AI Structured Summary
Not yet generated for this judgment
Judgment
K. Ramaswamy, J.—The petitioner while working as clerk in respondent Bank at Amalapuram Branch, by charge memo dated November 28, 1984, was imputed with misconduct of inducing one Yella Ramachandra Rao, a depositor for release of their gold loans-AAG 24/913 for a sum of Rs.5,000 and AAG 24/454 for a sum of Rs. 15,000 obtained on October 29, 1979 and July 24, 1982 respectively and made fraudulent conduct of redeeming and repledge with spurious gold ornaments, etc. and thereby it was alleged that the petitioner has committed misconduct. This act on the part of the petitioner was with an intention to misappropriate the ornament by illegal means by taking under advantage of his employment in the bank and he has given false information in respect of the procedure to be followed for renewal of gold loans referred to herein before. Accordingly, it was a misconduct in term of paragraph 521(4) (k) & (j) of the Sastry Award read with paragraph 15.28 of the Desai Award. The petitioner has denied the allegations and the enquiry officer conducted the enquiry, after following the procedure prescribed in that regard, on receipt of the report, show cause notice dated November 14,1985 was issued to the petitioner stating that he has committed misconduct of a serious nature and it warrants dismissal from service, and it was issued in terms of Paragraph 521(4) (j) of the Sastry Award read with Paragraph 18.28 of the Desai Award. The Petitioner had submitted his explanation dated December 16, 1985. On consideration of the entire material via-a-vis explanation submitted by the petitioner by proceedings dated January 16, 1986, the disciplinary authority in an elaborate order (running to nine typed pages) has found as follows:
"In the light of the foregoing, by your acts of fraudulent misconducts, you proved yourself that you are undependable with a fraudulent bent of mind and questionable integrity and cannot be relied upon. Such a person with a doubtful, integrity and dubious nature has no place in a financial organization like bank. I therefore, consider that there is no case for revision reducing the nature and quantum of punishment proposed in my Memorandum (3-0) DPC/VSP/No.49 of 14.11.1985 viz.'' Dismissal'' from Bank''s service without notice, as provided for a paragraph 521 (5)(a) of the Sastry Award read with paragraph 18.28 of the Desai Award. I also consider that there is no case to treat any part of the period spent by you under suspension as on duty and as such you will not be eligible for receipt of any salary and allowance and other attendant benefits apart from what has already been paid/to be paid by way of subsistence allowance. There are no extenuating circumstances warranting a lessor form of punishment. Accordingly, I now confirm the aforesaid punishment and you will stand dismissed from the Bank''s service from the date of receipt of this memorandum. This will met the ends of justice. I hold accordingly."
On appeal, this was confirmed by the Appellate Board in proceedings dated April 28,1986. Assailing the legality thereof the writ petitioner has been filed.
The contention of Sri Jogayya Sarma, learned counsel for the petitioner runs thus-the petitioner while in service is alleged to have committed misconduct for the self-same charge proceedings were initiated in a Criminal Court: the police laid charge-sheets in C.C. Nos. 10 and 11 of 1986 on the file of the Court of the First Additional Munsif Magistrate, Amalapuram for offences punishable under Sections 420, 406, 408 and 471, I.P.C. in Crime Nos. 119 and 122/82 of Amalapuram police station. When the petitioner is being prosecuted for the self-same offences, he has got a fundamental right to be silent. If the disciplinary enquiry is conducted, he is expected to disclose his defence which would be prejudicial to his defence in the criminal cases. Therefore, the proceedings initiated for disciplinary action is not warranted. It is further contended that when the proceedings have already been initiated for the offences, the authorities, by parity of reasons have no jurisdiction to continue the proceedings for the self-same charges.
The question, therefore is whether the authorities precluded to conduct an enquiry into the misconduct said to have been committed by the petitioner while performing his duties as a clerk in the bank. A perusal of the charge Memo, the explanation submitted by the petitioner, the enquiry report and the order of the disciplinary authority clearly show that in the enquiry conducted, the petitioner has been given reasonable opportunity to defend himself In this regard, there is not dispute. The question then emerges is whether the authority is devoid of jurisdiction to conduct, an enquiry into the misconduct now found to have been committed by the petitioner. Paragraph 521 of Sastry Award read with Paragraph 18.28, of the Desai. Award provides the procedure for conducting enquiry into the misconduct of award staff. Admittedly the petitioner is an award staff. Therefore, the authorities have jurisdiction to conduct an enquiry in terms of the procedure under the Sastry Award read with the Desai Award. The question, then, is whether it is expedient to conduct the enquiry into the selfsame charges when a trial is pending in the criminal Court for offences alleged against the petitioner. It is to be seen that the offences are punishable under Sections 420, 406, 408 and 471, I.P.C. Those are the offences which the prosecution fails to establish its case, then the accused is entitled to an honourable acquittal. In many a case, the Court would also acquire the accused on mere technical grounds.
But as regards the disciplinary proceedings are concerned the enquiry is into the misconduct of the delinquent officer while performing his duties, entrusted to him. Therefore, merely because the same facts constitute the cause of action in the disciplinary action which are also subject of trial in the criminal Court, the authority is not prevented to conduct enquiry, into the misconduct committed by the delinquent officer. It is well-settled that pendency of proceedings in the criminal Court will not impede the authority to conduct the enquiry or to wait the conclusion of trial for offences thereof without pursuing the remedies under the disciplinary proceedings. No doubt, in Bhagwatcharanks v. State of U.P., 1973 (2) SLR 239 and Rajendra Kumar v. Union of India, 1976 (2) SLR 295, the Allahabad and Calcutta High Courts have held that during the pendency of the proceedings in a criminal court, the authorities are precluded to go into the misconduct. With due respect I am unable to subscribe to the view of the learned Judges. It may be a case where the trial has already been concluded and the accused has been honourably acquitted, perhaps for the self-same charge the delinquent officer may not be proceeded against in the disciplinary proceedings. But merely because proceedings in the criminal Courts are pending, there is not prohibition for the disciplinary authority to conduct the enquiry and complete the same. The ratio i R.P. Kapur Vs. Union of India (UOI) and Another, , also is not of much assistance to the facts in this case. It cannot be disputed that the disciplinary proceedings include suspension of a delinquent officer pending trial in a criminal Court. When a contention was raised that suspension pending trial in a criminal Court cannot be said to be a disciplinary matter their Lordship of the Supreme Court have held that the term ''disciplinary matter'' is of wide connotation which would include suspension pending trial as the authorities have jurisdiction is suspend the officer when trial is pending in a criminal case. The ratio, therefore does not help the petitioner. Equally the Full Bench decision of this Court in The District Manager, Andhra Pradesh State Road Transport Corporation, Bhimavarm Vs. Labour Court, Guntur and Another, s also of little assistance. Therein, the question was on acquittal by the Criminal Court, whether the charged officer is entitled to full back wages. The Full Bench has held that the charged officer is entitled to payment of full back wages. The question of double jeopardy does not arise because disciplinary proceedings is not an offence under the Criminal Procedure Code and therefore, Article 20 of the Constitution is of little assistance to the facts in this case. It is no doubt true that the accused is entitled to keep mum when the trial in the criminal Court is going on and burden is on the prosecution to establish the case beyond all reasonable doubt. But that was not the case as regards the enquiry into misconduct in a disciplinary proceeding. It is always for the management, in the first instance to establish its case and it is for the delinquent officer to rebut the case. The presenting officer on behalf of the disciplinary authority has to prove the misconduct against the delinquent officer. Preponderance of probabilities is the test vis-a-vis human conduct. Therefore, it is for the delinquent officer to take up his stand. Merely because criminal case are pending it cannot prevent him from participating in the disciplinary proceedings. In fact in this case a counsel was engaged on his behalf and the petitioner participated in the enquiry and he cross-examined witnesses and in appropriate case, he declined to cross-examine in other cases stating that he has no further instructions for cross-examination. Under those circumstances, I do not find any illegality in conducting the enquiry by the disciplinary authority and passing the impugned orders. Accordingly, I do not find any merits in the writ petition. The writ petition is dismissed. It is needless to mention that if the petitioner is acquitted on merits by the Criminal Court, it may open to the petitioner to approach on merits by the Criminal Court, it may open to the petitioner to approach the disciplinary authority for reconsideration of his case and it is for the Bank to take an appropriate decision. In the circumstances, there will be no order as to costs.