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2011 DIGILAW 4561 (MAD)

P. Ravikumar v. The Deputy General Manager

2011-11-17

T.S.SIVAGNANAM

body2011
Judgment :- 1. The prayer in the Writ Petition is for issuance of Writ of Mandamus to forbear the respondents-Bank from conducting the disciplinary proceedings, pursuant to the proceedings commenced by a charge memo dated 19.02.2008, till the disposal of the Criminal Case in C.C.No.264 of 2008, pending on the file of the Judicial Magistrate, Bhavani. 2. The facts which are necessary for the disposal of the Writ Petition are that the petitioner joined the service of the respondents-Bank as a Messenger, during the year 1992 and thereafter, promoted to the post of Cashier during the year 2004. Whileso, by an order dated 23.07.2007, the petitioner was placed under suspension on the ground that the disciplinary proceedings are contemplated against the petitioner and pending issuance of the charge sheet. Subsequently, a criminal complaint was also lodged against the petitioner in C.C.No.12 of 2007, on the file of the Judicial Magistrate, Bhavani, for the alleged offence punishable under Section 409 of Indian Penal Code (for short "I.P.C."). The departmental charge memo was issued to the petitioner on 19.02.2008, containing the following imputations:- "On 16.07.2007, while working as Cashier at Poonachi Branch, you had arrived the closing cash balance as Rs.10,70,932/- ( hand balance Rs.31,392/- and Vault Balance Rs.10,39,000/-) whereas, while checking the closing cash, the Branch Manager, Shri T.Rajendran, found that the actual closing cash was only Rs.711432/- ( Vault Balance RS.6,79,000/- and Hand Balance Rs.31932/-). You had stealthily removed seven sections of Rs.500/- denomination and 19 pieces of Rs.500/-denomination (totally, 719 pieces of Rs.500/- denomination) aggregating to Rs.35,9500/ and misappropriated the same. On 16.07.2007, the cash was closed by debiting suspense account for Rs.3,59,500/- " 3. The petitioner submitted his reply through his Counsel on 21.08.2008, denying the allegations levelled against him in the chargememo. In the meantime, the respondents-Bank, not being satisfied with the explanation given by the petitioner, appointed an Enquiry Officer. While the matter stood at that stage, in the criminal proceedings, a final report was filed by the Investigating Officer on 30.04.2008. The respondents-Bank sent a notice on 25.7.2008, directing the petitioner to appear for the departmental enquiry, scheduled to be held on 13.08.2008. While the matter stood at that stage, in the criminal proceedings, a final report was filed by the Investigating Officer on 30.04.2008. The respondents-Bank sent a notice on 25.7.2008, directing the petitioner to appear for the departmental enquiry, scheduled to be held on 13.08.2008. On receipt of such notice, the petitioner sent a reply through his Counsel on 11.08.2008, stating that the criminal case is pending against him before the Judicial Magistrate, Bhavani, in C.C.No.12 of 2007, and the Revision Petition filed by the petitioner in Crl.R.C.No.434 of 2007 is also pending before this Court and therefore, requested the respondents-Bank to defer the disciplinary proceedings. On receipt of the same, the Enquiry Officer sent another notice dated 13.08.2008, fixing the departmental enquiry on 28.08.2008. On receipt of the said notice, the petitioner through his counsel sent a reply on 21.08.2008, reiterating the pendency of the criminal case and stated that until the criminal case in C.C.No.264 of 2008 is disposed of, the departmental enquiry may pleased to be deferred. 4. However, the request made by the petitioner was not accepted and it appears that the Enquiry Officer proceeded ex parte and examined three witnesses on the side of the Management viz., M.W.1 to M.W.3 and submitted a report on 18.09.2008, holding that the charges levelled against the petitioner are proved. Based on such report submitted by the Enquiry Officer, the first respondent issued a second show cause notice to the petitioner on 15.10.2008. On receipt of the second show cause notice, the petitioner has filed this Writ Petition for the aforementioned relief. 5. This Court, on 10.11.2008, while ordering notice to the respondents returnable in two weeks, directed the respondents-Bank to maintain status-quo in respect of the disciplinary proceedings. In view of the interim order granted by this Court, the disciplinary proceedings have remained stayed. 6. 5. This Court, on 10.11.2008, while ordering notice to the respondents returnable in two weeks, directed the respondents-Bank to maintain status-quo in respect of the disciplinary proceedings. In view of the interim order granted by this Court, the disciplinary proceedings have remained stayed. 6. The learned counsel appearing for the petitioner submitted that the charges levelled against the petitioner in the departmental charge sheet is identical to that of the charges found in the criminal case and the list of witnesses, who have been examined in both the cases are one and the same and the list of documents are also the same and the case, which has been registered against the petitioner is for an alleged offence under Section 409 of I.P.C., which is a serious offence and for proving the defalcation, complicated questions have to be considered and therefore, the departmental proceedings have to be deferred, till the completion of the criminal case. 7. Per contra, the learned counsel for the respondents-Bank submitted that despite several opportunities having been granted to the petitioner, he did not attend the disciplinary enquiry and therefore, the Enquiry Officer was fully justified in proceeding ex parte. It is his further submission that the power of the respondents-Bank to initiate disciplinary action is independent and separate as that of the power to prosecute the petitioner for offences in a criminal case and therefore, this Court should not stay the departmental action. Further, it is submitted by the learned counsel for the respondents-Bank that initially, the petitioner represented, as if, the criminal trial has commenced, however, the trial has not yet commenced and therefore, the respondents were justified in proceeding with the departmental action and he relied upon the following judgments in support of his contention i) 2008 (1) S.C.C. 650 in the case of [ Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others] ii) 2007 (3) C.T.C. 211 in the case of [ NOIDA Entrepreneurs Assn. Vs. NOIDA and others] iii) 2005 (10) S.C.C. 471 in the case of[ Hindustan Petroleum Corporation Ltd., and others Vs. Sarvesh Berry] 8. Heard the learned counsel for the parties and perused the materials available on record. 9. P.Ganesan and others] ii) 2007 (3) C.T.C. 211 in the case of [ NOIDA Entrepreneurs Assn. Vs. NOIDA and others] iii) 2005 (10) S.C.C. 471 in the case of[ Hindustan Petroleum Corporation Ltd., and others Vs. Sarvesh Berry] 8. Heard the learned counsel for the parties and perused the materials available on record. 9. The short issue which falls for consideration is as to whether the disciplinary action initiated against the petitioner should be deferred and await the disposal of the criminal case, which is now pending before the Judicial Magistrate Court, Bhavani, in C.C.No.264 of 2008. 10. The basic facts of the case are not in dispute. The petitioner being an employee of the respondents-Bank was placed under suspension on 23.07.2007 and simultaneously, a criminal case was also filed against the petitioner for alleged offence under Section 409 of I.P.C. 11. The allegations against the petitioner is that while he was working as Cashier at Poonachi Branch, he had arrived the closing cash balance as Rs.10,70,932/-, whereas, while checking the closing cash, the Branch Manager had found that the actual closing cash was only Rs.711432/- and the petitioner had removed seven sections of Rs.500/-denomination and 19 pieces of Rs.500/- denomination (totally, 719 pieces of Rs.500/-denomination) aggregating to Rs.35,9500/-. On the same set of facts, a departmental charge memo was also filed on 23.07.2007, and it is not in dispute that within the time stipulated, the petitioner submitted his explanation/reply on 10.03.2008, denying the charges levelled against him. 12. The Management, not being satisfied with the explanation given by the petitioner, appointed an Enquiry Officer. When the Enquiry Officer sent a notice on 25.7.2008, directing the petitioner to appear for the disciplinary enquiry, scheduled to be held on 13.08.2008, the petitioner sent a reply through his Counsel on 11.08.2008, stating that the criminal case in C.C.No.12 of 2007, is pending against him before the Judicial Magistrate, Court, Bhavani, and therefore, the departmental enquiry may be deferred. Yet, once again, the petitioner was directed to appear for departmental enquiry and the petitioner once again through his Counsel sent a reply on 21.08.2008, reiterating the same stand and requested for deferring the departmental proceedings, till the disposal of the criminal case. But the Management proceeded ex parte and recorded statements of three witnesses on the side of the Management and certain documents were also marked. 13. But the Management proceeded ex parte and recorded statements of three witnesses on the side of the Management and certain documents were also marked. 13. Now, the question is as to whether at this stage, the departmental proceedings initiated against the petitioner should be deferred, till the completion of the criminal case? 14. Legal position holding the field on this issue in no longer res integra and as held by the Honble Supreme Court in Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others ( cited supra) t “ a departmental proceedings, pending a criminal proceedings, does not warrant an automatic stay and the superior courts before exercising its discretionary jurisdiction in this regard, must also take into consideration the fact, as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter.” 15. In the said case, the Honble Supreme Court referred to various decisions, including the celebrated decision rendered in the case of Capt. M.Paul Anthony Vs. Bharat Gold Mines in 1999 3 S.C.C. 679, and ultimately held that:- “What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges leveled against the delinquent officers, both in the criminal case as also in the disciplinary proceedings, were same. Furthermore, it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not prejudice the delinquent officers but the matter also involves a complicated question of law.” 16. We have seen the allegations levelled against the petitioner in the departmental charge memo. The final report filed by the Investigating Officer before the Criminal Court, as contained in Page No.21 of the typed-set of papers is as follows:- <span class="Hfont">",e;j epiyapy; 09.07.2007 -ypUe;J 14.07.2007 tiuapy; cs;s fhyj;;jpy; Kjy; vjphp fhrhsuhft [k;, ,uz;lhtJ vjphp nkyhsh; bghWg;gpYk; ,e;jpad; Xth;rPt;fp gdhr;rp fpisapy; gzpapy; ,Ue;jnghJ me;j t;fpapy; ,Ug;gpy; ,Ue;j bkhj;j gzj;jpy; U:. 3,59,500/-I ,uz:L vjphpfSk; Tl;;lhf me;j t;fpapid ek;gpf;if Jnuhfk; bra;J me;j t;fpf;Fr; nrh;e;j; U:.3,59,500/-I ifalhy; bra;J mth;fsJ brhe;j cgnahfj;jpw;F cgnahfg;gLj;jp cs;shh;fs;. Mfnt ,uz;L vjphpfSk; rl;lg;gpupt [ 409 ,jrgo jz;of;fg;gl ntz;oa Fw;wk; gupe;Js;shh;fs;." 17. 3,59,500/-I ,uz:L vjphpfSk; Tl;;lhf me;j t;fpapid ek;gpf;if Jnuhfk; bra;J me;j t;fpf;Fr; nrh;e;j; U:.3,59,500/-I ifalhy; bra;J mth;fsJ brhe;j cgnahfj;jpw;F cgnahfg;gLj;jp cs;shh;fs;. Mfnt ,uz;L vjphpfSk; rl;lg;gpupt [ 409 ,jrgo jz;of;fg;gl ntz;oa Fw;wk; gupe;Js;shh;fs;." 17. Thus, on comparison of the charge memo in the departmental proceedings as well as the final report filed in the criminal case, it is evidently clear that it is for one and same set of allegations that the petitioner has been proceeded with. The list of witnesses, who were to be examined on the side of the prosecution has been appended to the final report in S.Nos,1, 2 and 4 are the prosecution witnesses, who have been examined in the departmental enquiry as M.W.1 to M.W.3. Further, from the Enquiry Officers report, it is seen that 17 documents were marked and out of the 17 documents, 5 documents have also been marked and relied on in the criminal proceedings. There is one hand written note in the final report stating that the remaining documents are in the custody of the Officers of the respondents-Bank. 18. It is stated that on behalf of the petitioner that the original documents relating to the prosecutionhave been marked in the departmental proceedings as Exs.M.E.4 to 17 and because, the entire documents are in the custody of the Departmental Authorities, criminal trial has not been proceeded with and the petitioner has also filed an application to discharge him from the criminal offence. 19. Therefore, one aspect of the matter which has to be considered is as to whether the charges leveled against the delinquent/petitioner in both the criminal proceedings as also disciplinary proceedings are one and the same. 20. In the light of the above facts, more particularly, the allegation in the departmental charge memo and the final report in C.C.No.12 of 2007, coupled with the fact that the documents in both the proceedings are the same and three Management witnesses, who were examined in the domestic enquiry are also the prosecution witnesses in the criminal case, this Court has no hesitation to hold that the allegations against the petitioner in both the cases are identical in nature. 21. The next aspect to be considered is as to whether the petitioner would be put to prejudice, if the departmental action is proceeded with. 22. 21. The next aspect to be considered is as to whether the petitioner would be put to prejudice, if the departmental action is proceeded with. 22. Admittedly, the charge against the petitioner is one punishable under Section 409 of I.P.C. which is of serious nature and requires to be thoroughly brought about in the criminal proceedings. Furthermore, the documents which have been relied on by the Management in the domestic enquiry are the documents, based on which the case of the prosecution has been couched. That apart, 3 out of 10 witnesses, who are to be examined on the side of prosecution witness are the witnesses M.W.1 to M.W. 3, who have been examined by the Management in the domestic enquiry. Hence, this Court is of the view that the departmental proceedings have to be deferred, as it would cause much prejudice to the delinquent/petitioner in the criminal case, in view of the identical set of facts and the complicated questions involved in the criminal proceedings. 23. That apart, if the departmental proceedings is allowed to be proceeded with, then, it would also result in a situation, where, the petitioner would be compelled to disclose his defence in respect of the charges, which are of identical in nature in the criminal case and pending trial before the criminal court. Admittedly, the degree of proof that is required in a departmental proceedings is not the same as that is required in the criminal proceedings. In a departmental proceedings, strict and sophisticated rules of evidence are not applicable and all that is required to be looked into, is as regards the preponderance of probability of the charge. Therefore, when a person is pitted with these two proceedings, any punishment that may be imposed by the Criminal Court would be more severe and drastic. 24. Therefore, in such circumstances of the case, this Court is of the view that it is fit case, where the departmental proceedings should be deferred, till the conclusion of criminal proceedings. It is needless to state that the Criminal Court shall proceed with the matter independently without being influenced by any of the observation in this order. 25. In the result, the Writ Petition is allowed with the above observation. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.