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Karnataka High Court · body

2016 DIGILAW 881 (KAR)

H G HIREMANI v. CANARA BANK, BANGALORE

2016-11-21

B.VEERAPPA

body2016
ORDER : The petitioner, who is workman under the 1st respondent is before this Court challenging the impugned award dated 22.3.2001 passed in C.R.No.11/1993 by the Central Government Industrial Tribunal-cum-Labour Court, Bangalore rejecting the reference made by Central Government under clause (d) of Subsection (1) and subsection 2A of Section 10 of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as ‘the Act’). 2. It is the case of the petitioner before this Court that, he had joined the services of the respondent-bank as workman in the clerical cadre on 3.1.1977 and he was placed under suspension on 11.12.1986 on the ground of stealing of cheques and forgery. The Central Bureau of Investigation (for short, hereinafter referred to as ‘the CBI’) on the complaint made by the respondent-bank, registered first information report against the petitioner and another Mr. Rangaraju and thereafter, charge sheet was filed on 26.9.1987 in C.C.No.58/87. During the pendency of the criminal trial, the respondent-bank initiated departmental enquiry against the petitioner by issuing charge sheet on 10.7.1987 to the effect that the petitioner and another have made manipulations and alterations with regard to cheques bearing No.524474 for a sum of Rs.40,000/and No.524461 for a sum of Rs.20,000/drawn on State Bank of India, Shivajinagar of one customer Gopal Narahari by crediting the said amount in favour of Sri R. Rangaraju and subsequently has withdrawn the same by causing loss of Rs.60,000/to the bank. 3. On 9.11.1987, the petitioner replied to the charge sheet which was filed on 26.9.1987 in C.C.No.58/1987. The respondent-bank, not being satisfied with the explanation offered appointed an Enquiry Officer, who after holding detailed enquiry by his enquiry report dated 6.7.1989 held that the charges against the petitioner are proved, on the basis of which, the Disciplinary Authority has proceeded to pass the dismissal order on 17.8.1989 as contemplated under Chapter XI Regulation 4 (g) of the Canara Bank Service Code. However, it was made clear that he was entitled for subsistence allowance till the date of receipt of the proceedings and the period of suspension shall be treated as ‘not spent on duty’. 4. Aggrieved by the said order of the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority, who after considering the entire material on record, has dismissed the same. 4. Aggrieved by the said order of the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority, who after considering the entire material on record, has dismissed the same. Thereafter, on failure of conciliation proceedings between the parties which was filed by the petitioner before the Conciliation Officer under the Act, the Central Government exercising the powers conferred under Clause (d) of Sub-section (1) and Sub-section 2A of Section 10 of the Act, referred the dispute to the Central Government Industrial Tribunal-cum-Labour Court, Bangalore for adjudication as to ‘Whether the action taken by the management of Canara Bank in dismissing Sri S.G. Hiremani, Clerk from service w.e.f. 17.8.1989 is justifiable. If not, to what relief he is entitled? 5. The Labour Court based on the pleadings framed the following issue: Whether the Second Party proves that the Domestic Enquiry conducted against the first party was in accordance with settled principles of law, standing orders and principles of natural justice? 6. After considering the entire material on record, the Labour Court recorded a finding that the domestic enquiry held is fair and proper and hence, there is no reason to discard the evidence of M.Ws. 1 and 2; That since the charges leveled against the workman-petitioner are proved, he has committed grave mis-conduct. It was also held that it is clear from the records that in the criminal case filed by the CBI against the petitioner and Rangaraju before the competent Criminal Court, the petitioner was convicted and sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.1000/- in C.C.No.58/1987 on 27.10.1997 and therefore, the Labour Court was of the opinion that the workman has misappropriated the amount while working in the bank by playing fraud and manipulating the records. Accordingly, the reference was rejected on 22.3.2001 which was not challenged till the year 2007. 7. It is also clear from the records that against the conviction order passed in C.C.No.58/1987 on the basis of the charge sheet filed by the CBI, an appeal was also preferred by the petitioner before this Court in Criminal Appeal No.279/1997. Accordingly, the reference was rejected on 22.3.2001 which was not challenged till the year 2007. 7. It is also clear from the records that against the conviction order passed in C.C.No.58/1987 on the basis of the charge sheet filed by the CBI, an appeal was also preferred by the petitioner before this Court in Criminal Appeal No.279/1997. This Court after hearing both the parties by an order dated 30.11.2007 allowed the appeal in part giving benefit of doubt to the petitioner and acquitting him of all the charges leveled against him in view of the fact that considering the possibility that he colluding with accused No.2 was more and there is every possibility that it must be accused No.1, who must have taken out these two cheques, which factors create doubt regarding certainty of involvement of him. Therefore, the present writ petition is preferred by the petitioner after a lapse of 7 years for the relief sought for. 8. I have heard the learned Counsel for the parties to the lis. 9. Sri M. Nagaprasanna, learned Counsel for the petitioner as usual with vehemence contended that initiation of disciplinary proceedings and criminal proceedings in respect of the same transaction and on the same set of facts is contrary to the dictum of the Hon’ble Supreme Court in the case of G.M. Tank –vs. State of Gujarat and others reported in (2006) 5 SCC 446 . He further contended that, when the petitioner succeeded in the criminal proceedings on 30.11.2007, the penalty of dismissal from service bowing down to the recommendations of the enquiry officer, is bad in law and is liable to be set aside. He further contended that the charge sheet issued by the respondent-bank is dated 10.7.1987 and the order of penalty of dismissal from service is on 17.8.1989 during which period the criminal trial was pending, is wholly contrary to the Canara Bank Service Code which governs the service conditions of the petitioner. Thus the entire departmental proceedings initiated against the petitioner were without jurisdiction and contrary to the statute. Therefore, he sought to set aside the impugned award passed by the Central Government Industrial Tribunal-cum-Labour Court. 10. Thus the entire departmental proceedings initiated against the petitioner were without jurisdiction and contrary to the statute. Therefore, he sought to set aside the impugned award passed by the Central Government Industrial Tribunal-cum-Labour Court. 10. Per contra, Sri Udaya Shankar Rai, learned Counsel for the respondent-bank sought to justify the impugned award and strenuously contended that the very writ petition is filed by the petitioner alter a lapse of seven years, for which, absolutely there is no explanation and merely because he was acquitted in the criminal appeal in the year 2007 subsequent to the award passed by the Labour Court is not a ground to set aside the impugned award dated 22.3.2001 as on that date of which he was convicted and only the appeal was pending before this Court. Therefore, he sought to dismiss the writ petition on the ground of delay and laches as well as on merits. 11. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration in the present petition is: Whether the petitioner is entitled to the relief sought for in the present writ petition in the facts and circumstances of the present case? 12. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record carefully. 13. It is an admitted fact that the present petitioner was appointed in the respondent-bank on 3.1.1977 and subsequently, he was placed under suspension by an order dated 11.2.1986. It is also not in dispute that the Central Bureau investigation registered First investigation Report against the petitioner and another on the ground that they have misappropriated the bank amount of Rs.60,000/- by stealing the cheques and manipulating and altering the figures. It is also not in dispute that subsequently in the Criminal Case No.58/1987, a charge sheet was filed by the Central Bureau Investigation. It is also not in dispute that subsequently in the Criminal Case No.58/1987, a charge sheet was filed by the Central Bureau Investigation. After the trial, the trial Court in C.C.No.58/1987 convicted the petitioner and another on 27.10.1997 for the offences punishable under Sections 120B, 420, 471 and 477-A of the Indian Penal Code and Section 5(2) r/w 5(1) of the Prevention of Corruption Act, 1947 which is during the pendency of the proceedings before the Central Government Industrial Tribunal-cum-Labour Court, Bangalore that too after dismissal order passed by the Disciplinary Authority and confirmed by the Appellate Court on 6.7.1989 and 17.8.1989 respectively. It is also not in dispute that the Reference Court considering the entire material on record, by the impugned award dated 23.1.2001 rejected the reference holding that the petitioner has misappropriated the amount while working in the bank by playing fraud and manipulating the records. 14. Though the learned Counsel for the petitioner has contended that subsequently on 30.11.2007 this Court in Criminal Appeal No. 279/1997 has acquitted the petitioner, the impugned award passed by the Tribunal is liable to be set aside and the petitioner is entitled for all the consequential benefits. 15. By perusal of the judgment passed by this Court in the criminal appeal, it is clear that it is not the Honourable acquittal and it was allowed mainly on the ground of benefit of doubt which reads under: “22. For the above said reasons, though considering the possibility of the accused No.1 colluding with the accused No.2 is more and there is every possibility that it must be the accused No.1, who must have taken out these two cheques, the above factors create doubt regarding certainty of the involvement of the accused No.1 and in that view of the matter, the benefit of doubt has to be given to the accused No.1.” Hence, the contention of the learned Counsel for the petitioner that the petitioner has made out a case for setting aside the impugned award passed by the Tribunal, consequence of which, he is entitled for an order of acquittal, cannot be accepted. 16. 16. It is also not in dispute that though the Reference Court has passed the impugned award on 22.3.2001 and the present writ petition is filed on 17.12.2008 that too after a lapse of 7 years 10 months, in the entire writ petition, the petitioner has not explained the reasons for the said inordinate delay except the averment that he was waiting for the conviction order to be set aside by the judgment of this Court in criminal appeal which was pending and hence, that is not a ground to condone the delay. 17. The Hon’ble Supreme Court while considering the delay in approaching the Court under Article 226 of the Constitution of India in the case of Chennai Metropolitan Water Supply and Sewerage Board –vs. T.T. Murali Babu reported in (2014) 4 SCC 108 wherein there was a delay of 4 years, it has held that delay brings injustice and it is likely to affect others and as such, delay cannot be condoned and it accordingly, dismissed the appeal. The relevant paragraphs 16 and 17 of the said judgment reads as under: “16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure 1 Page 15 or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance 1 Page 16 as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” 18. The other contention advanced by the learned Counsel for the petitioner at this stage that subsequent to the impugned award passed by the Labour Court, the petitioner has been acquitted by this Court on 30.11.2007 and the impugned award dated 22.3.2001 passed by the Labour Court is liable to be quashed cannot be accepted in view of the dictum of the Hon’ble Supreme Court in the case of State Bank of Bikaner & Jaipur –vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584 wherein at paragraph 10 it has been held as under: “10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him. 19. It is also relevant to state at this stage that the Apex Court while considering the criminal proceedings in acquittal cases when the departmental enquiry was pending in the case of Baljinder Pal Kaur – vs State of Punjab reported in (2016) 1 SCC 671 at paragraphs7 to 13 has held as under: “7. In paragraph 22 of Capt. M. Paul Anthony [ (1999) 3 SCC 679 ], this Court has culled out following principles (SCC p.691): "(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. (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." 8. The law laid down in Capt. M. Paul Anthony [ (1999) 3 SCC 679 is followed in rest of the cases referred to above, i.e. G.M. Tank [ (2006) 5 SCC 446 ] and Jasbir Singh [ (2007) 1 SCC 566 ]. But in view of the facts and circumstances of the present case before us, we are of the opinion that the above mentioned cases are of little help to the appellant. 9. But in view of the facts and circumstances of the present case before us, we are of the opinion that the above mentioned cases are of little help to the appellant. 9. What is relevant in the present case which distinguishes the case of the appellant from the above mentioned cases is Rule 16.3 of Punjab Police Rules, which reads as under: "16.3 Action following on a judicial acquittal: (1) When a Police Officer has been tried and acquitted by a criminal court he shall not be punished departmentally on the same charge or on a different charge upon the evidence cited in the criminal case, whether actually led or not, unless: (a) the criminal charge has failed on technical grounds; or (b) in the opinion of the court or of the Superintendent of Police, the prosecution witnesses have been won over; or (c) the Court has held in its judgment that an offence was actually committed and that suspicion rests upon the police officer concerned; or (d) the evidence cited in the criminal case discloses facts unconnected with the charge before the court which justify departmental proceedings on a different charge; or (e) additional evidence admissible under rule 16.25(1) in departmental proceedings is available." (2).....................................” Rule quoted above provides that when a police officer has been tried and acquitted by a criminal court, he shall not be punished departmentally on the same charge subject to certain conditions. In the present case, as is evident from Rule 16.3, requirement of not punishing the officer departmentally is not absolute, and it hinges on either of the five conditions mentioned above [(a) to (e)]. From the copy of the order of acquittal passed by the Judge, Special Court, Ludhiana (Annexure P6), it is evident that the prosecution witnesses have turned hostile, and they appear to have been won over. 10. In Commissioner of Police, New Delhi and another v. Mehar Singh [ (2013)7 SCC 685 ], this Court, in paragraph 24, has observed as under: "24. ..........While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit.” 11. ..........While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit.” 11. In Inspector General of Policev.S. Samuthiram [ (2013) 7 SCC 685 ], this Court, in paragraph 26, has held as under: "26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so." 12. In Union of India and another v. Bihari Lal Sidhana, this Court has observed that it is true that the respondent was acquitted by the criminal court but acquittal does not automatically gave him the right to be reinstated into the service. 13. In view of the above discussion, we do not find any illegality in the order passed by the High Court declining to interfere with the order of dismissal from service on the basis of evidence recorded in the departmental enquiry. 20. 13. In view of the above discussion, we do not find any illegality in the order passed by the High Court declining to interfere with the order of dismissal from service on the basis of evidence recorded in the departmental enquiry. 20. It is also well settled that even the accused in criminal case was acquitted honourably subsequent to the order passed by the Labour Court is not a ground for automatic reinstatement in view of the dictum of the Hon’ble Supreme Court in the case of State of West Bengal & Ors. vs Sankar Ghosh reported in (2014) 3 SCC 610 wherein at paragraphs15 to 19 it has been held as under: “15. We, therefore, notice that both the Disciplinary Authority as well as the Sessions Court were of the view that there are vital evidence on record regarding recovery of money, fire arms and recovery of unused writing pad of Dr. R.P. Mitra, PW3, the SI deposed further that the money was recovered from the house of the respondent so also the motor bike as well as the car. The Sessions Court, however, had to acquit the respondent since Dr. R.P. Mitra could not identify him during the TI Parade. On going through the judgment of the Sessions Court, it cannot be said that the respondent was honourably acquitted. 16. In Inspector General v. S. Samuthiram [ (2013) 1 SCC 598 ], this Court in paragraph 24, 25 and 26 of the judgment has elaborately examined the meaning and scope of the “honourable acquittal” and held as follows: “26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.” 17. The judgment of S. Samuthiram (supra) was later followed by another Bench of this Court in Commissioner of Police, New Delhi & Anr. V. Mehar Singh [ (2013) 7 SCC 685 ]. 18. We indicate that the respondent could not lay his hand to any rule or regulation applicable to the Police Force stating that once an employee has been acquitted by a Criminal Court, as a matter of right, he should be reinstated in service, despite all the disciplinary proceedings. In otherwise there is no rule of automatic reinstatement on acquittal by a Criminal Court even though the charges levelled against the delinquent before the Enquiry Officer as well as the Criminal Court are the same. On this aspect, reference may be made to para 27 of the judgment in S. Samuthiram (supra), which reads as under: “27. We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.” 19. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.” 19. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, which is applicable to the case in hand, specifically provides that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. The said Regulation is extracted below for easy reference : “4. Discharge or acquittal not a bar to departmental punishment. – An order of discharge or acquittal of a Police Officer shall not be a bar to the award of departmental punishment to that officer in respect of the same cause or matter.” Above rule indicates that even if there is identity of charges levelled against the respondent before the Criminal Court as well as before the Enquiry Officer, an order of discharge or acquittal of a police officer by a Criminal Court shall not be a bar to the award of the departmental punishment. The Tribunal as well as the High Court have not considered the abovementioned provision and have committed a mistake in holding that since the respondent was acquitted by a Criminal Court of the same charges, reinstatement was automatic.” 21. In view of the aforesaid reasons, the point raised in the present petition has to be answered in the negative holding that the petitioner has not made out any ground to interfere with the impugned award dated 22.3.2001 passed by the Central Government Industrial Tribunal cum Labour Court under Articles 226 and 227 of the constitution of India. Accordingly Writ Petition is dismissed