate or was not heard before the decision was made. Mr. Majumdar was right when he said, based on Bank of India Vs. Apurba Kumar Saha reported in (1994) 2 SCC 615 that one who did not participate in the disciplinary proceedings could not complain of breach of natural justice. In our opinion, the requirement of the rules with regard to conduct of the disciplinary proceedings was substantially complied with by the respondent bank.
The other point raised by Mr. Chakraborty is more substantial. He argued that after the acquittal of the appellant on 30th April, 2010 by the criminal court, the disciplinary authority ought to have reopened the disciplinary proceedings and revised the order passed therein and exonerated the appellant .
First let us take a look at the relevant terms and conditions of employment or rules applicable to this area of dispute. Clause 3 is very important. It says that when the management suspects that an employee has committed an offence it may take steps to have him prosecuted. When such a decision is taken he is liable to be suspended. If the employee is convicted by the criminal court he is to be dismissed from service. After he is acquitted, the management has the right to apply the provisions in Clauses 11 and 12 of the Settlement. These clauses relate to disciplinary proceedings. After enquiry the management had the right to terminate his service. In case of an acquittal, not being one based on benefit of doubt, the employee would be entitled to be treated on duty during the suspension period with full pay and allowance after adjustment of the subsistence allowance received by him. The most important Clause is 3(b). It visualises a case where during the pendency of the criminal proceedings, the employee had been proceeded with under the said Clauses 11 and 12 and punished. Subsequently, the criminal court acquitted or discharged him. The management had the right to review the case by reinstating the employee or by affirming the action taken against him under Clauses 11 and 12.
The appellant's case is that after his acquittal he should have been reinstated in service with full honours.
We would like to recount a submission made by Mr. Majumder that since the criminal case was not initiated by the bank nor prosecuted by the bank, the case of the appellant did not come within the ambit of Clause 3 of the Settlement. The bank could consider remission of punishment if the bank had started the criminal case. We reject this submission. All that matters is initiation of criminal proceedings on the self-same charges as the disciplinary proceedings, the same evidence and acquittal. In Depot Manager, A. P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and Ors. reported in AIR 1997 SC 2232, the Supreme Court laid down the very basic principles of law, in his filed. It said that an employee may be prosecuted as well as charged with the self-same offence in a disciplinary proceeding and in a criminal court. The two proceedings may run in parallel. In the criminal proceeding, the standard of proof was beyond reasonable doubt whereas in a civil proceeding it was on a balance of probability. Then in the case of Union of India and Anr Vs. Bihari Lal Sidhana reported in (1997) 4 SCC 385 the view of the same Court was that acquittal in a criminal case did not entitle an employee to automatic reinstatement.The Court suggested that where the charge was of defalcation or misappropriation of money there should be no reinstatement. A bench of the same strength took a significantly different view in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Anr. reported in AIR 1999 SC 1416.
The judgment was delivered by Mr. Justice S. Saghir Ahmed. The facts of this case need to be carefully noticed. According to the accusation, from the house of the security officer, on 2nd June, 1985 a "mining sponge gold ball"
weighing 4.5 grams and "gold bearing sand", of 1276 gram weight were recovered. On the basis of the first information report lodged against him on 2nd June, 1985,a criminal case was registered against him. On 3rd June, 1985 he was placed under suspension. On 4th June, 1985 a charge-sheet was issued initiating a regular departmental enquiry. The employee pleaded innocence in his written representation to the disciplinary authority. In the representation he asked for postponement of the departmental proceedings. This was refused. The disciplinary proceedings were not deferred. They proceeded hand in hand with the criminal proceedings. The enquiry officer recorded is findings on 10th May, 1986. The employee was held guilty. It was accepted by the disciplinary authority on 7th June, 1986. The appellant was dismissed from service.
The question was whether incriminating material was recovered from the premises of the appellant in a surcharge and seizure operation. Whilst the enquiry officer found that the charge was established the criminal court came to the finding in its judgment pronounced on 3rd February, 1987 that neither a search was conducted at the residence of the appellant nor any recovery made from there. The learned Judge held that "the prosecution had failed to establish its case." On 12th February, 1987 the appellant communicated this judgment to the respondents asking for reinstatement who by their letter dated 3rd March, 1987 rejected it. The Supreme Court held that it would be unjust, unfair and rather oppressive to enforce the result of the departmental proceeding. It directed reinstatement of the appellant forthwith.
The facts of the above case are very similar to the case at hand. However, in Ajit Kumar Nag Vs, General Manager (P.J) Indian Oil Corporation, Haldia and Ors. reported in (2005) 7SCC 764 the Supreme Court once again reverted back to its original view based on the difference in the standard of proof in a civil and criminal proceeding. It said that even if the employee was discharged in a criminal trial he might none the less be punished in the departmental proceedings. Then came the case of in G.M. Tank vs. State of Gujarat reported in (2006) 5 SCC 446. It is a land mark decision in the sense that it departed from Ajit Kumar Nag Vs, General Manager (P.J) Indian Oil Corporation, Haldia and Ors. reported in (2005) 7SCC 764and relying on the five judge's constitution bench decision in R.P. Kapur Vs. Union of India reported in (1964) 5 SCR 431 and Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Anr. reported in AIR 1999 SC 1416,it said that when the facts and the evidence in the departmental as well as criminal proceedings were the same and the employee was honourably acquitted by the criminal court, the ratio in the Paul Anthony case would be applicable. The appeal of the employee was allowed. What is the meaning to be ascribed to the term "honourable acquittal". This term does not find any place in our criminal jurisprudence. We do not find it in the Indian Penal Code, neither in our criminal procedure. It was interpreted by Lort Williams, J. in Major Robert Stuart Wauchopevs Emperor reported in(1934) 61 ILR (Cal) 168,in the following way:
"The expression "honourably acquitted" is one which is unknown to court of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term 'honourably acquitted'".
The Supreme Court used this expression in R. P. Kapur Vs. Union of India reported in AIR 1964 SC 787.It opined that departmental proceedings may follow where the acquittal was other than honourable. In this case it approved the interpretation of the term made by Lort Williams, J. This view was adopted by the highest Court in Reserve Bank of India Vs. Bhopal Singh Panchal reported in AIR 1994 SC 552. Recently a single bench of this Court reiterated the same view in Goutam Bhattattacharjee Vs. Kolkata Municipal Corporation &Ors. reported in (2016) 120(1) CWN Cal
491. The charges against the appellant appear from the points for determination in the judgment and order of the criminal court dated 30th April, 2010. They were similar to the allegations in the departmental proceedings. The learned Judge made an error in the impugned judgment and order in coming to a finding that the charges were different. Two witnesses deposed for the prosecution. The person from whose account money had been allegedly misappropriated, Mrinal Kanti Ghosh, did not even come forward to give evidence. The evidence was sought to be given by one Sunil Sarkar the de facto complainant and the inspector-in-charge of the Siliguri Police Station. On the basis of this evidence or the lack of it the criminal Court exonerated or acquitted the appellant. If the accused had been acquitted giving him the benefit of doubt it may have been contended that the prosecution had tried to prove its case to the best of its ability and that this proof may have been sufficient in civil proceedings but not in a criminal trial resulting in the acquittal of the accused. In such circumstances the acquittal was not honourable and the departmental proceedings could continue. But if the evidence of the prosecution is insufficient or its witnesses could not prove the case at all or after the consideration of the evidence the Court held that the prosecution had not been able to prove its case, the acquittal is to be termed as honourable. Such is the case here.
In fact, the judgment and order of the Judicial Magistrate, Fast Track Court, Siliguri dated 30th April, 2010 recorded that the "prosecution had miserably failed to prove its case against the accused person ............. I have no hesitation but to hold that the accused should be acquitted from this case." Considering the interpretation of honourable acquittal, the appellant, in our opinion, was honourably acquitted of all the charges against him by the Court.
Therefore, the learned Judge of the Court below was in error in not applying the ratio of the above Supreme Court decisions. In our opinion, the appellant was entitled to be exonerated in the disciplinary proceedings. The punishment imposed upon him in the departmental proceedings ought to have been reviewed on receipt of his representation after the verdict of the criminal court dated 30th April, 2010 resulting in his exoneration. In those circumstances, we allow this appeal by exonerating the appellant. We set aside the order of removal from service of the appellant. We direct that he be reinstated immediately with effect from 1st July, 2010 (15 days' from his first representation) with full pay and allowances from the date of his reinstatement. This pay and allowance is to be arrived at after taking into account notionally the increments that the appellant would have received had the disciplinary proceeding not been commenced against him. However, it is also true that the appellant was removed from service on 7th February, 2003 and that he was acquitted by the criminal court on 10th April, 2010. Thereafter, he asked for reinstatement. In the case of Paul Anthony the criminal case verdict was close on the heels of the decision in the departmental proceeding.
In that view of the matter the appellant will be entitled to ½ his pay and allowance arrived at in the manner indicated above from the date of his removal from service till the date of his reinstatement less the subsistence allowance he had already received. In case, the appellant has reached the age of superannuation when this order is implemented, the appellant will be entitled to ½ arrear pay and allowances as indicated above from the date of removal till the date of his reinstatement together with full pay and allowances from the date of his reinstatement till his retirement. Thereafter, he will be paid his pension and other benefits on the basis of his last drawn pay and allowance calculated notionally upto the date of his retirement. The judgment and order dated 16th March, 2017 is set aside. This appeal is accordingly allowed to the above extent.
(I.P. MUKERJI, J.) Amrita Sinha, J.:-
I had the opportunity to go through the draft judgment prepared by my brother Mukerji, J. Though I agree with the view of my brother that the letter dated 30th March, 1994 issued by the bank acted as a charge sheet cum show cause notice and further the appellant was given sufficient opportunities to represent himself but I respectfully disagree with the view that the order of removal from service of the appellant is required to be set aside. My reasons are given herein below:-
The appellant was a sub-staff of the United Bank of India, Mahabirsthan Branch. A complaint was made against him by one Mrinal Kanti Ghosh an account holder of the said bank on the allegation that the appellant on 13th September, 1993 fraudulently withdrew Rs. 23,000/- only from his savings bank account.
On the basis of the said complaint the bank initiated disciplinary proceeding against the appellant. The charge against the appellant was "doing an act prejudicial to the interest of the bank, constituting gross misconduct under Clause 19.5 (J) of the bipartite settlement dated 19th October, 1986." A charge sheet cum show cause notice was issued against the appellant on 30th March, 1994 directing him to submit his written explanation within ten days from the receipt of the letter and to show cause why appropriate disciplinary action shall not be taken against him. In response to the said show cause the appellant submitted his written explanation on 13th April, 1994. The appellant was asked to appear before the enquiry to be held against him and the date, time and place of the enquiry was duly communicated to him. The enquiry commenced on 1st August, 1994. The appellant did not appear and/or participate in the said disciplinary proceeding though several opportunities were given to him. The enquiry officer examined as many as six witnesses and relied upon twenty exhibits to prove the charge against the appellant. Mrinal Kanti Ghosh the victim of fraud was one of the witnesses.
The first notice of enquiry dated 18th July, 1994 was sent to the appellant by registered letter with acknowledgment due intimating that the date of enquiry was fixed on 1st August, 1994 at 12 noon in UBI Mahabirsthan Branch. The said letter was received by the appellant on 20th July, 1994. Vide letter dated 21st July, 1994 the appellant requested the enquiry officer to let him know the clause of the bipartite settlement regarding selection of defence representative. The same was immediately communicated to the appellant vide letter dated 27th July, 1994. On 29th July, 1994 the appellant wrote a letter requesting the enquiry officer to defer the date of enquiry. Vide letter dated 30th July, 1994 the appellant enclosed a medical certificate dated 30th July, 1994 and informed the enquiry officer that he was ill and requested him to defer the enquiry. The medical certificate mentioned that the appellant was suffering from typhoid fever since 27th July, 1994 and was advised bed rest for a fortnight. As the said letter was received by the enquiry officer in late hours on 30th July, 1994 it was not possible for him to defer the enquiry which was already fixed on 1st August, 1994. On 1st August, 1994 the presenting officer stated that the appellant personally came to the UBI, Mahabirsthan Branch on 29th July, 1994 at about 1 p.m. and stayed in the said branch up to about 5:30 to 6 p.m. He stated that the appellant was avoiding the enquiry. The enquiry officer for the ends of justice gave another opportunity to the appellant to attend enquiry on 2nd August, 1994 at 11 a.m. He by his letter dated 1st August, 1994 requested the appellant to attend the enquiry on the said date. The copy of the proceedings dated 1st August, 1994 was sent along with the aforesaid letter through two employees of the UBI Mahabirsthan Branch at about 3:45 p.m. at the residential address of the appellant. The appellant was not found at his resident to receive the letter though as per the advice of the doctor the appellant was to take bed rest for a fortnight. The appellant again failed to turn up in the enquiry at 11 a.m on 2nd. August, 1994. The enquiry officer again adjourned the hearing till 2:30 p.m. on 2nd August, 1994. A letter dated 2nd August, 1994 along with the earlier letter dated 1st August, 1994 was sent to the appellant at his residence at about 12:10 p.m. on 2nd August, 1994. The appellant remained absent. The enquiry officer wrote a further letter dated 3rd August, 1994 and attempted to serve the said letter at the residence of the appellant through two employees of the bank at about 5:30 p.m. to intimate the appellant to participate in the enquiry on 4th August, 1994 at 1 p.m. The appellant was not found at his residence. A further letter dated 4th August, 1994 was served at his residence and the same was received by his mother. The next date of enquiry was fixed on 17th August, 1994 and the date of hearing was intimated to the appellant vide letter dated 5th August, 1994. The appellant failed to appear. The appellant was again given opportunity to attend enquiry on 18th August, 1994. The appellant did not turn up. Again date was fixed on 19th August, 1994 but the appellant did not attend. Next date was fixed on 30th August, 1994. The appellant failed to appear. The enquiry was again conducted on 31st August, 1994 and 1st September, 1994. The appellant did not attend. The enquiry concluded on 1st September, 1994. Vide letter dated 1st September, 1994 the enquiry officer requested the appellant to submit his written statement within seven days from the receipt of the letter. The appellant did not submit any written statement either.
The charge of misconduct was conclusively proved from the evidences of the six witnesses, one of whom being the victim himself who specifically deposed that he never withdrew Rs.23,000/- only on 13th September, 1993 and the signature in the withdrawal slip was not his. He further stated that the full amount of Rs.23,000/- only along with interest was received by him from the bank towards compensation but apart from financial compensation he had to suffer tremendous mental agony and harassment due to non-availability of the money at the time of need. The management witness Shri Gopinath Dasgupta - DRM North Bengal Regional Office, Ramprakash Sarkar - sub- staff Mahabirsthan Branch as well as Ms. Omit Namchu management witness stated in their examination in chief that the appellant made a confessional statement in writing accepting the fraudulent withdrawal of Rs.23,000/-only from the bank account of Shri Mrinal Kanti Ghosh. The said confessional statement was made before the branch manager and the same was exhibited at the time of enquiry. The enquiry officer verified the signature of Mrinal Kanti Ghosh in the withdrawal slip and came to the conclusion that the same differed from his specimen signature. The enquiry officer observed that banks were financial institutions where honesty and integrity of an employee should be at its highest level. Public deposit their money in the bank for safe custody and if an employee of the bank misutilized the trust and belief reposed on the bank then it will have great impact upon the institution. The enquiry officer concluded that the appellant failed to prove his honesty and integrity to the bank and thereby hampered the goodwill of the bank by the act of his misconduct and held him guilty of the charge levelled against him in the charge sheet dated 30th March, 1994.
Next comes the criminal proceeding which was initiated against the appellant.
The aforesaid incident of fraudulent withdrawal of money from the bank was reported in a Bengali newspaper. Relying on the said newspaper report one Sunil Kumar Sarkar claiming to be the Secretary of the Association for Prevention of Corruption, Siliguri lodged a complaint before the inspector in charge, Siliguri Police Station vide GDE no. 587 dated 9th November, 1993. As the said complaint was not treated as FIR and the police did not take any step to investigate the complaint the complainant filed an application under Section 156 (3), Cr.P.C. before the court of the learned SDJM, Siliguri which was registered as Misc. case no. 225/93. The complainant demanded police investigation.
After receiving the order of the learned SDJM, Siliguri the inspector in charge, Siliguri P.S. started police case under Section 468/420 I.P.C. against the appellant. The appellant was charge sheeted. At the time of trial the prosecution examined two witnesses. First being the de facto complainant Sunil Kumar Sarkar and the second the Inspector in charge, Siliguri P.S. being the recording officer of the FIR. The learned court below framed two questions for determination namely:
1) Whether the accused person forged one savings bank account withdrawal form of UBI by putting the forged signature of Shri Mrinal Kanti Ghosh with intent to commit cheating as alleged?
2) Whether the accused person cheated Mrinal Kanti Ghosh by way of forging his signature in the savings bank withdrawal form of UBI and withdrew Rs.23,000/- from savings bank account no. 4901?
At the time of trial before the learned Court below the appellant contended that the entire case was based on a stranger's allegation having no personal interest and knowledge in the matter. The appellant also submitted that the victim Mrinal Kanti Ghosh did not come forward to establish that an amount of Rs.23,000/- only was fraudulently withdrawn from his bank account by practising fraud. It was further submitted that not an iota of evidence came from the deposition of the prosecution witnesses that the accused was involved in the case in any manner. He also submitted that neither the branch manager nor the deputy manager or any other material witness was examined by the prosecution. It was also submitted that the prosecution witness no. 1 i.e., the de facto complainant had himself deposed that he did not have any personal knowledge of the incident and he lodged the complaint only after going through the report published in the daily newspaper. The publication of the daily newspaper wherein the article of forgery was reported was also not exhibited before the learned court. The learned Court below observed that in the absence of material document and on the evidence placed before the court the benefit of doubt goes in favour of the accused and was of the view that the prosecution had miserably failed to prove its case against the accused person and held that the accused was found not guilty for the offence u/s 420/468 IPC. From the above it is clearly evident that the disciplinary proceeding and the criminal proceeding was initiated on absolute different charges. The disciplinary proceeding was initiated by the bank against the appellant being its employee on the charge of misconduct. The criminal proceeding was initiated on the charge of forgery for the purpose of cheating (468 IPC) and cheating (420 IPC). The disciplinary proceeding was initiated by the bank on the basis of a complaint lodged by a customer of the bank against the appellant being an employee of the bank. The criminal proceeding was initiated by a busy body relying on a newspaper report. The complainant in the disciplinary proceeding was the victim himself. The complainant of the criminal case was an absolute stranger no way related to the case. The complainant of the disciplinary proceeding had personal knowledge of the complaint and the allegation made by him against the appellant. The complainant of the criminal case did not have any knowledge far less personal knowledge about the facts of the case.
The bank conducted an in-house enquiry by drawing up formal disciplinary proceeding in accordance with the bipartite settlement. The enquiry officer examined as many as six witnesses and twenty exhibits. The victim himself as well as the other bank employees deposed against the appellant. The confessional statement of the appellant confessing the act of fraudulent withdrawal was on record. As many as nine opportunities were given to the appellant to attend before the enquiry officer to defend his case. A further opportunity was given to the appellant for filing his written statement in his support. The same was not availed of by the appellant.
From the above it appears that the appellant intentionally and deliberately did not participate in the enquiry and avoided it possibly because he had already made a confessional statement before the manager of the bank admitting his guilt.
Now the question which arises for consideration is whether the order of acquittal by the criminal court will have any impact on the order of removal of the appellant from service.
My opinion is in the negative in view of the fact that the disciplinary proceeding and criminal proceeding were initiated on two absolute separate charges. The witnesses of the two proceedings were completely different. The criminal proceeding was prosecuted by persons who were no way related and had no knowledge about the incident, whereas the disciplinary proceeding was an in-house enquiry whereby the victim and other employees of the bank categorically deposed against the appellant. The appellant was given several opportunities to defend himself which he intentionally did not avail of.
The cause of action of this case arose on 21st October, 1993 when the aforesaid Mrinal Kanti Ghosh lodged a complaint against the appellant in the bank alleging illegal withdrawal of Rs.23,000/- only. The appellant was transferred on 11th November, 1993 and kept under suspension. On 30th March, 1994 the bank issued charge sheet cum show cause notice on the charge of misconduct. The departmental enquiry was initiated on 1st August, 1994 and the same was concluded on 1st September, 1994. The enquiry report was supplied to the appellant on 25th February, 1995 and the appellant submitted his representation against the enquiry report on 15th May, 1995. Vide letter dated 23rd September, 2001 the suspension order was revoked and the appellant was advised to report for duty. The bank vide their letter dated 19th August, 2002 communicated to the appellant that considering the facts and circumstances of the case, the gravity of proved misconduct the bank had tentatively decided to impose punishment of removal from service of bank with superannuation benefits. The appellant had been directed to submit written representation with regard to the proposed punishment which the appellant made on 30th August, 2002. The bank passed order removing the appellant from service on 7th February, 2003. The appellant preferred departmental appeal on 20th January, 2004 and vide order dated 3rd February, 2004 the Appellate Authority confirmed the order of punishment of the appellant. The appellant was acquitted by the Criminal Court vide order dated 30th April, 2010. The above noted sequence of events clearly goes to prove that the bank initiated and conducted the disciplinary proceeding strictly in accordance with the rules and regulations governing the same.
The learned Advocate for the appellant strenuously contended before the Court that the bank vide letter dated 23rd September, 2001 revoked the order of suspension passed in the disciplinary proceeding as the trial of the criminal case was based on the same charge. By using the phrase 'same charge' in the aforesaid letter did not bring the two proceeding on the same footing because the two proceedings were completely independent of each other.
In Depot Manager, Andhra Pradesh State Road Transport Corporation vs. Mohd. Yousuf Miya, etc. (supra) the full bench of the Supreme Court held that the disciplinary proceeding is meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. It is in the interest of administration that persons accused of serious misdemeanour should not be continued in office for long periods awaiting the result of criminal proceedings. It only serves the interest of the guilty and dishonest. It further held that the purpose of departmental enquiry and criminal prosecution are two different aspects. The nature of evidence and the standard of proof in a criminal trial are entirely different from the departmental proceeding. It is a question of fact to be considered in each case depending upon the facts and circumstances. The Court came to the conclusion that there is no bar to proceed simultaneously with the departmental enquiry and the criminal trial.
After considering several decisions of the Hon'ble Supreme Court as well as this Court in Goutam Mukherjee vs. Kolkata Municipal Corporation & Ors. (supra) this Hon'ble Court held that in the event the alleged facts on which a criminal proceeding has been started are the same as those on the basis of which a departmental disciplinary also commence, the evidences in the criminal proceeding and the disciplinary proceeding is more or less the same and if the criminal proceeding is terminated by an honourable acquittal of an accused then the departmental proceeding cannot be continued and the employee has to be exonerated. Such is not the case at hand.
My learned brother in his judgement has already dealt with the decisions referred to by the respective parties and accordingly I refrain from dealing with the same all over again.
Though the incident from which both the proceeding emanates was same but the evidence in both the proceedings was different, the witnesses were different and the two proceeded in two different lines. Had the witnesses and evidences in both the proceedings been the same then the conclusion may have been different. The Hon'ble Supreme Court in a catena of cases have held that if the facts, evidences, witnesses in the departmental proceedings and criminal case were the same, without there being any iota of difference, then the distinction which is usually drawn between the departmental proceeding and the criminal case would not have been applicable. Moreover the appellant himself accepted the fact and submitted before the learned Criminal Court that the complainant was no way connected, concerned or aware of the said case. A stranger will obviously not have proper interest in prosecuting a case in which he is not at all involved. A third party will definitely not proceed with the case in the right earnest when his personal rights are not affected. Had the busy body not being so overzealous not lodged the police complaint then the criminal case would not have existed at all. Then the disciplinary proceeding would have been the only proceeding against the appellant.
Relying on the aforesaid explanation it can be safely concluded that in the instant case none of the proceedings were dependent upon each other and both the proceedings progressed simultaneously on the basis of different set of facts and witnesses. Here the bank thought it fit not to lodge any criminal case and to deal with the same in accordance with the departmental rules. The order passed in the criminal case initiated by a busy body ought not to make any difference and ought not to be relied upon for revisiting the order of removal which had been passed long ago in the disciplinary proceeding. The learned Advocate for the appellant tried to impress upon the Court that he had been acquitted from the criminal case as the learned court below held that 'the prosecution had miserably failed to prove the case'. He further submitted that the appellant was honourably acquitted and accordingly his order of punishment is liable to be reviewed. From the order passed in the criminal case it is absolutely clear and rightly pointed out by the learned Judicial Magistrate that the prosecution not being equipped with material documents had initiated the said case against the accused person and ultimately surrendered before the learned Court. Under such circumstances, the learned Magistrate observed that 'the benefit of doubt goes in favour of the accused person'. Hence, the acquittal of the appellant from the criminal case cannot under any circumstances be said to be an honourable acquittal. Moreover even though the appellant was acquitted the said order of acquittal will not be of any help to him in the disciplinary proceeding especially in the facts and circumstances of the instant case.
The learned Advocate further referred to Clause 3 (c) and (d) of the bipartite settlement between the bank association and their workmen and stressed that as per the said Clause the management was bound to review his case and may either reinstate him or proceed against him under the Clauses 11 and 12 relating to discharge. It appears from records that after the order was passed acquitting him from the criminal case on 30th April, 2010 the appellant applied before the Chairman and the Managing Director of the bank vide his letter dated 15th June, 2010 for reconsideration of his case. The said representation was considered as per the order of this Hon'ble court passed on 14th July, 2011 in WP no. 684 of 2011 and communicated to the appellant by the bank on 29th September, 2011. There is no further scope and/or reason to review the order of removal of the appellant under the facts and circumstances of the present case. The order passed in the criminal case simply does not have any impact on the order of removal of the appellant from his service.
In my humble opinion, the learned Trial Judge rightly held that the two proceedings were distinctly separate from each other and the lacuna in prosecuting the criminal case resulting in acquittal of the accused cannot be equated with the disciplinary proceeding. I concur with the view of the learned Trial Judge that this is not a case where the disciplinary proceeding which resulted in the removal of the appellant from his service warrants any reconsideration or review.
The appeal is without any merits, accordingly fails and is hereby dismissed. However there will be no order as to costs.
(Amrita Sinha, J.) As there is a difference of opinion between us, we are referring this matter to the Hon'ble the Chief Justice for appropriate administrative orders. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Amrita Sinha, J.) (I.P. MUKERJI, J.)