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2007 DIGILAW 303 (CAL)

Bimal Kumar Das v. UNION OF INDIA

2007-04-23

ARUN KUMAR MITRA

body2007
Judgment :- (1.) The petitioner being as employee of Untied Commercial Bank was suspended by an order of suspension issued on December 22nd, 1990 by the Assistant General Manager. Competent Authority of the Bank in exercise of the powers conferred upon him by Regulation 12 of UCO Bank Officer Employees (Discipline and Appeal) Regulations. 1976. It was also stated in the said suspension order that the petitioner shall not leave the head-quarters without previous permission from the Assistant General Manager. (2.) Thereafter another order was passed on June 3rd, 1991 in which it was stated that the disciplinary proceeding was contemplated against the petitioner and a case against the petitioner in respect of a criminal offence at Rajabazar Branch has subsequently, come under Investigation/inquiry by the Central Bureau of Investigation (shortly termed as CBI). (3.) It was also stated In the order of Assistant General Manager that in exercise of the powers conferred on him by Regulation 12 of the UCO Bank Officer Employees (Discipline and Appeal) Regulations 1976, the suspension of the said Shri Das from; service, shall, also be treated as suspension where a case against him in respect of criminal offence is under Investigation/inquiry. (4.) The Petitioner alleged in the writ petition that there was prolonged suffering of the suspension by the petitioner and the petitioner through his learned Advocate demanded justice from the authorities and it was also stated in the said letters that delay should not be there in completing the proceeding. (5.) The Petitioner stated in the writ petition that the criminal case lodged by CBI against the petitioner before the learned Judge, Calcutta, 2nd Special Court being Case No. 2 of 1993 was dismissed by the competent Court of law by Order No. 34 dated 28-2-1995 on the ground of lack of jurisdiction. (6.) According to. the petitioner, on 23-6-1995 the petitioner made an application before the Chairman, UCO Bank with copies thereof to the Chief Officer (Personnel) and the Assistant General Manager praying inter alia that as the criminal case, which was the root of suspension had been dismissed by the competent Court of law and there is no criminal case against him, the competent authority should consider the matter in the proper perspective and should withdraw the order of suspension with immediate effect. (7.) According to the petitioner, thereafter he sent several reminders with the same prayer on 30-11-1995, 8-3-1996 and 21-5- 1996. (8.) The. petitioner further alleged that on 26-2-1991 the Manager, UCO Bank served the petitioner with a copy of charge-sheet alleging inter alia that on the basis of a source Information F.I.R. has been lodged by the CBI authority against the petitioner stating therein that while the petitioner was attached to Rajabazar Branch of the Bank, one Ganesh Chandra Ghose opened an account on 11-7-1989 and deposited a sum of Rs. 20. The said account was Introduced by Sri B.K. Das, petitioner. The total transaction was about Rs. 2,500 up to 24-9-1990 and after that in between 10-11-1990 and 10-12-1990 a total sum of Rs. 1,20,000 was falsely shown to have been deposited in Ledger on different dates. Subsequently, a sum of Rs. 1,20,000 was withdrawn from the said Account. Upon receiving the source Information an inquiry was conducted by the CBI authorities and came to know that while the petitioner was posted at Rajabazar Branch during the period 1989 to 1990 he prepared forged numerous withdrawal slips relating to the said S.B. A/C No. 8588 and by forging the signature of the real account-holder withdrew a sum of Rs. 1,89,875 from the said Account and as such a prima facie case has been made out under sections 420/467/468/471/477A of the Indian Penal Code. The CBI authority also prayed before the competent authority to initiate proceeding against the said offence and accordingly the competent authority accorded sanction by order dated 31-3-1993. (9.) The learned Judge, 2nd Special Court, Calcutta by Order dated 6-7-1996 took cognizance of the offence against the petitioner under sections 420/ 467/468/471/477A of (.P.C. read with section 13(1)(d) of the P.C. Act, 1988 and directed issuance of summon upon the petitioner fixing the date of S.R. and appearance on 9-8-1996. (10) The petitioner alleged that Assistant General Manager informed him that they will hold Inquiry against the petitioner under Regulation 6 of UCO Bank Officer Employees (Discipline and Appeal) Regulations, 1976 and the petitioner was directed to submit written statement in his defence within ten days from the date of receipt. (10) The petitioner alleged that Assistant General Manager informed him that they will hold Inquiry against the petitioner under Regulation 6 of UCO Bank Officer Employees (Discipline and Appeal) Regulations, 1976 and the petitioner was directed to submit written statement in his defence within ten days from the date of receipt. (11.) The petitioner made an application after receiving the aforesaid letter before the Assistant General Manager on 29-4-1999 praying inter alia that the criminal case lodged against the petitioner has been dismissed by the competent Court of law and with the end of the Criminal Case, the allegations have become infructuous against him. The petitioner requested the authority to withdraw suspension. (12.) The petitioner stated, that by letter dated 5-5-1999 the Assistant General Manager informed about of the name of the inquiry "Officer and the name of the Presenting Officer in the proposed inquiry and the disciplinary proceeding was going to be initiated not being satisfied by the reply of the petitioner. (13.) The petitioner also stated that CBI authority once again started a criminal case on identical charges and started taking dates after dates. (14.) The Petitioner in his writ petition annexed all the documents including the order sheet to establish that the CBI took adjournment on so many dates. (15.) Thereafter the petitioner received the letter from Inquiry. Officer. The said letter was dated 11-8-1999 land through the said letter inquiry has been fixed on 30-8-1999 onwards on day to day basis, at Rajabazar Branch. (16.) Again the petitioner received another letter from which it appears that the criminal case was fixed on 30-9-1999. According to the petitioner, he was ill and failed to attend the inquiry. Then again the petitioner received letter dated 26-11-1999 informing him that on 24/25th November, 1999 the departmental proceeding has been held ex parte. (17.) The petitioner, immediately on receipt of the letter dated 26-11-1999 intimated the respondent authorities that firstly he was physically ill and not in a position to attend the inquiry. The petitioner submitted a Doctors certificate to establish that he was ill. (17.) The petitioner, immediately on receipt of the letter dated 26-11-1999 intimated the respondent authorities that firstly he was physically ill and not in a position to attend the inquiry. The petitioner submitted a Doctors certificate to establish that he was ill. The Petitioner also took a point in the criminal case that as a criminal case is pending on identical charges and the act of witnesses are identical it would highly prejudice that criminal case pending in the competent Court inasmuch as the petitioner was to disclose his defence in the departmental proceeding though a criminal case will take much longer time. (18.) The petitioner further alleged in the writ petition that he was suspended from service w.e.f. 22-12-1990 but the respondents have issued charge-sheet only on 3-4-1999. This is inordinate delay and unless this delay is condoned the petitioner cannot pray for relief. (19.) The petitioner made three prayers in the writ petition which are as follows:-(a) A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of Mandamus should riot be issued commanding the respondents to forthwith withdraw the order of suspension, charge-sheet and not to proceed with the enquiry any further and quashing of the same; (b) A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of Mandamus should not be issued commanding the respondents to reinstate the petitioner in service and to pay him backwages for the period he was suspended. (c) A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of Certiorari should not be issued directing the respondents to forthwith certify and transmit to this Honble Court all the records and proceedings relating to the case of your petitioner so that conscionable justice may be administered by quashing the impugned order of suspension, charge-sheet and departmental proceedings." (20.) Two proceedings - one criminal case and the other departmental proceedings started to move side by side simultaneously. At this juncture the authority proceeded with departmental proceeding since there was no injunction from this High Court and ultimately, final order was also passed but in view of the restraint order passed by Honble Justice Barin Ghosh (As His Lordship then was) the authority had to file an application being G.A. No. 34 of 2005. In this application the authority stated that inquiry proceeding has been completed in accordance with law and they prayed for leave to give effect to the final order passed. (21.) In such a position the petitioner prayed for a date on which the authority wilt complete the hearing. Honble Justice Barin Ghosh on the said writ petition directed the authority to complete the departmental proceedings as early as possible and to pass title final order but not to give effect to the same without leave of the Court. In this order His Lordship also provided the other directions in the nature that if the criminal proceedings go against the respondents/employer, the effect to the final order will not be given. Otherwise, it shall be open to the respondents/employer to; give effect to the final order. His Lordship also issued direction to file affidavit-in-opposition and reply. (22.) Affidavit-in-opposition and reply were filed. (23.) In the opposition the authority denied the allegations made by the petitioner. The authority also stated that entire proceeding has been completed in accordance with law and following the regulations provided for initiating departmental proceedings against the UCO Bank Officers. (24.) The petitioner, however, as would appear from his prayers wanted reinstatement in his services. Now, the main writ petition and the application have come up for hearing today before me. (25.) At the outset, there may be a question as to whether I should take up the matter. It does not appear from the order sheets or the records that at any point of time I passed any order contrary to the stand of the petitioner or the respondents. Naturally, I can take up the matter. Let me come to a decision of the points that in such a disciplinary proceeding whether the Court should interfere into the merit of the departmental proceedings or Court can re-appreciate the evidence adduced during the course of departmental proceedings. Naturally, I can take up the matter. Let me come to a decision of the points that in such a disciplinary proceeding whether the Court should interfere into the merit of the departmental proceedings or Court can re-appreciate the evidence adduced during the course of departmental proceedings. (26.) The above are the questions before this Court because of the reason two factors are there-one is, the criminal case on the self-same allegations continued and ultimately, the petitioner was acquitted from the charges and on the second aspect, a departmental proceeding with the same allegations is continuing. The said facts both are admitted. In such circumstances whether/disclosure of defence in the proceeding will amount to double jeopardy to the petitioner. (27.) After series of decisions since 1969 up to 2006 the matter has been settled as to whether a criminal case and a departmental proceeding on same charges can proceed simultaneously. In one decision reported in AIR 1997 SC 2232 (Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya etc.) the Honble Apex Court observed that there cannot be stay of departmental proceeding if the criminal case is proceeded simultaneously on the self-same charges. In paragraph 6 of this judgment the Honble Apex Court observed in the manner as follows:- "We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime Is an act of commission in violation of law or of commission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceeding are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof of applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of Evidence Act. The evidence required in the departmental enquiry is not regulated by Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under sections 304A and 338, I.P.C. Under these circumstances, the High Court was not right in staying the proceedings." (28.) It is settled law that the Court does not act as appellate body to the departmental authority or to the disciplinary authority. Neither, the Court can re-appreciate evidence in its limited scope of judicial review. The Court can, in a disciplinary proceeding see that the procedure laid down, if any for the departmental proceeding has been violated or not or the delinquent employee has been given reasonable opportunity to defend his. case or the principles of natural justice are violated or not. In the instant case the incumbent was given adequate opportunity to defend his case. He was given a fair trial arid Inquiry proceeding continued with notice to him. He was allowed to inspect the documents and he cannot say that opportunity was not given to him. Only defence he pleaded that since he was acquitted from the criminal case, which was initiated at the instance of the management on the identical allegations, the departmental proceeding should be stayed and cannot run. It is a fact that criminal case was initiated against him but in view of the Honble Apex Court decision referred to above, the departmental proceeding can run simultaneously side by side with the criminal case. (29.) In the above decision reasoning has also been given by the apex Court. The apex Court in this decision observed that the departmental proceeding can only be stayed if the employee concerned is found to be seriously prejudiced by it. But here that is not the case. The question of serious prejudice does not arise and in that view of the matter the authority rightly conducted departmental proceeding as well as the criminal case side by side. That apart, the matter, when appeared before Honble Justice Barin Ghosh (As His Lordship then was) His Lordship observed that the petitioner is avoiding the departmental proceeding and His Lordship fixed the date of Inquiry and directed the petitioner to join the Inquiry. That apart, the matter, when appeared before Honble Justice Barin Ghosh (As His Lordship then was) His Lordship observed that the petitioner is avoiding the departmental proceeding and His Lordship fixed the date of Inquiry and directed the petitioner to join the Inquiry. This also asserts that no prejudice was caused to the employee concerned and on the contrary he was evading the proceedings. (30.) The writ petition, therefore, has no merit and is liable to fail. (31.) The writ petition is dismissed. Connected application pending if any, is also disposed of. There will be no order as to costs. Petition dismissed.