- (1.) Heard Sri Nigamendra Shukla, learned counsel for the petitioner and Sri Satish Chaturvedi, learned counsel appearing for the respondent-Bank.
(2.) The petitioner assails an order of dismissal dated 17 September 2012. A challenge is also laid to the order passed by the Appellate Authority on 8 January 2013 affirming the decision taken by the Disciplinary Authority. The petitioner prays for the setting aside of the aforesaid orders and for the grant of all consequential benefits including arrears of pay from the date of dismissal till he would have attained the age of retirement on 31 May 2013. The present petition represents the second foray of the petitioner before this Court. Earlier the respondents had dismissed the petitioner on 4 December 2000. That order was challenged by way of Writ-A No. -1019 of 20021. A learned Judge of the Court by a detailed judgment allowed that writ petition and quashed the orders of dismissal and that passed by the Appellate Authority. The Court left it open for the respondents to conduct a disciplinary enquiry afresh commencing from the stage of oral enquiry and after filing of documents by the employer. The learned Judge while allowing the writ petition noted that out of the 22 charges which were levelled against the petitioner, Charges (vii) to (xxii) also formed part of a criminal prosecution that was launched against the petitioner and in which he had been ultimately acquitted. Noticing the similarity in the charges that formed part of the departmental enquiry and the criminal prosecution, the learned Judge observed thus: "43.The technical difference in charge was not relevant but what was relevant is that the charges are based on the same set of facts. It has been admitted by respondents that charges no.7 to 22 are based on the same facts as were involved in criminal case pending against petitioner. In this case, besides the general principles of law, as discussed above, statutory provision binding upon both the parties also contemplate that departmental enquiry shall stand deferred when criminal proceedings commenced but the said provision has been given a complete go by. I am therefore constrained to hold that continuance to proceed with the departmental enquiry in respect to charges no.7 to 22 in this matter was not legal and valid and besides the exposition of law, as laid down in Noida Entrepreneurs Assn (supra), the same was in the teeth of para 521 of Shastry Award and to this extent, it is vitiated in law." The learned Judge then proceeding to deal with the validity of the enquiry which was held rendered the following observations: "53.The procedure prescribed in para 521 contemplates an adequate opportunity of defence. Here is not a case where the petitioner had accepted his guilt, therefore it was incumbent upon department to prove charges against the petitioner and only thereafter he could have been required to place his defence to disprove the charges. Except of filing documents before Enquiry Officer, the Presenting Officer did not take any further step for proving charges. If the charges are such which stood proved from bare perusal of documents, in such a case no formal proof or overt act on the part of the department is necessary since Enquiry Officer can peruse the documents and find out whether charges stood proved or not. In such a case onus would shift upon delinquent employee to disprove the charges. It is quite plausible and permissible but the question would be whether it is so in the case in hand. Let us examine the manner in which the Enquiry Officer had discussed the documents." Insofar as Charge No. I (iv) is concerned, the Court held thus: "58.In respect to charge no. 4 again Enquiry Officer held that to petitioner's defence "Presenting Officer did not offer any comment." "The petitioner alone cannot be held responsible for such act." Yet he has held the entire charge proved which is beyond comprehension. Once no evidence is found that there was no other officer available in the Branch to sign the draft and therefore under instructions of Branch Manager, petitioner signed the draft, unless the Bank could have shown that Bank Manager himself acted illegally, compliance of his direction by petitioner cannot constitute a misconduct on his part. Therefore, it is also difficult to hold charge no. 4 proved." It was ultimately observed by the learned Judge that the enquiry had not been conducted fairly and in a manner consistent with the principles of nature justice. The aforesaid conclusions stand recorded in paragraphs 65-66 which are extracted herein below: "65.No person from the Bank appeared and could show that signatures of petitioner on various documents were unauthorised since he was not permitted to do so. With respect to charges no. 7 to 22, on the basis of mere language of the charges contained in the charge sheet, Enquiry Officer held the same proved, since petitioner did not/could not adduce any defence for the reason that the same may cause prejudice to him in criminal proceedings pending against the charges involving same set of facts at that time. 66.In totality of the circumstances, I am clearly of the opinion that departmental enquiry, in the case in hand, has not been conducted fairly, impartially and in a manner consistent with the Principles of natural justice and also the procedure prescribed in para 521 of Shastry Award." The respondent Bank assailed the decision of the learned Judge by way of Special Appeal No. 58 of 20122. The Division Bench however recorded the statement of the respondents that they were ready to reinstate the petitioner and to hold a fresh enquiry. In light of the statement so made the appeal was disposed of on 21 March 2012 in the following terms: "Having considered the submissions advanced and in view of the statement given by the learned counsel for the parties the appeal stands disposed of with the observations that the appellant Bank would abide by the directions contained in the judgment of the learned Single Judge except to the extent that the direction for payment of the arrears of subsistence allowance for the period from the date of termination till reinstatement would remain stayed in the meanwhile and would abide by the final decision that may now be taken by the Disciplinary Authority after fresh inquiry."
(3.) Consequent to the liberty so granted, the respondents proceeded to conduct the departmental enquiry afresh. Upon conclusion of that enquiry, the Enquiry Officer in terms of his report of 27 August 2012 concluded that Charges No. I (i) to Charges No. I (iii), Charge No. I (v), Charge No. I (vi) and Charge No. II did not stand proved. He however recorded that Charge No. I-(iv) and Charge No. I (vii)-(xxii) stood proved. The Disciplinary Authority upon due consideration of that report and taking into consideration the gravity of the charges which stood levelled reiterated the original decision of the Bank and inflicted upon the petitioner the penalty of dismissal. It was further observed that the period of suspension will be treated as such and that no further salary or allowance would be payable other than the subsistence allowance already paid to the petitioner. That order of the Disciplinary Authority was affirmed in appeal where after the present writ petition came to be preferred. The order of dismissal insofar as Charges I (vii)-(xxii) are assailed principally on the basis of the judgment of acquittal which was rendered by the Criminal Court on 24 September 2002. According to the learned counsel since those charges were identical to those which formed part of the criminal prosecution, once the petitioner had been acquitted it was not open to the respondent Bank to inflict the punishment of dismissal. Insofar as Charge No. I (iv) is concerned, learned counsel submits that in light of the findings which were returned inter partes by the learned Judge on the earlier writ petition it was impermissible for the Enquiry Officer to have held the petitioner guilty of that charge. Learned counsel submits that in light of the categorical findings returned in the earlier decision that the petitioner alone could not be held responsible for the act, that charge could not have been held to be established against the petitioner. In view thereof, it was submitted that both the Disciplinary as well Appellate Authority clearly committed a manifest illegality in holding the petitioner guilty of the misconduct alleged and forming part of Charge I (iv). Insofar as the findings returned in respect of Charges I (vii)-(xxii) are concerned, they are assailed on the principles elucidated by the Supreme Court in G.M. Tank Vs. State of Gujarat. Learned counsel contends that once the charges in the criminal prosecution and the disciplinary enquiry are found to be identical, an acquittal in the criminal trial clearly denudes the respondents from the right to inflict the punishment of dismissal in respect thereof. Reliance was placed on the following principles that were laid down in G.M. Tank: "30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." ;