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2017 DIGILAW 2740 (RAJ)

Vijay Shankar Jaiman v. Central Bank Of India

2017-12-08

ASHOK KUMAR GAUR

body2017
JUDGMENT ORDER Ashok Kumar Gaur, J. - The petitioner in the instant petition has challenged charge-sheet dated 05.06.1997, punishment order dated 28.06.1999 and appellate order dated 15.12.1999. 2. The petitioner was an employee of Central Bank of India and was working as Agricultural Assistant at Bhilwara Branch. The Central Bureau of Investigation registered two FIRs against on 17.05.1977 & 11.06.1977 the petitioner and it was reported that petitioner had collected amount from February, 1972 to May, 1974 from customers as loan instalments and either he did not deposit any amount in the bank or deposited less amount. 3. The matter after being investigated by CBI, a charge-sheet came to be filed against the petitioner in the court of Special Judge, CBI Cases, Rajasthan Jaipur on 27.08.1978. 4. The trial court framed charges against the petitioner, which he denied and after hearing both the parties, the trial court vide judgment dated 19.07.1983 held the petitioner guilty of offences under Section 409 IPC and Section 5(1)(c) read with 5(2) of the Prevention of Corruption Act, 1947. 5. The services of the petitioner were terminated on account of his conviction w.e.f. 07.08.1983. The petitioner preferred S.B. Criminal Appeal No. 296/1983 before the High Court at Jaipur Bench, Jaipur and his appeal came to be allowed by judgment dated 28.11.1991 and the High Court set aside the conviction and sentence imposed and the Court acquitted the petitioner from criminal charges. The petitioner since being acquitted came to be reinstated in service subject to the disciplinary action which might be initiated against him in future. 6. The charge-sheet dated 05.06.1997 came to be served upon the petitioner. The articles of charges are reproduced as hereunder:- "1. Shri Jaiman issued receipts/counterfoils for Rs. 300/- each to the borrowers (details in Annexure-II) of Branch Office Bhilwara on 08.05.1974 but deposited only Rs. 200/- each in their respective accounts that too on 10.05.1974. 2. Shri Jaiman issued receipts/counterfoils amounting to Rs. 1450/- to 5 borrowers of Branch Office, Bhilwara (Details in Annexure-II) on various dates, but did not deposit any amount at all in their respective loan accounts. 3. Shri Jaiman recorded an unwarranted narration on the undated receipt/counterfoil for Rs. 200/- issued to Shri Laxman s/o Mana Chamar, a borrower of Bhilwara branch." 7. 1450/- to 5 borrowers of Branch Office, Bhilwara (Details in Annexure-II) on various dates, but did not deposit any amount at all in their respective loan accounts. 3. Shri Jaiman recorded an unwarranted narration on the undated receipt/counterfoil for Rs. 200/- issued to Shri Laxman s/o Mana Chamar, a borrower of Bhilwara branch." 7. The Disciplinary Authority appointed the Enquiry Officer and after concluding the enquiry, the Enquiry Officer submitted his finding on 07.07.1998 to the Disciplinary Authority. 8. The Disciplinary Authority passed penalty order dated 28.06.199 and the following penalty was imposed:- "Shri Jaiman is informed that the above penalty of "Reduction of his Basic Pay by 3 stages for 2 years-Further D.S.O. will not draw his normal increments during the period of penalty and the period of penalty will have the effect of postponing his future increments" has been inflicted upon him. As regards the period of his dismissal from the bank from 07.08.83 to reinstatement on 26.03.92, Shri Jaiman would not be entitled to any benefit whatsoever, monetory and non monetory from the date of his dismissal and to the date of his reinstatement and the entire period shall be treated as loss of pay." 9. The petitioner aggrieved by the said order filed an appeal before the Appellate Authority and the Appellate Authority dismissed the appeal of the petitioner by detailed order dated 15.12.1999. 10. The petitioner has challenged the impugned orders on the following grounds:- (i) The Disciplinary proceedings against the petitioner could not be initiated as there was no ingredient of commission of any offence and employer had failed to prove and produce any witness/borrower, whose less amount was said to be collected or deposited. (ii) The Department failed to produce any witness of the Bank, who could confirm the handwriting/initial by whom the set of PAN, slip and other vouchers were filled in. (iii) The Standard of proof required in departmental enquiry is that of preponderance of probability and not proof beyond reasonable doubt. The petitioner alleges that Enquiry Officer has tried to prove the charge on the basis of half truth and by twisting the facts. (iv) There has been inordinate delay in initiating the departmental proceedings against the petitioner. (v) The very initiation of departmental enquiry on the same facts, on which criminal trial was held, petitioner cannot be punished twice and initiation of enquiry was bad in eye of law. (iv) There has been inordinate delay in initiating the departmental proceedings against the petitioner. (v) The very initiation of departmental enquiry on the same facts, on which criminal trial was held, petitioner cannot be punished twice and initiation of enquiry was bad in eye of law. (vi) The petitioner was a workman at the time of alleged commission of misconduct and as per bipartite agreement applicable to workman, the petitioner could be proceeded by the Disciplinary Authority as per bipartite settlement. (vii) The petitioner has not been supplied the relevant documents and denied reasonable opportunity of hearing during the enquiry. 11. The respondents have filed reply to the writ petition and have placed on record the full and complete order dated 28.06.1999 passed by the Disciplinary Authority and as submitted that Disciplinary Authority has considered all the submissions and then imposed the punishment order. 12. The respondents have further said that appellate authority has considered all the points raised by the petitioner in his appeal and as such, appellate order has been passed. 13. The respondents have said that during the enquiry, documentary as well as oral evidence was produced and petitioner was afforded full opportunity to meet the allegations of the charge in the charge-sheet. The petitioner participated in the enquiry and principal of preponderance of probability was only required to be followed by the Bank. The respondents have asserted that the petitioner collected money from the illiterate villagers and issued receipt to them and petitioner did not discharge his duty and in fact a more harsh punishment could have been imposed upon the petitioner, however, considering all the facts and circumstances, decision reducing basic pay was taken. It was submitted that the petitioner was charge-sheeted when he was in the Officer cadre and rules & regulations applicable to officers required to be followed. The respondents have further denied violation of principle of natural justice and pleaded that opportunity of hearing has been afforded to the petitioner. 14. Mr. S.S. Sharma, learned counsel for the petitioner has submitted that there has been gross delay in issuing charge-sheet in the year 1997 for the alleged incident of 1974 and as such, the enquiry is vitiated. Mr. 14. Mr. S.S. Sharma, learned counsel for the petitioner has submitted that there has been gross delay in issuing charge-sheet in the year 1997 for the alleged incident of 1974 and as such, the enquiry is vitiated. Mr. Sharma has submitted that though petitioner was reinstated after his acquittal from the criminal case by the High Court and there was a condition also in the reinstatement order to conduct the enquiry, the same did not mean that petitioner was required to face disciplinary proceedings. Mr. Sharma has submitted that charge-sheet and disciplinary proceedings should have been initiated as per bipartite settlement as the petitioner was workman at relevant time when the alleged incident took place. Mr. Sharma has submitted that non-supply of documents caused prejudice and these aspects have not been looked into by the authorities. 15. Per contra, Mr.Om Prakash Jain, learned counsel appearing for the respondents has submitted that the petitioner was involved in collecting money from poor-illiterate farmers and petitioner retained money with him and did not deposit the same in the Bank and as such, there is a breach of trust of the customers and thus, the petitioner was rightly proceeded in the departmental enquiry. 16. Mr. Jain submits that the acquittal of petitioner in criminal case by the High Court was on technical grounds and as such, the employer was free to initiate departmental enquiry for the misconduct, which was committed by an employee. 17. Mr. Jain submitted that the Apex Court time and again has laid down law that even after acquittal in a criminal case, initiation of departmental enquiry is permissible in law and same has to be exercised in fair and reasonable manner and where there is evidence to prove the charges. 18. I have considered the rival submission of learned counsel for the parties and gone through the material on record. 19. The Apex Court in the case of Stanzen Toyotetsu India Pvt. Ltd. vs. Girish V. & Ors., reported in (2014)3 SCC 636 , has laid down the law that there is no legal bar to conduct disciplinary proceedings and criminal trial simultaneously. It has been held that seriousness of the charges levelled against the employee is an important consideration. The relevant portion of the judgment is reproduced as hereunder:- "16. It has been held that seriousness of the charges levelled against the employee is an important consideration. The relevant portion of the judgment is reproduced as hereunder:- "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 defense 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 criminal 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 on-going 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." 20. The Apex Court in the case of State (NCT of Delhi) vs. Ajay Kumar Tyagi, reported in (2012) 9 SCC 685 has again reiterated the position that criminal proceedings and disciplinary proceedings, if are based on same charges, exoneration in disciplinary proceedings would ipso facto will not terminate criminal proceedings. The relevant paras are reproduced as hereunder:- "24. Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya vs. State of Bihar. In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence. 25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy." 21. Considering overall the facts of the present case, the Court finds that the respondents were within its domain to initiate the disciplinary proceedings against the petitioner and if the Enquiry Officer has found the charges proved on the basis of oral as well as documentary evidence that the petitioner has committed a misconduct and he was found guilty of misconduct, as such, no illegality can be found in the action of the respondents initiating the disciplinary proceedings. 22. As far as the question of delay in issuing charge-sheet, the Court finds that while petitioner was reinstated after decision of the High Court, as per own averment of the petitioner in the petition, the Department had reinstated him on the condition that Bank was free to initiate disciplinary enquiry against the petitioner for the misconduct and acquittal by High Court was not having an effect. The action could be taken for the misconduct committed by the petitioner. The delay in issuing charge-sheet cannot be ground to vitiate the disciplinary enquiry in the present facts of the case. 23. The action could be taken for the misconduct committed by the petitioner. The delay in issuing charge-sheet cannot be ground to vitiate the disciplinary enquiry in the present facts of the case. 23. The submission of the learned counsel for the petitioner that fair opportunity was not granted is also without any substance and Court is of the opinion that petitioner has been given full opportunity to defend himself during the enquiry and as such, no fault can be found with the action of the respondents. 24. The Court also considered that the charge-sheet was issued to the petitioner at the time when the petitioner was holding post of Officer and the petitioner could not have taken this plea that he ought to have been treated as workman and he should have been proceeded with in departmental enquiry, as per bipartite settlement. 25. In the opinion of the Court, the punishment which has been imposed upon the petitioner is also not severe punishment and looking to the misconduct committed by the petitioner, the Disciplinary Authority in the facts and circumstances of the case has passed the penalty order, which requires no interference by this Court. 26. Accordingly, the writ petition is dismissed being devoid of merit.