VASANTLAL N. SHAH v. PUNJAB NATIONAL BANK,rajkot — 1987 DIGILAW 133 (GUJ)

M. B. SHAH, J. ( 1 ) THE petitioner was working as Accountant with the respondent Punjab National Bank in the branch office of the Bank at Dhrangadhra at the relevant time. Against him F. I. R. is lodged for the offences punishable under Sections 409 and 471 of the Indian Penal Code for the alleged defalcation to the tune of Rs. 2 89 830 which was first decided in June 1987. Thereafter the above F. I. R. was filed on 12/06/1987 for which 10 different charge-sheets are submitted by the investigating officer before Judicial Magistrate First Class Dhrangadhra. The cases are not yet committed to the Sessions Court. The petitioner has been suspended by an order dated 13-6-87. Thereafter the respondent initiated departmental enquiry against the petitioner for which charge-sheet was given on 15-10-87. The petitioner submitted his reply dated 25/30-10-87 to the said charge-sheet denying all the charges. The petitioner has further stated in the aforesaid reply that the petitioner had not prepared any TPO and was not liable for fictitious credits by preparing bogus advices in the alleged six accounts and fraudulent withdrawn of the amounts from these accounts by forging signature. He has also slated that he was neither aware of such bogus account nor had opened any account and as such he is not at all concerned in any way either in opening the accounts or in the withdrawal of any amount. Thereafter the petitioner has filed this petition wherein it has been prayed that respondent No. 1 be directed not to hold any departmental enquiry against the petitioner on the basis of the charge-sheet Annexure C till the final disposal of the criminal case. ( 2 ) RULE is issued in the matter. Al the time of admission of the matter the Court had passed he following order: leave to amend. Rule. Ad-interim relief in terms of para 25 (B ). However in is clarified that in will be open to the respondent authorities to request the Court for modifying or for vacating the interim relief after filing affidavit-in-reply. In the facts and circumstances of the case in is directed that respondents shall file affidavit-in-reply latest before 31/07/1988 If the respondents so feel they may file affidavit-in-reply even before the aforesaid date and may make request to the Court as stated herein above. Thereafter affidavit-in-reply is filed by Mr. In the facts and circumstances of the case in is directed that respondents shall file affidavit-in-reply latest before 31/07/1988 If the respondents so feel they may file affidavit-in-reply even before the aforesaid date and may make request to the Court as stated herein above. Thereafter affidavit-in-reply is filed by Mr. V. R. Sachdev Senior Manager of the Bank. Mr. Shah learned advocate appearing for the respondent Bank submitted that the ad-interim relief granted by this Court be vacated so that the department can finalise the enquiry. ( 3 ) AT the time of hearing of this petition Mr. Bhatt learned advocate appearing for the petitioner vehemently submitted that at present the criminal prosecution is pending before the Judicial Magistrate First Class at Dhrangadhra and the trial will commence shortly in the Ses- sions Court after the criminal cases are commitled to the Sessions Court; the allegation against the petitioner is for misappropriation or the amount of Rs. 2 89 830 therefore pending crimi- nal trial further proceedings in departmental enquiry should be stayed. He submitted that on identical facts if the departmental enquiry is held in would cause prejudice to the petitioner. ( 4 ) AS against this learned advocate Mr. Shah vehemently submitted that since 1987 de- partmental enquiry is pending and the criminal cases are not yet committed to the Sessions Court and the trial in the Sessions Court will take pretty long time. He submitted that if the depart- ment is permitted to hold the departmental enquiry then it would be finalised within a reasonable time. He further submitted that if the departmental enquiry is stayed then till the petitioner retires i. e. till 1991 the criminal cases would not be over and the Bank would suffer irreparable loss which would not be compensated. The Bank would be required to pay salary. He further relied upon the decision of the Supreme Court in the case of Kusheshwar Dubey v. Bharat Coking Coal Ltd. (19b8) 4 Supreme Court Cases 319. ( 5 ) IN the aforesaid case of Kusheshwar Dubey (supra) after considering the previous decisions of the Supreme Court the Court arrived at the conclusion that there could be no legal bar for simultaneous proceedings of departmental enquiry and criminal trial being taken. ( 5 ) IN the aforesaid case of Kusheshwar Dubey (supra) after considering the previous decisions of the Supreme Court the Court arrived at the conclusion that there could be no legal bar for simultaneous proceedings of departmental enquiry and criminal trial being taken. The relevant discussion is as under:the view expressed in the three cases of this Court seems to support the position that while there could be no legal bar for simultaneous proceedings being taken yet there may be cases where in would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases in would be open to the delinquent employee to seek such an order of stay or injunction from the court. Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted pending criminal trial. As we have already stated that in is neither possible nor advisable to evolve a hard and fast strait- jacket formula valid for all cases and of general application without regard to the particularities of the individual situation. For the disposal of the present case we do not think it necessary to say anything more particularly when we do not intend to lay down any general guideline. From the aforesaid discussion it is clear that it is open to the department to initiate depart- mental enquiry for the same charges but at the same time the Court may stay the departmental proceeding in individual cases after considering the facts of that case. ( 6 ) IN the present case taking into consideration the fact that even though F. I. R. was lodged in 1987 till to-day admittedly the eases are not committed to the Sessions Court. Hence it is apparent that there is no material progress in the criminal case. If further delay is permitted in holding departmental proceeding it may cause inconvenience to the department. If the depart- mental proceedings are further delayed it may happen that some evidence may not be available after lapse of long period. Further in the departmental enquiry of the petitioner is not held guilty then he can be reinstated in service. If further delay is permitted in holding departmental proceeding it may cause inconvenience to the department. If the depart- mental proceedings are further delayed it may happen that some evidence may not be available after lapse of long period. Further in the departmental enquiry of the petitioner is not held guilty then he can be reinstated in service. If he is held guilty then appropriate action could be taken. Otherwise the petitioner would be kept under suspension for years together and the depart- ment would have to pay subsistence allowance or salary to the petitioner without taking any work from him till the criminal case is finally decided not only by the trial Court but also by the appellate Court. So suspension for a long period of a civil servant would not be in the public interest in maintaining the efficiency of the service and also in would not be in the interest of the petitioner as well as the department. Hence taking into consideration the aforesaid circumstances this would not be a fit case for staying the departmental proceedings. ( 7 ) MR. Shah learned advocate appearing on behalf of the respondent Bank submitted that if the petitioner co-operates in the departmental enquiry it would be finalised at the earliest and before the criminal Court commits the cases to the Sessions Court in would be over. This was objected to by the learned advocate for the petitioner by contending that the evidence which may be recorded in the departmental enquiry may be used against him in the criminal trial. He submitted that in the criminal proceedings the petitioner is not required to open his mouth and cannot be compelled to be a witness against him. It is true that under Article 20 of the Constitution of India no person accused of any offence can be compelled to be a witness against himself in a criminal proceeding but that does not mean that he is excused from answering the charges which are leveled against him in departmental proceedings. ( 8 ) LEARNED advocate. Mr. Shah submitted that in the ease of Motisingh v. S. D. Mehta. A. I. R. 1966 Gujarat 233 the Division Bench of this Court has clearly pointed out that the scope of the departmental enquiry and the scope of the criminal prosecution is entirely different. ( 8 ) LEARNED advocate. Mr. Shah submitted that in the ease of Motisingh v. S. D. Mehta. A. I. R. 1966 Gujarat 233 the Division Bench of this Court has clearly pointed out that the scope of the departmental enquiry and the scope of the criminal prosecution is entirely different. The procedure which is to be adopted in criminal prosecution and the presumption which is to be raised and the manner of recording evidence would be entirely different in departmental enquiries. In the aforesaid ease the Court has held that the departmental enquiry is started for the purpose of satisfying as to whether in fact the delinquent is guilty of any misconduct or delinquency which requires to be dealt with in the interest of public administration. The object is only to inquire into the question as to whether the delinquent is guilty of misconduct or delin- quency. The scope of a departmental enquiry is to determine whether a public servant has com- mitted a misconduct or delinquency and even if the same constitutes from one point or view a crime to consider the question whether the delinquent deserve to be retained in public service or to be reverted or to be reduced in rank or otherwise suitably delt with for the delinquency concerned. Criminal proceedings are entirely different in nature and its object is to punish the accused for the offence committed by him. The rules relating to the appreciation of evidence in the two proceedings are different. The scope of an enquiry in a criminal trial is to determine whether an offence against the law of the land has taken place and in so to punish the person who has been quality of that offence. Proceedings in a criminal trial would be as per the Criminal Procedure Code and the evidence would be recorded as per the Evidence Act. Certain state- ments of the accused would be inadmissible in evidence in criminal trial. The position would be different in departmental enquiry. ( 9 ) IN my view in view of the delay in criminal proceedings and in view of the fact that the departmental proceedings are initiated for altogether a different purpose it would be just and proper not to grant any interim directions restraining the department from holding enquiry. If the interim order is granted then the society as a whole will only be the sufferer. If the interim order is granted then the society as a whole will only be the sufferer. In some cases guilty persons would continue in service till they retire. By holding departmental enquiry no preju- dice would be caused to the delinquent. ( 10 ) IN this view of the matter the interim relief is vacated. (ISS) Order accordingly. .