Kishan Prasad Tiwari vs Central Bank of India and Others

R.P. Awasthi, J.

The petitioner, above named has filed the present petition under Articles 226 and 227 of the Constitution of India against the order dated 5.1.82 of termination of his services (Document No. 16).

Present petition emerges out of the following facts which are not disputed:-

The petitioner was appointed as permanent part time Farrash under respondents 1 to 4 by virtue of order dated 17.7.1972. Duty of the petitioner included cleaning bank premises and he was not concerned with cash section of the bank or relating to handling of cash. A report (Document No. 1) was lodged on 20.7.1978 at police station Hoshangabad to the effect that one thousand currency notes of rupee on denomination were stolen from the bank premises in between evening of 14.7.78 and 11 A. M. of 15.7.78. On the basis of the said report the present petitioner and one Radhe Shyam Dubey were prosecuted for having committed offences punishable under sections 381 and 411 of the Indian Penal Code. After trial, the Judicial Magistrate First Class acquitted the accused on the ground that there was no proof that 989 currency notes of rupee one denomination seized from Itarsi branch of the Bank of respondent No. 1. alleged to have been deposited by co-accused Radhe Shyam were the sam which were said to have been stolen. A copy of the judgment delivered by the Judicial Magistrate has been annexed with the petition as (Document No. 2)

The State preferred an appeal against the said acquittal, but the High Court refused to grant leave to appeal against the said judgment of acquittal.

During the pendency of the aforesaid trail, the petitioner was suspended as per order dated 25/26.7.78 (Document No. 6).

On 17.6.81 charge sheet (Document No. 8) was issued against the present petitioner and enquiry was held on the basis of the same charge of theft of an amount of Rs. 1,000/-. The enquiry was conducted by Shri K. L. Munshi. The Enquiry Officer issued a letter dated 19.6.1981 (Document No. 9) to the petitioner to appear before him on 1.7.81. Till that time, the petitioner was not informed about the material against him or list of witnesses by which the charges were to be sustained. The petitioner worte a letter to respondent No. 3 for being allowed to be defended by Advocates Shri L. N. Verma and Shri Dinesh Prasad Dubey. However, the said prayer was not allowed.

After the enquiry was closed, a show cause notice was issued to the petitioner in which it was mentioned that respondent No., 3 who is the Disciplinary Authority/Divisional Manager, Central Bank of India, Hoshangabad agreed with the finding given by the Enquiry Officer. The report of the Enquiry Officer was not supplied to the petitioner. The petitioner moved an application dated 16.2.82 (Document No. 17) to supply him a copy of the enquiry report. Respondent No. 3 declined to supply a copy of the said departmental enquiry report. The petitioner preferred an appeal (Document No. 19) against the said order which was disallowed as per order dated 10.5.83 (Document No. 20).

The petitioner raised a dispute for making a reference. Lablour Department, Central Government of India, declined to make a reference as per letter dated 23.11.84 (Document No. 22).

The petitioner''s contention is that after honourable acquittal from the court concerned no departmental enquiry could be conducted against him on the same charge. Further, the enquiry which was conducted against him was violative of rules of natural justice, and therefore, the order of termination based on such a departmental enquiry deserves to be quashed. On the basis of the said contentions, the petitioner has prayed for issuance of a writ quashing the order of termination of his service (Document No. 16) and the appellate order dated 10.5.1983 (Document No. 20). He has also prayed that a writ or direction be issued to respondents 1 to 4 to pay the petitioner all arrears of salary and other benefits accured from 26.7.78 when he was wrongfully suspended. Alternatively, he has prayed for a writ being issued directing respondent No. 5 to refer the dispute for adjudication to the Industrial Tribunal.

In reply, it has been submitted on behalf of respondent''s 1 to 4 that as the petitioner had confessed his guilt before the police, a departmental enquiry could be started and based on such a confessional statement. For the purpose of criminal trial, the said confession of admission made by the petitioner to the police was not admissible in evidence in view of section 25 of the Evidence Act as well as section 162 of Criminal Procedure Code. However, the said documentary evidence was admissible in evidence for the purposes of departmental enquiry. Therefore, the Disciplinary Authority did not commit any error in starting departmental enquiry against the petitioner and holding him guilty.

It has further been argued that in the order terminating services of the petitioner, it was mentioned that the petitioner will he given 3 months'' pay and allowances in lieu of notice. The petitioner received the pay of 3 months and allowances and therefore, it should be inferred that he has in effect waived the right of challenging the said order of termination.

After hearing the counsel on both sides and after going through the record, we are of the opinion that the present petition deserves to be allowed and that there is absolutely no substance in the contentions made on behalf of respondents 1 to 4. It is a settled principle of law that normally where the accused is acquitted honourably and completely exonerated of the charges, it is not expedient to continue a departmental enquiry on the very same charges or grounds or evidence. (See Corporation of Nagpur-Vs. Ramchandra G. Modak, AIR 1984 S. C. 636. It has also to be seen that when there is a substantial acquittal of the accused on the criminal charge, there should not be a departmental proceeding against him in respect of the same charge on the same facts unless there are present conditions like the acquittal being on a technical ground or establishing conduct which would make him unworthy of the said office. Where a Govt. servant was prosecuted for an offence and honourably acquitted, he can not be subjected to departmental enquiry on the same facts again. (See : R. J. Divekar Vs. Union of India), 1984 JLJ 442.

It has also to be seen that it was essential on the part of the Disciplinary Authority to supply the petitioner with the copy of the report of the Enquiry Officer. This provision is mandatory in view of the principles of natural justice and is not aborgated or rescinded, even after the amendment of Article 311 of the Constitution of India. (See : Union of India Vs. Mohd. Ramzan Khan), AIR 1991 SC 4710.

It is not in dispute that the report of the departmental enquiry conducted against the present respondent No. 3.

It is true that in a criminal trial a confessional statement given by an accused to a police officer is not admissible in evidence. It is also correct that such a confessional statement would not be inadmissible in evidence in a proceeding like a civil suit or a departmental enquiry. Nevertheless, such a confessional statement given to a particular officer requires to be proved in a departmental enquiry and the Enquiry Officer as well as the Disciplinary Authority is required to record a finding that such a confessional statement was given by the delinquent employee to a particular police officer and relying on such a confessional statement, the said employee is held guilty of the charge framed against him.

However, the report of the Enquiry Officer conducting the departmental enquiry is not before this court as it has not been supplied even to the court. Further, in the show cause notice dated 26.12.81 (Document No. 14) only this is mentioned that the petitioner was charged with having committed the theft of Rs. 1,000/- on 15.7.78. That he admitted his guilt with the police authorities and that he was kept in police custody. Therefore, the petitioner was charged of gross misconduct for the above act. However, there is absolutely no averment either in the said show cause notice (Document No. 14) issued by the Disciplinary Authority or the appellate order (Cocument No. 20) that any police officer was examined to prove the said confessional statement alleged to have been made by the petitioner. The alleged confessional statement has also not been relied upon in either of the said two documents. Consequently, it is absolutely wrong to say that the petitioner was held guilty of the charges framed against him in the departmental enquiry on the basis of any confessional statement proved to have been made by him before any police officer.

By accepting the salary of three months, the petitioner obviously has not waived his right to challenge the legality of the departmental enquiry and the order passed in the said enquiry as well as the order passed in appeal against the said order.

In the result, the petition succeeds and is hereby allowed. The order dated 5.1.82 terminating the services of the petitioner (Document No. 16) and the order dated 10.5.1983 passed in appeal (Document No. 20) disallowing the appeal of the petitioner are herby quashed. Respondents 1 to 4 are directed to re-instate the petitioner in service. It is further directed that he be paid arrears of pay from the date of suspension (25/26.7.78) till the date on which the impugned order of termination was passed viz. 5.1.82. Regarding remaining amount of back wages, it is ordered that respondents 1 to 4 would be free to hold an enquiry as to whether from the date of impugned order terminating the services of the petitioner till the date of his again being taken in service by virtue of this order, the petitioner was or not gainfully employed. If the petitioner would be having any grievance against the said finding given in the said enquiry conducted by respondents 1 to 4 he shall be at liberty to file a civil suit for recovery of his back wages.

Respondents 1 to 4 shall bear their own costs and shall also bear the costs of the petitioner. Counsel''s fee 500/-, if certified. Security amount, if deposited by the petitioner be refunded to him.