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2001 DIGILAW 89 (CAL)

SHIB NATH BODHAK v. BANK OF INDIA

2001-02-21

MAHEMMAD HABEEB SHAMS ANSARI

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M. H. S. ANSARI,J. ( 1 ) THE petitioner in the instant application has questioned the order passed by the disciplinary authority dated 14th October, 2000 being annexure P7 to the writ application. ( 2 ) BY the said order (annexure P7), the petitioner was awarded the penalty of dismissal from Bank service in terms of Regulation 4 (j) of Bank of India Officer Employees (Discipline and Appeal) Regulations read with section 10 (1) (b) (i) of Banking Regulations Act, 1949. ( 3 ) THE petitioner was convicted by the Special Judge, CBI, South Bihar, Patna vide order dated 16th May, 1998 for the criminal offences under section 5 (1) (d) read with section 5 (2) of Prevention of Corruption Act, 1947 and sections 161 and 165 read with section 120 (B) Indian Penal Code. ( 4 ) THE case of the petitioner is that a disciplinary enquiry was initiated against the petitioner on the self same charges which were subject matter of enquiry before the criminal Court. The disciplinary enquiry culminated in the order passed by the Appellate Authority while disposing of the appeal dated 5. 12. 1989 against penalty order dated 26th October, 1989 imposing the penalty of reduction by two stages in time scale. The petitioner, it is contended cannot now be punished again for the very same offences in relation whereto a disciplinary enquiry was held and punishment was inflicted on the petitioner by the disciplinary authority and affirmed by the Appellate Authority as far back as on 5th December, 1989. Even the Reviewing Authority declined to interfere with the said orders when it rejected the review application of the petitioner by the order dated 23rd July, 1990. ( 5 ) IT must be stated that the orders passed by the disciplinary authority/appellate authority in relation to the disciplinary enquiry was prior to the conviction of the petitioner by the Special Judge, CBI, South Bihar vide order dated 16th May, 1998. ( 6 ) IT is not in dispute that the petitioner was convicted by the Special Judge, CBI in the criminal case and held guilty of the charges levelled against him. ( 6 ) IT is not in dispute that the petitioner was convicted by the Special Judge, CBI in the criminal case and held guilty of the charges levelled against him. It is, however, contended that an appeal has been preferred against the said order and, therefore, the petitioner could not be imposed the said punishment of removal from service, more so when he has been granted provisional bail by the trial Court and the same was allowed to continue by the Appellate Court. ( 7 ) IT is not in dispute that the petitioner was served with a show cause notice dated 1st December, 1998 initiating action under Regulation 11 of Bank of India Officer Employees' (Discipline and Appeal) Regulation, 1976 r. w. section 10 (1) (b) (i) of Banking Regulation Act, 1949 proposing therein the punishment of dismissal from Bank service since in the Special Case No. 74 of 1985, petitioner has been convicted for criminal charges by the Court of Special Judge, CBI, South Bihar, Patna vide order dated 16th May, 1998 holding him guilty under section 5 (i) (d) of the Prevention of Corruption Act, 1947 and sections 161 and 165 of the IPC for the criminal offences and sentenced the petitioner to undergo rigorous imprisonment for three years for the offences under the Prevention of Corruption Act, 1947 and further sentences to undergo RI for one year under sections 161 and 165 read with section 120 (B) of IPC. The petitioner submitted his reply dated 14th December, 1998. The disciplinary authority considered the gravity of the charges for which the petitioner was held guilty involving moral turpitude and passed the impugned order. Regulation 11 reads as under;"11. Special procedure in certain cases: Notwithstanding anything contained in regulation 6 or regulation 7 or regulation 8 the Disciplinary Authority may impose any of the penalties specified in regulation 4 if then officer employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial. Provided that the officer employee may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made. " ( 8 ) THE Regulation 11, quoted supra, expressly provides for the special procedure for imposing any of the penalties specified under Regulation 4 against an employee, if he has convicted on a criminal charge. " ( 8 ) THE Regulation 11, quoted supra, expressly provides for the special procedure for imposing any of the penalties specified under Regulation 4 against an employee, if he has convicted on a criminal charge. In terms of the said Regulation 11, it is not necessary to hold a disciplinary proceeding since the disciplinary action proceeds on the basis of findings recorded by a Court of competent jurisdiction. The special procedure prescribed in Regulation 11 does not oblige the respondent bank to hold the disciplinary proceeding. The proviso to regulation 11, however, mandates that the employee shall be given an opportunity of making representation on the penalty proposed to be imposed. This mandate was complied with by the respondent bank by issuing the show cause notice dated 1st December, 1998 and the petitioner submitted his reply thereto by his representation dated 14th December, 1998. ( 9 ) IN Haripada Khan v. Union of India, reported in AIR 1996 SC 1065 , the Supreme Court considered similar contentions in the light of Articles 14, 16 and 21 of the Constitution and held that the Rule providing for termination of services of employees involved in criminal cases without holding enquiry subject to result of criminal trial is not violative of Articles 14 and 21 of the Constitution. Reference was made to the case of Tulsi Ram Patel ( AIR 1985 SC 146 ) wherein the apex Court upheld the validity of such Rule subject to principles of natural justice. The Supreme Court in that case distinguished the judgment in Hindusthan Steel Limited ( AIR 1985 SC 251 ) wherein a contra view was taken. ( 10 ) IN Deputy Director of Collegiate Education (Admn.), Madras v. S. Nagoor Meera, reported in AIR 1995 SC 1365, the Supreme Court considered a similar question as in the instant case namely the consequence and the effect, if any, of the order of the Appellate Court staying the sentence in the light of provisions contained in section 389 of the Code of Criminal Procedure, 1973. It was observed that merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. The Supreme Court declared as under : "what is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. It was observed that merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. The Supreme Court declared as under : "what is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal Court. Until the said conviction is set aside by the appellate or other Higher Court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice. " ( 11 ) IN the light of the judgments referred to supra, no legal infirmity can be found with the order impugned in the instant writ application. However, as held in Nagoor Meera's case (supra), if the conviction is set aside by the Appellate Court or other Higher Court, it will be open to the petitioner to file appropriate application for review and the respondent authorities shall consider the same in such manner that the petitioner suffers no prejudice. With the observations as above, the writ application is accordingly dismissed. There shall be no order as to costs. Let urgent Xerox certified copy of this judgment and order if applied for be furnished to the parties on priority basis. Application dismissed.