Bijan Bihari Bhattacharjee v. United Bank of India
2002-09-05
B.B.DEB, P.K.SARKAR
body2002
DigiLaw.ai
P. K. SARKAR, J.— The present appeal is directed against the judgment and order dated 6.5.97 passed by the learned Single Judge in Civil Rule 82/90. 2. The petitioner-appellant was an ex-service man and was engaged as a house guard in the United Bank of India at Dharmanagar. While serving as House guard it is alleged that the petitioner-appellant has forged three withdrawal form at different dates and had withdrawn an amount of Rs, 1000/- against each forged withdrawal form. The Bank authority filed two criminal case against the petitioner-appellant - one is a complaint case and other is a case filed before the Police. The complaints were made some time in the year 1978. It is submitted by Mr. Biswas, learned counsel for the petitioner-appellant that in one case, the petitioner-appellant was acquitted in the year 1987 and after acquittal, disciplinary proceedings were drawn up against the petitioner-appellant. Mr. Biswas further submits that Bank authority has committed illegality by framing charge against the petitioner-appellant before conclusion of the second criminal case. It is, however, submitted by Mr. Biswas that in the second criminal case also, the petitioner-appellant was acquitted on 27.6.90, but before the acquit (1 in the second case, the disciplinary authority dismissed the petitioner from service by an order dtd. 22.1.90. 3. In the appeal, Mr. Biswas has argued two points namely, (1) the authority should not have started the departmental proceeding before the ending of the criminal case filed against the petitioner and (2) the Enquiry Officer did not properly appreciate the evidence adduced before him particularly the "Hand writing expert." 4. A bipartite agreement was entered into between the Bank and the worker's Union and certain guidelines were framed in the Bipartite agreement which were agreed to by both the authority of the Bank as well as Workers' Union that they will abide by the said guidelines. Chapter XIX of the aforesaid Bipartite agreement provides a disciplinary action and procedure therefore. Para 19(3) of the aforesaid agreement provides, inter alia, that when the management is of the opinion that the employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended.
Para 19(3) of the aforesaid agreement provides, inter alia, that when the management is of the opinion that the employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended. In Clause (b) it has been provided that "If he be convicted, he may be dismissed with effect from the date of his conviction or be given any lesser form of punishment as mentioned in Clause 19.6 below." 5. In the instant case, in one case, the petitioner was acquitted and the other case was pending and therefore, this Clause do not attract in the present case. Clause (c) of Para 19.3. Provides "if he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clauses 19.11. and 19.12 infra relating to discharge. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice." 6. The only question that requires a decision is whether acquittal in one case and pending of another the criminal case bars the authority from initiating any departmental proceedings. On bare perusal of Clause (a) (b) (c) of para 19.3, it does not appear that the authority is precluded from taking any departmental action against an employee who has committed an offence even though in one case he has been acquitted and the other case is pending against him. The only restriction that was put in the Bipartite agreement is in Para 19.4. According to Para 19.4, if any step has been taken by the Banking authority to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within one 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 mis-conduct'. In the instant case, the criminal case was filed as back in 1978 and the departmental proceeding was initiated in the year 1987.
In the instant case, the criminal case was filed as back in 1978 and the departmental proceeding was initiated in the year 1987. Therefore, it is evident that the Bank authority waited for more than one year and therefore, we are of the view that nothing wrong has been committed by the Bank authority in drawing up the disciplinary proceedings against the petitioner in the year 1987. Further pendency of the criminal case is not absolutely a bar for proceeding against an employee departmentally. It is very fairly submitted by Mr. Biswas that the petitioner did not move the enquiry officer or the disciplinary authority to stop the proceedings in view of the pendency of one criminal case. When no such approach was made by the petitioner, we are of the view that the departmental authority is free to proceed with the departmental proceedings simultaneously with the criminal case. Unless some prejudice is caused to the petitioner while proceeding with both the departmental proceeding as well as criminal case, in that event the departmental authority may not consider to keep in abeyance the proceedings, and in the instant case, there was no request from the petitioner for keeping in abeyance of the departmental proceedings and, therefore, we are of the view that no error has been committed by the disciplinary authority in continuing with the departmental proceedings. 7. The second question raised by Mr. Biswas is that enquiry officer should not have relied on the evidence of the hand writing expert Mr. S.P. Sarkar, Mr. Biswas submits that hand writing expert can only form an opinion or give opinion in respect of any questioned document. But he should not have expressed any definite opinion about any questioned document. In the instant case, the hand writing expert Mr. S.P. Sarkar has expressed his definite opinion about the questioned document and hereby it creats about the credibility of the hand writing expert. We do not agree with the views of Mr. Biswas. The expert has been examined by the enquiry officer and the petitioner-appellant had sufficient opportunity to cross-examine the hand writing expert. But nothing has been done in that regard. Further, there is very limited scope to examine the decision of the departmental authority in a judicial review.
We do not agree with the views of Mr. Biswas. The expert has been examined by the enquiry officer and the petitioner-appellant had sufficient opportunity to cross-examine the hand writing expert. But nothing has been done in that regard. Further, there is very limited scope to examine the decision of the departmental authority in a judicial review. So far as the departmental proceedings are concerned, it is the subjected satisfaction of the departmental authority regarding the imposition of penalty and unless there is any legal infirmity or error in the decision making process, the Court will always be slow in interfering with the findings of the disciplinary authority. Learned Single Judge has discussed in details and has given his reasons for not interfering with the findings of the disciplinary authority and we do not find any ground to interfere with the findings of the learned Single Judge. 8. After hearing the learned counsel of both the parties, we are of the view that there is no merit in the present appeal and accordingly, it is dismissed. However, we make no order as to costs.