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2019 DIGILAW 828 (CAL)

Tanmay Datta v. United Bank of India

2019-08-28

PROTIK PRAKASH BANERJEE

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JUDGMENT : 1. This petition under Article 226 of the Constitution of India, 1950 has prayed for a quashing of the decision dated January 15, 2016 refusing to stay the departmental proceedings initiated by the chargesheet on February 3, 2017. A prayer has also been made to "defreeze" the salary account of the petitioner so that he could access the subsistence allowance being paid to him. The dates seem to be a little confusing but I am quoting from the prayers. On going through the records, it appears that by the order dated January 15, 2016 the writ petitioner was placed under suspension for alleged "irregularities committed by him during his tenure of service at the Lakhanpur branch". It does not incorporate any decision refusing to stay departmental proceedings, since on its face, they were yet to be initiated. At page 70 there is a copy of a first information report complaining of offences being committed by the writ petitioner under Sections 468, 409 and 420 of the Indian Penal Code made by the Officer-in-Charge, Hura Police Station in Purulia. Apparently, this resulted in the Special Case No.2 of 2016 pending before the Learned Additional Special Judge--II cum Special Court at Purulia. It appears that Charge Sheet No.78 of 2016 has been filed before the court of the learned Chief Judicial Magistrate, Purulia on September 19, 2016. Thereafter, by a letter dated February 3, 2017 what was in effect a memorandum of charges was delivered to the petitioner where he was inter alia accused of being delinquent by violating the provisions of Regulations 3(1) and 3(3) of the United Bank of India Officer Employees' (Conduct) Regulations, 1976 constituting misconduct in terms of Regulation 24 thereof. The specific allegations relate to opening accounts without following applications/mandates from the account holders, transferring lakhs of rupees from, 52 savings bank accounts in Lakhanpur Branch and misappropriation of the said funds for benefiting himself, his brother and to third party accounts among other things. An enquiry authority was appointed by the disciplinary authority who communicated with the petitioner on April 6, 2017. 2. Even though a prayer has been made in the writ petition in effect for staying of the departmental proceedings till the conclusion of the criminal case, I am afraid that no such representation is on record. An enquiry authority was appointed by the disciplinary authority who communicated with the petitioner on April 6, 2017. 2. Even though a prayer has been made in the writ petition in effect for staying of the departmental proceedings till the conclusion of the criminal case, I am afraid that no such representation is on record. The same have been taken as grounds in the writ petition with supporting allegations but the only representation that I find from the records to have been made by the writ petitioner is dated January 24, 2017 for allowing him to resume his service after lifting the order of suspension and payment of arrears since the entire money has been recovered and he is on bail and chargesheet has been submitted. That apart there has been prayers for "de- freezing" his salary account, which in effect has been granted on May 4, 2017 by a coordinate bench which also stayed the disciplinary proceedings on a prima facie finding that if the writ petitioner was asked to defend the same it would prejudice his defence in the criminal case. The stay order is continuing. 3. Though the respondent bank had on oath made out the case by reference to the first information report, the chargesheet filed under Section 173 of the Code of Criminal Procedure before the competent criminal court and the memorandum of charges constituting the departmental proceedings, that the allegations on which the said criminal case was pending were relatable to offences under the Indian Penal Code whereas the departmental proceedings pertained to the conduct regulations of an employee of the respondent bank, it is undeniable that the imputation allegation of commission of the acts in both cases were the same. The same acts formed the basis of the first information report and the memo of charges, though with different emphasis. 4. Perhaps this is why the Learned Senior Counsel for the Respondent Bank, Mr. Malay Kumar Basu, learned Senior Advocate, did not press the points raised in the affidavit-in- opposition of his client, but conceded fairly that the principles of law laid down by the Hon'ble Supreme Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Another reported in AIR 1999 SC 419 applied squarely to the present case. Malay Kumar Basu, learned Senior Advocate, did not press the points raised in the affidavit-in- opposition of his client, but conceded fairly that the principles of law laid down by the Hon'ble Supreme Court in Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Another reported in AIR 1999 SC 419 applied squarely to the present case. Though there was no representation is this regard, he submitted, on instructions, that this was a case where his client had no objection to a stay of operation of the departmental proceedings, with one caveat, which I shall come to shortly. 5. The relevant paragraph Bharat Gold Mines (supra) is extracted herein below: - "As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this Court, which shall be copiously referred to, on the basic principle that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in the those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance." 6. Mr. Basu has fairly submitted that the case of the writ petitioner comes within the exception mentioned by the Hon'ble Supreme Court in the last sentence mentioned above. 7. Mr. Basu has fairly submitted that the case of the writ petitioner comes within the exception mentioned by the Hon'ble Supreme Court in the last sentence mentioned above. 7. Therefore, in view of the said admission, I have no alternative but to agree with the coordinate bench and make the observation made prima facie therein absolute and hold that the disciplinary/departmental proceedings in the memo of charges dated February 3, 2017 cannot be continued before the conclusion of the criminal proceedings in Special Case No.2 pending before the Learned Additional Special Judge--II cum Special Court in Purulia and direct accordingly. Therefore, I do not call upon the petitioner to reply or argue on this aspect of the matter. 8. Now I come to the caveat sounded by Mr. Malay Kumar Basu, learned Senior Advocate appearing for the respondents. He submits that though the criminal case is not before me, it is a learned court subordinate to this Court within its territorial jurisdiction and he expresses his client's apprehension that the case before the criminal court would be made to linger indefinitely, taking advantage of this order and the position of law. 9. He cites the judgment in the case of State Bank of India vs. Neelam Nag reported in AIR 2016 SC 4351 . In that judgment Their Lordships of the Hon'ble Supreme Court were faced with a situation where the learned single judge had been pleased to direct the employer to forbear from proceeding departmentally before conclusion of the criminal trial. On appeal this was modified to the extent that the Hon'ble Division Bench had directed " (i) The A.C.J.M. Durg is directed to conclude the trial which is pending since 2006 on day to day basis, in which we have been informed that one witness has already been examined and (ii) The writ Appellants would be free to proceed further in the disciplinary proceedings as soon as the case from the prosecution side is closed." 10. It was this backdrop that the Hon'ble Supreme Court had considered the applicability of the principle laid down in Stanzen Toyetetsu India Private Limited vs. Girish V. and Others, reported in (2014) 3 SCC 636 , to the effect that departmental proceedings cannot be suspended indefinitely or delayed unduly. It was this backdrop that the Hon'ble Supreme Court had considered the applicability of the principle laid down in Stanzen Toyetetsu India Private Limited vs. Girish V. and Others, reported in (2014) 3 SCC 636 , to the effect that departmental proceedings cannot be suspended indefinitely or delayed unduly. The Hon'ble Supreme Court was pleased to call for a status report from the learned criminal court and expressed dissatisfaction with the progress of the trial. 11. Only in that view of the matter, in the peculiar facts of the case, was the Hon'ble Supreme Court pleased to hold at paragraph 12 of the Manuptra report of the said Neelam Nag (supra case) that the principle in Stanzen (supra) case, was to be followed, by holding as follows: - "In the peculiar facts of the present case, therefore, we accede to the contention of the Appellants that the pendency of the criminal case against the Respondent cannot be the sole basis to suspend the disciplinary proceedings initiated against the Respondent for an indefinite period; and in larger public interest, the order as passed in Stanzen's case be followed even in the fact situation of the present case, to balance the equities." Further: - "Accordingly, we exercise discretion in favour of the Respondent of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against the Respondent to be decided expeditiously but not later than one year from the date of this order. The Trial Court shall take effective steps to ensure that the witnesses are served, appear and are examined on day-to-day basis. In case any adjournment becomes inevitable, it should not be for more than a fortnight when necessary." 12. There my quandary lies in plain terms. Mr. Basu will contend that this is the law laid down by the Hon'ble Supreme Court and that I must while directing the disciplinary proceedings to remain stayed till disposal of the criminal proceedings, also direct the criminal case be decided within a stated time, preferably within one year. There my quandary lies in plain terms. Mr. Basu will contend that this is the law laid down by the Hon'ble Supreme Court and that I must while directing the disciplinary proceedings to remain stayed till disposal of the criminal proceedings, also direct the criminal case be decided within a stated time, preferably within one year. On the other hand the writ petitioner submits that this is not the law laid down but only the order passed by the Hon'ble Supreme Court to do complete justice to the parties in the facts of the case which clearly appears from the extract aforesaid, that this direction though equitable was passed in the interests of justice by the Hon'ble Supreme Court. Therefore, the learned Advocate for the petitioner, Mr. Soumya Mazumdar would contend that the direction, being under Article 142 of the Constitution of India, is not in exercise of a power I have as a court functioning within the four corners of Article 226 of the Constitution of India but on the other hand, I am bound by the declaration of law down by Bharat Mining (supra), Neelam Nag (supra) and even Stanzen (supra) without however, the freedom to direct the criminal court to decide the matter within a time to be fixed by me. He submits that there is nothing on record to show that the learned criminal court or the writ petitioner has delayed the trial but in fact, after chargesheet has been filed, it is a matter of time before the trial is completed. 13. I most respectfully agree with Mr. Soumya Mazumdar, appearing for the petitioner, that I am bound by the declaration of law in Bharat Mining (supra), Neelam Nag (supra) and even Stanzen (supra) and that the paragraphs extracted as part of paragraph 11 above, are in exercise of Article 142 of the Constitution of India. However, the effect of accepting the said principles as declaration of law means that despite the concession made by the respondent Bank through their learned senior counsel on instructions, the order which pass on the writ petition is not for stay of the departmental proceedings pending disposal of the criminal proceedings. 14. However, the effect of accepting the said principles as declaration of law means that despite the concession made by the respondent Bank through their learned senior counsel on instructions, the order which pass on the writ petition is not for stay of the departmental proceedings pending disposal of the criminal proceedings. 14. Rather in complete and respectful obedience to the principles of law declared by the Hon'ble Supreme Court in Bharat Mining (supra), Neelam Nag (supra) and even Stanzen (supra), as above, I direct that the respondent bank shall forbear from proceeding with the disciplinary proceedings till the completion of the examination of the prosecution witnesses cited in Special Case No.2 of 2016 pending before the Learned Additional Special Judge--II cum Special Court at Purulia. The writ petitioner is directed to cooperate with the learned court below and the prosecution for fostering an early disposal of the case since it is not desirable that departmental proceedings be suspended indefinitely or delayed unduly. Since the interim order dated May 4, 2017 already granted the relief relating to salary account and the subsistence allowance, on recording the submission of the respondents that they do not intend to freeze the salary account of the petitioner where the subsistence allowance is being deposited, I make the same absolute adding that whatever is payable to thepetitioner for the continuance of his suspension till today, under Paragraph 23.4.3 of the Bipartite Settlement dated April 10, 2002 clauses (a) and (b) and more particularly clause (c) shall be payable to the petitioner including arrears if any, within a fortnight from the date of this order, for the arrears, if any and within due time for current liabilities of payment of the subsistence allowance. 15. The writ petition is allowed to the above extent. There shall be no order as to costs.