V.A. Ramakrishna vs Bank of Maharashtra and Others

S. Parvatha Rao, J.—The petitioner seeks a writ of Mandamus etc. declaring the departmental proceedings initiated against him by the respondents as illegal and void. He was working as Special Assistant in the Bank of Maharashtra, the first respondent herein, at Guntur when he was suspended on 31-1-1992. A criminal complaint dated 23-4-1992 was made against him by the first respondent to the Station House Officer at Arundalpet Police Station at Guntur alleging fraud and misappropriation by him involving a sum of Rs. 1,74,800/- and the same was registered as Crime No. 282 of 1992. He does not dispute that investigation is still pending in respect of the said crime. Departmental enquiry was also initiated and he was charge sheeted on 29-8-1992. Subsequently, amended charge sheet was issued to him on 15-9-1993. The enquiry could not be proceeded with because of various adjournments sought by the petitioner and finally when he received letter dated 5-11-1994 finding the date of enquiry to 23-11-1994, he preferred the present writ petition on 21-11-1994. It was admitted on 22-11-1994 and on the same day in W.P.M.P. No. 25419 of 1994 departmental enquiry was stayed pending service of notice. The respondents sought vacation of the stay by way of W.V.M.P.No. 1268 of 1995. When W.P.M.P. and W.P.M.P. came up before me, the writ petition itself was directed to be posted for final disposal as the question raised was in a short compass.

The main contention urged by the learned Counsel for the petitioner is that the departmental enquiry was initiated against the petitioner contrary to Clause 19.4 of the Bi-partiate Settlement of 1966. The petitioner contends that as per the said clause departmental enquiry can be initiated against an employee on the basis of allegations for which he has sought to be prosecuted criminally if two conditions are satisfied firstly the trial should be commenced within one year of the commission of the offence and secondly the prosecution must come to the conclusion that there is no case to start prosecution proceedings". According to the petitioner, till such time the threat of criminal prosecution would be pending against him, he could not be proceeded departmentally as it would amount to compelling him to disclose his defence and thereby prejudice him in the criminal case and as such action on the part of the management would amount to denying his equal protection of law guaranteed to him in Article 14 of the Constitution of India (Para 6 of the reply-affidavit, dt. 19-8-1994) The respondents counter by contending that the said Clause 19.4 does not prevent them from conducting the enquiry if the criminal case is not put on trial within an year of the commission of offence and that therefore the respondents are entitled to continue the proceedings and that even otherwise nothing prevents the authorities from conducting the proceedings even when the criminal case is pending in view of the law laid down by the Supreme Court and by this Court (Para 7 of the counter-affidavit of the second respondent dated 18-6-1995).

In the counter-affidavit the second respondent narrates how the disciplinary proceedings had been baulked by the petitioner after the charge sheet dated 29-8-1992 was served on him and even after the amended charge sheet of 15-9-1993, by seeking repeated adjournments. It is relevant to notice here that the amendment to the original charge sheet dated 29-8-1992 effected by letter dated 15-9-1993 of the second respondent was only in respect of the date under charge No. 3 i.e. to read "as 28-10-1991 instead of 26-10-1991". It was further clarified in the said letter that the charge sheet dated 29-8-1992 was issued to the petitioner by the second respondent as he was nominated "by the Chief Executive of the Bank in pursuance of the provisions under Clause 19.14 of the Bi-partite Settlement dated 19-10-1966, as modified from time to time, vide CO circular Ax-1/ST/D/18/92, dated 27-2-1992 issued by the Chairman and Managing Director appointing Disciplinary and Appellate Authorities." It is stated in the counter-affidavit that Sri S.T. Dabir, Deputy Chief Manager, Hyderabad was appointed as Enquiry Officer initially and that before him the petitioner took several adjournments for engaging his defence representative-first Mr. G. Krishna Murthy was appointed as the petitioner''s representative and then on 23-7-1993 Mr. M. Srinivasacharyulu in his place. Thereafter, on 9-2-1994 the third respondent herein was appointed as the Enquiry Officer to continue the enquiry proceedings against the petitioner. When the third respondent gave notices to the petitioner fixing the enquiry at Bangalore, the petitioner objected on the ground that it was too far away for himself and Mr. M. Srinivasacharyulu, his defence representative, and also on the ground that as criminal proceedings were still pending, the disciplinary enquiry could not be held in view of Clause 19.4 of the Bi-partite Settlement. By letter dated 13-5-1994 the third respondent clarified that it was the prerogative of the disciplinary authorities to decide the place of enquiry; and as regards the objection based on the said Clause 19.4 he stated as follows:

"Though a complaint was lodged with police at Guntur, as per provisions of 19.4 of Bi-partite settlement 1966, as you are not put on trial within an year of commission of offence, Bank can take departmental action against you. As the trial had not commenced, you are advised to attend the enquiry without putting forth such plea. If you do not attend the enquiry and try to delay the enquiry on some pretext or the other, please note that Enquiry will be held ex parte."

To that the petitioner replied by letter dated 20-5-1994 seeking adjournment of the enquiry fixed for 23-5-1995 on the additional ground that due to severe sunstroke he was still not in a position to attend the enquiry, more particularly at Bangalore, and that due to heat-wave the attending doctor advised rest for one month. By letter dated 1-6-1994 the third respondent informed the petitioner that the enquiry would be held at Guntur on 22-6-1994, i.e. more than month after 13-5-1994, as requested by the petitioner. The enquiry was then adjourned to 12-7-1994 at the request of the presenting Officer and then once again to 27-7-1994 as the Enquiry Officer was otherwise engaged, Then at petitioner''s request it was adjourned to 17-8-1994. On 16-8-1994 the petitioner addressed a letter stating that he was advised rest and surgery for Hernia by doctor and on that ground sought adjournment. Thus, even after the enquiry was posted at Guntur, no progress was made. After the surgery, by letter dated 5-11-1994 the third respondent informed the petitioner that the enquiry would be held at Guntur on 23-11-1994 and then the petitioner came to this Court by way of the present writ petition.

The main contention advanced on behalf of the petitioner is that in view of Clause 19.4 of the Bi-parties Settlement the first respondent-Bank can proceed against him only if the prosecuting authority either finds that there is no case against him or has refused to start the prosecution: according to the petitioner this result follows from the language of the said clause as he has not been put on trial for a period of one year. I am of the view that the language of the clause does not support the stand of the petitioner. Clause 19.4, referred to by the petitioner, forms part of the First Bi-partite Settlement dated 19-10-1966 and occurs in Chapter XIX dealing with Disciplinary Action and procedure Therefor''. It reads as follows:

"19.4: If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed and act of ''grass misconduct'' or of ''minor misconduct'', as defined below;

provided that if the authority which was to start prosecution proceedings refuses to do so or come to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months'' pay and allowances in lieu of notice as provided in Clause 19.3 supra. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 19.3.above shall apply."

Clauses 19.11 and 19.12 deal with steps to be taken when decision is taken to take any disciplinary action against an employee and procedure in such cases. Clause 19.3 deals with cases where in the opinion of the management an employee has committed an offence: Sub-clause (a) of Clause 19.3 provides that in such cases unless the employee is otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and that in such a case he may also be suspended; Sub-clause (b) provides for cases where such an employee is convicted; Sub-clause (c) provides for cases where such an employee is acquitted; and Sub-clause (d) provides for cases where such an employee prefers an appeal or revision against his conviction. From a reading of Clause 19.4. keeping in view the context in which it occurs, it follows that if an employee is not put on trial within one year of the commission of the offence after steps have been taken to prosecute him, the management is at liberty to proceed departmentally against him for gross misconduct or minor misconduct as the case may be; however, even within that one year, if the authority which has to start prosecution proceedings refuses to initiate prosecution against such an employee or comes to the conclusion that there is no case for prosecuting him, then management would be free to initiate disciplinary action in accordance with the provisions of Clauses 19.11 and 19.12. this action can be initiated by the management even within a year of the commission or the offence by the employee immediately on coming to know that the authority which has to start prosecution proceedings has refused to do so or finds that there is no case for prosecution . But, if the authority which has to start prosecution proceedings has not taken any decision as regards the case for prosecution of the employee and the employee is not put on trial, the management will have to wait for one year of the commission of the offence before proceeding to deal with him under Clauses 19.11 and 19,12 i.e. before initiating departmental proceedings for disciplinary action. After such departmental proceedings are instituted against the employee and during the pendency of such proceedings if he is put on trial, the departmental proceedings shall have to be stayed pending completion of the trial. This also is clearly provided by Clause 19.4. This contingency, thus, can arise only if within one year of the commission of the offence by the employee the authority which has to start prosecution has not taken any decision as regards prosecuting him. From this it follows that if before completion of one year of the commission of the offence the employee is not put on trial, the management need not wait further till the authority which is to start prosecution proceeding takes a decision as regards prosecution whether it be to refuse to prosecute or that there is no case for prosecution. In the present case, admittedly, the petitioner was not put on trial within one year of the alleged commission of the offence. Therefore, on a reading of Clause 19.4 it cannot be said that the disciplinary proceedings initiated against the petitioner are hit by that clause.

I am supported in this view by the decision of a Division Bench of the Punjab & Haryana High Court in Vijay Singh v. Central Bank of India 1994 (2) SLR 181. The Bench has held that Clause 19.4 applies in two contingencies - firstly that if the accused is to be put to trial, departmental enquiry cannot be initiated on the same allegations; and secondly, if the departmental enquiry is initiated and subsequently the person is put to trial in the criminal Court, such proceedings are to be stayed.

The learned counsel for the petitioner relies on a judgment of the Supreme Court in P.J. Sunderrajan and Another Vs. Unit Trust of India and Another, , wherein it was held that departmental enquiry should be stayed till the trial, which was stated to be pending in the Court of the Chief Metropolitan Magistrate, Madras, was completed. The order of the Supreme Court does not disclose the full facts of the case. However, it is obvious from the few facts narrated in the order of the Supreme Court that in that case the criminal trial was in progress. In the present case, admittedly no charge sheet as yet has been filed against the petitioner. Therefore, that case has no relevance to the facts of the present case. However, we may note the decision of the Supreme Court in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, . After referring to the earlier decisions in The Delhi Cloth and General Mills Ltd. Vs. Kushal Bhan, , Tata Oil Mills Co. Ltd. Vs. Its Workmen, and Jang Bahadur Singh Vs. Baij Nath Tiwari, , the Supreme Court observed in Kusheshwar Dubey Vs. Bharat Coking Coal Ltd. and Others, as follows:

"The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case. In the latter class of cases it would be open to the delinquent-employee to seek such an order of stay or injunction from the Court. Whether in the facts and circumstance of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular cases as to whether the disciplinary proceedings should be interdicted, pending criminal trial. As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation."

In the present case, such an enquiry is not necessitated in view of the provision in Clause 19.4 that if within the pendency of the disciplinary proceedings the employee is put on trial, such proceedings shall be stayed pending the completion of the trial.

I therefore do not find any case made out for interdiction of the departmental proceedings initiated against the petitioner. The writ petition therefore dismissed with costs. Advocate''s fee Rs. 500/-.