IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12429 of 2005 SMT.SUSHILA TIWARY & ORS Versus ALLAHABAD BANK & ORS ----------- For the petitioner: M/s.Pushkar Narayan Shahi and Vikash Kumar For the respondent Bank: Mr. Ajay Kumar Sinha ------- 06. 3/09/2008 The original petitioner namely, Ravindra Nath Tiwary has now been substituted by his legal heirs since he passed away on 6.7.2006 during the pendency of the writ application. Late Ravindra Nath Tiwary was working as a Special Assistant in the Ara Branch of Allahabd Bank. For certain acts of omission and commission in the year 1990 he was placed under suspension on 11.6.1990. Two charge sheets also came to be issued against him. Respondents also in their wisdom decided to launch a criminal case on the matter and an FIR came to be instituted against him at Ara Police Station. The disciplinary authority therefore did not proceed in the departmental enquiry. The criminal trial in the matter ended in conviction vide judgment dated 19.4.1999. The original petitioner therefore was sentenced to undergo rigorous imprisonment under different sections of the Indian Penal Code. In view of the conviction of the petitioner, under Clause 19.6(a) of the First Bipartite Settlement 1966 (as amended uptodate) vide order No. 8/99 dated 21.07.1999 the petitioner was dismissed from service. However, on appeal in the criminal case the Additional Sessions Judge, Bhojpur at Ara vide judgment dated 6.2.2000 gave benefit of doubt and acquitted him. The petitioner approached the respondents armed with the order - 2 - of acquittal but the respondents in their wisdom by invoking Clause 19.3 (c) of the Bipartite Settlement decided to put the petitioner under deemed suspension from the date of order of dismissal i.e. 21.7.1999 and decided to proceed with the departmental enquiry on the set of charges which was served upon the petitioner after his initial suspension. The departmental enquiry was held and order of punishment dated 16.6.2003 came to be passed by the disciplinary authority. The order is, termination of service with three months’ pay and allowance in lieu of notice. The order of punishment therefore contained in annexure-1 is under challenge in the writ application. The first contention of the learned counsel appearing on behalf of the petitioners is that the decision of the respondents to put the original petitioner under deemed suspension from the date of dismissal as contained in annexure-12 is erroneous. If the original petitioner was acquitted in criminal appeal filed against his conviction he ought to have been reinstated in service, given his benefits and may be thereafter, if the respondents were still of the opinion that a departmental proceeding was necessitated and was still required then action ought to have been taken. There is an inherent legal flaw in not reinstating the petitioner and putting him under deemed suspension from the date of his dismissal i.e. 21.7.1999. If that was the position, then a subsequent action of the respondents imposing punishment must go. The petitioners by way of supplementary affidavit have brought on record the fact that a sum of Rs.47,500/- which was deposited by the employee with the - 3 - respondent Bank, so-called embezzled amount was ordered to be refunded by the Hon`ble Supreme Court in Cr. Appeal No. 1019 of 2008 vide order dated 8.7.2008. This according to the petitioner should also weigh with the Court to absolve the delinquent, who is no more. This may help them to get such benefits as may be available to take care of the family. Respondents submit that the petitioners have no case as the original petitioner had moved this Court on several occasions and at no point of time any relief was granted to him in the departmental enquiry. They also submit, based on the averment made in the counter affidavit that the petitioner had challenged the decision taken by the respondents to put him under deemed suspension from the date of his dismissal, as contained in annexure-12, by filing CWJC No. 7894 of 2001 but the said writ petition was dismissed as withdrawn vide order dated 1.8.2001. That being the position it is not open to the petitioners now to challenge the validity of the decision contained in annexure-12. Coming to the merit of the enquiry and order of punishment the respondents have brought the enquiry report contained in Annexure-C to the counter affidavit. The then petitioner intentionally chose not to participate in the enquiry as would be evident from the record and the report of the enquiry officer. Sufficient evidence has come , both documentary and oral which establishes the fraudulent act of the petitioner on many an occasions which had serious repercussions for the Bank as well as the customers in whose - 4 - account fraudulent act was committed by the delinquent. If all the charges are proved, disciplinary authority has committed no wrong in passing the punishment order terminating the service of the petitioner by giving him three months pay in lieu of notice. Counsel for the petitioners then harps on the fact that respondents did not give adequate opportunity to defend but when confronted with the actual position in the enquiry report he did not have many convincing answer on the issue. If a delinquent intentionally chooses not to participate in the enquiry or delay it indefinitely then it cannot be said that the enquiry officer will be left helpless in the situation. The records adequately show that the delinquent chose to participate in the enquiry and then absent as and when he wanted without cogent reasons. The enquiry had to proceed. If it threw sufficient material, which has been discussed by the enquiry officer then verdict of guilt had to be recorded. The charges seem to be very serious in nature. Keeping in mind that the petitioner was a responsible employee of the bank but his acts show complete lack of integrity and honesty creating serious consequences for the bank. If in the given background the respondents decided to sever master and servant relationship by dismissing him from service, by offering him three months pay and allowances in lieu of notice, then in the opinion of the Court they have committed no wrong. The appellate authority has also affirmed the order of punishment in the above background. The Court does not find any legal infirmity or violation of - 5 - any rule or law which would warrant interference with the order of punishment. The writ application has no merit and the same is dismissed. rkp (Ajay Kumar Tripathi, J)