Sujit Saha vs Union of India and Others

Mir Dara Sheko, J—The Writ petitioner Shri Sujit Saha while posted as the Assistant Accounts Clerk in the State Bank of India at Jalpaiguri, West Bengal, consequent to a complaint of the then Chief General Manager of the State Bank on 25.09.1999 before the local Kotwali Police Station Jalpaiguri over the incident of encashment of one cheque No. BB/50-116941 for Rs.2,25,000/- by forging signature, Kotwali P.S. Case No. 369/99 dated 26.6.1999 for the offence under Sections 468/471/420/120B IPC has been registered, and during investigation of said criminal case the writ petitioner along with one Pradip Das have been arrested and Rs. 2,25,000/- having been recovered allegedly from possession of the writ petitioner, on completion of the investigation charge-sheet has been submitted before the Court of the then Sub-Divisional Judicial Magistrate, Jalpaiguri on 28.07.2000 for taking cognizance.

Meanwhile, following the arrest and alleged recovery of the aforestated bank money from possession of the writ petitioner he has been put under suspension from service by the then Assistant General Manager by issuing order dated 12.11.1999, and after charge-sheet of the aforesaid criminal case show cause notice was issued on 30.11.2000 to the writ petitioner inviting explanation about the Act of fraudulence under reference within the stipulated period, and, in submitting reply to said show cause notice the writ petitioner took the stand that since criminal case has ended into charge-sheet for his prosecution in criminal Court the proposed departmental proceeding should not be initiated and the same be kept stayed till disposal of the criminal case.

Virtually charge-sheet of the departmental proceeding was issued to the writ petitioner on 10.12.2001 by supplying the necessary documents as well.

At that juncture, the writ petitioner came up with the writ in the year 2002 seeking relief in the nature of mandamus, certiorari etc. so that the departmental proceeding be kept stayed till conclusion of the trial of the aforesaid criminal proceeding pending before Respondent No. 8 and this Court on 16.09.2002 has passed an interim order at the instance of the writ petitioner which is as follows:-

"The respondent authority is granted liberty to continue with the proceeding and pass a final order. The respondent authority is however, directed not to give effect to the final order without express leave being obtained from this Court upon notice to the petitioner.

The petitioner would be entitled to attend the disciplinary proceeding without prejudice to his rights and contentions in the writ proceeding."

Learned Advocate for the respondent No. 2 to 5/State Bank of India Mr. S.K. Sinha apprised the Court that the departmental proceeding has been completed and due to order dated 16.09.2002 of this Court the State Bank is not in a position to give effect to its final order and so leave should be granted. In view of above the matter has been specially fixed by notifying in the list.

Point of law in the proceeding involved:-

(i) as to whether leave to be granted to the State Bank to give effect to the final order to its departmental proceeding, or,

(ii) the leave should be kept further withheld till conclusion of the criminal trial under reference.

Mr. Bose, Learned Advocate for the petitioner on the basis of the points ventilated in the writ petition as well as the written notes argued as follows:-

(a) according to the Workmen Staff Settlement on Disciplinary Action Procedure for Workmen while there is regular criminal trial for prosecution of the writ petitioner, if the petitioner be convicted then the management would have the opportunity to dismiss him from service from the date of conviction, or even if acquitted it would be also open to the management to proceed against him under the provisions of Clause 11 and 12 for dismissing from service, had there been really any established charge against the writ petitioner, and so, there is no hurry or loss of the bank while already there is recovery of impugned amount,

(b) while the charges both in the criminal trial as well as the departmental proceeding are almost similar, if not identical, then the grant of leave will cause the double jeopardy to the writ petitioner which is against the constitutional mandate,

(c) while the criminal trial is on the way of completion, then the leave, if granted, may put stigma upon the writ petitioner for which he may be subjected to humiliation not only in his family but also in society to which he belongs, and,

(d) the result of the departmental proceeding, if would be adverse, may influence the result of criminal trial.

Mr. Bose, relied upon the case of Sri Balai Kumar Sanfui Vs. State of West Bengal and Ors. W.P.S.T. No. 479 of 2013 decided by the Division Bench of our Court on February 25, 2014 reported in Sri Balai Kumar Sanfui Vs. The State of West Bengal and Others, (2014) 1 CALLT 609 : (2014) 3 CHN 198 : (2014) 141 FLR 939 : (2014) 4 WBLR 260 against which the Special Leave Petition has been dismissed by the Hon''ble the Supreme Court.

Ld. Advocate for the respondent/State Bank Mr. S.K. Sinha State Bank of India replied that pursuant to the provision of Section 8(e) of the Central Vigilance Commission Act, 2003 which has come into force for statutorization of the Central Vigilance Commission to inquire into or cause inquiries, to be conducted into offences alleged to have been committed under the Prevention of Corruption Act, 1988 by certain categories of public servants of the Central Government, Corporations, Government Companies, Societies, and local authorities owned and controlled by the Central Government and when the department has waited for more than fourteen years for conclusion of the aforesaid criminal trial by allowing the writ petitioner to enjoy full pay and allowances as per memorandum of settlement dated the 8th September, 1983 held between the managements of 58 banks as represented by the India Banks'' Association and their workmen as represented by the All India Bank Employees'' Association and the National Confederation of Bank Employees, there cannot be any order of further stay to put hindrance from giving effect to the final order of the departmental proceeding, which in the meantime has been completed.

Mr. Sinha, further submits that when there is already disclosure of defence by the writ petitioner both in the criminal trial as well as in the departmental proceeding, and when law in the field is as such that even if in the criminal trial there is order of acquittal the departmental proceeding can be proceeded with, the writ petition at this stage is liable to be dismissed. Mr. Sinha, further submits that to a bank Officer no defence is available on the point of yielding any loss or profit in the matter of keeping of further stay, rather he is supposed to face the consequence specially because an organization like the bank is to be managed by the disciplined and honest worker of very high standard. Mr. Sinha relied upon the following decisions:-

(a) State of Rajasthan Vs. B.K. Meena and others, (1996) 7 AD 321 : AIR 1997 SC 13 : (1996) 74 FLR 2550 : (1996) 8 JT 684 : (1996) LabIC 2750 : (1997) 1 LLJ 746 : (1996) 7 SCALE 363 : (1996) 6 SCC 417 : (1996) 7 SCR 68 Supp : (1997) 1 SLJ 86 : (1996) 2 UJ 739 : (1996) AIRSCW 4160 : (1996) 7 Supreme 432 .

(b) Senior Superintendent of Post Offices, Pathanamthitta and Others Vs. A. Gopalan, (1998) 9 JT 332 : (1999) LabIC 234 : (1999) 1 LLJ 1313 : (1997) 11 SCC 239 : (1998) SCC(L&S) 124 .

(c) State Bank of India and Another Vs. Bela Bagchi and Others, AIR 2005 SC 3272 : (2005) 107 FLR 258 : (2005) 8 JT 96 : (2005) 3 LLJ 721 : (2005) 7 SCC 435 : (2005) SCC(L&S) 940 : (2005) 3 SCR 1084 Supp : (2005) 3 SLJ 454 : (2005) AIRSCW 4141 : (2005) 6 Supreme 87 .

(d) Samar Bahadur Singh Vs. State of U.P. & Ors. Supreme Court of India decided on 5th September, 2011 (Civil Appeal No. 7643 of 2011).

(e) State Bank of India and Others Vs. R.B. Sharma, AIR 2004 SC 4144 : (2005) 99 CLT 1 : (2004) 102 FLR 1027 : (2004) 6 JT 361 : (2004) 3 LLJ 528 : (2004) 6 SCALE 541 : (2004) 7 SCC 27 : (2004) 3 SCR 417 Supp : (2005) 1 SLJ 35 : (2004) AIRSCW 4587 : (2004) 6 Supreme 227 .

Admittedly though the writ petitioner has been put under suspension from 12.11.1999 and although the charge-sheet of the departmental proceeding initiated against him was issued on 10.12.2001 the said departmental proceeding could not be completed within next one year, as per the memorandum of settlement dated September 8, 1983 (supra) the writ petitioner has been allowed to enjoy full pay and allowances. As per his service record the date of birth of the writ petitioner is 02.01.1957 so he is due to retire in January, 2017.

Although, the charge-sheet in respect of the aforesaid criminal case has been submitted by the Police Investigating Agency of the Court of the then Ld. Sub-Divisional Judicial Magistrate, Jalpaiguri on 28.07.2000, till this stage of the year 2015 trial of that criminal case remains incomplete, though however, Mr. Bose has apprised the Court that the trial may have been pending for examination of only Police Witness. Be that as it may, in the case of Sri Balai Kumar Sanfui Vs. State of West Bengal & Ors. (Supra) over the allegation of bribery extortion in official capacity etc. FIR was lodged on 3rd May, 2013. Charge-sheet was submitted on 16th August, 2013 representation of the delinquent for staying of the departmental proceeding having been refused on 5th September, 2013 moved the Administrative Tribunal, and considering several judicial pronouncements this Court, following the rule of precedence, observed, "that there could be no straitjacket formula for staying the departmental proceedings during the pendency of criminal trial. This is because the criminal trial may be prolonged by dilatory tactics adopted by the Delinquent Officer" considering desirability in staying the departmental proceeding further observed "the Court, however, gave liberty to the employer to resume the disciplinary proceeding initiated against the delinquent employees if the trial was not completed within one year".

In the case on hand, as I find that despite lapse of fourteen years after cognizance of the impugned offence in the criminal Court the trial of the said criminal case against the writ petitioner could not yet been concluded, and the writ petitioner is due to retire in January 2017 only.

It is obvious, this Court in the case of Firoz Ahmed Vs. Union of India (W.P. No. 15194 (W) of 2013) rightly observed that pendency of criminal proceedings is no bar to continue disciplinary proceedings in ordinarily circumstances. It is only in exceptional situation when the charges in both the proceedings are founded on the same set of facts and evidence and the nature of charge before the Criminal Court is grave and serious involving complicated questions of fact of law or possibility of disclosure of defence is real thereby having the effect of prejudicing the delinquent at the criminal trial, then the Court which is approached for staying of the disciplinary proceedings, may consider the desirability of granting relief in exercise of sound judicial discretion. At the very outset, I am not hesitant to express my view that the first information report vis-a-vis the very text of charges are indicative towards serious allegation touching honesty and moral turpitude of a Bank employee where a very higher standard of honesty and integrity are in general expectation, but those charges do not suggest neither complication nor ambiguity either in fact or in law, rather it can be proved or disproved basically through available materials on record coupled with expert''s report if would be acceptable or otherwise and nothing more and nothing less than that.

Although during the course of hearing one stray argument is advanced on applicability of the Central Vigilance Commission Act, 2003 in the present case since the impugned incident is of the year 1999, I refrain myself from taking long exercise whether said Act would act with retrospective effect or not which is also not very relevant in the present scenario, specially because serious argument has not been advanced from both sides over that matter, and answer to the point does not help to decide the issue involved in the case on hand.

Law is settled that disciplinary proceedings can be continued even if there is order of acquittal against the delinquent in the criminal case. But when the nature and scope of the criminal case are very different from that of a departmental disciplinary proceeding and when an order of acquittal cannot conclude the departmental proceeding, and when in a criminal case the charge has to be proved by the standard of proof beyond all reasonable doubt while in departmental proceeding the standard of proof for proving the charge is preponderance of probabilities, I find no absolute bar in simultaneously continuing a departmental proceeding along with a criminal case even if the observations of this Court made in the case of Balai Kumar Sanfui Vs. State of West Bengal & Ors. (Supra) as well as the various cases referred to therein speaks of desirability. The ratio of the judicial pronouncements gives clear indication that though it would be desirable to stay the departmental proceeding till conclusion of the criminal case, but stay of any such departmental proceeding cannot be granted as a matter of course, and there can be no straitjacket formula prescribed for staying the departmental proceeding when a criminal case is pending simultaneously. The relief by stay is considered so that defence is not disclosed or alternatively to preclude the delinquent from any prejudicial cause in view of the defence may be taken by him. Here the question of prejudice is to be measured through judicial observation also when, how, and how far it would be, if the departmental proceeding be allowed to proceed simultaneously with the criminal case over the same or similar charges. To my view it must be dependant from case to case. In the case on hand, as I am apprised by Mr. Bose, Learned. Advocate for the writ petitioner that the criminal trial against the writ petitioner is pending for examination of the police witnesses. Mr. Sinha, Learned Advocate for the respondents/bank equally enlightened that only for want leave of the Court, which has been kept stayed about more than 14 years back the final result of the departmental proceeding could not be published and communicated to the writ petitioner. In view of the present stage of the criminal trial (which could not yet been complete) as well as the departmental proceeding I firmly hold that the writ petitioner cannot available of the benefit of the judgment of the Division Bench of this Court. The very spirit of desirability for staying of either of the proceedings, particularly the departmental proceeding, is non-disclosure of defence. But when the departmental proceeding is only awaited for communication of the final result taking leave of this Court and when by using his defence the writ petitioner is on the verge of the conclusion of the said criminal trial, then there is no and cannot be any more cause of being prejudice if the departmental proceedings be allowed to reach its conclusion. In the situation the emotional argument advanced by Mr. Bose, that in case of any adverse result suffered by the writ petitioner in the departmental proceeding i.e. he is to survive in his family and society with stigma which is not desirable till conclusion of the criminal trial, does not find any place. In case of any proved misconduct, on the part of bank employee in the case of State Bank of India & Anor. Vs. Bela Bagchi & Ors. (Supra) the Hon''ble Apex Court observed "A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, it is no defence available to say that there was no loss or profit which resulted in the case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one''s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not causal in nature and were serious. That being so, the plea about absence of loss is also sans substance."

This Court on earlier occasion on 16.09.2002 had considered the rival submissions and allowed the departmental proceeding to continue by putting only lock so that its result should not be published without the leave of the Court. The departmental proceeding is now complete. The question is whether the leave to publish the result of the departmental proceedings should be granted. Once, this Court allowed the departmental proceeding to continue simultaneously with the criminal trial there is hardly any possible chance of the petitioner being prejudiced by the publication of the result of the proceedings. Because the ground for disallowing a departmental proceedings to proceed along with a criminal trial being the disclosure of defence by the delinquent employee does not apply to the present stage of both the criminal trial and departmental proceedings. If, in course of the proceedings, he had disclosed his defence that cannot be undone by withdrawing the leave to publish the result of the proceedings, and that apart with his defence, if at all disclosed with the respondents, the criminal trial has been continuing for more than fourteen years and likely to continue for some time more in getting final shape through conclusion of the stage of remaining evidence, examination under Section 313 Cr.P.C., examination of defence witness, hearing of arguments and Judgment.

It is important to note that during the entire period of more than 14 years the respondents/bank has to continue paying full pay and allowances in the name of subsistence allowance to the writ petitioner in terms of the Memorandum of Settlement (Supra), and in turn there was/is no opportunity on the part of the respondents/bank to utilize services of the writ petitioner, and, merit wise if the situation does not change the respondents would have to continue payment of such full pay and allowance till retirement of the writ petitioner, who is due to retire in January, 2017. The authorities therefore, now, must not be deprived of the result of the departmental proceedings in view of the present scenario. The Principles of Law on the issue mostly are using the word "desirability" in the matter of keeping the departmental proceeding "stay" when there is simultaneous criminal case on the similar facts and charges. But any law could not be cited to caption or designate the same as a mandatory, meaning thereby, the controversy is to be determined by judicial observation taking the scene from case to case.

The contention of the writ petitioner is thus entirely misplaced. The departmental proceedings having been completed by this time and only awaited for publication, the writ petitioner by remaining in the enjoyment of full pay and allowance during almost half of a service tenure without rendering service in office due to suspension, by its publication cannot take the plea of being prejudiced in the criminal trial, specially because the fate of the criminal trial obviously may have been sealed on either side by the evidence already adduced before the criminal Court, which may have been awaited to get only final touch by examining the police witnesses followed by examination under Section 313 Cr.P.C.: D.W.s, arguments and delivery of Judgment. Therefore, the result of the departmental proceedings cannot have any impact on the faith of the criminal trial at this stage when the writ petitioner already faced the departmental proceedings by appearing before the Enquiry Officer by disclosing his defence, if any. Thus, the case of Balai Kumar Sanfui Vs. State of West Bengal & Ors. is of no assistance to the writ petitioner. Rather the ratio of the principles available from the decisions cited by Mr. Sinha Learned Advocate for the respondents/bank are found much more pat on the point to answer that question does not arise to keep the departmental proceeding stayed any further till conclusion of the criminal trial, rather, leave should be granted at once to the respondents/bank to give effect to the final order of the departmental proceedings initiated against the writ petitioner, if it is concluded with a view to give either clean chit or book for dealing in accordance with law if the delinquent is found guilty of the charge.

The writ petition thus is dismissed and the interim order dated 16.09.2002 passed by this Court is hereby vacated and the respondent Nos. 2 to 5 are at liberty to take up all incidental official formalities regarding the departmental/disciplinary proceeding initiated against the writ petitioner Shri Sujit Saha to give effect to its final order.

Be it made clear that the respondent Nos. 6 to 8, however, shall not be influenced in any manner by the result of the departmental proceeding.

No order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties on usual undertaking.

Later

Mr. P.C. Paul Chowdhury, learned advocate for the petitioner prays to keep the operation of the judgment stayed for three weeks against which Mr. S.K. Sinha, learned advocate for the respondent Nos. 2 to 5 opposes on the ground that the Bank has waited for more than 14 years.

Considering the fate of the writ petition itself and the reasons for vacating the interim order dated 16th September, 2002, after considering the judicial pronouncements as placed before this Court and considering the graveness of the matter involved, I do not find any justification to keep the operation of the judgment stayed and, therefore, the prayer for stay of operation of the judgment, as submitted by the learned advocate for the petitioner, is refused.