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2014 DIGILAW 2235 (MAD)

M. Raja v. State Bank of India

2014-07-23

K.K.SASIDHARAN

body2014
ORDER : 1. These two Writ Petitions are at the instance of an employee of State Bank of India (who is now under suspension pending disciplinary proceedings) and the prayer is to quash the order dated 17.01.2014, rejecting the request for keeping the departmental proceedings in abeyance till the conclusion of the connected criminal cases W.P. (MD) No. 6080 of 2014 and the enquiry report dated 04.03.2014 and the second show cause notice dated 05.03.2014, calling upon him to submit his explanation with reference to the enquiry report submitted by the Enquiry Officer (W.P. (MD) No. 5224 of 2014). Facts in Nutshell: The petitioner was appointed by the State Bank of India as Assistant on 05.08.1982. The petitioner worked at Vangal Branch of State Bank of India from 1998 to 2002. Thereafter, he was transferred to Kulithalai Branch. While he was working at Kulithalai Branch, by order dated 03.01.2003, he was placed under suspension by the first respondent. Thereafter, a charge memo dated 20.11.2003 was issued to the petitioner containing as many as 17 charges. The petitioner submitted his detailed explanation on 07.02.2004. The first respondent appointed the second respondent as Enquiry Officer. The petitioner was given permission to engage an Officer of the Bank as defence representative. There were proceedings between the petitioner and the bank with respect to the appointment of an office bearer of the Trade Union as defence representative. The Review Application filed by the bank against the earlier judgment dated 05.12.2007 was allowed by the Division Bench. The petitioner filed a Special Leave Petition before the Supreme Court and the same was also dismissed. The petitioner, thereafter, engaged Thiru. S. Gunasekhar as his defence representative. 2. In the meantime, pursuant to the complaint preferred by the Bank, the police registered a case in Crime No. 5 of 2003 against the petitioner and two others. The police, after concluding investigation, laid the charge sheet before the Judicial Magistrate Court No. II, Karur and it was taken on file in C.C. Nos. 494/2006, 495/2006 and 496/2006. PW-1 was examined in chief and the matter is kept in cold storage. The petitioner, in the meantime, submitted an application, requesting the bank to keep the disciplinary proceedings in abeyance till the conclusion of criminal proceedings. 494/2006, 495/2006 and 496/2006. PW-1 was examined in chief and the matter is kept in cold storage. The petitioner, in the meantime, submitted an application, requesting the bank to keep the disciplinary proceedings in abeyance till the conclusion of criminal proceedings. Since there was no follow-up action taken by the bank or the enquiry officer to keep the proceedings in abeyance, the petitioner filed a Writ Petition before this Court in W.P. (MD) No. 679 of 2014. The Writ Petition was for issuance of a Writ of Mandamus, forbearing the respondents from conducting the disciplinary proceedings till the disposal of the criminal proceedings. The said Writ Petition was disposed of by this Court by order dated 10.01.2014 and a Mandamus was issued to the bank to consider the representation on merits. It is the grievance of the petitioner that even before the receipt of a copy of the order, the first respondent passed the impugned order dated 17.01.2014, rejecting the request to keep the disciplinary proceedings pending till the disposal of the criminal proceedings. The said order is challenged in W.P. (MD) No. 6080 of 2014. 3. The enquiry officer, in the meantime, continued with the enquiry proceedings. The petitioner submitted a medical certificate and filed adjournment application for the purpose of adjourning the enquiry. Finally, the enquiry was posted on 04.02.2014. The petitioner submitted a medical certificate and requested for adjournment. However, the enquiry officer rejected the said request and took up the matter and a report was submitted on 04.03.2014, indicating that the charges were proved. The first respondent, based on the enquiry report, issued a second show cause notice to the petitioner dated 05.03.2014. The said notice as well as the enquiry report dated 04.03.2014 are under challenge in W.P. (MD) No. 5224 of 2014. Summary of Submissions: 4. The learned counsel for the petitioner submitted that the charges levelled against the petitioner in both the criminal proceedings and disciplinary proceedings are one and the same. In case the petitioner is made to disclose his defence in the departmental proceedings, it would be prejudicial to his case in the pending criminal proceedings. According to the learned counsel, no prejudice would be caused to the bank, in case the enquiry is kept in abeyance till the disposal of the criminal proceedings. In case the petitioner is made to disclose his defence in the departmental proceedings, it would be prejudicial to his case in the pending criminal proceedings. According to the learned counsel, no prejudice would be caused to the bank, in case the enquiry is kept in abeyance till the disposal of the criminal proceedings. The learned counsel further contended that PW-1 was examined in the criminal case long back and thereafter, the prosecution failed to take any interest in the matter. According to the learned counsel, the bank was not justified in rejecting the request made by the petitioner to keep the disciplinary proceedings in abeyance. Similarly, the enquiry officer was not correct in continuing with the enquiry, notwithstanding the adjournment petition submitted by the petitioner along with medical certificate. The learned counsel, therefore, wanted the impugned orders to be quashed and issuance of a consequential direction to keep the disciplinary proceedings pending till the disposal of the criminal proceedings. 5. The learned counsel for the petitioner placed reliance on the judgment of the Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others, (2014) 3 SCC 636 , in support of his contention that under identical circumstances, the Supreme Court directed the trial Court to conclude the proceedings as expeditiously as possible and in any case, within a period of one year and the disciplinary proceedings were directed to be kept pending till the disposal of the criminal proceedings. 6. The learned Senior Counsel for the Bank contended that the criminal case and the enquiry proceedings are entirely different. The bank is entitled to proceed against the petitioner departmentally, notwithstanding the pendency of criminal proceedings. According to the learned Senior Counsel, the prosecution is expected to prove the case beyond all reasonable doubt in the pending criminal case. However, in a departmental proceedings, the bank is expected to prove only the preponderance of probability and as such, there is no need to keep the disciplinary proceedings pending till the disposal of the criminal case. The learned Senior Counsel, by producing the details of the posting dates, submitted that the petitioner conveniently abstained from attending the enquiry proceedings and the same resulted in concluding the enquiry on 04.02.2014. The learned Senior Counsel, therefore, wanted this Court to permit the bank to conclude the disciplinary proceedings, as expeditiously as possible. Discussion: 7. The learned Senior Counsel, by producing the details of the posting dates, submitted that the petitioner conveniently abstained from attending the enquiry proceedings and the same resulted in concluding the enquiry on 04.02.2014. The learned Senior Counsel, therefore, wanted this Court to permit the bank to conclude the disciplinary proceedings, as expeditiously as possible. Discussion: 7. The first respondent initiated disciplinary proceedings against the petitioner by issuing a charge memo dated 20.11.2003. The petitioner has given his detailed explanation on 07.02.2004. The petitioner, after denying the charges levelled against him, made an attempt to explain as to how he is not responsible for the alleged acts. 8. While the disciplinary proceedings were pending against the petitioner, pursuant to the complaint preferred by the bank, the police conducted investigation and laid the charge sheet and it was taken on file by the learned Judicial Magistrate No. II, Karur, in C.C. Nos. 494/2006, 495/2006 and 496/2006. 9. The petitioner opposed the conduct of enquiry on the ground that connected criminal proceedings are pending before the Criminal Court and it would be difficult for him to defence the case, in case he is made to disclose his stand in the connected departmental proceedings. The said request was rejected by the first respondent on the ground that criminal prosecution has nothing to do with the disciplinary proceedings. 10. The petitioner appears to have submitted medical certificate and application for adjournment before the enquiry officer. However, the enquiry officer rejected the request for adjournment. The counter-affidavit filed by the bank indicates that the petitioner was advised to appear before the Joint Director of Health Services, Government Headquarters Hospital, Karur, to obtain a medical report, in view of his contention that he is unable to attend the enquiry on account of ill-health. However, the petitioner refused to appear before the medical team, issue is as to whether the first respondent was correct in rejecting the request for postponement of enquiry till the disposal of the criminal proceedings. The second issue is as to whether the enquiry officer was correct in closing the enquiry, in spite of the application submitted by the petitioner for adjournment along with a medical certificate to adjourn the proceedings. The First Issue: 11. The petitioner wanted the disciplinary proceedings to be kept in abeyance till the disposal of the connected criminal proceedings now pending before the Judicial Magistrate Court No. II, Karur. The First Issue: 11. The petitioner wanted the disciplinary proceedings to be kept in abeyance till the disposal of the connected criminal proceedings now pending before the Judicial Magistrate Court No. II, Karur. 12. The first respondent issued a charge memo to the petitioner containing as many as 17 charges. The petitioner, in his explanation dated 07.02.2004, denied the allegations levelled against him. The petitioner also made an attempt to demonstrate that he was not responsible for the transactions referred to in the charge memo. Therefore, it is clear that the petitioner has already disclosed his defence. The bank initiated criminal proceedings against the petitioner by lodging a First Information Report with the police. The police registered a case in Crime No. 5 of 2003. The investigation was taken over by the District Crime Branch, Karur. The District Crime Branch, after completion of investigation, laid separate charge sheets before the learned Judicial Magistrate No. II, Karur. The Court took cognizance of charge sheet and issued summons to the petitioner and two other accused in C.C. Nos. 494/2006, 495/2006 and 496/2006. It is also a matter of record that PW-1 was examined in part and thereafter, the matter was adjourned time and again for various reasons. The criminal case came up for trial recently on 07.07.2014. Since the accused including the petitioner were absent, non-bailable warrants were issued to all the accused. 13. According to the petitioner, it would cause prejudice, in case he is made to disclose his defence in the pending disciplinary proceedings, before cross-examining the prosecution witnesses in C.C. Nos. 494/2006, 495/2006 and 496/2006. There is no merit in the said contention. The petitioner, in his explanation dated 07.02.2004, made it very clear that he is not responsible for the misconduct alleged against him. The petitioner, in the said explanation, explained in detail as to how he is not responsible for the alleged acts. The petitioner, having disclosed his defence, wanted the disciplinary proceedings to be kept in abeyance till the disposal of the criminal prosecution. There is absolutely no reason to keep the disciplinary proceedings pending. The nature of evidence to be let in before the Criminal Court is entirely different. 14. The standard of proof in a criminal case is one of beyond all reasonable doubt. However, in a departmental enquiry, preponderance of probability is the theory to be adopted. 15. There is absolutely no reason to keep the disciplinary proceedings pending. The nature of evidence to be let in before the Criminal Court is entirely different. 14. The standard of proof in a criminal case is one of beyond all reasonable doubt. However, in a departmental enquiry, preponderance of probability is the theory to be adopted. 15. The learned counsel for the petitioner placed heavy reliance on the judgment in Stanzen Toyotetsu and contended that the Supreme Court, under similar circumstances, stayed the departmental proceedings for a period of one year and directed the trial Court to conclude the trial, as expeditiously as possible. 16. The Supreme Court in Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others (supra) very clearly held that stay of disciplinary proceedings should not be a matter of course. According to the Supreme Court, the charge should be grave and the case must involve complicated questions of law and fact. The Supreme Court made the law very clear that what is required to be seen is whether the departmental enquiry would seriously cause prejudice to the delinquent in his defence at the trial in the connected criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. 17. The Supreme Court in the cited case found that all the three Courts below have exercised their discretion in favour of staying the on-going disciplinary proceedings and as such, it is not proper to vacate the said order straightaway. It was only under the said circumstances, the Supreme Court directed the enquiry proceedings to be kept pending and called upon the trial Court to conclude the criminal proceedings, within a period of one year. The direction given in Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others (supra) to keep the disciplinary proceedings pending would not come to the rescue of the petitioner herein, in view of the peculiar facts of the present case. 18. The Supreme Court in Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others (supra) scanned the earlier decisions and observed thus: "12. 18. The Supreme Court in Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. and Others (supra) scanned the earlier decisions and observed thus: "12. It is unnecessary to multiply decisions on the subject for the legal position as emerging from the above pronouncements and the earlier pronouncements of this Court in a larger number of similar cases is well settled that disciplinary proceedings and proceedings in a criminal case can proceed simultaneously in the absence of any legal bar to such simultaneity. It is also evident that while seriousness of the charge leveled against the employees is a consideration, the same is not by itself sufficient unless the case also involves complicated questions of law and fact. Even when the charge is found to be serious and complicated questions of fact and law that arise for consideration, the Court will have to keep in mind the fact that departmental proceedings cannot be suspended indefinitely or delayed unduly. In Paul Anthony (supra) this Court went a step further to hold that departmental proceedings can be resumed and proceeded even when they may have been stayed earlier in cases where the criminal trial does not make any headway. To the same effect is the decision of this Court in State of Rajasthan vs. B.K. Meena and Others, (1996) 6 SCC 417 , where this Court reiterated that there was no legal bar for both proceedings to go on simultaneously unless there is a likelihood of the employee suffering prejudice in the criminal trial. What is significant is that the likelihood of prejudice itself is hedged by providing that not only should the charge be grave but even the case must involve complicated questions of law and fact. Stay of proceedings at any rate cannot and should not be a matter of course. The following passage is in this regard apposite: "There is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can enunciated in that behalf. The staying of disciplinary proceedings, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can enunciated in that behalf. The only ground suggested in the above questions as constitution a valid ground for staying the disciplinary proceedings is that the defence of the employee in the criminal case may not be prejudiced. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, advisability, desirability or propriety, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasize some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above. Indeed, in such cases, it is all the more in the interest of the charged officer that the proceedings are expeditiously concluded. Delay in such cases really works against him." 19. The learned Senior Counsel for the bank placed reliance on the judgments of the Supreme Court in Chairman-cum-M.D., T.N.C.S. Corporation Ltd. vs. K. Meerabai, (2006) 2 SCC 255 , The Deputy Inspector General of Police and Another vs. S. Samuthiram, (2013) 1 SCC 598 and Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and Another, (1999) 3 SCC 679 . 20. The police initiated prosecution proceedings against the petitioner under Section 464 r/w 465, 471 r/w 468 and 409 of the Indian Penal Code. However, in the charge memo issued to the petitioner, the bank alleged that he committed gross misconduct in terms of Clause 5(j) of the Memorandum of Settlement dated 10.04.2002 and the Regulations framed by the bank. 20. The police initiated prosecution proceedings against the petitioner under Section 464 r/w 465, 471 r/w 468 and 409 of the Indian Penal Code. However, in the charge memo issued to the petitioner, the bank alleged that he committed gross misconduct in terms of Clause 5(j) of the Memorandum of Settlement dated 10.04.2002 and the Regulations framed by the bank. The misconduct alleged in the matter requires to be decided on the basis of the terms of settlement dated 10.04.2002 and the related Regulations framed by the bank. The bank alleged that the petitioner, with mala-fide intention, processed loan applications without production of planting certificate and he was also responsible for opening benami accounts. These are not the subject matter of criminal proceedings. The proceedings initiated by the bank were in respect of the charges relating to fraudulent practices adopted by the petitioner. The petitioner, insofar as the disciplinary proceedings is concerned, has already disclosed his defence. The enquiry commenced on 02.07.2004 and completed on 05.02.2014. The enquiry proceedings took ten years for completion. The criminal case is also pending before the Magistrate from 2006 onwards. There is no question of keeping the disciplinary proceedings pending till the disposal of the criminal proceedings, in view of my finding that the criminal proceedings have nothing to do with the misconduct alleged against the petitioner given the nature of charges. Therefore, I am not inclined to direct the respondents to keep the disciplinary proceedings pending by quashing the impugned order passed by the first respondent dated 17.01.2014. The Second Issue: 21. The second issue relates to the legality and correctness of the enquiry report submitted by the second respondent, after conducting the enquiry ex-parte. 22. It is true that the petitioner initially participated in the enquiry. Thereafter, he was making efforts to keep the enquiry proceedings pending till the disposal of the criminal proceedings. The petitioner initially appointed Thiru. M. Rajarathinam as his defence representative. The appointment was, subsequently, objected to by the first respondent, as according to him, the defence representative, who was dismissed from service, cannot represent another employee as a defence representative. The said order was, ultimately, confirmed by the Division Bench in its order dated 13.03.2013 in Review Application (MD) No. 78 of 2010 in W.A. (MD) No. 662 of 2007. The petitioner unsuccessfully challenged the said order before the Supreme Court. 23. The said order was, ultimately, confirmed by the Division Bench in its order dated 13.03.2013 in Review Application (MD) No. 78 of 2010 in W.A. (MD) No. 662 of 2007. The petitioner unsuccessfully challenged the said order before the Supreme Court. 23. The enquiry officer issued a communication to the petitioner on 28.01.2014 intimating him that the enquiry would be conducted at 11.30 a.m., on 04.02.2014. The petitioner, through his letter dated 04.02.2014, expressed his inability to attend the enquiry, on medical ground. The enquiry officer rejected the said request and conducted the enquiry on 04.02.2014 and 05.02.2014 and ultimately, submitted a report holding that the charges 1 to 9, 11 and 13 to 17 were proved. 24. There is no dispute that the petitioner submitted an application for adjournment on 04.02.2014 along with a medical certificate for postponement of enquiry. The endorsement made by the enquiry officer shows that it was received by him on 04.02.2014. The enquiry officer should have passed a speaking order rejecting the said request. In case the enquiry officer was of the view that there was no reason to accept the adjournment application, he should have given a reasonable time to the petitioner to appear before him along with the defence representative for the purpose of continuing with the enquiry proceedings. 25. The enquiry officer should realise that the proceedings before him would decide the fate of the petitioner. His continuance in the bank would depend upon the enquiry report and the action taken by the disciplinary authority, pursuant to the said report. Therefore, reasonable time should have been given to the petitioner to take part in the enquiry, after rejecting the request for adjournment. The report submitted by the enquiry officer very clearly shows that the defence side failed to produce any material evidence to disprove the materials produced by the bank. 26. The enquiry officer turned down the request for adjournment on 04.02.2014. There is nothing on record to indicate that after rejecting the request on 04.02.2014 and before posting the matter on 05.02.2014, intimation was given to the petitioner with regard to the next date of enquiry viz., 05.02.2014. The enquiry officer failed to set the petitioner ex parte, consequent to his absence on 04.02.2014 and 05.02.2014. There is nothing on record to indicate that after rejecting the request on 04.02.2014 and before posting the matter on 05.02.2014, intimation was given to the petitioner with regard to the next date of enquiry viz., 05.02.2014. The enquiry officer failed to set the petitioner ex parte, consequent to his absence on 04.02.2014 and 05.02.2014. The enquiry officer proceeded to consider the matter on merits, in spite of the absence of the petitioner and his failure to cross-examine the witnesses. Therefore, I am of the view that hasty action taken by the enquiry officer during the final stage of the enquiry caused substantial prejudice to the petitioner. 27. Since the petitioner participated in the enquiry initially and his subsequent absence was on account of several reasons, the enquiry officer should have given a final opportunity. This is all the more necessary, in view of the long list of allegations levelled against the petitioner. The enquiry officer is expected to act impartially and his attempt is to unearth the truth. Since the enquiry officer failed to give reasonable opportunity to the petitioner during the final stage of enquiry, I am inclined to set aside the enquiry report. 28. The enquiry report dated 04.03.2014 and the consequential show cause notice dated 05.03.2014 issued by the first respondent are set aside and the matter is remitted to the enquiry officer. The enquiry officer is directed to continue the enquiry from the stage at which it stood on 04.02.2014. The petitioner should be given two weeks' time from the date of next posting to appear for the enquiry along with his defence representative. In case the petitioner fails to avail the said opportunity, without any reasonable cause, it is open to the enquiry officer to proceed further, after setting him ex parte. In the upshot, I dismiss the Writ Petition in W.P. (MD) No. 6080 of 2014 and allow the Writ Petition in W.P. (MD) No. 5224 of 2014. Consequently, the connected miscellaneous petitions are closed. No costs.