Calcutta High Court
Swapan Kumar Basu vs The United Bank Of India & Ors on 20 March, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 1737 of 2005
with
G.A. No. 2123 of 2006
Swapan Kumar Basu
Vs.
The United Bank of India & Ors.
For the Petitioner: Mr. Ganesh Shrivastava,
Mr. Sudeep Sanyal,
Mr. Sukanta Das,
Mr. A.A. Siddique.
For the Respondent: Mr. R.N. Majumdar,
Mr. Rupa Mukherjee.
Judgment on : 20.03.2009.
S.P. Talukdar, J.: The petitioner by filing the instant application under Article 226 of the Constitution sought for issuance of a writ of mandamus and prayed for direction upon the respondent bank from not proceeding with the charge sheet dated 8th April, 2005. The petitioner also sought for all his arrears of salary as well as other reliefs.
The grievances of the petitioner, as ventilated, may briefly be stated as follows:-
The petitioner was appointed as a clerk in the United Bank of India. By an order dated 26.8.1987, he was placed under suspension in contemplation of departmental proceeding. On 27th August, 1987, the Senior Chief Manager, Old Court House Branch, UBI, lodged FIR and on the basis of the same, a criminal case was initiated against the petitioner. He surrendered and was enlarged on bail. Police authority after completion of investigation filed charge sheet dated 8th of March, 2002. The delay is entirely attributable to the police authorities and the bank officials. The petitioner was getting subsistence allowance but the bank authorities were not paying him the same according to the quantum contemplated in the bipartite agreements and the various circulars of the Indian Banks' Association. The petitioner filed a writ application being W.P. No. 542 of 2002 challenging, inter alia, the legality and validity of the Bank's actions in not paying him the subsistence allowance according to the bipartite agreements. The said writ application was disposed of by the learned Single Bench of this Court by judgment and order dated 17th April, 2003 with direction upon the respondent employer to consider the fixation of subsistence allowance within a specified time frame. The General Manager (Personnel) of the respondent No. 1 bank, by letter dated 19th June, 2003, intimated that since the petitioner at the time of his suspension was attached to a branch in the State of West Bengal, he was not entitled to derive any benefit in terms of the circular dated 11th August, 1998 of the Indian Banks' Association by fixation of his subsistence allowance in terms thereof and is only entitled of being paid the subsistence allowance as per the provision of the West Bengal Payment of Subsistence Allowance Act, 1972.
Such malicious action on the part of the respondent bank was challenged by the petitioner by filing another application under Article 226 of the Constitution, being W.P. No. 1579 of 2003. It was disposed of by the learned Single Bench of this Court by judgment and order dated 12th January, 2004 with the following observation :-
"If the subsistence allowance computed as per the bipartite settlements as clarified by the Indian Banks' Association circular is higher and more consequentially beneficial to the petitioner, the petitioner shall be entitled to the benefit of the same on and from the date on which the benefit as per the bipartite settlements became higher by reason of wage revision."
A letters patent appeal was filed before the Division Bench. The stay application filed in connection with the same was rejected. The bank authorities thereafter paid Rs.1,96,034.60 into the bank account of the petitioner as payment towards his arrears of revised subsistence allowance but did not calculate the amount according to the Indian Banks' Association in that only the revision of pay that had been effected during the period of suspension were paid to the petitioner but not the increments of pay during the said period. The Indian Banks' circulars dated 17.2.1998 and 11.8.1998 provides for revision of pay scales on computation of subsistence allowance in case of workman employee and reckoning increments of the period under suspension for the purpose of computation of subsistence allowance. During pendency of the appeal preferred by the bank, the petitioner praying, inter alia, for enhancement of the amount of subsistence allowance by calculating the same in terms of bipartite agreements.
The learned Division Bench of this Court by an order dated 9.3.2005 disposed of the application, being G.A. No. 3741 of 2004 with the following direction :-
"Since we have directed final hearing of the appeal, we are disposing of the application by directing that the bank without prejudice to its rights and contentions shall go on paying the respondent writ petitioner an amount of Rs. 5000/- by way of subsistence allowance from the month of April 2005 until the appeal is decided."
During pendency of the said appeal, the respondent No. 3 issued a charge sheet dated 8.4.2005 against the petitioner. The charges are :-
"1) Through Office Order No. CM/25/86 dated 18th August, 1986 of the Branch, you were advised to work in Advance Department of the Branch. While working in the Advance Department during January/February, 1987, you were engaged in preparing of Book Debt Statement of the Branch as on 31.12.1986, for which you were allowed to handle the Security folders of the borrower accounts with the Branch to ascertain the nature and value of the securities held for incorporating the same in the Book Debt Statement.
2) At the time of preparations of Book Debt Statement you also handled the security folder of M/s. Alloys & Metals (India), enjoying the Cash Credit facility from the Branch against primary security and additional security comprising pledge of share certificates, assignment of Life Insurance Policies etc.
3) While having the access to the security folder of M/s. Alloys & Metals (India) for the aforesaid purpose you with an ulterior motive had taken away from that folder unauthorizedly 616 nos. of share certificates of 8 (eight) different companies as detailed below held in the name of Smt. Gyanwati Agarwal and pledged with Branch as Additional security against the Cash Credit facility sanctioned to M/s. Alloys & Metals (India).
Thus, your such misdeed had exposed the Bank to a financial loss of Rs.25,737.00 (being the market value of above mentioned 616 as on 14.1.1984 quoted in the Economic Times of the date).
Name & Address of Distinctive No. of shares No. of Value of shares as
the Co. From To shares per the Economic
Times of 14.1.84
Associated Bearing 745951 745953 4 Rs. 1,600.00
Co. Ltd., Hoeset
461226
House, Nariman
Point, Bombay- 400
021
Siemens India Ltd., 2934391 2934416 112 Rs. 5,040.00
134A, Dr. Annie 1921926 1921950
Besant Road, Worli, 6402963 6402987
Bombay- 400 018 7916048 7916084
Golden Tobacco 4935126 4935150 25 Rs. 400.00
Ltd. (Now GTC
Industries Ltd.),
Tobacco House,
Ville Parle,
Bombay- 400 056
Goodyear India 5368069 5368080 42 Rs. 666.00
Ltd., 60, 5172534 5172537
Chowringhee Road, 2563749 2563761
Calcutta- 700 020. 2023221 2023228
1617921 1617925
ITC Ltd., C/O. CPA 18969964 18969975 72 Rs. 2,304.00
Consulting Services 3827308 3827317
(P) Ltd., 11/A, 17118451 17118500
Sarojini Naidu
Sarani, Calcutta-
700 017.
J. K. Synthetics 19619525 19619584 240 Rs. 10,824.00
Ltd., Malala Tower, 10221511 10221582
Kanpur- 208 001. 4385305 4385376
2181995 2182006
1595266 1595271
1251829 1251831
755666 755680
Bihar Alloys Steels 2758301 2758325 25 Rs. 295.00
Ltd., Hadley House,
Old Hazaribagh
Road, Ranchi- 834
001.
Chloride India Ltd., 08154926 08155021 96 Rs. 4,608.00
C/o. Robson, Black
& Ghosh
(Management
Consultant) Pvt.
Ltd., R.C.T.C.
Building, 11, Russel
Street, Calcutta-700
071.
Total 616 Rs. 25,737.00
4) Subsequently it was revealed that out of the aforesaid 616 share certificates, missing
from Bank's Security folder, you had fraudulently sold 562 share certificates of the companies mentioned below through share broker M/s. M. M. Murarka & Co., 7B, Kiran Shanker Roy Road, Calcutta- 700 001 on behalf of one Birendra Kumar Sircar and against the sale proceeds of the above, you had purchased the shares of the following companies for your personal purpose and gain. The delivery of the purchased shares was also personally taken by you from the Share broker, indicating your involvement in the fraudulent transaction.
Sl. Name of the Company : No of shares 1. Tinplate 100 2. Tata Tea 100 3. Tisco 10 4. Gwalior Rayon 100 Sl. Date of transaction Share certificate (Name No. of shares Rate (Rs) of the Co. sold 1 13.2.1987 Siemens India Ltd. 12 109.00 2 -do- I.T.C. Ltd. 72 63.50 3 -do- Chloride India Ltd. 96 89.15 4 16.2.1987 J.K. Synthetics Ltd. 240 74.25 5 17.2.1987 Goodyear India Ltd. 42 74.00
Thereby taking advantage to your access to the security folder, you had fraudulently sold out aforesaid 562 shares for your personal enrichment. Your such act has exposed the Bank to a financial loss to the extent of Rs. 25,737/-.
Thus, your aforesaid acts amount to Gross Misconduct in the meaning of under noted Clauses of Memorandum of Settlement dated 10.04.2002.
5(d) 'Wilful damage to the property of the Bank' 5(j) 'Doing the act prejudicial to the interest of the Bank'."
The petitioner by his letter dated 29th April, 2005 asked for supply of the documents and prayed for subsistence allowance according to the bipartite agreements. It was also mentioned that the respondent bank had taken long 18 years to serve the charge sheet. He prayed for a stay of the disciplinary proceeding in the wake of Clause 19.4 of the 8th Bipartite Agreements. The respondent No. 3, by letter dated 18th May, 2005, intimated that the list of documents had been supplied. The petitioner, by letter dated 23rd May, 2005, again approached the bank authority for supply of the actual documents and ultimately, inspection of photocopies of the documents was given. After inspection, the petitioner sent his written reply by his letter dated 11th July, 2005, pointing out the fakeness of the charges and the fraud committed by the bank officials in procuring some manufactured documents from third parties. The respondent No. 3 thereafter on receipt of the reply appointed an inquiry officer and presenting officer and ordered an inquiry into the alleged charges. The petitioner then by letter dated 20th July, 2005 addressed to the respondent No. 3 sought for keeping the disciplinary proceeding pending in view of the fact that the trial in the criminal case had just begun.
Enquiring officer, however, fixed 28th July, 2005 as the date of hearing. The petitioner owing to his mother's death could not attend the same. By order dated 26th July, 2005, the learned Division Bench of this Court allowed the appeal to be withdrawn and the same was dismissed as not pressed. The petitioner claimed that the charges as made in the departmental proceeding and the allegations in the FIR virtually relate to the same transaction and are identical in nature.
Clause 19.4 of the 8th bipartite agreement provides that if after steps have been taken to prosecute an employee or to get him prosecuted for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of 'gross misconduct' or of 'minor misconduct'. If the authority which was to start prosecution proceedings refuses to do so or come to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out in clauses 19.11 and 19.12. In that event, the charged employee shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months pay and allowances in lieu of notice as provided in clause 19.3. If within the pendency of the proceedings, thus, instituted the employee put on trial such proceedings shall be stayed pending the completion of the trial. Thus, the respondents have no power to proceed with the disciplinary proceeding because the petitioner is being prosecuted for the offence before a criminal Court in which the trial has already begun. The petitioner is also entitled to be paid all his arrears of salary as if he is on duty during the period of his suspension.
Being aggrieved by such actions on the part of the respondent authorities in issuing a charge sheet long after 18 years and in attempting to hold an enquiry into absurd and stale charges in contravention to the bipartite agreements, the petitioner filed the instant application seeking redressal of his grievances.
The respondents in the Affidavit-in-Opposition denied, inter alia, the material allegations made in the writ application.
It was claimed that the petitioner being an award staff, his service conditions are, inter alia, governed and guided by bipartite settlements made from time to time between the management of 'A' class banks including the respondent bank and their workmen as represented by the All India Bank Employees' Association, National Confederation of Bank Employees, Bank Employees Federations and Indian National Bank Employee's Federations. It was apprehended that the petitioner who was attached to the Advance Department of the respondent bank i.e., the department from which the share certificates were missing got access to the Security Folder during discharge of the usual duties in the department and took away the share certificates from the Security Folder and thereafter got the shares sold through the share broker, M/s. M. M. Murarka & Co. in a fictitious name, i.e., Birendra Kumar Sircar forging the signature of Smt. Gyanwati Agarwal, the holder of the shares. In view of reasonable apprehension that there had been a mala fide act of theft and forgery, the Chief Manager of the respondent bank lodged FIR on 27th August, 1987 and on its basis, a criminal case was initiated. The petitioner was placed under suspension by an order dated 26th August, 1987 in contemplation of the disciplinary proceedings by the Chief Manager of the Bank. Initially it was decided that the departmental proceeding would not be proceeded with during pendency of the criminal proceeding. But since the criminal proceeding did not make any tangible progress during long 19 years, the respondent bank decided to proceed departmentally against the petitioner.
This prompted the respondent bank to issue a charge sheet being charge sheet dated 8th April, 2005. Petitioner grave a reply by letter dated 11th July, 2005. The authority concerned having not found the same satisfactory, decided to hold a departmental enquiry. This was followed up by issuance of letter dated 14th July, 2005, thereby appointing Shri Sudhansu Mondal, Manager, Golpark Branch, the respondent No. 4 herein as the Enquiry Officer. The petitioner was given due notices about the holding of such enquiry. He could not participate on 28th July, 2005 because of his mother's death and he did not participate in the enquiry on 12th September, 2005.
The petitioner thereafter moved the instant writ application. Learned Single Bench of this Court by an interim order dated 12th September, 2005, directed that the departmental proceeding can be proceeded with in accordance with law but the final order if passed adversely against the petitioner shall not be given effect to without the leave of this Court. The petitioner did not choose to participate in such enquiry fixed on 22nd September, 2005. Being left with no choice, the enquiry officer conducted the enquiry ex parte on 22nd September, 2005 and 23rd September, 2005. Enquiry officer submitted his report on 7th November, 2005 holding, inter alia, that most of the charges that were levelled against the petitioner, had been proved and/or established. The disciplinary authority by letter dated 24th November, 2005 furnished a copy of the enquiry report to the petitioner asking him thereby to place his written submission within 10 days from the date of receipt of the letter. The petitioner by letter dated 9th December, 2005 submitted his comments on the said report.
Learned 15th Court of Metropolitan Magistrate, Kolkata, by judgment and order dated 30th December, 2005 acquitted the petitioner and this was mainly for non-production of the material witnesses.
Since the nature and scope of the disciplinary proceedings are different from that of the criminal proceedings, an order of acquittal in the criminal case cannot conclude the disciplinary proceedings. The disciplinary authority after due consideration of all relevant materials by letter dated 22nd February, 2006 proposed the imposition of following punishment on the petitioner :-
"Compulsory retirement with superannuation benefits as would be due otherwise under the Rules or Regulations prevailing at the relevant time and disqualification from future employment."
Opportunity of hearing was duly given to the writ petitioner, who was again given the liberty to submit a representation instead of appearing in person if he so preferred. The petitioner made a written representation vide his letter dated 7th March, 2006. The disciplinary authority after consideration the facts of the case, report of the enquiry in the background of the proceedings of the enquiry and evidence both oral and documentary adduced and recorded in the enquiry, all connected papers and documents and the written submission dated 9th December, 2005 and the representation dated 7th March, 2006, passed the final order on 30th March, 2006. The departmental proceeding was, thus, concluded. In view of the interim order granted by this Court, the said final order could neither be communicated to the writ petitioner nor any effect could be given to the writ petitioner. The respondents categorically claimed that the enquiry proceeding against the writ petitioner had been concluded before conclusion of the criminal proceeding and there was nothing on record to suggest that the evidence adduced before the criminal Court were used against the writ petitioner in the enquiry proceeding.
The respondent bank, thus, sought for dismissal of the writ application. In response to the charge sheet, the writ petitioner submitted a written representation dated 11th July, 2005. The concerned authority did not find it satisfactory enough and decided to proceed with the departmental inquiry against him in respect of the charges as referred to earlier. By letter dated 14th July, 2005, the departmental authority appointed the enquiry officer and the presenting officer. It appears that the petitioner soon thereafter knocked the doors of this writ Court. By an interim order dated 12th September, 2005, the learned Court directed that 'the domestic proceeding may proceed in accordance with law. However, effect of the final order, if passed adversely against the petitioner, shall not be given without the leave of the Court. Subsistence allowance shall be paid to the petitioner without fail in accordance with law.....' Mr. Shrivastava, as learned Counsel for the petitioner, out at the very outset, referred to the fact that the complainant was not examined and the petitioner was, thus, denied an opportunity to cross-examine the said complainant. It was further submitted that the defacto complainant was not even examined by the police. The allegation in the criminal case was essentially that the petitioner being the employee of the United Bank of India committed theft in respect of 616 shares of different companies during the period from 13.2.1987 to 17.2.1987. The said shares were pledged with the Bank on 21st of January, 1984. Such shares were sold through the share broker, M/s. M. M. Murarka & Co. in a fictitious name of Birendra Kumar Sircar forging the signature of the shareholder. The petitioner, thus, cheated the bank.
Inviting attention of the Court to the bipartite agreement, it was contended that there could be no justification for proceeding with such enquiry. Following the bank manual, steps taken during pendency of the criminal case must be held to be without jurisdiction. The petitioner, thus, claimed that he is entitled to full salary with consequential reliefs.
Further grievance of the petitioner, as could be gathered from the submission made by Mr. Shrivastava, was that the alleged incident having taken place long time back, the charges became stale and there could be no reason whatsoever for proceeding with the same. Much was submitted regarding non-examination of material witnesses.
In this context, reference was made to the decision in the case of Hardwari Lal Vs. State of U.P. & Ors., as reported in JT 1999 (8) SC 418. In the said case, two important witnesses were not examined - one was a complainant and the other, the constable escorting the delinquent to the hospital. The Apex Court held that the Tribunal and the High Court were not justified in not attaching importance to such contention.
While referring to the scope of judicial review, it was submitted that the High Court in response to an application under Article 226 of the Constitution do not and should not act as a Court of Appeal. The power under Article 226 is, no doubt, purely discretionary and though no limits can be placed upon such discretion, it must be exercised along recognized lines and not arbitrarily. One of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. (Ref: Sangram Singh Vs. Election Tribunal, AIR 1955 SC 425).
Referring to the fact that the writ petitioner was acquitted in the criminal case, it was submitted by Mr. Shrivastava, as learned Counsel for the writ petitioner, that since the disciplinary proceeding substantially depends upon the same set of witnesses, there can be no scope for proceeding with the same after the order of acquittal passed by the competent criminal Court.
In this context, he referred to the decision of the Apex Court in the case of G. M. Tank Vs. State of Gujarat & Ors., as reported in 2006 SCC (L & S) 1121. The Apex Court relying upon an earlier decision in the case of Capt. M. Paul Anthony V. Bharat Gold Mines Ltd., (1999) 3 SCC 679, held that the appellant having been honourably acquitted by the competent Court on the same set of facts, evidence and witness, the dismissal order based on the same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.
While referring to the various stages of the proceeding against the writ petitioner, Mr. Shrivastava submitted that when amendments do not seek to take away any vested rights of any party and no question of limitation arises, no prejudice would be caused if amendments are allowed. On the other hand, it would avoid multiplicity of proceeding. Reference was made to the decision in the case of Asim Basu Vs. The Bank of Baroda & Ors., as reported in 2000 (1) CHN 342 in this context.
It cannot be disputed that the Court has always the authority and competence to mould the prayer and grant appropriate relief which serves the interest of justice and are justified in the facts and circumstances of the case. (Ref: Manashi Sinha Vs. State of W.B & Ors., 2005(1) CHN 171).
It is settled law that writ Court being a Court of equity, the technicalities are required to be avoided and subsequent events may very well be brought on record. (Ref: Ghisulal Tailor Vs. Union of India & Ors., 2007(4) CHN 205).
Mr. Majumdar, as learned Counsel for the respondent bank in course of his submission, categorically mentioned that there could be little reason for ventilating any grievance in the matter of proceeding with the disciplinary enquiry. Reference was made to the settlement which was arrived at on 10th April, 2002 and which the parties agreed to make effective and bind the parties until such settlement is terminated by either party giving a statutory notice. Regarding subsistence allowance, the aforesaid settlement clearly indicates that where the investigation is not entrusted to or taken up by an outside agency (i.e. Police/CBI), subsistence allowance will be payable at the rate of 1/3rd of the pay and allowances for three months and then, ½ of the pay and allowances. After one year, full pay and allowances are to be paid if the enquiry is not delayed for reasons attributable to the concerned workman or of his representatives. Where the investigation is done by an outside agency and the said agency has come to the conclusion not to prosecute the employee, full pay and allowances will be payable after six months from the date of receipt of the report of such agency, or one year after suspension, whichever is later and in the event the enquiry is not delayed for reasons attributable to the workman or any of his representatives.
Relying upon the decision of the Apex Court in the case of State of Haryana & Anr. Vs. Rattan Singh, as reported in AIR 1977 SC 1512, it was submitted by Mr. Majumdar that why did not the petitioner participate in the proceeding and ask for production of relevant materials or insist upon appearance of Murarka as a witness? The Apex Court in the said case observed that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. It was held that there is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The departmental authorities and administrative tribunals are to be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act.
In the said case, it was further held that "the sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record."
In the case of Nelson Motis Vs. Union of India & Anr. as reported in AIR 1992 SC 1981, the Apex Court observed that the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal cannot conclude the departmental proceeding.
Relying upon the said case, the Apex Court in a subsequent cases between Senior Supdt. of Post Offices, Pathananthitta & Ors. Vs. A. Gopalan, as reported in AIR 1999 SC 1514, held that acquittal of delinquent officer by a criminal Court does not conclude departmental proceedings in respect of the same charge.
In response to the grievances as ventilated on behalf of the writ petitioner that the disciplinary proceeding was conducted without giving reasonable and proper opportunity to the writ petitioner to place his stand and to assail the evidence on behalf of the prosecution, it was submitted by Mr. Majumdar that having consciously avoided the disciplinary proceeding, the writ petitioner could not be permitted to raise such points.
Deriving inspiration from the decision in the case of Bank of India Vs. Apurba Kumar Saha, as reported in 1995 LLJ S.C. page-18, it was contended on behalf of the respondent bank that an employee who refuses to avail of the opportunity provided to him in a disciplinary proceedings of defending himself against charges of misconduct involving his integrity and dishonesty cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself and the disciplinary proceedings had resulted in the violation of the principles of natural justice.
For proper appreciation of the various aspects raised in the present writ application, it is necessary to refer to the decision in the case of Capt. M. Paul Anthony (Supra). It may be pointed out that the Apex Court in the said case, after taking into consideration the various decisions of the Apex Court, came to the following conclusion :-
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.
It, thus, appears that the learned Counsel for both sides sought to derive inspiration from the various judgments of the Apex Court in support of the respective claim. It is possibly needless to mention that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found. (Ref: Quinn v. Leathem [1901] AC 495 at page-506).
It is not everything said by a judge when giving judgment that constitutes a precedent. It is further settled that a case is only authority for what it actually decides. Lord Halsbury in the case of Quinn v. Leathem (Supra) held that 'I entirely deny that it can be quoted for a proposition that may seem to flow logically from it'.
Talking about precedent Lord Denning said :-
"If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. They will be lost in 'The codeless myriad of precedent. That wilderness of single instances.' The common law will cease to grow. Like a coral reef it will become a structure of fossils." (Ref: Lord Denning - a biography, 2nd Edn., Edmund Heward, page-91).
True, one should not react to the prison of precedents like a child who has shut himself in a room and screams to be let out - presumably by the legislature.
Following Lord Denning's attitude to precedent it can be said that precedent must be treated as a path through the woods. One must follow it certainly, so as to reach his end. But one must not let the path become too overgrown. He must cut out the dead wood and trim off the side branches, else he may find himself lost in the thickets and the brambles. Idea is to keep the path of justice clear of obstructions which impede it.
So far the present case is concerned, it is difficult to dispute that the allegations against the writ petitioner are rather serious in nature. By an order dated 26th August, 2007 of the Chief Manager, Old Court House Street Branch, the petitioner was suspended from service in contemplation of a departmental proceeding. Senior official of the respondent bank lodged FIR on 27th August, 1987. It appears that the case was registered as G.R. Case No. 2951/89 and long 12 years after, charge sheet was filed i.e., on 8th March, 2002 after completion of investigation. The respondent bank did not choose to initiate the disciplinary proceeding and may be, for very right reasons since a police case was under investigation. It is found that subsequently the said criminal case ended in an order of acquittal. Question that naturally arises is whether it would be just and proper on the part of the respondent bank to proceed with a departmental proceeding in such backdrop. It was contended that the disciplinary proceeding commenced prior to the order of acquittal made by the criminal Court. But how can this Court ignore the fact that about two decades have passed in between. There is no scope to dispute that mere fact that the criminal case has ended in an order of acquittal does not certainly restrain the bank authority from proceeding with the disciplinary proceeding. It is also not in dispute that such an order of acquittal does not necessarily decide the fate of the disciplinary proceeding. The standard of proof is different so is the procedure - at least, to a significant extent.
In order to establish charge against an accused person in a criminal trial, the prosecution is required to prove the guilt of the accused person beyond the shadow of reasonable doubt. In a disciplinary proceeding, it is the preponderance of probability. Even in a criminal trial, credibility of testimony, oral or circumstantial, depends largely on a judicial evaluation of the totality, not isolated scrutiny. Proof beyond reasonable doubt is the guideline and not a fetish. Who can deny that truth also may very well suffer from infirmity when projected through human process.
While dealing with an application under Article 226 of the Constitution, this Court certainly is not called upon to act as a Court of appeal. It is not the decision but the decision making process, which can be assailed in an application for judicial review.
In the present case, filing of charge sheet in the departmental proceeding long 18 years after the alleged act of misconduct certainly invites shock and surprise. Technically, there may not be any restriction but out administration of justice is more concerned with substantive justice. Technicalities cannot be permitted to stand in the way.
After all, what could be expected of the writ petitioner? He has been dancing attendance in Court in connection with various litigations during this protracted period of time. The sword of a criminal investigation and consequently, the criminal trial was dangling on his head during all these years. How can it be denied that the petitioner must have been suffering from terrible mental agony during this period. This apart, there must have been social stigma and humiliation.
In the present case, the disciplinary proceeding against the petitioner had been assailed, apart from many other reasons, on the ground that there had been violation of the principles of natural justice. With the passage of time and the events which took place during this protracted period of time, the charges certainly got diluted beyond recognition, if not stale.
The manner, in which the disciplinary proceeding, though initiated long after 18 years, has finally been conducted reflects undue haste. The writ petitioner submitted his representation on 11th July, 2005. It was not found satisfactory and within three days, the disciplinary authority appointed enquiry officer and the presenting officer. The entire proceeding was finally conducted with astonishing speed. The grievance of the petitioner relating to non-examination of the complainant and denial of an opportunity to cross- examine the material witness, Mr. Murarka, cannot just be brushed aside. All such facts and circumstances harmoniously combine so as to suggest that the petitioner was denied the reasonable opportunity to defend himself and as such, there had been violation of the principles of natural justice. During pendency of the case, the disciplinary authority concluded the enquiry and got ready with the final order. The said order could not be given effect to in view of the earlier interim order passed in this case. For that, the respondent authority also filed an application seeking leave.
In the considered opinion of this Court, it will be extremely improper, if not harsh and unjust, if the petitioner is now compelled to suffer the consequences of such a departmental proceeding. It is said that 'if every saint has a past, every sinner has a future'.
An order of acquittal in a criminal trial does not necessarily suggest that the petitioner cannot be held guilty in a disciplinary proceeding. But having regard to the peculiar backdrop of the present case, the fact that more than two decades have passed since the date of commission of alleged misconduct, I find no rational justification for compelling the writ petitioner to suffer from any adverse order and more so, when such order suffers from inherent lacuna and latent infirmity relating to the decision making process.
Considering all such facts and circumstances, I also do not think it just and proper so as to permit the respondent bank to reopen or restart the disciplinary proceeding against the writ petitioner at this belated stage. In view of the inherent infirmity, the conclusion arrived at in the disciplinary proceeding cannot, in my opinion, pass the test of judicial scrutiny. As such, it cannot be given effect to.
The present application being W.P. No. 1737 of 2005 succeeds and be allowed. Consequently, this disposes of the application being G.A. No. 2123 of 2006.
The disciplinary proceeding against the present writ petitioner and the final order passed in connection with the same stand quashed. The service of the writ petitioner be immediately restored and respondent bank is directed to take appropriate steps for payment of arrear salaries and allowances, in case there is any amount outstanding, within four months from the date of communication of this order.
There is no order as to costs.
Xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.) Later :-
Immediately after passing of the said judgment and order, learned Counsel Mr. Mazumdar has sought for stay of operation of the same, which has been opposed by the learned Counsel for the writ petitioner. After due consideration of the relevant facts and circumstances, the prayer for stay is refused.
Urgent xerox certified copy of this judgment and order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(S.P. Talukdar, J.)