1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICITON WRIT PETITION NO. 956 OF 2007 Anupama Naik ] of Mumbai, Indian Inhabitant residing ] at B-202, Pascoal Square, Sunder Nagar, ] Santa Cruz East, Mumbai ] ....Petitioner VERSUS 1. The Standard Chartered Bank ] having its Mumbai Office at ] 23-25, M.G. Road, Mumbai 400 001 ] 2. Mr. Francis Alphonso, Advocate ] having his office at 4/34, A/C. Market ] Tardeo, Mumbai 400 034 ] 3. Ms. Rita Joshi, Advocate ] having her office at 4/34, A/C. Market ] Tardeo, Mumbai 400 034 ] .... Respondents Ms. Shobha Gopal for the Petitioner Mr. Ashok D. Shetty for the Respondents. CORAM: SWATANTER KUMAR, C.J., & S.C. DHARMADHIKARI, J. Judgment reserved on: June 7, 2007 Judgment pronounced on: June 21, 2007 2 JUDGMENT (Per Swatanter Kumar, C.J.):- 1. On the statement of one Mr. Anand P. Patankar, on 6th May, 2005, Dadar Police Station registered F.I.R. No. 289 of 2005 under Section 360 of the Indian Penal Code. It was recorded that he was a retired employee, and had taken a debit card of the Standard Chartered Bank, Shivaji Park, Dadar, and was using the said card. After the expiry of the card, he received a letter from the bank that they are going to send another card. Somewhere on 23rd August, 2005, he received a letter along with Personal Identification Number (PIN) for the same card; and on 3rd September, 2005, as he needed money, he gave his daughter a cheque of Rs.5,000/- for withdrawing. In his statement, there are unauthorised withdrawals shown for different amounts, on 27th August, 2005, Rs.20,000/- and Rs.5,000/-; on 28th August, 2005, Rs.25,000/-; on 29th August, 2005, Rs.25,000/-; and on 30th August, 2005, Rs.25,000/-, totaling a sum of Rs.1,00,000/-, which had been withdrawn from the bank's ATM. According to him, the card 3 was stolen, which was lying on the dining table, and the amounts have been withdrawn without his permission and by some person. After conducting investigations, the property is said to be stolen. The charge-sheet was filed against the petitioner. 2. On 24th April, 2006, the petitioner was arrested for commission of the said offence under Section 380 of IPC and was granted bail. 3. The petitioner is employed with the Standard Chartered Bank since 15th February, 1988, and was working at Juhu Branch as a Teller. According to the petitioner, the informant is a long- standing friend, and on 26th August, 2005, she invited the informant to join her and family members for dinner at Flora Fountain. It was then agreed that on her way to Flora Fountain, the petitioner would pick the informant from his residence. Accordingly, the petitioner, her husband and two children dropped in at the informant's house on their way to 4 the dinner venue. The daughter of the informant, Ms. Pinaz Patankar, was also working in the Juhu Branch of the respondent-Bank as Line Manager, and she could persuade her father to withdraw the criminal case against the petitioner if the petitioner tendered her resignation from the bank. According to the petitioner, she was not involved in the alleged unauthorised withdrawals of money. The respondent- Bank instructed the petitioner to appear before a Disciplinary Committee on 8th May, 2006 at its office at M.G. Road, Mumbai. In the said meting, the threats of dismissal from service were given to the petitioner, but the petitioner did not bother by the threats given to her, and did not tender her resignation. 4. The petitioner then received a letter dated 17th May, 2006 from the respondent-Bank informing the petitioner that the informant had also informed the bank about the alleged theft of the card and unauthorised withdrawals and the involvement of the petitioner in the police case. On the basis 5 of the above, respondent No.1 called upon the petitioner to show cause why her services should not be terminated for loss of confidence vide their letter dated 17th May, 2006. The said letter is Exhibit 'A' to the writ petition. Vide her letter dated 30th May, 2006, the petitioner brought to the notice of respondent No. 1 that some of the enclosures reported to have been sent along with its letter dated 17th May, 2006 had not been received, and requested that complete documents may be given to her. Respondent No. 1, thereupon, furnished the documents to the notice in June, 2006; and the petitioner, as per her reply to the show-cause notice, gave the full facts, including that the show-cause notice was vague and the arrest of the petitioner by the police does not, ipso facto, establish her guilt and respondent No. 1 had no authority to terminate her services. She also informed the bank that continuation of departmental proceedings, when criminal proceedings were pending, would cause serious prejudice to her right of defence; and she would have to disclose her entire evidence which she is supposed to adduce during the 6 course of criminal trial before the Court of competent jurisdiction. After receipt of Exhibit 'F', the letter dated 7th June, 2006, the Senior Industrial Relations Manager of the bank issued a charge-sheet dated 23rd August, 2006 against the petitioner, and informed the petitioner that she has been suspended from employment, pending the departmental enquiry against her. To this charge-sheet, she submitted a reply, again taking the plea that primarily, the charge-sheet and the charge is based upon similar facts on which the petitioner has been held by the police and report under Section 173 of the Criminal Procedure Code and under Section 180 of the Indian Penal Code has been filed; and as such, the departmental proceedings should not continue. It was specifically stated that the Supreme Court has held that simultaneous progress of criminal proceedings and departmental inquiry are not permissible and as such, the bank should restrain itself from taking any proceedings. This request of the petitioner was not acceded to by the Senior Manager, Employee Relations, who vide his letter dated 27th 7 September, 2006, informed the petitioner that her reply to the charge-sheet was neither satisfactory nor acceptable to the bank; and that respondent No. 1 had decided to hold the departmental enquiry against her for commission of an alleged act of misconduct; and informed the petitioner that respondent No. 2 has been appointed as Inquiry Officer and respondent No. 3 as Management-Representative and she should submit documents to the Inquiry Officer. The departmental inquiry against the petitioner has commenced in terms of the charge-sheet (Exhibit 'G') despite her objection, which she reiterated before the Inquiry Officer as well on 6th October, 2006, 8th November, 2006, thereafter the inquiry was adjourned to 20th November, 2006 and it could not be held due to absence of either of the respondents. During the course of the inquiry on 13th March, 2007, respondent No. 3 offered her reply to the objections of the petitioner stating that both the proceedings should continue and there was no prohibition in law to stop the said departmental proceedings against the petitioner. On 23rd March, 2007, the inquiry was 8 again adjourned, as the defence representative could not attend the inquiry. The same has been adjourned from time to time, and nothing material has happened in the departmental inquiry so far. The petitioner gave her objections, which have not been accepted by the respondents, resulting in filing of the present writ petition. 5. The respondents have not raised any dispute to the facts of the present case, and they have raised legal submissions that there is no law which prohibits an employer to carry on with the departmental proceedings against an employee in the event criminal proceedings are also initiated against the employee on similar facts. According to the respondents, the bank has a legal right to continue with the departmental proceedings, inasmuch as there is loss of confidence between the employer and the employee and the criminal trial is likely to take long time before the same is finally concluded. The FIR was lodged in the year 2005, and even charge has not been framed in the Court as yet. 9 6. The above factual matrix of the case shows that a very narrow legal controversy arises for consideration of the Court in the present case; and that is whether in the facts of the case, the Court should restrain or permit the continuation of departmental proceedings during the pendency of the criminal trial, which is stated to be on somewhat similar facts. Before dealing with this controversy in relation to the facts of the present case, we may usefully refer to certain judgments and principle of law relating to the matter in controversy. 7. In the case of Darshan Kumar Gupta v. Punjab National Bank (CWP No. 8796 of 2001), a Division Bench of the Punjab High Court answered this question, after discussing the law, as follows:- “Whether as a matter of rule, there ought to be deferment of conclusion of departmental proceedings till pronouncement of judgment by the Court of competent jurisdiction in a criminal-trial, where the delinquent claims similarity in articles of charges and the charge framed in criminal proceedings? is the question that arises for consideration before us in this writ petition. 10 The Petitioner was working as Assistant Manager in Saidoke Branch of the Punjab National Bank. Upon registration of FIR No. 3 of 2000 dated 4.10.2000, the petitioner was arrested by the State Vigilance Department of the State of Punjab on 4.10.2000. Vide order dated 30.10.2000, petitioner was placed under suspension as a result of his arrest in a criminal case. The respondent Bank served a charge-sheet upon him containing different articles of Charges accompanied by memorandum of allegations on 16.4.2001. Enquiry officer was appointed vide order dated 7.6.2001. In furtherance to registration of the F.I.R., the investigating agency filed the challan and a charge was framed against the petitioner by the Court of competent jurisdiction. The contention of the petitioner is that the charge framed by the criminal Court and the Articles of charges served upon the petitioner are based upon common premises and in the event of departmental proceedings continuing, the petitioner would suffer a serious prejudice in his defence before the criminal Court the foundation of both the charges being the same. While relying upon the judgment of the Supreme Court in the case of M.Paul Anthony Versus Bharat Gold Mines Ltd., 1999 (2) RSJ 318 and Jatnu Ram Versus State of Haryana, 1999 (3) RSJ 134, the petitioner prays for stay of departmental proceedings till the conclusion of the criminal trial. Vide order dated 4.7.2001 a Division Bench of this Court had granted interim exparte stay of departmental proceedings. The respondents filed an application for vacation of the stay order under Article 226(3) of the Constitution of India. The reply affidavit was also filed. Written Statement was also filed along with stay application. According to the respondents, the writ petition was liable to be rejected as the petitioner had 11 not approached the Court with clean hands. The charge-sheet dated 16.4.2001 is stated to be different and distinct from the charge framed against the petitioner under Sections 17 and 13(2) of the Prevention of Corruption Act, 1988. It is specifically pleaded that the scope of the enquiry and investigation is distinct and different in the facts and circumstances of the present case. The petitioner was caught red handed while accepting the bribe. As pleaded by the respondents, the petitioner used to demand money from various customers for advancement of loans. The specific incident related to 3.10.2000 when documents of loan were got executed. Despite sanction of the loan, the cash orders were not delivered to persons, which were seized on 4.10.2000 upon arrest of the petitioner. As this question arises more than often in various cases before the Court, we consider it appropriate to discuss the law enunciated by different judgments in regard to such matters. Thus, it would be appropriate to examine the legal aspect of the case before we proceed to discuss the merits of the contentions raised in view of the peculiar facts and circumstances of this case. We have no hesitation in answering the proposition at the very outset of the judgment in the negative. It is neither practicable nor possible to accept the contention of the petitioner as a matter of absolute proposition of law. General principles which emerge from various pronouncements of the Hon'ble Apex Court definitely indicate that there cannot be a strait jacket formula for deciding the controversy of the present kind. Where there is no specific bar for simultaneous progress of the departmental enquiry and the criminal trial, there the exceptions have also been carved out to the rule. There could be cases where the departmental enquiry and the criminal trial are not only based on identical facts, but are so intermingled that their simultaneous progress could 12 cause serious prejudice to the right of defence of the delinquent. Unless the evidence to be led in support of articles of charges in disciplinary proceedings and in criminal trial are so intricate and difficult and require proper technical or legal appreciation for their final determination, no fruitful purpose can be served by stalling departmental proceedings which are much simpler in their nature and do not require strict adherence to rule of evidence. The distinction between the departmental enquiry and criminal trial is distinctively accepted and is not a fine one so as to normally cause over-lapping of proceedings and evidence. Initiation of criminal proceedings per se is not a bar to concurrent and continuation of disciplinary proceedings on somewhat similar facts. In certain cases, the Supreme Court has even sustained the argument of the department that departmental proceedings could continue even after the delinquent is acquitted by a criminal Court of such charge. In light of these principles we would now refer to specific judgments to provide clarity to the point of view we propose to take in the present case. A Division Bench of this Court in a very recent judgment in the case of Shri Birbal Versus Haryana State Electricity Board and others, CWP No. 15171 of 2002, decided on 26.09.2002 held as under:- 'It is settled principle of law that the departmental proceedings in all the cases cannot be stayed till the conclusion of the proceedings before the criminal court merely on the ground the articles of charges and charges before the criminal court have the similarities. It will have to be decided keeping in view the facts and circumstances of each case. 13 At this stage, it may be relevant to refer to the view expressed by the Hon'ble Apex Court in various cases relating to desirability of continuation of disciplinary proceedings despite criminal charge having been filed against the delinquent official. The Hon'ble Supreme Court in the case of Delhi Cloth and General Mills Ltd. v. Kushal Bhan A.I.R. 1960 Supreme Court 806 held as under:- 'Though very often employers stay enquiries into the misconduct of the employees pending the decision of the criminal trial courts dealing with the same facts and that is fair, it cannot be said that principles of natural justice require that an employer must wait for the decision, at least of the criminal trial court, before taking action against an employee.' Further reference can be made to the case of Jang Bhadur Singh V. Baij Nath Tewari reported as A.I.R. 1969 S.C. 30. The above view was reiterated with approval and with further extended limits of desirability of continuation of disciplinary proceedings even after being absolved or otherwise by the Hon'ble Supreme Court in the case of State of Punjab & Anr. v. Dalbir Singh & Ors. J.T. 2000 (10) S.C. 456, where the court held as under:- 'The question that arises for consideration, therefore, is whether the levy of penalty under the provisions of Motor Vehicles Act would absolve the concerned employee from all liabilities and would debar the disciplinary authority to initiate disciplinary proceedings. In other words, the question would be whether initiation of a departmental proceedings would tantamount to violation of provision contained in Article 20 (2) of the Constitution. Having examined the relevant facts involved in these 14 appeals and having examined the judgment of the Full Bench of Punjab and Haryana High Court, we have no hesitation to come to the conclusion that the Full Bench rightly interfered with the judgment of the Division Bench of Punjab and Haryana High Court. In our view, the payment of penalty under the provisions of Motor Vehicles Act would not absolve the employee fully from all other liabilities nor would it debar the employer from initiating a departmental proceedings for the alleged misconduct of the concerned delinquent employee. Such initiation of a departmental proceedings by no stretch of imagination, can be held to be a violation of provision of Article 20 of the Constitution of India.' Similar view was expressed a Division Bench of this Court in R.N. Yadav, Accountant Sugar Mills, Shahabad Markanda, Haryana v. State of Haryana and others, 1997 (2) SCT 332. Another Division Bench of this Court in the case of Som Prakash Wadhawan vs. The Uttari Haryana Bijli Vitran Nigam and others decided on 12.4.2002, where the Court held as under:- 'It is a well settled rule of law that the scope, effect and consequences of the criminal and departmental proceedings are distinct and different. One necessarily may not determine the fate of the other. Once the employer has a reasonable suspicion on its employee for a serious offence like demanding and accepting illegal gratification, to prevent the department from taking recourse to conclusion of the proceedings, merely because the criminal proceedings have also been initiated against the official by the police / State Vigilance Department, would neither be just nor fair. The burden to show serious prejudice to his rights is 15 upon the delinquent officer / official. The learned counsel for the petitioner has not been able to show as to what prejudice the petitioner is likely to suffer if both the proceedings continue. The rules governing a criminal trial are so stringent that a delinquent officer as an accused may get benefit of doubt and resultant acquittal, but that necessarily may not entitle him clearance in the departmental enquiry. The department would be well within its right to conduct an enquiry and pass appropriate orders in accordance with law. In the present case the evidence of the petitioner has still to start and it is not certain as to when the criminal proceedings pending before the Court of competent jurisdiction would attain finality. To keep the departmental proceedings in abeyance for such an indefinite period even otherwise would not be in consonance with the settled canons of service jurisprudence. 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 the disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.' It also must be noticed that there is no rule which on its plain reading or on the principle of “necessary implication” can be construed as a bar for continuation of the two proceedings simultaneously. Thus, unless it is demonstratively shown that the petitioner would be exposed to grave prejudice and the proceedings are so intermingled that one cannot continue de-hors the other it may not be appropriate 16 for the Court to stay the continuation of departmental proceedings till conclusion of the criminal proceedings. In this regard reference can also be made to a judgment of the Calcutta High Court and a Division Bench judgment of Rajasthan High Court respectively in the cases of Basudev Mitra, 1994(5) S.L.R. 401 and Laxman Lal Versus State of Rajasthan, 1994 (5) S.L.R. 120. (Reference State of Rajasthan Versus Shri B.K. Meena and others, JT 1996 (8) S.C. 684 = AIR 1997 S.C. 13).' In addition to the above judgments, reference to some other judgments of the Apex Court which have a direct bearing on the matter in issue would be proper. In the case of State of Rajasthan Versus B.K. Meena and others, AIR 1997 Supreme Court 13, it was held as under:- 'It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be desirable, advisable or appropriate to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is 'that the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of facts and law. In our respectful opinion, it means that not 17 only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, advisability, desirability or propriety, as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. 'The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long period pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be a matter of course.' In the case of Capt.M.Paul Anthony Versus Bharat Gold Mines Ltd. and another, 1999 (2) RSJ 318, the Hon'ble Apex Court held as under:- 'These decisions indicate that though it would not be wrong in conducting two parallel proceedings, one by way of disciplinary action and the other in the criminal court, still it would be desirable to stay the domestic inquiry if the incident giving rise to a 18 charge framed against the employees in a domestic inquiry is being tried in a criminal court.' In the case of Corporation of the City of Nagpur, Civil Lines, Nagpur and another vs. Ramchandra and others, 1981 (2) S.L.R. 274, it was held as under:- 'Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered.' In the case of Jang Bahadur Singh Versus Baij Nath Tiwari, AIR 1969 Supreme Court 30, the Hon'ble Supreme Court held as under:- 'The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him. The same