IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTY FIRST DAY OF MARCH, TWO THOUSAND NINE PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.21052 of 2008 Between: Kumbha Ram babu ..... Petitioner AND State Bank of Hyderabad, rep., by its Assistant General Manager, Regional Office, Karimnagar District & another. .....Respondents Counsel for the petitioner : Sri S. Ashok Anand Kumar Counsel for the respondents: Sri Ch. Siva Reddy SC for SBH This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.21052 of 2008 ORDER:- At the interlocutory stage the writ petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. The short question that arises for consideration in this writ petition is whether on the facts of the case the disciplinary proceedings, which are initiated and resting at the stage of passing of final order on the enquiry report submitted by the enquiry officer, should be stayed till the conclusion of the prosecution launched against the petitioner. The following charges are framed against the petitioner in the departmental proceedings. “It is alleged that while working as DECO at our Collectorate Complex branch during the period from 12.12.2000 to 26.10.2005 and at SME Rampur branch, Karimnagar from 27.10.2005 to 13.12.2007 you have omitted the following irregularities by opening savings bank accounts in fictitious names and misappropriated the funds to the tune of Rs.15,13,858/- from the above Government account. It is also alleged that you have opened six fictitious accounts as detailed as under by submitting/making false/fake documents, photos, rubber stamps etc. The signatures of introducers viz., The Assistant Accounts Officer, DEPEP, Karimnagar, EE, R&B Division, Karimnagar for opening of the said accounts are also not tallied with the respective signatures on record with our Collectorate Complex branch, Karimnagr. Name of the Account holder Branch A/c. No. Date of Account opening P. Sudhakar Collectorate complex Br., Karimnagar 52117167984 11.05.2005 K. Rajesh Kumar Do 52117167962 11.05.2005 Md. Rafeeq Do 5211716795 11.05.2005 District Judiciary Tribunal Do 52117122444 11.03.2005 G. Nageswara Sharma SME Rampur, Karimnagar 62007027854 27.03.2006 Chukka Venkati Do 52117164927 Account transferred from Coll. Complex Br., Karimnagar on 20.02.2006 1. You have surreptitiously removed/obtained the PIN mailers and ATM cards of Sri P. Sudhakar – Ac/.No.52117167984 and Sri K. Rajesh Kumar – A/c.No.52117167962 as per the relative register (s) maintained for the purpose. 2. You have surreptitiously removed/obtained the cheque book of 20 leaves bearing No.628921 to 628940 on 22.01.2007 for the said account viz., DWSC & SE RWS and also the cheque books of P.Sudhakar, K. Rajesh Kumar and Mohd. Rafeeq bearing No.653361 to 653380, 653341 to 653360, 653321 to 653340 respectively. 3. You have arranged for encashment of cheque bearing No.628927 dated 30.03.2007 for Rs.1800/- on 30.03.2007 and cheque bearing No.628923 dated 14.09.2007 for Rs.56,560/- through third party at Kaman Extension Counter, Karimnagar. On 14.09.2007, you got a cheque bearing No.628937 dated 14.09.2007 for Rs.14,57,298/- drawn on Collectorate Complex branch, Karimnagar deposited through a fake covering letter for credit of Sri P. Sudhakar to Sri K. Rajesh Kumar (fictitious accounts opened by you) for Rs.8,74,956/- and Rs.5,82,342/- respectively. As the drawer of the above cheques i.e., DQWSC & SE RWS, Knr has not only denied having received the cheque book but also having issued the above cheques and it is therefore deemed that the signatures of the drawing official (Sri P. Venkat Reddy, former DWSC & SE RWS, Karimnagar) are forged. 4. The amount so fraudulently withdrawn from the said account and credited to the fictitious accounts opened for this purpose by you was withdrawn subsequently through ATM cards at different outlets of State Bank and other Banks and also encashed cheques at various branches of our Bank. 5. The above actions of yours tantamount to fraud and the bank is likely to incur financial loss of Rs.15,13,858/-.” On a complaint given by one Sri O. Rajalingam, Member Secretary, DWSC and Superintending Engineering RWS, Karimnagar, that one Sri P. Venkat Reddy, former Superintending Engineer, RWS Karimnagar indulged in fraud and forgery of signatures of the Member Secretary, DWSC and Superintending Engineer leading to fraudulent withdrawal of cash of Rs.15,13,858/- from the account of DWSC, a criminal case was registered wherein the said P. Venkat Reddy was shown as suspect. While the disciplinary proceedings against the petitioner were proceeded with by the respondents, criminal investigation into the abovementioned complaint revealed alleged involvement of the petitioner in the said fraud. Eventually, it has come out that the basis for initiation of disciplinary proceedings against the petitioner and registration of criminal case is common. The present writ petition is filed immediately after the appointment of the enquiry officer. As there was no stay in the writ petition, the enquiry officer went ahead with the enquiry in which the petitioner participated and cross-examined the departmental witnesses. After completion of the enquiry, the enquiry officer submitted his report. This Court, by order dated 03.03.2009, granted stay of passing of final order. The respondents filed a counter-affidavit and vacate stay petition. Sri S. Ashok Anand Kumar, learned counsel for the petitioner submitted that the action of the respondents in proceeding with the disciplinary proceedings while criminal prosecution is pending against the petitioner on the same set of charges is illegal and contrary to the bipartite settlement. Sri Ch. Siva Reddy, learned Standing counsel for the respondents, while denying that the departmental and criminal proceedings were initiated on the same set of charges, however, submitted that the criminal prosecution was not launched at the instance of the respondents, but on the complaint made by one O. Raja Lingam. He further submitted that as there was no stay of departmental proceedings in the present writ petition, enquiry was completed and final order remains to be passed. Learned counsel for the petitioner relied on Clause 19 of the bipartite settlement in general and Clause 19.4 in particular, which reads as under: “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 an act of “gross misconduct” or of “minor misconduct”, as defined below; provided that if the authority which was to start prosecution proceedings refuses to do so or comes 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 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.” The learned Standing counsel placed reliance on the judgment of the Supreme Court in Indian Overseas Bank, Anna Salai and another v. P. Ganesan and others[1] and submitted that having regard to the dicta laid down in the said judgment and the serious charges, which the petitioner has been faced with, this Court may not exercise its discretionary jurisdiction to stay the departmental proceedings. I have carefully considered the submissions of the learned counsel for the parties. The bipartite agreement, referred to above, no doubt envisages that the Bank will not proceed with the departmental proceedings if steps have been taken to prosecute an employee and if during the pendency of the departmental proceedings, the employee is put on trial, the departmental proceedings shall be stayed pending completion of the trial. In the instant case, it is not in dispute that the respondents have not taken any steps to prosecute the petitioner. It is only at the instance of the third party that the police have entertained a criminal complaint, registered a crime and investigated into the alleged offence. It is by sheer coincidence that the petitioner is found to have indulged in the alleged offence, which pertains to the opening of fictitious accounts and withdrawal of the amounts unauthorizedly from the accounts of individuals maintained by the respondents. Therefore, in my considered view, the bipartite agreement, referred to above, does not strictly apply to the present case. A coincidence by which a criminal case was launched against the petitioner cannot be allowed to be a providence for him to avoid disciplinary proceedings. The petitioner is admittedly under suspension for more than one year and further holding up of departmental proceedings to await the criminal Court verdict would not be in public interest. The ratio laid down by the Supreme Court in Delhi Cloth and General Mills Limited v. Kushal Bhan[2], Tata Oil Mills Company Limited v.Workmen[3], Jang Bahadur Singh v. Baij Nath Tiwari[4], Nelson Motis v. Union of India[5], State of Rajasthan v. B.K. Meena[6] and Depot Manager, APSRTC v. Mohd. Yousuf Miya[7] is based on the principle that if an employee is faced with same set of charges in the disciplinary and criminal proceedings, it is always desirable that the departmental proceedings shall be stayed till the conclusion of the criminal trial, because if the departmental proceedings are proceeded with, the employee will be forced to disclose his defence, which may eventually prejudice his interest in the criminal case. In the instant case, the petitioner has already participated in the enquiry. He not only submitted his explanation to the charge sheet, but also cross-examined the departmental witnesses. The defence, if any, of the petitioner has thus already been disclosed by him. Therefore, I do not see any further prejudice that may be caused to the petitioner on account of completion of the departmental proceedings. The judgment of the Supreme Court in Indian Overseas Bank (1 supra) on which the learned Standing counsel placed reliance indeed supports this view of mine. In the said case, the Supreme Court, while reversing the judgment of the High court, which stayed the departmental proceedings, held that such a course was not appropriate especially where the enquiry was at an advanced stage. Having regard to the above, I do not find any merit in the writ petition and the same is accordingly dismissed. Sri S. Ashok Anand Kumar, learned counsel for the petitioner submitted that the petitioner is not paid subsistence allowance. If that is so, he shall be entitled to avail his remedy. As a sequel to dismissal of the writ petition, WPMP.Nos.27515 of 2008 and 3845 of 2009 and WVMP.No.922 of 2009 are also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 31.03.2009 ES [1] AIR 2008 SC 553 [2] AIR 1960 SC 806 [3] AIR 1965 SC 155 [4] AIR 1969 Sc 30 [5] (1992) 4 SCC 711 [6] (1996) 6 SCC 417 [7] (1997) 2 SCC 699