Calcutta High Court (Appellete Side)
Anjan Biswas vs Central Bank Of India & Ors on 19 August, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Tapash Mookherjee
MAT 147 of 2016
with
CAN 1096 of 2016
Anjan Biswas
... Appellant
vs.
Central Bank of India & Ors
... Respondent
For the Appellant : Mr. Soumya Majumder
Mr. Anindya Lahiri
Mr. Ravi Kumar Dubey
For the Respondent : Mr. Pratik Dhar
Mr. C. R. Baksi
Mr. Kalyan Mukherjee
Mr. Debanshu Ghorai
Heard on : 01.07.2016
Judgment on : 19.08.2016
Nishita Mhatre, J.:
1. The issue before the Court is whether an employee who has been acquitted in a criminal trial of charges under Sections 409 and 420 of the Indian Penal Code is entitled to have the disciplinary proceedings pending against him quashed.
2. The learned Single Judge of this Court, against whose judgment the present appeal has been filed, has not accepted the contention of the appellant that the disciplinary proceedings against him should be dropped as he was acquitted in a criminal trial and has dismissed the writ petition. While doing so, the learned Judge has held that the appellant was liable to pay costs assessed at `50,000/- to the West Bengal Legal Services Authority and a further amount of `1,00,000/- as punitive costs in the event the charges levelled against him in the departmental action were established, apart from any order of punishment which the Bank would impose.
3. Being aggrieved by the order of the learned Single Judge the appellant has preferred the present appeal. The facts leading up to the present case are as follows:
The appellant was appointed as a clerk in the respondent Bank on 6th September, 1990 and was posted in the State of Sikkim. He was promoted to the post of Assistant Manager and was posted at the New Jalpaiguri Branch from 16th December, 2012. During his period of service as an Assistant Manager at the aforesaid branch, certain illegal transactions were undertaken by him between the period October 2013 and December 2013 allegedly with the intention to defraud the Bank. He was therefore transferred on 9th December, 2013. Immediately thereafter on the next day, i.e., on 10th December, 2013 the appellant was suspended as he had allegedly committed misconducts of a serious nature by indulging in fraudulent transactions in multiple accounts by using the password of other members of staff of the Branch. Though the appellant reported for the duty at the place of transfer because of the transfer order, he was not permitted to work. A complaint was lodged by the Senior Manager with the police alleging that the appellant had committed criminal breach of trust, cheating and fraud and that some of the colleagues in the Bank were also involved. Accordingly, Bhaktinagar Police Station case No.2082 of 2013 was registered against the appellant under Sections 409 and 420 of the IPC.
4. On 26th December, 2013 a show cause notice was issued to the appellant seeking his explanation with regard to certain transactions which he had fraudulently undertaken. Not being satisfied with the reply submitted by the appellant to the show cause notice, a charge-sheet was issued departmentally on 3rd March, 2014. In the meantime the appellant had already obtained anticipatory bail in the aforesaid police case on 13th February, 2014.
5. The appellant submitted a request on 26th March, 2014 to the disciplinary authority to keep the disciplinary proceedings in abeyance till the criminal trial was concluded. This request was not conceded to by the respondents and he filed Writ Petition No.13315(W) of 2014 before this Court. The learned Single Judge stayed the disciplinary proceedings until completion of the trial since the Bank had not suffered any pecuniary loss. However, an order was passed on 3rd June, 2014 directing the Criminal Court to complete the trial within a year.
6. Accordingly the criminal trial proceeded against the appellant while the departmental proceeding was stayed. While these proceedings were in progress, a second show cause notice with respect to certain other transactions was issued to the appellant on 21st September, 2015. An FIR was lodged by the Bank and Bhaktinagar Police Station Case No.1336 of 2015 was initiated on 21st September, 2015.
7. By a judgment dated 7th December, 2015 the Additional District and Sessions Judge, 2nd Court, Jalpaiguri, acquitted the appellant. The Trial Court held that the conduct of Investigating Officer raised a doubt about the genuineness of the prosecution case. It was further held that there was no evidence on record to prove that the accused, i.e., the appellant herein has misappropriated any amount entrusted to him and that the prosecution had totally failed to prove its case.
8. By an order dated 18th December, 2015 issued by the Bank, the disciplinary proceedings which had been stayed in view of the order passed by the learned Single Judge were recommenced in respect of the charge-sheet dated 3rd March, 2014.
9. The appellant approached this Court by filing WP 86(W) of 2016 contending that as the proceedings in the criminal case had resulted in an "honourable acquittal", the departmental proceedings initiated against him should be dropped.
10. After hearing the parties the learned Single Judge has dismissed the writ petition by concluding that the appellant had not been "honourably acquitted". The learned Judge was of the opinion that the petition was frivolous and therefore directed the appellant to pay costs as mentioned above.
11. Mr. Soumya Majumder the learned Counsel appearing for the appellant urged that the learned Single Judge had passed an order directing payment of costs and in effect hampered the appellant's right to secure justice. He submitted that if such heavy costs were to be imposed even against an employee, it would be difficult for such employees to approach the Court of law for redress. The learned Counsel further submitted that when a particular set of facts had been recorded by a judicial forum, an administrative authority could not reappreciate those facts and arrive at a different conclusion. He urged that when the criminal trial which was based on the same set of facts, evidence and other material as the departmental proceedings against the appellant had resulted in him being "honourably acquittal", there was no scope for an Enquiry Officer appointed by the Bank or the disciplinary authority to arrive at a different conclusion. The learned Counsel referred to various judgments of the Supreme Court which we will presently advert to in support of the submission that once an employee has been "honourably acquitted" in a criminal case, he should not be harassed by having to face a departmental enquiry on the same set of facts.
12. Mr. Pratik Dhar the learned Counsel appearing for the Bank submitted that there was no need for us to interfere with the decision of the learned Single Judge. He submitted that the precedents on the issue involved in the present appeal clearly indicate that it was only if the service rules governing the employee permitted the dropping of the departmental proceedings on the criminal proceedings resulting in an acquittal that the appellant would be able to get any relief. He further pointed out by taking us through the judgment of the Criminal Court that the acquittal was not at all "honourable" and it was in fact due to the perfunctory investigation. He pointed out the lament of the Additional Sessions Judge about the failure of the prosecution and the investigation.
13. Mr. Dhar, the learned Counsel for the Bank, then submitted that the horizon of the departmental proceeding is huge as compared to the criminal trial. According to him the charge sheet was not merely issued because the appellant had committed fraudulent transactions but it because of his lack of integrity and devotion. He submitted that the judgment of the Criminal Court would also be taken into consideration before imposing the punishment, if any, on the appellant. Therefore, he urged that there was no need to quash the departmental proceedings. As regards the costs imposed on the appellant by the learned single judge, the learned Counsel left it to the Court to decide whether the appellant was liable to pay costs.
14. Mr. Majumder, the learned Counsel appearing for the appellant, has cited the judgments in R. P. Kapur vs. Union of India & Anr reported in AIR 1964 SC 787, S. Bhaskar Reddy & Anr vs. Superintendent of Police & Anr reported in (2015) 2 SCC 365, Deputy Inspector General of Police & Anr vs. S. Samuthiram reported in (2013) 1 SCC 598, G. M. Tank vs. State of Gujarat & Ors reported in (2006) 5 SCC 446, Corporation of the City of Nagpur, Civil Lines, Nagpur & Anr vs. Ramchandra & Ors reported in (1981) 2 SCC 714, Commissioner Police, New Delhi & Anr vs. Mehar Singh reported in (2013) 7 SCC 685 in support of his submission that when there is an "honourable acquittal" the employer should not proceed with a departmental enquiry based on the same charges.
15. There is no dispute that the service rules applicable to the employees of the Bank do not have any provision which enables the Bank to drop the enquiry proceedings or to revisit a dismissal order if the criminal action based on the same charges results in an acquittal. In the case of S. Samuthiram (supra), the Supreme Court observed that unless the service rules provide that a person "honourably acquitted" by Criminal Court should be reinstated, he is not entitled to that relief. The Court observed that the issue whether an employee has to be reinstated in service or not depends upon whether the service rules contain any such provision for reinstatement on being acquitted and it is not as a matter of right.
16. This judgment, in our opinion, does not apply to the case of the appellant. He has already been acquitted in a criminal trial and the departmental enquiry is to proceed against him. We have noticed the charges against the appellant, both in the charge-sheet in the criminal trial as well as the charge-sheet issued departmentally to him. It is true that the charges are based on the same set of facts; in fact after the criminal trial a second charge-sheet has been issued to him. However, on perusal of the judgment in the criminal case we do not find that the appellant has been "honourably acquitted". In fact, the Trial Court has castigated the prosecution for not producing the relevant material on record in order to prove the guilt of the appellant. The Trial Court on considering the evidence on record observed that the Investigating Officer had submitted a charge-sheet without seizing any document with respect to misappropriation of money from the Bank. In these circumstances it was held that the prosecution had utterly failed to prove that there was any defalcation of money on the part of the appellant as there was no "cogent, convincing, satisfactory and conclusive evidence" to prove that the appellant had misappropriated public money while acting as the Assistant Branch Manager of the Bank. We do not therefore see this as an "honourable acquittal". It was because of the failure on the part of the Investigating Officer to seize the relevant documents and to bring them on record that the trial ended in an acquittal. The witnesses examined were subordinates of the appellant and therefore the probability of them being overwhelmed by him cannot be ruled out.
17. Mr. Majumder has relied on the judgment in the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr reported in (1999) 3 SCC 679 to submit that where departmental proceedings and a criminal case based on the same set of facts cannot be continued simultaneously. The Court held as follows:
"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, 'the raid conducted at the appellant's residence and recovery of incriminating articles therefrom.' The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the 'raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings, to stand."
18. In the case of R. P. Kapur (supra) the Supreme Court held that in the case of acquittal which is not "honourable", the disciplinary proceedings are bound to follow against a public servant.
19. In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur (supra) the Court reiterated this proposition. However, it observed that where the accused is honourably acquitted and completely exonerated of the charges, it would not be expedient to continue a departmental enquiry on the same charges or grounds or evidence.
20. In all these cases the principle which emerges is that normally a departmental enquiry ought not to be continued if a criminal trial is in progress in respect of the same or identical charges against the delinquent employee. The evidence to be relied on and the witnesses to be examined in both the proceedings should be the same. The employer is empowered to hold departmental proceeding where a case ends in conviction and a different result may ensue. However, in a case where the delinquent employee has been acquitted in a trial, the power of the employer to hold an enquiry does not get eradicated.
21. In the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia & Ors reported in (2005) 7 SCC 764, C. K. Thakker, J., speaking for the three Member Bench has succinctly observed thus:
"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability".
Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
22. Thus although it may be advisable not to continue with a departmental enquiry if the delinquent employee has been "honourably acquitted" in the criminal trial, there is no bar for the continuance of such departmental proceedings. Moreover, if the delinquent has been "honourably acquitted", it is always open for the disciplinary authority to take the acquittal into consideration and pass an appropriate order after the culmination of the departmental enquiry. However, dropping of the departmental proceedings or the reinstatement of a delinquent employee on a verdict of acquittal is not mandatory.
23. In the case of S. Samuthiram (supra) the Supreme Court has observed that it is only where the service rules mandate such reinstatement on an acquittal that the employer is bound to grant reinstatement. In this judgment the Supreme Court had expressed its opinion in paragraph 24 on how the Court is to ascertain whether the acquittal is "honourable". The concepts of "honourable acquittal", "acquitted of blame", "fully exonerated" being unknown to the Criminal Procedure Code or the Indian Penal Code, the Court observed that these words had been coined by judicial pronouncements and therefore it was difficult to define precisely what is meant by the expression "honourably acquitted". The Supreme Court held that when the accused is acquitted after full consideration of prosecution evidence and the prosecution had miserably failed to prove the charges levelled against him, it can possibly be said that the accused was "honourably acquitted". As mentioned earlier that the accused in this case, i.e., the appellant was acquitted after a trial which was conducted after a shoddy investigation.
24. In S. Bhaskar Reddy (supra) the Court reiterated the view taken by it in G. M. Tank's case (supra) that though the finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the order of acquittal has to be taken note of.
25. Considering the facts before us and the conspectus of judgments cited at the bar we are convinced that this is not a case where it is necessary for us to interfere with the decision of the learned Single Judge. The judgment is in consonance with the law applicable to the facts and circumstances in this case. However, we do not agree with the observations of the learned Single judge that in the event the charges levelled against the appellant in the departmental action were established, he would be liable to pay the Bank a sum of `1 lakh as punitive costs, irrespective of the order of punishment that may be passed against him. This observation, in our opinion, is unwarranted. It is not for the Court to decide what punishment should be imposed on a delinquent employee before the departmental enquiry is completed. This would mean that the issue is being prejudged. The departmental enquiry will then be just an empty formality. This is not how proceedings are to be conducted by the disciplinary authority. There must be observance of the principle of audi alteram partem. These principles can be given a go by only when there are sufficient, cogent and extremely compelling reasons for doing so. We do not find that any such ground has been made out by the Bank. The departmental enquiry therefore must proceed in accordance with law and in consonance with the rules of natural justice. In the event the departmental enquiry results in the Enquiry Officer finding the appellant guilty, it would be for the disciplinary authority to decide the quantum of punishment.
26. The learned Single Judge has imposed costs of `50,000/- on the appellant to send a clear message to frivolous litigants, such as the present appellant, who clog the system that result in the deserving cases being delayed will not get away lightly. We do not concur with this finding. The appellant had a strong reason for approaching the Court because he had been acquitted by the Criminal Court with observations such as "there was no iota of evidence" etc. He would therefore naturally have felt that he could impress upon the court that this was an honourable acquittal and consequently he was entitled to reinstatement. We therefore affirm the judgment of the learned Single Judge on merits. However, we set aside the direction to pay costs and the direction to pay an amount to the bank besides any other punishment which the Bank may impose against the delinquent employee. The judgement and order of the learned single judge is modified accordingly.
27. The appeal and application filed therein are disposed of accordingly.
28. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Tapash Mookherjee, J.) (Nishita Mhatre, J.)