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2016 DIGILAW 271 (MP)

Pramod Kumar Udand v. State Bank of India

2016-03-31

PRAKASH SHRIVASTAVA

body2016
ORDER 1. By this petition the petitioner is seeking stay of departmental proceeding till completion of the trial in criminal case. 2. Facts in nutshell are that petitioner during the relevant period was working as Branch Manager of respondent Bank at Sarangpur. Three FIRs were registered on 2.10.2012 at Sarangpur Police Station at the instance of respondents against the petitioner for commission of offence under sections 420, 467, 468 and 120B of IPC and challan has been filed by the police in the Court on 25.12.2012 and criminal cases 30/13, 31/13 and 32/13 are registered against the petitioner. The charges in the criminal case have been framed against the petitioner vide Annexures P-9 to P-11. A departmental enquiry has also been initiated against the petitioner by serving a charge-sheet dated 11th August 2012, Annexure P-12. The petitioner had filed an application dated 10.3.2014 for staying the departmental enquiry pending the criminal trial but the said application has been rejected by order dated 10.3.2014. 3. Learned counsel for petitioner submits that departmental enquiry as well as the criminal case are on the same subject-matter and the same witnesses are required to be examined in both therefore, the departmental enquiry is required to be stayed since the petitioner will have to disclose the defence in departmental enquiry which will cause prejudice to him in criminal case. 4. Per contra, learned counsel for respondents has submitted that the subject-matter as well as the scope of departmental enquiry and criminal case is different and petitioner is not entitled for stay. 5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that in criminal case the charges have been framed against the petitioner for fabricating the documents and by committing fraud and cheating obtaining huge sum dishonestly resulting into commission of offence under sections 420, 467, 468, 469, 471, 120B and 409 of IPC. 6. Whereas perusal of the charge sheet in the departmental enquiry reveals that petitioner has been charge sheeted for as many as 10 charges. 6. Whereas perusal of the charge sheet in the departmental enquiry reveals that petitioner has been charge sheeted for as many as 10 charges. The first charge is about disbursement of loan against WHRs in the name of various borrowers without their knowledge and mandate and crediting the proceeds of these loans to the accounts of warehouse owners and other individuals and thus passing on undue financial favour under his ID; The second charge is disbursing demand loan against WHR to Shri Bharat Singh Dhul without mandate of the borrower and crediting the same in SB account of Shri Chandra Prakash Paliwal and other accounts; The third charge is about sanctioning 95 demand loans against WHRs of three warehouses without ascertaining whether the goods belong to the borrower and without ascertaining necessary evidence in this regard; The forth charge is failure to obtain collateral security in a matter contrary to the instructions contained in HO Letter; Fifth charge is about failure to obtain KYC documents of persons to whom the loans against WHRs were disbursed; Sixth charge is allowing the loan documents to be executed by persons different from the persons to whom the loan was sanctioned; Seventh charge is failure to verify the signatures of the borrowers on the reverse of the WHRs in token of endorsement in Bank’s favour which were found to be different from the signatures obtained in loan documents, whereby not adhering to the instructions of the bank; The eighth charge is not maintaining ‘warehouse wise commodities kept by the borrowers and their movement’ register and not carrying out periodical inspections and not maintaining the inspection register; Ninth charge is concealing the actual status of the assets by sanctioning new loans and crediting the amount to old non-performing accounts; The tenth charge is sanctioning and disbursing demand loans against WHRs but denial by borrowers of having received the disbursement of the loan. 7. The examination of the charges framed in criminal case as well as charges for which the departmental enquiry is being conducted reveal that the charges in the departmental enquiry are not same as the charges in criminal case. 8. The petitioner is seeking stay of departmental enquiry on the ground that criminal case on the same subject-matter is pending. 7. The examination of the charges framed in criminal case as well as charges for which the departmental enquiry is being conducted reveal that the charges in the departmental enquiry are not same as the charges in criminal case. 8. The petitioner is seeking stay of departmental enquiry on the ground that criminal case on the same subject-matter is pending. There is no inflexible rule that in every case where criminal case and departmental enquiry is pending on the same subject-matter, the departmental enquiry should be stayed. In such matters each case is required to be examined on the basis of its own facts and circumstances. The criminal case and departmental enquiry can proceed simultaneously and this normal rule can be departed in cases where charges leveled against the employee are serious in nature and continuance of disciplinary proceeding is likely to prejudice the defence before the criminal Court, but even this is not enough to stay the departmental enquiry unless the case involves complicated question of law and fact and stay would not suspend the departmental enquiry indefinitely or delay it unduly. 9. In the matter of State of Rajasthan v. B.K. Meena and others, reported in (1996)6 SCC 417 , it has been held that the approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In one conduct of the employee resulting into imposition of punishment is examined and in other the commission of offence and imposition of sentence is examined. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. 10. In the matter of Depot Manager, Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya and others, reported in (1997)2 SCC 699 , it has been held that the crime is an act of commission in violation of law or of omission of public duty whereas the departmental enquiry is to maintain discipline in service and efficiency of public service, therefore, it would be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible and no inflexible rules can be laid down for staying the departmental proceeding pending the criminal trial and 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. 11. 11. In the matter of M. Paul Anthony v. Bharat Gold Mines Ltd. and another, reported in (1999)3 SCC 679 , the Supreme Court considering the earlier judgment on the issue has culled out the following principle in this regard: 22 The conclusions which are deducible from various decisions of this Court referred to above are : (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. 12. The same position of law has been reiterated by the Supreme Court in the subsequent judgments in the matter of State Bank of India and others v. R.B. Sharma, reported in (2004)7 SCC 27 , in the matter of Kendriya Vidyalaya Sangathan and others v. T. Srinivas, reported in (2004)7 SCC 442 , in the matter of Noida Entrepreneurs Association v. Noida and others, reported in (2007)10 SCC 385 . 13. 13. In the matter of Stanzen Toyotetsu India Private Limited v. Girish V. and others, reported in (2014)3 SCC 636 , it has been held that : 16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal Court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question of law and fact. The Court examining the question must also keep in mind that criminals trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees. 14. In the present case this Court on examination of the charges framed in the criminal case as also in the departmental enquiry, has already found that the charges are not identical in nature. Even otherwise these charges do not involve any complicated questions of law and facts. The departmental enquiry is pending since 2012 and more than three and half years have passed. The stay granted by this Court on 12.5.2014 against continuation of the departmental enquiry itself is operating since last more than one and half years. 15. In the matter of M. Paul Anthony (supra), it has been clarified that if the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they are stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date. 16. In the present case trial in the criminal case is not concluded till now. As per the submission of counsel for petitioner prosecution witness in the criminal case are not turning up. 16. In the present case trial in the criminal case is not concluded till now. As per the submission of counsel for petitioner prosecution witness in the criminal case are not turning up. Counsel for the petitioner has also failed to point out the prejudice which may be caused on account of simultaneous continuation of both proceedings. Hence staying the departmental enquiry at this point of time is not found just and proper. 17. In the aforesaid circumstances the writ petition is found to be devoid of any merit which is accordingly dismissed.