IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WA.No. 1564 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.11251/2009 Dated 06/08/2010 .................... APPELLANT: PETITIONER ------------------------ ABRAHAM JOSEPH, AGED 56 YEARS, S/O.C.V.JOSEPH, OFFICER SMGS IV, (UNDER ORDER OF SUSPENSION), STATE BANK OF INDIA, ALAPPUZHA ADB, RESIDING AT CHERAYIL HOUSE, NEAR MUTTOM CHURCH, SHERTALLA. BY ADV. MR. T.RAMPRASAD UNNI MR. RAHUL VENUGOPAL MS. SMITHA GEORGE RESPONDENTS: --------------- 1. THE CHAIRMAN, STATE BANK OF INDIA, CENTRAL OFFICE, STATE BANK BHAVAN, MADAM CAMA ROAD, MUMBAI-400021. 2. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, S.S.KOVIL ROAD, THAMPANOOR, TRIVANDRUM. 3. THE GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, S.S.KOVIL ROAD, THAMPANOOR, TRIVANDRUM BY ADV. MR. P. GOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1564 OF 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 22nd day of September, 2010 JUDGMENT Ramachandra Menon J. The appellant is challenging the interim order passed by a learned Single Judge of this Court, whereby the blanket stay granted on 05.06.09, with regard to the disciplinary proceedings, is modified as per order dated 6.8.2010. 2. The appellant, while working as an officer in the respondent Bank, was placed under suspension in connection with some misconduct which was subjected to challenge by filing departmental appeal, wherein interference was declined as per the order dated 04.12.2007. This in fact is under challenge in W.P.(C) 22278 of 2008, which is still pending. As the alleged misconduct is also stated as connected with some offences under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act and under Section 120 B read with Section 420 of IPC, the CBI has registered a crime in this regard and submitted Ext. P8 charge sheet, forming the subject matter of C.C. 4 of 2009, which is pending before the Special Court, CBI, Ernakulam. While so, Ext. P3 memo of charges was W.A. No. 1564 of 2010 2 issued, in respect of the disciplinary proceedings and an enquiry officer was appointed on 30.10.2008. Since the request made by the petitioner to keep the disciplinary proceedings in abeyance till the culmination of the criminal investigation/proceedings was rejected, as per Ext. P5 order dated 17.01.2009, the same is under challenge in W.P. (C) No. 11251 of 2009, wherein the impugned interim order has been passed. 3. Many a ground has been raised in the Appeal, factual as well as legal. The basic contention as put forth by Mr. K. Ramkumar, the learned senior counsel appearing for the appellant is that, by virtue of the law declared by the Apex Court in State Bank of India Vs. R.B. Sharma [2004 (7) SCC 27), it is not at all 'desirable' to proceed with the disciplinary proceedings during the pendency of a criminal case. It was by taking note of the factual position as above, that the learned Single Judge of this Court granted interim stay and as such, there is no rhyme or reason to have vacated the interim stay on 06.08.2010, submits the learned counsel. 4. There was a number of occasions for the Apex Court to have considered the 'desirability' of continuation of the disciplinary proceedings during the pendency of the criminal case. The words 'desirable' or 'advisable' as it appeared in various decisions were considered, interpreted and explained by the Apex Court in State of Rajasthan Vs. B.K. Meena W.A. No. 1564 of 2010 3 (AIR 1997 SC 13). The dictum therein was subsequently taken note of by the Apex Court in M. Paul Anthony Vs. Bharath Gold Mines Ltd [(1999) 3 SCC 679) whereby it was held that, there was absolutely no bar in proceeding with the disciplinary proceedings irrespective of the pendency of the criminal case, however making it clear that only in the exceptional circumstances, where the charges are based on the same set of facts which are sought to be proved by the same witnesses, that such a situation to have it intercepted can be thought about. The Apex Court has considered this issue in State Bank of India Vs. R.B. Sharma [2004 (7) SCC 27 (sought to be relied on by the appellant/petitioner) wherein the earlier decision rendered in M. Paul Anthony's case has been specifically adverted to in paragraph 12 of the verdict. The above decision which is now pressed into service by the learned senior counsel appearing on behalf of the appellant does not draw any distinction with respect to the law declared in Paul Antony's case. In the said case, interference was made for the reason that no details were indicated to justify the conclusion arrived at by the High Court. It was in the said circumstance, that appropriate directions were given to consider the matter afresh in accordance with law, which however cannot support the case of the appellant. W.A. No. 1564 of 2010 4 4. The learned senior counsel also made a submission that the factual position involved in the present case, particularly the scope of disciplinary enquiry and that of the criminal proceedings are some what the same, as based on the same set of facts and evidence to be adduced. On going by the specific pleadings raised in the memorandum of the Writ Appeal and also in the Writ Petition, the scope of the criminal case being prosecuted by the CBI is in respect of the offences under Section 13 (2) r/w S. 13 (1) (d) of Prevention of Corruption Act and Sections 120 (B) and 420 of the IPC, which is more discernible from Ext. P8 charge sheet filed by the CBI. With regard to the scope of disciplinary proceedings, it has been conceded by the appellant/petitioner himself that the disciplinary proceedings are based on Ext.P3 memo of charges dated 9.9.2008, wherein the allegation is that the appellant/petitioner failed to supervise and scrutinize the handling of the advances portfolio at the Branch and as a result, 43 loan accounts were turned to 'NPA' and the Bank sustained a loss of Rs. 468.53 lakhs because of the 'supervisory lapse' of the petitioner. As it stands so, the scope of the two different proceedings are entirely different and it cannot be said that they are based on same set of charges. 6. With regard to the contentions raised by the appellant that, the documents as well as the list of the witnesses to be relied upon in the W.A. No. 1564 of 2010 5 course of disciplinary proceedings and in the criminal case are common, which has been specifically contained in paragraph 9 of the counter affidavit filed from the side of the Bank, which is extracted below: 9. It is submitted that the Bank is relying on documents 'A' to 'I' listed in Annexure III and witnesses 1 to 12 listed in Annexure IV to substantiate the charges leveled against the petitioner in Exhibit P3 memo of charges. The charges against the petitioner in the criminal case as per the final report Exhibit P8 is under Section 120 B of IPC and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act. The petitioner is the 1st accused in Exhibit P8. The prosecution is relying on 327 documents and 90 witnesses to prove the criminal charges levelled against the petitioner and others. Only few of the documents relied on by the Bank in Exhibit P3 memo of charges are included in the documents mentioned in Exhibit P8 final report. Similarly, excepting witnesses 1 and 2, no other witnesses mentioned in Exhibit P3 memo of charges are arrayed as witnesses in Exhibit P8. It is therefore, evident from the above that absolutely no prejudice will be caused to the petitioner by proceeding with the disciplinary proceedings, pending trial in the criminal case. Hence there is no justification in contending that the departmental proceeding initiated against the petitioner is to be kept W.A. No. 1564 of 2010 6 in abeyance pending the trial of the criminal case. It is further submitted that the charges in the criminal case as reveled by Ext. P8 do not involve complicated questions of law and fact, warranting stay of the disciplinary proceedings. It has been specifically contended by the Bank that only a few documents are relied on by the Bank in Ext. P3 memo of charges; whereas more than three hundred documents have been mentioned in Ext. P8 final report submitted by the CBI. Similarly, as made clear in paragraph 9 of the additional counter affidavit dated 27.01.2010 filed by the Bank, only 12 witnesses are sought to be examined in Ext. P3 disciplinary proceedings; of whom 7 witnesses alone form as common witnesses, having been included in Ext. P8 charge sheet filed by the C.BI, citing 90 witnesses. As such no prejudice is likely to be caused to the appellant with regard to his defence in the criminal case under any circumstances. 7. In the above circumstances, this Court does not find any sustainable ground to accept the version of the appellant that the witnesses and documents sought to be relied on by the CBI in the criminal case registered against the appellant are substantially same as the documents and witness to be relied on by the Bank/Management in the disciplinary proceedings. W.A. No. 1564 of 2010 7 8. Further, it is also relevant to note that the learned Single Judge has not vacated the interim stay in toto. The interim stay granted earlier on 05.06.2009 has only been modified, permitting the Bank to proceed with the disciplinary action, making it crystal-clear that final orders shall be passed only after obtaining further orders from this Court. We find no ground to interfere. Appeal fails and it is dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd