IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 OP.No. 1503 of 1998(D) --------------------------------- PETITIONER(S): ----------------------- K.P. RAJU, SON OF K.P. PARAMESWARAN, NO.20, SUBASH NAGAR, TRIVANDRUM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY. RESPONDENT(S): -------------------------- 1. M/S. PUNJAB & SIND BANK, REPRESENTED BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR, BANK HOUSE, 21 RAJINDRA PLACE, NEW DELHI. 2. THE GENERAL MANAGER (PERSONNEL) & REVIEWING AUTHORITY, PUNJAB & SIND BANK, H.O. PERSONNEL DEPARTMENT, BANK HOUSE, 21 RAJINDRA PLACE, NEW DELHI. 3. DY. GENERAL MANAGER (PERSONNEL), PUNJAB & SIND BANK, 21 RAJINDRA PLACE, NEW DELHI. 4. ZONAL MANAGER, PUNJAB & SIND BANK, 770A, 1ST FLOOR, SPENCER TOWER, ANNASALAI, MADRAS. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE, SC, ADV. SRI.P.C.HARIDAS. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 1503/1998-D ORDER ON C.M.P. NO.2708/1998 IN O.P. NO. 1503/1998 DISMISSED 01/06/2010. SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ENQUIRY REPORT DATED 17/06/1993 OF THE 4TH RESPONDENT. EXT.P2: COPY OF THE ORDER DATED 24/06/1995 ISSUED BY THE DISCIPLINARY AUTHORITY. EXT.P3: COPY OF THE APPEAL DATED 27/07/1995 FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY. EXT.P4: COPY OF THE PETITION DATED 27/08/1995 SUBMITTED BY THE PETITIONER TO THE CHAIRMAN-CUM-MANAGING DIRECTOR OF THE 1ST RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 21/09/1995 ISSUED BY THE APPELLATE AUTHORITY OF THE 1ST RESPONDENT. EXT.P6: COPY OF THE REVIEW APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE REVIEWING AUTHORITY VIZ. THE GENERAL MANAGER (PERSONNEL) OF THE BANK DATED 05/10/1995. EXT.P7: COPY OF THE ORDER ISSUED BY THE CHAIRMAN-CUM-MANAGING DIRECTOR OF THE 1ST RESPONDENT DATED 25/11/1995. EXT.P8 & P9: COPY OF THE REPRESENTATIONS DATED 12/12/1995 AND 18/10/1996 SUBMITTED BY THE PETITIONER TO RECONSIDER THE DECISION IN EXHIBIT P7. EXT.P10: COPY OF THE JUDGMENT DATED 20/06/2007 IN C.C.47/98 BEFORE THE COURT OF THE SPECIAL JUDGE (SPE/CBI) II, ERNAKULAM. EXT.P11: COPY OF THE ENQUIRY REPORT. ..........2/- O.P. NO. 150/3/1998-D RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE CHARGE SHEET DATE 17/06/1993 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. EXT.R1(b): COPY OF THE PROCEEDINGS OF THE ENQUIRY OFFICER ON 03/05/1994 IN THE ENQUIRY AGAINST THE PETITIONER. EXT.R1(c): COPY OF THE PROCEEDINGS OF THE ENQUIRY OFFICER ON 30/05/1994 AGAINST THE PETITIONER. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.1503 of 1998 ----------------------------------------- Dated this the 1st day of June, 2010 JUDGMENT The petitioner entered service as Officer in the first respondent bank on 10-7-1994. While the petitioner was in service as Manager in the Trivandrum branch of the first respondent bank, disciplinary action was initiated against him by serving Ext.R1(a) memo of charges and statement of allegations of misconduct. The sum and substance of the allegations against the petitioner was that there were serious lapse and irregularities on his part in the matter of providing accommodation to one of the bank's customers and its associates. The petitioner did not submit a written statement of defence in reply to the charges levelled against him. An enquiry was conducted in which he took part and before the Enquiry Officer also he admitted having committed the various acts of misconduct alleged against him, but raised the plea that he has not committed any criminal offence by such activity. The Enquiry Officer found the petitioner guilty of the charges levelled against him. Based on the findings of the Enquiry Officer, by Ext.P2 order dated 24-6-1995 the Deputy General Manager in the Zonal Head Office removed the petitioner from service. The petitioner thereupon filed an appeal before the General Manager which was rejected by O.P.No.1503 of 1998 -:2:- Ext.P5 order dated 21-9-1995. He thereafter moved the Chairman and Managing Director of the bank by Ext.P6. The said representation was rejected by Ext.P7 order dated 25-11-1995. Exts.P2, P5 and P7 are under challenge in this writ petition. 2. Simultaneous with the disciplinary action a criminal case was also registered against the petitioner and the customer of the bank. The case was investigated by the Central Bureau of Investigation which filed final report in the Court of the Special Judge (SPE/CBI) II, Ernakulam. Based on the final report the petitioner was prosecuted in C.C.No.47 of 1998. It was while the said criminal case was pending that the petitioner was removed from service and the order removing him from service was upheld by the appellate authorities. Long afterwards, by Ext.P10 judgment delivered on 20-6-2007 the Court of the Special Judge (SPE/CBI) II, Ernakulam aquitted the petitioner and the other accused holding that the prosecution has failed to prove the allegations against them. The court below also held that the accused are entitled to be extended the benefit of doubt. Relying on Ext.P10, Sri.S.P.Aravindakshan Pillai, learned counsel appearing for the petitioner contended that in view of the finding of the competent criminal court on the various items of charges which formed the basis of the petitioner's removal from service, the orders impugned in this O.P.No.1503 of 1998 -:3:- writ petition are liable to be set aside. The learned counsel relied on the decision of the Supreme Court in Tank v. State of Gujarat, 2006 (3) KLT 514 (SC) in support of the said contention. 3. Per contra, the learned counsel appearing for the respondents submitted with reference to Ext.R1(b) proceedings of the Enquiry Officer that the petitioner had not filed a written statement of defence denying the allegations levelled against him and that before the Enquiry Officer he had admitted all the allegations in the statement of allegations with the rider that even if the said allegations are proved they will not establish the criminal charges under Sections 120-B, 420, 468, 471, and 477-A IPC and 13(2) read with 13(11)(d) of the Prevention of Corruption Act, 1988. The learned counsel submitted that the degree of proof required in a criminal case is proof beyond doubt while in a disciplinary action the strict rules of evidence do not apply and that based on the probabilities and the materials available in the enquiry a finding of guilt can be arrived at. The learned counsel also submitted that the Apex Court has in a later decision in Managing Director, State Bank of Hyderabad v. P.Kata Rao, AIR 2008 SC 2146, after referring to the decision of the Apex Court in G.M.Tank v. State of Gujarat and others (2006) 5 SCC 446, held that each case must be determined on its own facts and that as the O.P.No.1503 of 1998 -:4:- petitioner had admitted having committed the alleged acts of misconduct, no further proof in that regard was necessary and therefore, the disciplinary authority was right in finding him guilty of the charges and terminating his service. The learned counsel also submitted that the said principle could not have been applied to the criminal case where the burden was on the prosecution to prove the charges beyond doubt and that the mere fact that the prosecution had failed to prove the criminal charges cannot vitiate the findings of the Enquiry Officer. 4. I have considered the rival submissions made at the Bar by the learned counsel on either side. It is evident from the materials on record that the petitioner had admitted the various charges levelled against him in Ext.R1(a) memo of charges and the statement of allegations of misconduct. He in fact conceded before the Enquiry Officer that he had committed the acts complained of subject to the rider that such acts do not constitute the commission of any criminal offence. In view of the admission made by the petitioner the Enquiry Officer found him guilty. The management accepted the finding of the Enquiry Officer and removed him from service. The said finding was upheld by the higher authorities. Therefore, the mere fact that he was acquitted in the criminal case which arose out of the same transaction O.P.No.1503 of 1998 -:5:- cannot be relied on to hold that the enquiry against the petitioner is in any way vitiated. As noticed by the Apex Court in Managing Director, State Bank of Hyderabad v. P.Kata Rao (supra) the degree of proof required in a departmental proceeding and in a criminal proceeding is different. In the instant case it was because of the admission of guilt by the petitioner that he was found guilty in the disciplinary enquiry. He was however, acquitted in the criminal case for the reason that the prosecution failed to prove the charge levelled against him. In such circumstances I am of the considered opinion that the petitioner cannot take advantage of the acquittal in the criminal case to contend that the order removing him from service is liable to be set aside. 5. I do however note that even after detailed investigation by the Central Bureau of Investigation, the charge against the petitioner that he had committed the offences punishable under Sections 120-B, 420, 468, 471, and 477-A IPC and 13(2) read with 13(11)(d) of the Prevention of Corruption Act, 1988 could not be proved. The court below has in Ext.P10 judgment categorically found that there was no criminal conspiracy between the accused and that the prosecution has failed to prove cheating and falsification of accounts. The court below has also found that the banking transactions to which the petitioner O.P.No.1503 of 1998 -:6:- was a party were not dishonest transactions with fraudulent intentions. In such circumstances, having regard to the observations in Ext.P10 judgment, I am of the opinion that the respondents should consider whether the decision removing the petitioner from service should be reconsidered. I accordingly dispose of the writ petition with the observation that in the event of the petitioner filing an appropriate representation before the Chairman and Managing Director of the first respondent bank enclosing a copy of Ext.P10 judgment, the Chairman and Managing of the first respondent bank shall consider the same, if necessary, by placing it before the Board and take an appropriate decision in the matter expeditiously and in any event within three months from the date of receipt of such a representation. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.1503 of 1998 ---------------------------- JUDGMENT 1st June, 2010