HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 30 Case :- WRIT - A No. - 71166 of 2013 Petitioner :- [ENTITY] Respondent :- Punjab National Bank Thru' Chairman And 3 Others Counsel for Petitioner :- [ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],SC Hon'ble [ENTITY], J.
1. Heard learned counsel for the petitioner as well as learned Standing Counsel and Sri [ENTITY], learned counsel appearing for the respondents.
2. Present writ petition has been filed seeking quashing of the impugned order dated 27.8.2013 and the impugned order dated 28.11.2013 with all consequential benefits filed as Annexures 1 and 2 respectively to the writ petition.
3. By order dated 27.8.2013 the petitioner was dismissed from service on the ground of gross misconduct in terms of Para 6 (a) of Bipartite Settlement dated 10.4.2002 as amended from time to time. His appeal against the same was also dismissed vide impugned order dated 28.11.2013. Serious allegations of embezzlement and financial irregularities levelled against the petitioner, as noted and summarized in the enquiry report, are quoted as under:
"1- He had embezzled/misappropriated a sum of Rs. 228150/- as detailed below-
(i) Cash shortage amounting to Rs. 175000/- detected by Sh. [ENTITY], permanent Head [ENTITY] at the branch while taking over charge of cash from him on 07.02.2005; which he confessed vide his letter dated 07.02.2005,
(ii) Cash shortage amounting to Rs. 17350/- while handing over cash received by him on 07.02.2005 i.e. he handed over cash of Rs. 354171/- against totala receipt of Rs. 368521/- plus one receipt of Rs. 3000/- not entered by him in [ENTITY] Receipt Long Book.
(iii) Cash amounting to Rs. 35800/- received from the different customers on 07.02.2005 by him and receipt was issued to them by him; not recorded in the bank's books.
2- He was not depositing the amount on the same day deposited by the customers by releasing vouchers of the date to the next/subsequent dates. Thus he had embezzled bank's fund for one or more days."
4. Admittedly, a first information report was also lodged against the petitioner and trial was conducted against the petitioner. He was convicted under [SECTION] [ACT] in [CASE NUMBER], State Vs. Sompal by the Chief Judicial Magistrate, Muzaffarnagar vide judgment dated 30.11.2015 against which the petitioner filed appeal, which was allowed on the ground that the prosecution has failed to establish charges beyond doubt and he was given benefit of doubt.
5. Submission of learned counsel for the petitioner is that the enquiry proceedings were conducted in gross violation of principles of natural justice and no opportunity of hearing was granted to the petitioner. On the strength of acquittal of the petitioner by the criminal court in appeal, further submission is that the petitioner has been acquitted in the criminal case by the court of law and as such, his order of dismissal is liable to be set aside.
6. Per-contra, Sri [ENTITY], learned counsel for the contesting - respondent Bank has submitted that full-fledged enquiry was conducted against the petitioner wherein he never cooperated and charges were found to be proved in the enquiry proceedings, therefore, no interference is warranted in the impugned orders. He further pointed out that the petitioner had earlier approached this Court challenging charge-sheet by filing [CASE NUMBER] wherein this Court refused to interfere in the charge-sheet. He submitted that the charges are of serious financial irregularities and have been found to be proved. Several dates as mentioned in the charge-sheet as well as appellate orders were fixed but the petitioner never came forward to cooperate in the enquiry proceedings and as such no interference is warranted.
7. Alongwith the counter affidavit several documents referred to in the enquiry proceedings have been annexed.
8. I have considered the rival submissions and have perused the record.
9. A perusal of the impugned orders clearly indicate that a full fledged enquiry was conducted against the petitioner after he was charge-sheeted on two charges of financial irregularities, which also included embezzlement of the amount. The petitioner never appeared in the enquiry whereas several dates were fixed and as such the enquiry proceeded ex-parte and a detailed enquiry report was submitted by the enquiry officer after examining the documetary evidence and examining the the management witnesses who substantiated charges against the petitioner. As such, I do not find any good ground to interfere in the orders impugned herein.
10. It is settled law that the High Court cannot act as an appellate authority and substitute its own findings and cannot interfere in proportionality of punishment so long it does not shock the conscience of the Court. A reference may be made in this regard to a judgment of the Hon'ble Apex Court in the case of [PRECEDENT].
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers Under [SECTION] of the [ACT], shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under [SECTION] of the [ACT], the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
20. Equally, it was not open to the High Court, in exercise of its jurisdiction Under [SECTION] of the [ACT], to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the Respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
(Emphasis supplied)
11. In [PRECEDENT] Hon'ble Apex Court has held that departmental enquiry can continue despite acquittal of delinquent employee in a criminal case.
"5. So far the first point is concerned, namely whether the disciplinary proceeding could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has not substance whatsoever and does not merit a detailed consideration.
The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding.
Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceedings were not exactly the same which were the subject matter of the criminal case."
(Emphasis supplied)
12. In [PRECEDENT], it has been held as follows:
"7. Acquittal in the criminal case shall have No. bearing or relevance to the facts of the departmental proceedings as the standard of proof in both the cases are totally different. In a criminal case, the prosecution has to prove the criminal case beyond all reasonable doubt whereas in a departmental proceedings, the department has to prove only preponderance of probabilities. In the present case, we find that the department has been able to prove the case on the standard of preponderance of probabilities. Therefore, the submissions of the counsel appearing for the Appellant are found to be without any merit."
(Emphasis supplied)
13. In [PRECEDENT] apart from above it has been held that in case of misconduct of grave nature like corruption or theft no punishment other than dismissal is appropriate and that once employer has lost confidence in employee reinstatement cannot be directed.
"11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal Court arises only and only if the dismissal from services was based on conviction by the criminal Court in view of the provisions of [SECTION]* of the [ACT], or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal Court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal Court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a criminal case are altogether different. In a criminal case, standard of proof required is beyond reasonable doubt while in a domestic enquiry it is the preponderance of probabilities that constitutes the test to be applied.
19. In [PRECEDENT], same view has been reiterated observing that both proceedings can be held simultaneously, except where departmental proceedings in criminal case are based on same set of facts and evidence in both the proceedings is common. The Court observed as under:?
"8. The purpose of departmental inquiry and of prosecution are to put a distinct aspect. Criminal prosecution is launched for an offence for violation of duty. The offender owes to the society, or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of a public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service."
24. Thus, there can be no doubt regarding the settled legal proposition that as the standard of proof in both the proceedings is quite different, and the termination is not based on mere conviction of an employee in a criminal case, the acquittal of the employee in criminal case cannot be the basis of taking away the effect of departmental proceedings. Nor can such an action of the department be termed as double jeopardy. The judgment of this Court in Capt. [PRECEDENT] (supra) does not lay down the law of universal application. Facts, charges and nature of evidence etc. involved in an individual case would determine as to whether decision of acquittal would have any bearing on the findings recorded in the domestic enquiry.
25. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. (Vide: [PRECEDENT], [PRECEDENT], and [PRECEDENT].
27. In [PRECEDENT] this Court repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence. While deciding the said case, reliance has been placed upon its earlier judgment in [PRECEDENT]."
(Emphasis supplied)
14. In [PRECEDENT] also the Hon'ble Apex Court has held that acquittal in criminal has no bearing in departmental proceedings.
15. In any case, in the case of [PRECEDENT] the Hon'ble Supreme Court has held that reinstatement can be ordered only when acquittal is honourable and not where the acquittal is based on benefit of doubt.
26. Acquittal in a criminal case does not entitle a person to automatic reinstatement. In [PRECEDENT], it was held as under (SCC pp.387-88, para 5):
"5. It is true that the Respondent was acquitted by the criminal court but acquittal does not automatically give him the right to be reinstated into the service. It would still be open to the competent authority to take decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the [ACT] or under the [ACT]. Admittedly, the Respondent had been working as a temporary government servant before he was kept under suspension. The termination order indicated the factum that he, by then, was under suspension. It is only a way of describing him as being under suspension when the order came to be passed but that does not constitute any stigma. Mere acquittal of government employee does not automatically entitle the government servant to reinstatement. As stated earlier, it would be open to the appropriate competent authority to take a decision whether the enquiry into the conduct is required to be done before directing reinstatement or appropriate action should be taken as per law, if otherwise, available. Since the Respondent is only a temporary government servant, the power being available under [SECTION] of the Rules, it is always open to the competent authority to invoke the said power and terminate the services of the employee instead of conducting the enquiry or to continue in service a government servant accused of defalcation of public money. Reinstatement would be a charter for him to indulge with impunity in misappropriation of public money."
27. Only if the employee had been honourably acquitted, could he make a claim for reinstatement. In the case in hand, the tribunal acquitted the Appellant-[ENTITY]) as in the case of [ENTITY] and [ENTITY], tribunal disbelieved the identification of Appellant-[ENTITY] by PW-14 (Manager) and PW-18 ([ENTITY]) and (ii) the weapons that were alleged to have been recovered on the basis of confession of [ENTITY] on 12.08.1998 appears to have been photographed on 29.07.1998 by the prosecution, the tribunal thus rejected the prosecution case that weapons, bag and suitcase were recovered on the basis of confession given by [ENTITY]. Unlike [ENTITY] and [ENTITY]'s case, [ENTITY] did not have incriminating fingerprint evidence at the scene of occurrence and [ENTITY] raised defence plea of alibi."
(Emphasis supplied)
16. In so far as the acquittal of the petitioner in the criminal appeal is concerned, in the present case the trial court has convicted the petitioner and he was acquitted by giving benefit of doubt by the first appeal court, which is also under challenge in criminal revision before this Court, thus no benefit of such acquittal can be extended to the petitioner.
17. It may also be pertinent to note that the petitioner was the employee of a Bank i.e. Punjab National Bank involved in financial transaction where higher degree of integrity in dealing with such transaction is required and the charges against the petitioner are of embezzlement and financial irregularities. A reference may be made in this regard to a judgment of the Hon'ble Division Bench of this Court in the case of [PRECEDENT], paragraph 30 whereof is quoted as under:
"30. Considering the fact that since proceedings against the petitioner have been initiated under the provisions of [ACT] in context of discharge of his official function/duties, in case the petitioner would be allowed to discharge his duties, it shall be in the interest of equity rather shall be repugnant to the context. Hence there is no justification or reasonable ground available to interfere with the suspension order of the petitioner and exercising equitable jurisdiction under [SECTION] of the [ACT]. The employees of bank stands on a different footing vis vis other employees. They have to maintain the highest degree of integrity and sincerity. They are bound to maintain trust and faith of customers. They deal during the ordinary course of business of banking services. Their any act breaching the same has to be viewed seriously. Hence this writ petition devoid merits and liable to be dismissed and accordingly dismissed."
(Emphasis supplied)
18. In the case of [PRECEDENT] the Hon'ble Apex Court in the case of a bank employee has interpreted the term 'moral turpitude' as one of the most serious offence where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.
19. I have considered this in [ENTITY] Vs. Zonal Manager, Central U.P. Zone, Punjab National Bank and others 2015 (11) ADJ 182, which was affirmed in [CASE NUMBER] by the Hon'ble Division Bench. Paragraph 23 of [ENTITY] (Supra) is quoted as under:
"23. Reference may be made to the judgment rendered by the Apex Court in the case of [PRECEDENT]. In this case suspension of a bank employee was under challenge and the term "moral turpitude" was interpreted by the Hon'ble Court and in the case of a banking company it was observed that one of the most serious offence involving moral turpitude would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. Paragraphs 8, 9 and the relevant extract of paragraph 11 of the aforesaid judgment are quoted as under:
"8. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.
9. This Court in [PRECEDENT] at page 21 dealt with the question as to what is the meaning of expression "moral turpitude" and it was observed as follows"
"Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity".
This expression has been more elaborately explained in [PRECEDENT], where it was observed as follows:
"The expression "moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must beheld to be due to vileness and deprivity. It will be contrary to accepted customary rule and duty between man and man"
11. It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and mis-appropriation of money. Allowing such a employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the [ACT]. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed, can also be no ground for allowing the respondent to come back to duty on a sensitive post in the bank, unless he is exonerated of the charge."
(Emphasis supplied)
20. In such view of the matter, I do not find any good ground to interfere in the orders impugned herein.
21. This writ petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Dt/- 12.1.2018 PS