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2014 DIGILAW 890 (AP)

B. Bhyrava Murthy v. General Manager

2014-07-17

CHALLA KODANDA RAM, L.NARASIMHA REDDY

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Judgment The unsuccessful petitioner in W.P.No.7786 of 1999 filed this writ appeal. For the sake of convenience, the parties herein are referred to, as arrayed in the writ petition. Briefly stated, the facts are that the petitioner was working as an Accountant in the Kakinada Branch of Indian Overseas Bank in the year 1985. He was placed under suspension on 10.03.1986, pending enquiry. A charge sheet, dated 22.04.1986, was issued alleging certain acts of misconduct on his part. Sanction was also accorded for prosecution and criminal cases were instituted. A concurrent order of suspension was also passed on 13.08.1987. In the departmental proceedings, an Enquiry Officer was appointed and, after conducting a detailed enquiry, he submitted a report, dated 26.09.1988, holding that the charges against the petitioner are proved. Taking the same into account, the disciplinary authority passed an order, dated 29.11.1988, dismissing the petitioner from service. The petitioner filed an appeal before the appellate authority. The appeal was rejected on 13.02.1999. Thereafter, the writ petition was filed challenging the order of dismissal as confirmed in the appeal. The principal contention urged by the petitioner in the writ petition was that the disciplinary proceedings on the one hand and the criminal case on the other hand are similar, and once the criminal court has acquitted the petitioner, the same result ought to have ensued in the departmental proceedings also. Other supplementary grounds were also urged. Learned Single Judge dismissed the writ petition holding that there is no defect in the departmental enquiry and that the charges were grave in nature. The plea of disproportionate punishment was also rejected. Sri A. Satya Prasad, learned Senior Counsel for the petitioner, submits that the allegation against the petitioner is only in relation to sanction of loans and there was no illegality or irregularity whatever. He submits that the relevant Regulations empower an Accountant to create certain financial facilities to the account holders, particularly, when the Accountant functions as In-charge Branch Manager. He further submits that the charges in the criminal case and departmental proceedings are identical and the respondents ought not to have proceeded with the enquiry till the criminal case is terminated. It is also his contention that the conclusions arrived at by the Enquiry Officer are not based on evidence and, at any rate, the punishment imposed against the petitioner is highly disproportionate. It is also his contention that the conclusions arrived at by the Enquiry Officer are not based on evidence and, at any rate, the punishment imposed against the petitioner is highly disproportionate. Sri E. Madan Mohan Rao, learned counsel for the respondents, on the other hand, submits that the charges framed against the petitioner are grave in nature on several counts. He submits that not only the petitioner sanctioned loans, though he is not vested with such power, but also made the sanctions in favour of fictitious persons against non-existent Fixed Deposits. Learned counsel further submits that the purport of the criminal charges is substantially different from that in the departmental proceedings. He has drawn our attention to the fact that the allegations of forgery, fraud and dishonesty were made in the criminal cases with reference to the provisions of Indian Penal Code, whereas the departmental proceedings are mostly about the dereliction of duties. As many as four charges were framed against the petitioner in relation to his functioning at Kakinada and Pitapuram Branches. The gist thereof is that in Kakinada, he sanctioned 7 loans in favour of fictitious persons, against non-existent Fixed Deposits. The 2nd charge is in relation to sanction of 5 loans in favour of the alleged self employed persons. The 3rd charge is about discounting of cheques contrary to the Regulations of the Bank. The 4th charge relates to the sanction of small loans to 5 persons while functioning at Pitapuram branch. In addition to that, two more transactions for Rs.5,000/- each were also alleged. The petitioner submitted his explanation denying the charges. The complaints under the provisions of the Indian Penal Code and the Prevention of Corruption Act (for short ‘the Act’) were also submitted. Sanction, as required under Section 6(1)(c ) of the Act was accorded by the competent authority, through proceedings dated 07.08.1987. After conducting the investigation, the Investigating Officer, the Inspector of Police, C.B.I, Visakhapatnam, filed charge sheet in C.C.No.41 of 1989 on the file of the Special Judge for C.B.I Cases, Visakhapatnam. During pendency of the criminal case, the departmental enquiry was taken up. The record does not disclose that the petitioner has raised any objection for such a course. The Bank examined as many as 10 witnesses and filed 33 documents. No evidence whatever, was adduced by the petitioner in the enquiry. During pendency of the criminal case, the departmental enquiry was taken up. The record does not disclose that the petitioner has raised any objection for such a course. The Bank examined as many as 10 witnesses and filed 33 documents. No evidence whatever, was adduced by the petitioner in the enquiry. A detailed report, dated 26.09.1988, running into 16 typed pages was submitted by the Enquiry Officer, holding that the charges are proved. Taking the same into account, a show cause notice was issued to the petitioner requiring him to explain as to why the punishment of dismissal be not imposed against him. The disciplinary authority passed an order, dated 29.11.1988, dismissing the petitioner from service. The petitioner preferred an appeal before the appellate authority. Complaining that the appeal is not taken up for hearing, the petitioner filed W.P.No.16106 of 1995. In compliance with the orders passed therein, the appellate authority passed an order dismissing the appeal on 13.02.1999. The first contention is about the overlapping between the departmental proceedings on the one hand and the criminal proceedings on the other hand. We have carefully gone through and compared the charges in both the sets of proceedings. In the departmental proceedings, concentration was mainly upon the violation of Banking procedure and the services Regulations. In contrast, in the criminal proceedings, the allegations were of committing fraud, dishonesty and forgery. It hardly needs any mention that the purpose of requiring withholding of departmental enquiry during the pendency of criminal proceedings is, to ensure that the employee is not required to divulge his defence in the criminal proceedings. Once we find that there is no comparison between the charges, atleast on important aspects, the said principle does not apply. Even where the charges are identical in both the sets of proceedings and an attempt is made to proceed with the departmental enquiry, the delinquent employee has to take necessary steps to protect his interests. If he permits the departmental enquiry to proceed, he is precluded from complaining about any violation. The record does not disclose that the petitioner had ever objected the departmental enquiry being taken. Another facet of this very contention is about the result in the criminal cases to be reflected in the departmental proceedings. If he permits the departmental enquiry to proceed, he is precluded from complaining about any violation. The record does not disclose that the petitioner had ever objected the departmental enquiry being taken. Another facet of this very contention is about the result in the criminal cases to be reflected in the departmental proceedings. The petitioner was convicted by the trial court in C.C.Nos.40 and 41 of 1989 through judgment, dated 18.04.1991, by the Special Court for C.B.I Cases, Visakhapatnam. It is only in Criminal Appeal Nos.482 and 483 of 1991, this Court acquitted the petitioner on some technical grounds. The findings in the criminal appeals do not have any bearing upon the misconduct resorted to by the petitioner. Therefore, we do not find any basis to apply the ratio in the judgment of the Supreme Court in Cap. M.Paul Anthony vs. Bharat Gold Mines Ltd. ((1993) 3 SCC 679), relied upon by the learned counsel for the petitioner. Extensive submissions are made on merits also. We dealt with the same extensively with reference to the record. The allegations against the petitioner are broadly about (a) sanctioning loans without there being any power, (b) sanctioning of loans against non-existent Fixed Deposits, (c) sanctioning loans in favour of fictitious persons, and (d) irregular clearance of cheques. The petitioner does not dispute that he is not conferred with the power to sanction loans. Despite that, he sanctioned as many as 7 general loans and 5 special loans in favour of unemployed persons, while discharging his duties at Kakinada Branch. Added to that, 7 loans were sanctioned against the Fixed Deposits. On verification, it emerges that the so-called Fixed Deposits were non-existent and even the persons, in whose favour loans were sanctioned, were fictitious. The Enquiry Officer has also furnished cogent reasons in support of his conclusions that the clearance of cheques were also contrary to law. The charge that the petitioner has resorted to serious irregularities, for his personal benefit, is proved. Learned Single Judge took note of the charges as well as the findings and has undertaken extensive discussion, though the scope of the writ petition is very limited. We do not find any basis to grant any relief to the petitioner. Hence, the Writ Appeal is dismissed. There shall be no order as to costs. Miscellaneous Petitions filed in this writ appeal shall stand disposed of.