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2000 DIGILAW 195 (KER)

P. S. Vijayan v. Syndicate Bank

2000-03-28

C.S.RAJAN

body2000
Judgment :- The petitioners were accused in a criminal case. They were acquitted in the criminal case as per Exhibits P-3 and P-4 judgments in O.P. No. 17972/1999 and Exhibit P-2 in O.P. No. 32577/99. The acquittal was on the basis of the ruling of the Supreme Court reported in 'Common Cause' v. Union of India 1996 (4) SCC 33 : (AIR 1996 SC 1619) where the Supreme Court said that the long delay in the matter of trial of criminal cases would adversely affect the accused and such cases must be closed. Therefore, following the above decision the cases against the petitioners were closed and the petitioners were acquitted. Thereafter disciplinary proceedings were taken against the petitioner evidenced by Exhibit P-5 memo of charges. The only argument which was put forward by learned counsel for the petitioners is that initiation of disciplinary action after acquittal by the criminal Court is without any jurisdiction. For the above purpose the petitioners relied on clause 19.5 of the First Bipartite Settlement dated 19-10-1966 which provides as follows : "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" (as defined in clause 19.5 and clause 19.7) provided that 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 relating to discharge, but he 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. 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 proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 19.3 shall apply."As against this in the counter-affidavit filed by the second-respondent in O.P. No. 17972/1999 Clause 19.3.C of the Bipartite Settlement has been relied on. The above Clause empowers the Bank to proceed against the persons acquitted in a criminal Court by initiating disciplinary proceedings. Now it is beyond doubt that an employer can take disciplinary action against an employee who was acquitted in a criminal case. This Court has held as such as early as 1970 in Spadigam v. State of Kerala 1970 KLT 1047. In the above case Justice Mathew (as he then was) elaborately discussed the question of doctrine of issue estoppel and held that the above doctrine cannot be applicable in the case of an enquiry before a tribunal conducting a disciplinary proceedings. It was also held that judgment of a criminal Court acquitting an accused on the merits of a case would bar disciplinary proceedings against him on the basis of the same facts or that the judgment would operate as conclusive evidence in the disciplinary proceedings. The reasoning of the learned Judge was that a criminal Court requires a high standard of proof for convicting an accused and the case must be proved beyond reasonable doubt. Such a standard of proof is not required for finding a person guilty in a disciplinary proceedings. It is enough if there is a preponderance of probability of his guilt. In a disciplinary proceedings a person can be found guilty of a charge on materials which are inadmissible in evidence in a criminal trial. The strict rules of Evidence Act are not applicable in the disciplinary proceedings. All the rulings on the subject were elaborately discussed by Justice M. P. Menon in K. Babu v. Union Bank of India (1996 KLT 706). The above case relates to an employee of a Bank against whom a disciplinary action was taken after acquittal by a criminal Court. All the rulings on the subject were elaborately discussed by Justice M. P. Menon in K. Babu v. Union Bank of India (1996 KLT 706). The above case relates to an employee of a Bank against whom a disciplinary action was taken after acquittal by a criminal Court. The same clause in the Bipartite Settlement was relied on in the above case also. Dealing with the above aspects the learned Judge observed as follows :"12. It may perhaps be too startling a proposition to suggest in very general terms that irrespective of what a criminal or civil Court has held in respect of the conduct of an employee, his employer should still be free to institute another enquiry against him and reach his own conclusion, on the same set of facts and the same evidence. Where a Court acquits a person on grounds like want of sanction, non-availability of prosecution witnesses, benefit of doubt, defective charge and such other technical reasons, there could be no difficulty in holding that his employer can be permitted to examine the matter further; but if it is entirely a question of appreciating the same evidence, and reaching different conclusions thereon, the Courts have been understandably reluctant to permit employers to overlook or ignore the decisions of criminal Courts. Judicial reluctance to recognise primacy in favour of others, albeit in the limited field of discipline, in assessing evidence and reaching just or correct conclusion thereon, has perhaps been responsible for the extension or expansion of theories relating to issue estoppel, res judicta and all that. But take a case where the driver of a motor car is hauled up before a Court for rash and negligent driving, causing personal injury and disablement to some one. He may be acquitted by the criminal Court, but he may still be found negligent by the civil Court, and the employer vicariously held liable for compensation. Which is the binding decision for the employer ? Should he follow the criminal Court's verdict and exonerate the driver, ignoring the civil Court's finding that he should have been more careful ? He may be acquitted by the criminal Court, but he may still be found negligent by the civil Court, and the employer vicariously held liable for compensation. Which is the binding decision for the employer ? Should he follow the criminal Court's verdict and exonerate the driver, ignoring the civil Court's finding that he should have been more careful ? Instead of laying down, absolute rules in cases like these, what seems to be reasonable is to leave each matter to the appropriate authority, realising that the purpose and scope of each proceeding is different and that no authority would ordinarily act whimsically or erroneously and that even if one does so, the superior Courts are there to correct the aberrations."In these cases as noticed earlier there was no acquittal on merits. The petitioners were acquitted because of the embargo imposed by the ruling of the Supreme Court on account of the delay in commencing the trial. There was no finding on merit in these cases. What is important to consider is as to whether the disciplinary proceedings taken against the petitioners are illegal or without any jurisdiction. This Court is not to consider whether these proceedings were initiated with propriety or expediency. This Court is only concerned with the lack of jurisdiction in initiating this disciplinary proceedings by the Bank. In view of the authoritative pronouncements referred to above, I do not think the arguments of the petitioners can be accepted. Therefore, the Original Petitions are dismissed. Petition dismissed.