IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.16175/2009 & M.P.Nos.1&2/2009 P.Manickam ... Petitioner -vs- 1. Union Bank of India Rep. by its Chief Manager (P), Department of Personnel, FGMO, 139, Broadway, Chennai – 600 108. 2. Sri.K.V.Subramaniam, Senior Manager(P), Regional Office, Union Bank of India, Trivandrum. ... Respondents Prayer: The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Mandamus to forbear the respondents herein from in any manner proceedings with the disciplinary proceedings by holding domestic enquiry in furtherance to Charge Sheet Memorandum No.CO:IRD:5339 dated 22.09.2001 and Memorandum No:GMO:DP:21264:12-08 dated 17.12.2008 till the finalization of the criminal case in C.C.No.331 of 2004 on the file of the Judicial Magistrate No.6, Salem. For Petitioner :Mr.K.M.Ramesh For Respondents :Mr.N.V.Srinivasan for M/s.N.V.S. Associates for R1 O R D E R By consent the Writ Petition itself is taken up for disposal. The prayer in the writ petition is for issue of a writ of Mandamus to forbear the respondents from proceedings with the disciplinary proceedings pursuant to a charge sheet Memorandum dated 22.09.2001 and the Memorandum dated 17.12.2008 till the finalization of the criminal case in C.C.No.331 of 2004 on the file of the Judicial Magistrate No.6, Salem. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is an employee of the first respondent bank and joined the services of the bank on 19.02.1981 as part-time sweeper, subsequently promoted as Substaff/Daftary and posted in Vazhapadi branch during 1989. The petitioner was issued a charge memo dated 22.09.2001, alleging that on 19.08.1999, he had made a cash scroll entry No.20 for LAD 1498 for Rs.30,000/- and issued a token to a woman who had impersonated as Lakshmi and failed to identify the depositor, while issuing the token which has resulted in the premature closure of DRIC for Rs.30,000/- and payment of cash of Rs.45,200/- pending adjustment of LAD 4018 sanction to Smt.Lakshmi for Rs.35,000/- and further it was alleged that the petitioner failed to ensure safe keeping of records, which resulted in removal of photograph from a closed DRIC of Smt.Lakshmi and also failed to arrange closed LAD documents and deposit accounts forms date-wise rendering checking of documents very difficult, which resulted in missing/tampering of records. The petitioner was granted 10 days time for submitting his explanation. The petitioner submitted his explanation on 11.10.2001 denying the allegations. In respect of the same transaction, the respondent bank lodged a complaint before the District Crime Branch, Salem, which was registered as Crime No.13/2001 under Section 420 IPC and after investigation a charge sheet was laid before the Judicial Magistrate No.6, Salem in C.C.No.331/2004. 3. It is further submitted that since the criminal case was pending the bank did not proceed with the disciplinary proceedings from 2001 to 2008. On 17.12.2008, a supplementary charge sheet was issued to the petitioner by referring to the earlier charge sheet dated 22.09.2001 with further allegations, alleged to have taken place on 25.03.1998. Thereafter the respondent bank appointed an enquiry officer to enquire into the charges. The petitioner submitted his explanation to the supplementary charge sheet on 23.01.2009. The bank proceeded to commence the disciplinary enquiry and the bank also appointed a presenting officer by proceedings dated 07.02.2009. Subsequently, the enquiry officer appointed earlier was changed and the second respondent was appointed as an enquiry officer by proceedings dated 05.05.2009 and the second respondent by letter dated 15.06.2009 fixed the date of enquiry as 06.07.2009. On a request made by the petitioner, the enquiry was adjourned to 12.08.2009. 4. The petitioner by relying on Clause No.4 of the Bipartite Settlement dated 10.04.2002 contended that the enquiry should not be proceeded, since the criminal case is pending. In the affidavit filed in support of the writ petition, it has been stated by the petitioner that if the enquiry is in respect of supplementary charge sheet alone, he cannot be said to be prejudiced, but since the bank is insisting to conduct enquiry in respect of the earlier charge dated 22.09.2001 along with the supplementary charge sheet dated https://hcservices.ecourts.gov.in/hcservices/ 17.12.2008, pending trial of the criminal case, the petitioner is aggrieved. It is stated that the petitioner will be greatly prejudiced, if the enquiry is conducted as the witnesses to speak about the transaction in both the criminal case and the domestic enquiry are one and the same and the documents are also same and therefore conduct of enquiry pending criminal trial is illegal and contrary to the Bipartite Settlement dated 10.04.2002. It is further submitted that the bank having waited for over 7 years ought not to conduct the disciplinary enquiry at this stage, which would be prejudicial to the petitioner. Based on the above pleadings, the petitioner is before this Court seeking for issue of Writ of Mandamus as stated above. 5. The respondent bank has filed a counter affidavit contending that the writ petition is not maintainable, it is an abuse of process of law and the petitioner while entering service agreed to abide by the terms and conditions of the employment including receipt of salary and other benefits, which are governed by the Bipartite Settlement between the Bank and the Union of Workman. The contract of employment is also in the nature of contract and any transaction as a process of enforcement of a contract cannot be subject matter of writ petition. After narrating about the charge and the supplementary charge against the petitioner, it is submitted that the criminal case is pending trial before the Court of Judicial Magistrate No.6, Salem, which is based on the complaint lodged by the bank on 05.09.2001. After relying on Clause No.4 Bipartite Settlement dated 10.04.2002, the respondent bank would submit that there is nothing wrong in parallel proceedings being taken on the same issue by placing reliance on various decisions of the Hon'ble Supreme Court in such matters. More particularly the decisions in Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd and another AIR 1999 SC 1416, Tata Oil Mills Co Ltd Vs. Its Workman AIR 1965 SC 155, The Delhi Cloth and General Mills Ltd Vs. Kushal Bhan AIR 1960 SC 806. It is further submitted that where charges in both the criminal proceedings and departmental enquiry are different and where criminal cases are likely to take considerably long time the departmental proceedings could be finalized by passing appropriate final orders. It is further contended, the fact that the bank did not proceed with the disciplinary enquiry for nearly 7 years cannot act as a bar for conducting the enquiry at this point of time. Based on the above pleadings the respondent bank sought for dismissal of the writ petition. 6. Mr.K.M.Ramesh, learned counsel appearing for the petitioner after reiterating the contentions raised in the writ petition would submit that as on date all the witnesses in the criminal case have been examined and cross examined and only the investigating officer is to be examined and at this stage the respondent bank would not be justified in proceeding with the disciplinary proceedings. The learned counsel appearing for the petitioner placed heavy reliance on https://hcservices.ecourts.gov.in/hcservices/ Clause No.4 Bipartite Settlement and contend that if during the pendency of the disciplinary proceedings, the petitioner is "put on trial", the disciplinary proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause No.3 of the settlement would apply. By relying on Clause No.4 of the settlement, the learned counsel would submit that the trail in the criminal case is in the verge of completion and 9 witnesses have been examined and 3 witnesses on the side of the prosecution have been dispensed with and only the investigating officer is to be examined and at this stage the departmental proceedings cannot be proceeded with. That the witnesses to speak about the transaction in both the criminal case and the domestic enquiry are one and the same and the documents are also one and the same and therefore, the departmental proceedings is required to be deferred. 7. Per contra, Mr.N.V.Srinivasan, learned counsel appearing for the respondent bank after bringing to the notice of this Court, the factual aspects of the matter commencing from the first charge sheet dated 22.09.2001 till the issuance of the supplementary charge sheet on 17.12.2008 would submit that this is not a fit case, where the departmental proceedings should be deferred and in fact such request was not made by the petitioner at earlier point of time and if the departmental proceedings are not allowed to be proceeded with the respondent bank would not be in a position to enforce discipline. Learned counsel placed reliance on the following decisions of the Hon'ble Supreme Court as well as the Judgment of the Hon'ble High Court Patna and Hon'ble High Court Bombay in support of the contentions that there is no bar to proceed simultaneously, both before the criminal forum as well as in the departmental proceedings. The judgment relied on The Delhi Cloth and General Mills Ltd Vs. Kushal Bhan AIR 1960 SC 806, Tata Oil Mills Co Ltd Vs. Its Workman AIR 1965 SC 155, Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd and another AIR 1999 SC 1416, Gaffar Khan Vs. Bharat Coking Coal Ltd 1993 (2) BLJR 1283 (Patna High Court, Ranchi Bench) and Anupama Naik Vs. The Standard Chartered Bank, Mrs. Fancis Alphonso -2007 (5) ALLMR 278 (Bombay), Lalit Popli Vs. Canara Bank and Others - AIR 2003 SC 1796 and Bhaskar Mondal Vs. UCO Bank and others - (2002) 2 CALLT 574 (Calcutta High Court). 8. I have carefully considered the submissions on either side and perused the materials on record. 9. The legal issue which arises for consideration in the present case is as to whether the departmental proceedings initiated against the petitioner based on the charge memo dated 22.09.2001 and supplementary charge memo dated 17.12.2008 could be proceed with pending trial of C.C.No.331/2004 on the file of the Judicial Magistrate No.6, Salem. The law on the subject has been settled by the Hon'ble Supreme Court in the various decisions as referred to by the respondent, stated above. The Hon'ble Supreme Court in the case https://hcservices.ecourts.gov.in/hcservices/ of case of Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd and another, referred supra, after considering the law on the subject in paragraph 22 of the Judgment laid down the conclusions, which are deducible from the various decisions of Hon'ble Supreme Court referred to, as hereunder:- (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there 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 factors 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, administration may get rid of him at the earliest. 10. In fact the learned counsel appearing for the respondent bank had brought to the notice of this Court, the various subsequent decisions, which have followed the above principles and elaborated on the same. It is to be noted that the guiding factors, which have been mentioned in all the decisions referred could be only taken as illustrative and not exhaustive. The factors/tests have to be applied in a given case to find out as to whether the charges in the criminal case are grave and involve complicated questions of fact and law or whether the proceeding is unduly delayed. Therefore, it is necessary to look into the fact of each case before applying the tests. It is to be noted that the present case deals with an employee of the bank and such bank is governed by a Bipartite Settlement dated 10.04.2002 and Clause No.4 of the settlement would be very relevant for rendering a decision in this matter. Clause No.4 the Bipartite Settlement dated 10.04.2002 reads as hereunder:- " If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on https://hcservices.ecourts.gov.in/hcservices/ trial within a year of the commission of the offence, the management may then deal with him as if the 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."(emphasis supplied) 11. Therefore, the tests evolved by the Hon'ble Supreme Court in various decisions have to be applied to the facts of the case bearing in mind that there is a Bipartite Settlement, which would binding upon the respondent bank. In terms of Clause No.4 of the settlement if within the pendency of the disciplinary proceedings instituted against a bank employee, he is "put on trial" in the criminal proceedings the departmental proceedings shall be stayed pending completion of trial. It is to be noted that Clause No.4 uses the expression "shall", which in my view should be read as mandatory. 12. In R.K.Singla Vs. Punjab National and another-2002 2 LLJ page 716, the meaning of "put on trial" in a Bipartite Settlement came up for consideration and the Hon'ble Delhi High Court after referring to the various decisions of the Hon'ble Supreme Court including the decision of the Hon'ble Supreme Court in Captain N.Paul Anthony held as follows:- "17. I am thus of the considered view that the expression "put on trial" has to be read with the object that normally departmental proceedings should not be delayed because of the pendency of criminal case. The Bipartite Settlement in fact is limited to the extent as it is provided in para 19.4 of the said settlement. The FIR in the present case was lodged as far back as on March 10, 1998 and more than four years have been lapsed. If the expression "put on trial" is interpreted to imply that no departmental proceedings can take place even without framing of charges, the departmental proceedings will be brought to a stand still. Thus I am of the considered view that the expression "put on trial" has to be interpreted in context of the judgment of the Supreme Court in Common cause case (supra), and must apply where charges are framed. https://hcservices.ecourts.gov.in/hcservices/ 18. In view of the aforesaid interpretation the expression "put on trial" there could be no impediment in the continuation of the departmental proceedings by the respondents. 19. The writ petition is thus dismissed. Interim orders passed on August 23, 2001 stand vacated. It is however, made clear that in case charges are framed, Clause 19.4 of settlement would come into play and further departmental proceedings would be liable to be stayed. "(emphasis supplied). 13. Thus the principle deducible in the said Judgment is that "put on trail" must apply only where charges were framed in the criminal case. In the instant case the charge sheet has been laid during 2004 and the matter has been taken on file by the Judicial Magistrate No.6, Salem in C.C.No.331/2004 and the witnesses on the side of the prosecution have been examined and it is stated that only the investigating officer alone has to be examined for the trial to conclude. Therefore, there could be no doubt that the expression "put on trial" would come into play in the present case, if that be the factual position Clause No.4 of the Bipartite Settlement would operate and the departmental proceedings shall remains stayed during the pendency of the criminal trial. 14. The learned counsel appearing for the respondent bank would strenuously contend that this Court has to examine and find out as to whether the charges in the criminal case are grave and involve complicated questions of fact and law and whether the proceedings are unduly delayed, since the departmental proceedings and the criminal case have are couched differently. In this background if the charge against the petitioner in the criminal case is seen, there are allegations of financial misappropriation, tampering of official records, attempting to cheat the bank and other allegations and it would be useful to refer to the contents of the allegation against the petitioner, which reads as follows:- "me;j bjhifapy; 08/05/1997md;W cz;ikahd yc&;kp mk;khs; it;g;g[j; bjhif ghz;il mlkhdk; itj;J U:.35.000/- $ fld; th';fp ,Ue;jhh;/ gpd;dpl;L xU tUlk; fHpj;J 19/08/1999 md;W vjphp khzpf;fk; ntbwhU yc&;kp vd;w xU bgz;iz Ms;khwhl;lk; bra;J U:/50.000/-f;fhd itg;g[j; bjhifia ghz;oypUe;J cz;ikahd yc&;kp mk;khspd; g[ifg;glj;ij vLj;Jtpl;L nghypahd yc&;kp mk;khs; vd;w bgz;zpd; g[ifg;glj;ij me;j ,lj;jpy; bghWj;jp nghyp yc&;kp mk;khs; ifnuif ,lr;bra;J t';fpia Vkhw;wp U:/30.000/-I fldhf bgw;W Kiwaw;w yhgk; rk;ghjpj;Js;sh;/ gpd;dpl;L 3/12/2001 md;W nkw;fz;l itg;g[j; bjhifahd U:/50.000/- Kjpu;t [ mile;J ,ul;og;g[ bjhifahFk;/ Mdhy; mjw;F Kd;ng 17/02/2000 md;W vjpup khzpf;fk; Ms;khwhl;lkhf nghypyc&;kp mk;khs; vd;gtiu miHj;J te;J cz;ikahd yc&;kp mk;khs; vd;W milahsk; fhl;o ifnuif ,lr;bra;J cz;ikahd yc&;kp mk;khs; itg;g[j; bjhifahf fl;oa U:/50.000/-I (md;W) Kjpu;t[ miltjw;F Kd;ng t';fpia Vkhw;wp nkw;fz;l njjpapy; 19/9/1999 md;W Ms;khwhl;lkhd yc&;kp mk;khs; bgw;wpUe;j fld; bjhifia fHpj;jJ nghf kPjp U:/45.250/- https://hcservices.ecourts.gov.in/hcservices/ ek;gpf;if nkhro bra;J t';fpia Vkhw;wp yhgk; mile;jJld; nghyp yc&;kp mk;khspd; g [ifg;glj;ija[k; milahsk; fhzhjgo vLj;Jr; brd;Wtpl;lhu;/ Mfnt nkw;go a[dpad; ng';f; Mg; ,e;jpah vd;w t';fpapy; vjpup khzpf;fk; t';fpia Vkhw;wp Ms;khwhl;lkhf yc&;kp mk;khs; vd;w cz;ikahd bgz;zpw;F gjpyhf ntnwhU nghyp bgz;iz milahsk; fhl;o U://75.250/-I t';fpia Vkhw;wp yhgk; mile;Js;sjhy; vjphp khzpf;fk; gpupt [ 420 ,/j/r/ go jz;lid milaj;jf;ftuhfpwhh;/" 15. The first charge sheet given on 22.09.2001 also relates to the same DRIC to a value of Rs.50,000/- and the parties, who have said to have impersonated is the same person and the allegations are one and the same. The supplementary charge sheet dated 17.12.2008 refers to the first charge sheet dated 22.09.2001 and certain further omissions and commissions have been alleged against the petitioner reported to have taken place on 25.03.1998. In the subsequent allegation also the name of one Smt. Lakshmi occurs, and is referred to in more than three places. Therefore, it is clear that the allegation against the petitioner is said to have occurred between the period from 1996 to 1999 and one Smt. Lakshmi is said to have been impersonated. Therefore, in my view it is clear that the allegations in the criminal case would have substantial bearing on the departmental proceedings and before conclusion of the criminal case if the petitioner is compelled to reveal his defence in the departmental proceedings, it would grossly affect the petitioner. This view in support by a recent decision of this Court in Ammaiappan Vs. General Manager, Disciplinary Action Section Circle Office, Chennai and others 2009 1 MLJ 404, wherein this Court deferred the departmental proceedings. 16. Further it is to be noted that the first departmental charge memo was issued in 2001 and simultaneous criminal complaint was made to the District Crime Branch, Salem in crime No.13/2001. The respondent bank did not chose to proceed further in the matter for nearly 7 years and have now attempted to proceed further after issuance of the supplementary charge sheet dated 17.12.2008. By then the investigation on the criminal complaint has been completed, charge sheet has been laid, matter have been taken on file as C.C.No.13/2004 and the matter was "put on trial", evidence on the side of the prosecution have been completed and only the investigating officer alone is required to be examined. Further, it is not the case of the respondent bank that the petitioner has dragged the criminal proceedings. From the facts placed it appears that the petitioner has cooperated in the criminal trial and the bank also effectively contested the case by producing its witnesses. 17. Therefore considering the totality of the facts and circumstances of the present case and in view of the embargo under Clause No.4 of the Bipartite Settlement, I am of the firm view that this is a fit case in which the departmental proceedings have to be https://hcservices.ecourts.gov.in/hcservices/ deferred till the conclusion of the criminal trial in C.C.No.33/2001 on the file of the Judicial Magistrate No.6, Salem. 18. In the result, the Writ Petition is allowed as prayed for. Consequently, connected miscellaneous petitions are also closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pbn To 1. The Chief Manager (P), Union Bank of India Department of Personnel, FGMO, 139, Broadway, Chennai – 600 108. + 1 cc to M/S.N.V.S.Associates, Advocate Sr 9183 + 1 cc to Mr.K.M.Ramesh, Advocate, Sr 8369 Order in W.P.No.16175/2009 RSI (CO) RH (18.2.10) https://hcservices.ecourts.gov.in/hcservices/