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VIJAY SWAROOP SAXENA versus ALIGARH GRAMIN BANK & OTHERS

High Court of Judicature at Allahabad

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Vijay Swaroop Saxena v. Aligarh Gramin Bank & Others - WRIT - A No. 21728 of 2006 [2006] RD-AH 8377 (25 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Reserved

Civil Misc. Writ Petition No. 21728 of 2006

Vijay Swaroop Saxena

Versus

Aligarh Gramin Bank and another

Hon'ble V.K. Shukla, J.

Present writ petition has been filed by petitioner questioning the validity of order dated 14.02.2006 passed by General Manager/Disciplinary Authority, Aligarh Gramin Bank, Aligarh refusing to accept request of petitioner to stay departmental proceedings till criminal trial is concluded.

Brief background of the case is that various irregularities qua withdrawal of amount from different accounts committed by the petitioner had been detected by the Bank, and departmental enquiry qua the same was sought to be initiated vide charge sheet dated 13.09.2004. An F.I.R. had also been lodged against petitioner on 09.10.2004 under Sections 409 and 420 I.P.C. In the said criminal case after investigation charge sheet has been filed before the court of Judicial Magistrate, Atrauli, District Aligarh being case No. 49 of 2005, State vs. Vijay Swaroop Saxena. The Criminal court has taken cognizance of the said offence. Petitioner approached this Court by means of writ petition No.76296 of 2005 for stay of departmental proceeding. This Court on 16.12.2005 dismissed the aforementioned writ petition, however left it open to the petitioner to move an application before the Disciplinary Authority making such request, and if such prayer was made, the same was to be considered and decided in accordance with law. Pursuant thereto an application was made by petitioner on 20.01.2006, and the said application has been rejected. At this juncture present writ petition has been filed.

Sri V.K. Srivastava, learned counsel for the petitioner, contended with vehemence that in the present case claim of petitioner for staying departmental proceeding has been arbitrarily turned down, whereas criminal case and departmental proceedings are based on identical and similar set of facts and the charge in criminal case as well as departmental proceeding raises complicated question of fact and law, as such it was desirable to stay the departmental proceedings, and as the same has not been done, impugned order is liable to be quashed and set aside.

Ms. Rohma Hameed, holding brief of Sri Yashwant Verma, Advocate, on the other hand, countered the said submission by contending that the impugned order in question clearly reflects that charges in charge sheet are not altogether identical and even the full text of charge sheet has not been appended and there being no bar in simultaneous initiation of proceedings, no interference be made, and writ petition is liable to be dismissed.

After the respective arguments have been advanced, the judgment of Hon'ble Apex Court in the case of Capt. M. Paul Anthony vs. Bharat Coal Mines Ltd. AIR, 1999 SC 1416 is being looked into. In the aforementioned judgment the Hon'ble Apex Court  after taking into account various earlier judgments has held that departmental proceedings and proceedings in criminal case can proceed simultaneously, as there is no bar in their being conducted simultaneously, though separately. It has been further held that if the departmental proceedings and criminal case are based on similar set of facts and charges in criminal case against delinquent employees is of grave nature which involves complicated questions of fact and law, it would be desirable to stay the departmental proceedings till conclusion of criminal case. Whether complicated questions of fact and law are involved or not will depend  upon the nature of the offence, and the case lodged against the employee on the basis of evidence and material collected during the investigation or as reflected in the charge sheet, and these facts are not to be considered in isolation but due regard has to be given to the fact that departmental proceedings cannot be unduly delayed. Thus, if complicated questions of fact and law are involved, and departmental proceedings  and criminal case are based on identical and similar set of facts, only then it is desirable to stay the departmental proceedings, but the said facts are not to be considered in isolation.  Paragraph 22 of the judgment being relevant is being quoted below:

"22.   The conclusions which are deducible from the various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in 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 charge in criminal case against delinquent employees 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 criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and complicated questions of fact and law are involved in that case will depend  upon the nature of the offence, the nature of case launched against the employee on the basis of evidence and material collected against him  during the 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 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 pendency of 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."  

Now the facts of the present case are to be seen. Here the charge sheet  for initiation of departmental disciplinary proceeding had been issued on 13.09.2004 leveling charge in respect of failure on the part of petitioner in performance of his duties with honesty and integrity. F.I.R. had been lodged subsequent to the same, and thereafter charge sheet has been filed under Section 409 and 420 I.P.C., for criminal breach of trust and cheating. Hon'ble Apex Court in paragraphs 13 and 14 of its judgment in  the case of Chairman-cum-M.D. T.N.C.S. vs. K. Meerabai, J.T. 2006 (1) SC 445, did not approve the view of High Court while concluding that both the criminal case in the court of C.J.M. and departmental enquiry were based on identical facts and charges. Paragraphs 13 and 14 being relevant are quoted below:

"13.We are unable to countenance the view and impression taken by the learned single Judge. In our view, the single Judge has misdirected herself in reaching the erroneous conclusion that both  the criminal case in the court of C.J.M. and departmental enquiry were based on identical facts and charges.

14.She has lost sight of the fact that the criminal case instituted against the respondent in the court of C.J.M. was in respect of the offence under Section 409 I.P.C. (criminal breach of trust) and falsification of accounts punishable under Section 477A I.P.C., whereas respondent herein was charged in respect of departmental enquiry for her failure to maintain prescribed records for issue of a stock and for swindling the Corporation in collusion with the other members of the staff through mis-appropriation of stock and cash of the Corporation thereby causing huge loss to the Corporation to the tune of more than Rs. 9.00 lacs."

Here also petitioner has been charged in departmental enquiry for failing to execute and perform the duties with honesty and integrity, thus committing gross misconduct by contravening Regulations 17 and 19 read with  Regulation 38 of Chapter IV of Aligarh Gramin Bank (Officers and Employees) Service Regulations, 2000, whereas in criminal case, petitioner has been charged with Section 409 I.P.C. (criminal breach of trust); Section 420 I.P.C. (cheating). Consequently, in the present case also, it cannot be said that criminal case and departmental enquiry both are based on identical facts and charges, and the very first reason indicated by Respondent Bank, while refusing to accept the request of petitioner is based on said conclusion.

Apart from this, in the functioning of Banks, the position of an incumbent is of  trust and it is expected that high level of honesty/integrity would be reflected.  Complicated questions of fact and law cannot said to be  involved when enquiry is to be made qua performance of duties by incumbent with honesty and integrity in matters concerning banks, inasmuch as, here each and every transaction is documented and in black and white and each and every incumbent is responsible for discharging duties assigned to him. As to whether a particular incumbent has discharged/performed his duties with honesty and integrity cannot be termed to be a question involving complicated questions of law and fact in respect of performance of duties with honesty and integrity. In such a situation even if criminal case has  been lodged based more or less on same set of facts and charge sheet has been filed in criminal court and the court has taken cognizance of the matter, the same will not preclude the Bank from proceeding and taking departmental action, inasmuch as it would be  in the interest of Bank to get rid of such an employee at the earliest, who has allegedly breached the trust. In State Bank of India  vs. R.B. Sharma, AIR 2004 SC 4144, Hon'ble Apex Court has held that purpose of departmental enquiry and of criminal prosecution are two different aspect. Criminal prosecution is launched for an offence for violation of duty, which the offender owes to the society. Departmental enquiry is to maintain discipline in service and efficiency of a public servant. Objective and scope of criminal prosecution and departmental proceedings are quite distinct and different, and even the standard of proof in both the proceedings are quite different.

Consequently, in the present case, authorities are not at all in error in refusing to stay the disciplinary proceedings. Writ petition is dismissed.

25.04.2005

SRY.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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