Shri Shamsher Singh vs State Of Bihar & Ors

The present writ petition has been field for quashing the order of punishment dated 23.11.1998, whereby and where under the punishment of dismissal

from service has been inflicted upon the petitioner herein. The petitioner has further prayed for quashing of the appellate order dated 01.07.1999. The

order passed in review dated 21.05.2001 has also been assailed.

The brief facts of the case are that the petitioner was initially appointed as a Cashier in the State Bank of India and had joined his first assignment in

the year 1971 whereafter he continued to work to the satisfaction of all concerned. Subsequently, an FIR bearing Shri Krishna Puri P.S. Case No. 110

of 1992 was lodged against the petitioner and then he was suspended by an order dated 29.05.1992. Thereafter, the petitioner was acquitted in the

said criminal case by a judgment dated 05.03.1997 passed by the learned Judicial Magistrate-1st Class, Patna. However, in the meantime, a

departmental proceeding was initiated against the petitioner herein and the petitioner was served with a charge sheet dated 12.07.1995 on the

allegation of committing fraud while being posted as a Passing Officer in the P.B. Division of Shri Krishna Puri Branch. It was further alleged that

five leaves of a cheque book, received by the petitioner, was misused by the petitioner for the purposes of fraudulent withdrawal from the account of

the depositors and the petitioner had passed vouchers for payment exceeding the passing power of Rs. 25,000/- vested with him apart from the

petitioner having engaged in other irregularities. Lastly, it was alleged that the petitioner had failed to serve the bank with utmost integrity, honesty,

devotion and diligence much against Rule 32(4) of the State Bank of India (Supervising Staff) Service Rules, as retained in Rule 50(4) of the said

Rules.

The petitioner had submitted his reply and had also prayed for dropping the said departmental proceeding in view of the fact that no charges were

made out. The departmental enquiry had then continued against the petitioner and an enquiry report was submitted by the Enquiry Officer dated

23.03.1998, whereby and where under all the allegations levelled against the petitioner were found to have been conclusively proved. A second show

cause notice dated 03.04.1998 was issued to the petitioner herein enclosing a copy of the enquiry report and asking the petitioner to submit his reply

and representation on the finding of the Enquiry Officer. Thereafter, the disciplinary authority by the impugned order dated 23.11.1998 found the

charges to have been conclusively proved as against the petitioner herein, hence imposed the punishment of dismissal from service qua the petitioner

herein. The petitioner had then filed an appeal which was also dismissed by an order dated 01.07.1999 and thereafter the review of the petitioner was

also dismissed by an order dated 21.05.2001.

The learned senior counsel for the petitioner has submitted that the criminal proceedings and the departmental proceedings were instituted on same

and similar facts and the same set of evidence has been led in both the proceedings, however, the petitioner has been acquitted in the criminal case,

hence he should be granted benefit in the disciplinary proceedings, as such the order of dismissal dated 23.11.1998 is fit to be set aside. In this regard,

the learned senior counsel for the petitioner has relied upon a judgment rendered by the Hon’ble Apex Court in A.I.R. 2007 SC (suppl.) 1361

(Management, Pandiyan Roadways Corp. Ltd. vs. N. Balakrishnan), and the one reported in (2006) 5 SC 446 (G.M. Tank vs. State of Gujarat),

paragraph no. 30 whereof is reproduced herein below:-

“30.The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the

departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the

appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in

the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during

enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses

and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set

of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other

departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the

charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination

came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the

appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was

made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings

recorded in the departmental proceedings to stand.â€​

In nutshell, the submission of the learned senior counsel for the petitioner is that since the Hon’ble Apex Court has held, in the aforesaid case, that

in cases where departmental proceedings and the criminal case are based on identical and similar set of facts and charge in a departmental case

against the appellant and the charge before the criminal court are one and the same, acquittal in the criminal proceedings would result in quashing of

the departmental proceedings.

Per contra, the learned counsel for the Bank has referred to a judgment of the Hon’ble Apex Court reported in (2012) XIII SCC 142 (Avinash

Sadashiv Bhosale vs. Union of India & ors.), paragraph nos. 47, 48, 49, 50, 51, 55, 56, 57, 58, 59, 60 and 61 whererof are reproduced herein below:-

“47. Having noticed the aforesaid observations, the Court proceeded to distinguish the same with the following observations:-

“The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the

departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the

appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the

criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during

enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses

and circumstances are one and the same.â€​

These observations are of no assistance to the appellant as the charges against him in the criminal trial were with regard to the commission of

offences under Section 120(B), 420, 467, 468, 471 and201 of IPC. In the departmental proceedings, the appellant has been punished on the basis of

the findings that he failed to discharge his duties with utmost integrity, honesty, devotion and diligence. It was found that he had violated Rule 50(4) of

the 1992 Rules. In our opinion, it would be the ratio of law laid down in the cases of Ajit Kumar Nag (supra) and Depot Manager, A.P. State Road

Transport Corporation (supra) that would be applicable in the facts and circumstances of this case.

In Union of India & Ors. Vs. Naman Singh Shekhawat, on facts, the whole departmental proceedings were held to be vitiated by bias. It was a

case where the offences of the disciplinary authority were held to be based on no evidence. It was also a case where no witness was examined to

prove the allegations against the respondent Shekhawat. It was a case in which the only witness examined on behalf of the disciplinary authority was

the jeep driver, MS who at the material time was accompanying the respondent. Even this witness did not support the Department‟s case yet the

departmental authorities held the charges against the respondent as proved. Besides, it was also found that the respondent had not been allowed

services of a defence assistant of his choice. He was also not allowed to produce defence witness J. In paragraph 27 of the judgment, this Court

observed that:

“The bias on the part of the inquiry officer is explicit from the record. Why the inquiry officer cross-examined the respondent is beyond anybody‟s

comprehension. He was not the prosecutor. A presenting officer had been appointed. The inquiry officer could not have taken over the job of the

presenting officer, particularly when he was a superior officer.â€​

In our opinion, there is no parallel in the facts and circumstances of the aforesaid case and the present case.

In Capt M. Paul Anthony‟s case (supra), this Court reiterated the well established principle of law that proceedings in a criminal case and the

departmental proceedings can proceed simultaneously. It was emphasised that the basis for this proposition is that proceedings in a criminal case and

the departmental proceedings operate in distinct and different jurisdictional areas. The observations made in paragraph 13 which are relevant in the

facts of this case are as under:-

“As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer to 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 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 doubt. 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.â€​

In our opinion, the facts of this case do not fall within the little exception culled out by this Court. The departmental proceedings herein and the

criminal case are not grounded upon the same set of facts and the evidence. As noticed by the disciplinary authority as well as the appellate authority,

the departmental proceedings related to honesty, integrity and devotion of the appellant as a very high ranking bank officer. On the basis of the

evidence led before the enquiry officer, it was held that the appellant had failed to maintain the utmost integrity which is required for a bank officer.

In view of the aforesaid legal principles enunciated and reiterated by this Court, we cannot accept that because the appellant had been prosecuted,

the departmental proceedings could not have been continued simultaneously. As pointed out by Mr. Dwivedi, the charges against the appellant in the

criminal trial related to the commission of criminal offences under Sections 120(B), 420, 467, 468,471 and 201 of Indian Penal Code. The proof of

criminal charges was depended upon prosecution producing proof beyond reasonable doubt relating to the culpability of the appellant alongwith other

persons. In the departmental proceedings, the basic charge was that appellant whilst posted as a Branch Manager of Washi Turbhe Branch, failed to

discharge his duties with utmost integrity, honesty, devotion and diligence to ensure and protect the interest of the Bank and acted in a manner

unbecoming of a Bank Officer. The aforesaid charge clearly related to the manner in which the appellant performed the duties as the Manager of the

Branch of the Bank. It had nothing to do with any criminal liability attaching to such conduct.

It must be emphasised that Bank officials act as trustees of funds deposited by the public with the Bank. They have an obligation to earn the trust

and confidence of not only the account holders but also the general public. The standard of integrity required of the Bank officials, particularly the

cashiers, accountants, auditors and the Management at all levels, is like the Caesar‟s wife, they must be above suspicion. Mr. Bhosale failed to

maintain such high standards of integrity. He therefore, acted in violation of Rule 50(4) of the 1992 Rules. We, therefore, do not find any merit in the

aforesaid submissions of Mr. Jain.

Mr. Dwivedi, in our opinion, has rightly pointed out that the conduct of the criminal trial was in the hands of the prosecuting agency. Having

registered the First Information Report, the Bank had little or no role to play, apart from rendering assistance to the prosecuting agencies. In our

opinion, the failure of the prosecution in producing the necessary evidence before the trial court can not have any adverse impact on the evidentiary

value of the material produced by the Bank before the Inquiry Officer in the departmental proceedings. Before the Inquiry Officer, the Bank had

placed on the record all the relevant documents which clearly establish that the appellant had exceeded his discretionary powers in purchasing the

cheques and issuing demand drafts to show undue favour to the three construction companies named in the charge sheet. In view of the above, the

findings recorded by the Inquiry Officer can not be said to be based on no evidence.

It is a settled proposition of law that the findings of Inquiry Officer cannot be nullified so long as there is some relevant evidence in support of the

conclusions recorded by the Inquiry Officer. In the present case, all the relevant documents were produced in the Inquiry to establish the charges

levelled against the appellant. It is a matter of record that the appellant did not doubt the authenticity of the documents produced by the Bank. He

merely stated that the signature on the documents were not his. The aforesaid statement of the appellant was nullified by Mr. S.M. Mahadik, who

appeared as a witness for the Bank. He clearly stated that he recognized the signature of the appellant as he had been working as his subordinate.

The findings recorded by the Enquiry Officer cannot be said to be based on no evidence. In such circumstances, the appellant cannot take any

advantage of the findings of innocence recorded by the criminal court. The „clean chit‟ given by the learned Magistrate was influenced by the

failure of the prosecution to lead the necessary evidence. No advantage of the same can be taken by the appellant in the departmental proceedings.

We also do not find any merit in the submissions made by Mr. Jain that the order by the Disciplinary Authority is vitiated by non- application of

mind. The extracts reproduced above would clearly indicate that the Disciplinary Authority was alive to all the submissions made by the appellant. The

Disciplinary Authority had taken into consideration all the relevant material and only then concluded that the charges have been duly proved against

the appellant. Furthermore, it is a matter of record that the appellant was duly supplied a copy of the Inquiry Report and he had submitted detailed

objections to the same. These objections were placed before the Disciplinary Authority together with the Inquiry Report. Therefore, the appellant can

not possibly claim that there has been a breach of rule of natural justice.

Similarly, the Appellate Authority has also given cogent reasons in support of its conclusion. This is also apparent from the extract of the order of

the Appellate Authority reproduced above.†In nutshell, the argument of the learned counsel for the Bank is that since in the present case the

charges in the criminal case and those in the disciplinary proceedings are different inasmuch as in the departmental proceeding the petitioner has been

punished on the basis of the findings that he failed to discharge his duties with utmost integrity, honesty, devotion and diligence and had violated Rule

50(4) of the State Bank of India Officers Service Rules, the aforesaid judgment rendered by the Hon’ble Apex Court in the case of G.M. Tank

(supra) is of no benefit to the petitioner herein. It is further submitted that the departmental proceeding and the criminal case, as far as the present

case is concerned, are not based on similar charges and one of the charge in the departmental proceeding is that the petitioner has failed to serve the

Bank with utmost integrity, honesty, devotion and diligence against the Rule 32(4) of the Service Rules as retained in Rule 50(4) of the said Rules,

whereas the said charge was not there in the criminal proceedings and moreover the said charge has been found to have been conclusively proved in

the departmental proceeding for which the punishment of dismissal has been inflicted upon the petitioner herein, hence, no benefit can be derived by

the petitioner in the departmental proceedings from his acquittal in the criminal case. It is lastly submitted that the petitioner, in the criminal case has

already conceded that in case the petitioner is acquitted from the criminal case, the same would not result in his discharge from civil liability and for

negligence committed in carrying out his duties, hence now the petitioner cannot be heard to take the advantage of acquittal in criminal proceedings,

based on the fact that the allegations/charges have not been proved beyond doubt.

I have heard the learned counsel for the parties and gone through the materials on record and I find that the charges in the disciplinary proceedings as

well as those in the criminal proceedings are not same and similar inasmuch as an additional charge has been levelled against the petitioner in the

disciplinary proceedings, which is reproduced herein below:-

“2. You have thus allegedly failed to serve the Bank with utmost integrity, honest, devotion and diligence much against Rule 32(4) of State Bank of

India (Supervising Staff) Service Rules as retained in Rule 50(4) of the State Bank of India Officers Service Rules.â€​

In fact the aforesaid additional charge levelled against the petitioner in the disciplinary proceedings has also been found to have been conclusively

proved as is apparent from the enquiry report dated 23.03.1998 and the impugned order of punishment dated 23.11.1998 and for the said reasons, the

order of punishment of dismissal has been inflicted upon the petitioner herein.

Having regard to the facts and circumstances of the case, I am of the opinion that the judgment rendered by the Hon’ble Apex Court in the G.M.

Tank case (supra) is of no help to the petitioner herein. However, the present case is squarely covered by the judgment of the Hon’ble Apex

Court rendered in the case of Avinash Sadashiv Bhosale (supra), hence the ground urged by the learned senior counsel for the petitioner to assail the

impugned order of punishment dated 23.11.1998 as also the appellate order and the review order as well as the disciplinary proceedings, to the effect

that since the petitioner has been acquitted in the criminal case, the departmental proceedings cannot stand and are fit to be quashed, is not tenable in

the eyes of law, as discussed herein above, thus there is no merit in the present writ petition.

In any view of the matter, even on merits, the petitioner has got no case since the charges levelled against the petitioner have been conclusively

proved as is apparent from the enquiry report dated 23.03.1998 and no procedural irregularity has been pointed out by the learned senior counsel for

the petitioner as far as the conduct of the disciplinary proceeding is concerned. In fact no fault can be found with the impugned orders of punishment

dated 23.11.1998, appellate order dated 01.07.1999 and order on review petition dated 21.05.2001, which are well reasoned and have been passed in

accordance with law. For the reasons mentioned herein above, I do not find any merit in the present writ petition, hence the same is dismissed.