IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.10.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.17580 of 2009 and M.P.NO.1 OF 2009 T.Devan ... Petitioner Vs. 1.Assistant General Manager (Operations), State Bank of India, No.86, Rajaji Salai, Chennai-600 001. 2.The Assistant General Manager, (Administrations), Disciplinary Authority, State Bank of India, No.86, Rajaji Salai, Chennai-600 001. ... Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus directing the respondents to defer the departmental enquiry in charge memo Dis/Con/387, dated 22.01.2009, to be conducted by the second respondent pending investigation in the criminal complaint pending on the file of SPE, CBI, ACB Shastri Bhavan, Chennai 600 006 on 29.2.2008 at 4.30 PM and the same has been registered in RC MA1 of 2008 A 0012. For Petitioner : Mr.S.Ananthanarayanan ORDER The petitioner joined the service of respondent Bank on 10.8.1981 in the clerical cadre. The said appointment was given to the petitioner on compassionate ground on account of death of his father. 2.While the petitioner was working as a Special Assistant in the Elephant Gate Branch, was placed under suspension by an order, dated 11.1.2008. Subsequently, a charge memo, dated 12.1.2008 was framed against him. The petitioner was also directed to make good the loss for which he was responsible for a sum of Rs.52,44,400/-, which was found missing from the ATM. The petitioner gave his explanation. Thereafter, a specific charge was framed against the petitioner on 22.1.2009. An enquiry was directed https://hcservices.ecourts.gov.in/hcservices/ to be conducted by the Branch Manager, Anna Nagar. The petitioner, by a letter, dated 10.2.2009 sought for clarification in terms of Memorandum of Settlement, dated 10.4.2002 as to whether disciplinary proceedings can be proceeded with when the case was pending investigation by the CBI. 3.In the meanwhile, the petitioner was directed to appear for an enquiry on 22.1.2009. The petitioner in these circumstances moved this court with the present writ petition stating that since the charge memo as well as the complaint lodged by the CBI which was found registered as FIR, dated 29.2.2008 for offences under Sections 120-B, 409 IPC r/w Sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act are one and the same, the domestic enquiry should be postponed. After pointing out that the criminal case as well as the departmental charge sheet were based upon the same set of facts and if an enquiry is conducted, he will be prejudiced. 4.The learned counsel for the petitioner also placed reliance upon the judgment of this Court in Bojan Vs. State by Inspector of Police, Crime Branch reported in I-1989 (1) Crimes 4. In that that, this court directed that after the launch of criminal prosecution, proceeding with a domestic enquiry was frivolous and will be vitiated. The said judgment cannot be a good law in the light of the subsequent pronouncements of the Supreme Court on the very same issue. 5.The Supreme Court vide its judgment in Commr. of Police v. Narender Singh reported in (2006) 4 SCC 265 held in paragraphs 12 to 14 as follows: "12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. (See Kamaladevi Agarwal v. State of W.B.1) 13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed. 14. In Manager, Reserve Bank of India v. S. Mani, this Court held: (SCC p.109, para 12) “12. It is trite that a judgment of acquittal passed in favour of the employees by giving https://hcservices.ecourts.gov.in/hcservices/ benefit of doubt per se would not be binding upon the employer.” [See Bank of India v. Degala Suryanarayana (1999)5 SCC 762; Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd.(2005) 7 SCC 764] 6.Even otherwise, that case does not help the present case, since there is no acquittal by a criminal court. 7.As to whether the enquiry should be stayed pending criminal case came to be considered by the Supreme Court in respect of very same State Bank of India case vide State Bank of India v. R.B. Sharma reported in (2004) 7 SCC 27. In paragraphs 7,8 and 11, the Supreme Court held as follows: 7. It is a fairly well-settled position in law that on basic principles proceedings in criminal case and departmental proceedings can go on simultaneously, except where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings is common. 8. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. Criminal prosecution is launched for an offence for violation of a 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 public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Indian https://hcservices.ecourts.gov.in/hcservices/ Evidence Act, 1872 (in short “the Evidence Act”). Converse is the case of departmental enquiry. The enquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer, to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. ....... 11. There can be no straitjacket formula as to in which case the departmental proceedings are to be stayed. There may be cases where the trial of the case gets prolonged by the dilatory method adopted by the delinquent official. He cannot be permitted to, on one hand, prolong criminal case and at the same time contend that the departmental proceedings should be stayed on the ground that the criminal case is pending. 8.Thereafter, the Supreme Court once again in Indian Overseas Bank, Anna Salai and another Vs. P.Ganesan and others reported in 2007 (5) CTC 632 in paragraphs 20 and 21 held as follows: "20. ...What was necessary to be noticed by the High Court was not only existence of identical facts and the evidence in the matter, it was also required to take into consideration the question as to whether the charges levelled against the delinquent officers, both in the criminal case as also the in disciplinary proceedings, were same. Furthermore it was obligatory on the part of the High Court to arrive at a finding that the non-stay of the disciplinary proceedings shall not only prejudice the delinquent officers but the matter also involves a complicated question of law. 21. The standard of proof in a disciplinary proceedings and that in a criminal trial is different. If there are additional charges against the delinquent officers including the charges of damaging the property belonging to the Bank which was not the subject-matter of allegations in a criminal case, the departmental proceedings should not have been stayed." https://hcservices.ecourts.gov.in/hcservices/ 9.In the light of the above, the writ petition is misconceived. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, the connected MP also stands dismissed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vvk To 1.The Assistant General Manager (Operations), State Bank of India, No.86, Rajaji Salai, Chennai-600 001. 2.The Assistant General Manager, (Administrations), Disciplinary Authority, State Bank of India, No.86, Rajaji Salai, Chennai-600 001. W.P.NO.17580 OF 2009 SR (CO) SRA 02/11/2009 https://hcservices.ecourts.gov.in/hcservices/