*THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY + WRIT PETITION NO.17814 OF 2008 % 17-02-2009 # Srinivasa Sahu S/o. Late Simhadri Sahu Central Bank of India, Chattabazar Branch, Hyderabad. ..... PETITIONER VS. $ The Regional Manager/Discriplinary Authority, Central Bank of India, Regional Office, Bank Street, Hyderabad. AND OTHERS ..RESPONDENTS ! COUNSEL FOR THE PETITIONER: MR.M.SURENDER RAO ^ COUNSEL FOR THE RESPONDENTS: SRI.SIVA REDDY < Gist: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 17814 of 2008 Between: Srinivasa Sahu S/o. Late Simhadri Sahu Central Bank of India, Chattabazar Branch, Hyderabad. ..... PETITIONER AND 1 The Regional Manager/Discriplinary Authority, Central Bank of India, Regional Office Bank Street, Hyderabad. 2 V. Sudhakar Rao Enquiry Officer, Sr. Manager, Central Bank of India Kalyannagar Branch, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly one in the nature of writ of Mandamus to declare that; a) Charge Sheet dt. 23-5-2008 issued by the 1st respondent is illegal; b notices issued by the 2nd respondent from time to time and the proceedings conducted by the 2nd respondent are without power and authority; c) action of the 1st and 2nd respondents either in issuing charge sheet dt. 23-5-2008 or conducting the enquiry on different dates is illegal, arbitrary and violative of article 14, 16 & 21 of the Constitution of India apart from the same is contrary to the bipartite settlement and pass Counsel for the Petitioner: MR.M.SURENDER RAO Counsel for the Respondent No.: . The Court made the following : O R D E R: The petitioner-Srinivasa Sahu joined the 1st respondent- Central Bank of India, Regional office, Bank Street, Hyderabad in the year 1990 as Clerk cum Typist. He was promoted as Computer Terminal Operator in the year 2000 and posted at Chettabazar branch of R1-Bank. Thereafter he was transferred to Charminar Branch in August 2002 and worked there upto November, 2007. In November, 2007 he was transferred as Computer Terminal Operator to Chetta Bazar branch. Some discrepancies in the statement sent by Charminar Branch to non-banking office were noticed and investigation was taken up. It was found that the petitioner while working as a Computer Terminal Operator at Charminar Branch manipulated the reconciliation statement between Charminar Branch and non-banking office and misappropriated funds to the tune of Rs.64,42,330/-. A complaint came to be lodged with Central Crime Stateion, Hyderabad and thereupon the Station House Officer, Central Crime Station registered a case in Cr.No.114 of 2000 on 20.5.2008 against the petitioner. R1-Bank took up verification of the transactions attended by the petitioner in Charminar branch as Computer Terminal Operator. It came to light that the petitioner committed fraud by debiting to Profit and Loss account of the branch and crediting the said amount to his personal savings account on different dates and he withdrew the amount from his personal savings amount to a tune of Rs.24,50,000/-. Certain other transactions have also came to the light wherein he debited profit and loss account of the branch and credited the same to his personal O.D. account and savings account. He was placed under suspension on 15.5.2008 and he was issued a show cause notice calling for explanation as to why disciplinary action shall not be taken against him. There is no explanation from the petitioner and therefore R1-Bank initiated departmental enquiry against him and issued a charge memo dated 23.5.2008. The petitioner sought for postponement of the departmental enquiry pending the criminal proceedings initiated against him. Since his request was not acceded to by the enquiry officer, he approached this Court invoking jurisdiction under Article 226 of the Constitution of India with a prayer to stay the departmental proceedings till the conclusion of the criminal case pending against him. For better understanding of his grievance, I deem it appropriate to refer para 5 and 6 of the writ affidavit, which read as under: “ 5. I addressed letter dated 8.8.2008 to the Enquiry Officer, requesting him to adjourn the enquiry till the completion of criminal case against me. I stated therein that I will not be able to disclose my evidence as it will cause prejudice to me in the criminal case against me. However, the Enquiry Officer seems to have proceeded with the enquiry on 9.8.2008 by examining two witnesses. One Sri K.B.Patil was examined as LW.1 and one Sri Laxmipathi was examined as L.W2. It was stated that enquiry is adjourned to 14.8.2008. 6. I am an award staff. I am governed by Bipartite settlement. The Bipartite settlement was signed on 27.3.2000 by Indian Banks Association on behalf of the Member Banks on one hand and all India Bank Employees Association, National Confederation of Bank Employees, Indian Bank Employees Federation on the other hand. Clause 1: A person against whom disciplinary action is proposed or likely to be taken shall in the first instance be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. Final orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view, the following shall apply. Clause 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 an act of gross misconduct or of minor conduct 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 11 and 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 3 above. 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 3 above shall apply.” 2. Rule Nisi came to be issued on 14.8.2008. On the even date interim stay of the disciplinary proceedings came to be granted in WPMP.No.23157 of 2008, which read as under: “ The question as to whether the impugned charge sheet accords with clause (4) of Bipartite Settlement, dated 10.4.2002, needs to be examined. It is stated that the complaint was filed to the Police Station, only on 20.5.2008 and the present charge sheet is issued on 23.5.2008, dehors the requirement under clause (4), that the authority has to wait for atleast one year. Hence, there shall be interim stay as prayed for to be in force for a period of four weeks.” 3. The respondents entered appearance and filed WVMP.No.2875 of 2008 with a prayer to vacate the interim order as extracted supra. 4. The respondents filed counter affidavit stating that the departmental proceedings are initiated against the petitioner for his unauthorized debit entries in the profit and loss account and credit entries to his personal account and whereas criminal prosecution was initiated for manipulating the reconciliation statement between Charminar Branch and non-banking office and therefore the basic facts for initiation of criminal prosecution and the departmental proceedings are not one and the same. It is further stated in the counter affidavit that the petitioner did not submit any explanation to the show cause notice and thereupon a charge sheet dated 23.5.2008 came to be issued since the petitioner remained unauthorisedly absent, charge sheet and notice of enquiry were sent by RPAD and also by courier service as per the provisions of Bipartite settlement and the same were also displayed on the notice board of the Bank. Para 6 and 7 of the counter affidavit need to be noted and they read as under: “ 6. With regard to the paras 6 to 8 of the affidavit filed by the petitioner in support of the above writ petition, I submit that the petitioner is governed by Bi-patriate Settlement entered into between the bank management and the Unions under the Industrial Disputes Act. According to the Bi-patriate Settlement, if the bank proposes to take disciplinary action against a person, he shall be informed of the particulars of the charge and he shall be given proper opportunity. The final orders shall be passed after due consideration of all the relevant facts and circumstances. In accordance with the provisions of the Bi- patriate Settlement when the respondent Bank found that the petitioner has committed fraud by unauthorisedly debiting the huge amounts to the Profit and Loss account of the Branch and credited the said amounts to his personal account he was issued with the suspension Memo dated 15.5.2008 calling for explanation. When the petitioner failed to submit his explanation the respondent bank issued charge sheet dated 23.5.2008 and hence he was informed about the particulars of the charge against him and given opportunity for his explanation. By appointing the Enquiry Officer, the respondent bank has also provided opportunity to the petitioner herein to be defended by a representative of Registered Trade Union of the Bank and he was also advised to produce oral and documentary evidences on his behalf and to cross examine the witnesses of the management but the petitioner herein failed to give any explanation and to participate in the enquiry for the reasons best known to him. 7. I further submit that as per the clause (4) of the Disciplinary Procedures of the Bank, if the bank takes steps to prosecute an employee and the authority which was to start prosecution proceedings fails to do so till one year, it shall be open to the management to proceed against the employee by way of disciplinary proceedings but the respondent bank has given the complaint to the police for the offences committed by the petitioner u/s 406 and 420 IPC in Crime No.114/2008 with the Central Crime Station, Hyderabad. As the petitioner ha with dishonest and fraudulent intentions made false entries in the books of accounts of Charminar branch and by debiting to the non-banking office account he posted the credits to his personal SB account to the tune of Rs.64,42,330/- and the police investigating the crime. However, the respondent bank has issued the charge sheet under the provisions of the Bi-patriate Settlement for the misconduct committed by the petitioner by unauthorisedly debiting to the P&L account of the Branch and credited the said amount to his personal account to the tune of Rs.24,00,000/- and misappropriated the said funds. The charge sheet issued in the departmental enquiry is entirely different from that of the complaint made to the police. There will not be any difficulty for the petitioner to defend the departmental enquiry as the evidence both oral and departmental which are to be produced in the departmental enquiry are entirely different from that if the evidences to be produced before the Criminal Court. As the charges in the departmental enquiry are different from that of the police complaint, the bank need not wait till the prosecution completes the criminal case or till one year as alleged by the petitioner. The Apex Court in its judgments on several occasions has categorically held that simultaneous proceedings both in departmental enquiry and criminal case can be carried on where the charges are different and evidences are not common. The Criminal proceedings and Departmental Enquiry are distinct. Further no prejudice will be caused to the petitioner if Departmental Enquiry is proceeded with since Law of Evidence is strictly applicable in Criminal proceedings.” 5. This Court by order dated 16.9.2008 dismissed the vacate stay petition and directed the matter to be listed for final hearing after dasera vacation, 2008. The respondent carried the matter in an appeal (W.A.No.1271 of 2008). The writ appeal came to be dismissed as not pressed on 14-10-2008. 6. Heard learned counsel for the petitioner and Sri.K.Subrahmanyam Reddy, learned Senior Counsel appearing for the respondents. 7. Learned counsel appearing for the petitioner submits that the charge- sheet in the criminal case and the memo of charges in the disciplinary proceedings are based on the same allegations and therefore, departmental enquiry against the petitioner has to be stayed till the conclusion of the criminal trial pending against him. He took me to clause 4 of the Bipartite settlement dated 10.4.2008 between Indian Bank Association (IBA) and AIBA, NCBE and INBEF. By referring to clause 4 learned counsel would contend that the departmental proceedings are to be stayed pending criminal prosecution against the petitioner. Learned counsel interpreted the word ‘offence’ as contained in clause 4 by referring to clause 2 that the expression “offence” shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. What he means to say is that since the criminal prosecution is in respect of an offence involving moral turpitude and the departmental proceedings also indicative of involving moral turpitude, the later proceedings are to be stayed giving way to the farmer proceedings. 8. Learned Senior Counsel contended that departmental proceedings pending a criminal proceeding does not warrant automatic stay. According to him, the allegations which formed the basis for issuance of charge memo in departmental proceedings and the allegations which formed the basis for initiation of criminal proceedings are distinctive and therefore disciplinary enquiry need not be stayed pending the criminal trial against the petitioner. In support of his submissions, reliance has been placed on the decisions of Supreme Court in STATE OF RAJASTHAN v. B.K.MEENA AND OTHERS[1] and INDIAN OVER SEAS BANK, V. P.GANESAN AND OTHERS[2]. 9. In STATE OF RAJASHAN V. B.K.MEENA & ORS.’ case (1 supra), the Supreme Court held that the ‘advisability’, ‘desirability’ or ‘propriety’, as the case may be, of staying the departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. 10. In INDIAN OVERSEAS BANK, V. P.GANESAN AND OTHERS’s case (2 supra), the Supreme Court held that a departmental proceeding pending a criminal proceeding does not warrant an automatic stay. The superior courts before exercising its discretionary jurisdiction in this regard must take into consideration the fact as to whether the charges as also the evidence in both the proceedings are common and as to whether any complicated question of law is involved in the matter. 11. The Supreme Court in CAP.M.PAUL ANTHONY V. BHARAT GOLD MINES LTD.’[3], held that the departmental proceedings need not be stayed during pendency of the criminal case save and except for cogent reasons. The Supreme Court summarized its findings as under: “(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as thee is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The facts mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.” 12. The approach and objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be and whereas in the criminal proceedings the question is whether the offences registered against him under the Indian Penal Code or any other penal law are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, cannot be and should not be, a matter of course. Even if stayed at one stage, the decision may require re-consideration if the criminal case gets unduly delayed. 13. Now let me examine the facts of the present case. A criminal case in Crime No.114 of 2008 of WCO Team-I, CCS, DD, Hyderabad, for the offences under Sections 420 and 406 IPC came to be registered against the petitioner on the complaint of H.V.Narayana Rao, Senior Branch Manager, Central Bank of India, Charminar Branch, Hyderabad. The allegation in brief is that the petitioner while working as a Computer Terminal Operator, Central Bank of India, Charminar Branch, Hyderabad, debited the Non Banking Office (NBO) Adjustment Account No.59203010488 and posted credits to his savings bank account No.1020544348 and that he adjusted the amounts debited to NBO Account by crediting the amount to his O.D. Account No.1020507474. The amounts withdrawn by him from his S.B.Account and O.D. account have been detailed in the complaint. The withdrawals are between 17.07.2006 and 02.11.2007. For better understanding, I may refer the relevant portion of the complaint, which formed the basis for registering a case in Crime No.115 of 2008 against the petitioner, which reads as hereunder: “Mr. Srinivasa Sahu is a Computer Terminal Operator (CTO) and is acquainted with the computer operations relating to Banking transactions. He with a dishonest and fraudulent intention made the following false entries in the books of accounts of Charminar Branch and by debiting the Non Banking Office (NBO) account No.59203010488, he posted credits to his Savings account No.1020544348 with said branch. He committed the fraud by using his personal password and the password of other staff members without their knowledge. The Non- Banking Office (NBO) is used for clearing and intra Branch transactions. The customers of a particular Branch deposit the cheques/Demand Drafts drawn in their favour on different Branches/Banks. The said Branch/Bank sends all the instruments to NBO and NBO in turn sends the said instruments to respective branches/banks for clearing. Next day the said Branch/Bank clears the instruments and return instruments to NBO where amounts are not cleared. NBO sends the returned cheques to concerned Branches and seeks the credit in respect of the said instruments. In this process, while sending the reconciliation statements of Charminar Branch to NBO, Mr. Sahu used to debit NBO Adjustment A/C.No.59203010488 at Charminar Branch by making fictitious entries in the said NBO Adjustment A/C and gave credit to his Savings A/c.1020544348. In this process of reconciliation, he used to credit the difference amount to his personal S.B. a/c No.1020544348 and withdrawing the said amounts fraudulently. 14. Coming to the charge memo issued to the petitioner, it contains three charges. The first charge relates to debiting the amount to profit and loss account and crediting the same to his savings bank account. The second charge relates to debiting the amount to profit and loss account and crediting the same to his personal O.D. account; and third charge relates to debiting of Rs.1,00,000/- to the profit and loss account and crediting the same to his S.B. Account. By reading the allegations, which led to the registration of the crime and the allegations, which led to the initiation of the departmental proceedings, I am of the considered view that the two proceedings are not grounded on the same set of allegations. 15. Learned counsel appearing for the petitioner by placing reliance on Clause 4 of Bipartite Settlement, dated 10.04.2002, contends that since the allegations levelled against the petitioner constitute an offence and as the crime came to be registered, the management has to defer the departmental proceedings for a period of one year. Clause 4 of the Bipartite Settlement, dated 10.04.2002, reads as hereunder: “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 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 11 and 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 3 above. 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 3 above shall apply.” The above referred clause can be pressed into service in case the criminal prosecution and departmental proceedings are grounded on the same set of allegations. In para 14, a finding has been recorded that criminal prosecution and departmental proceedings are based on different set of allegations. Therefore, clause 4 of bipartite settlement is of no avail to the petitioner. In that view of the matter, the action of the respondents in continuing the departmental proceedings pending criminal prosecution cannot be faulted. 16. Accordingly, this writ petition is devoid of merits and the same is hereby dismissed. Interim stay granted on 16.9.2008 in WPMP.No.23157 of 2008 shall stand vacated. No order as to costs. 17th February 2009. (B.Seshasayana Reddy,J) tnb LR COPY TO BE MARKED. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{VSMI} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.17814 OF 2008 17TH FEBRUARY 2009. [1] (1996) 6 SCC 417 [2] (2008) 1 SCC 650 [3] (1999) 3 SCC 679