Sunday 24 July 2016

Whether court should stay departmental enquiry pending criminal trial?

Having once noted the fact and circumstances so recorded above
and   also   the   fact   that   the   Petitioner   has   actually   participated   in   the
departmental inquiry and the departmental proceedings are complete, there
is   no   question   of   defence   of   the   Petitioner   of   criminal   charge   being
prejudiced.  The Department  as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The   criminal   proceedings,   even   if   are   pending,   need   to   proceed   in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available.   The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry   prior   to   his   retirement.     We   see   no   reason   to   stay   further   the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based

upon the concluded inquiry.   There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement.  This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12828 OF 2015
Mr.Subhash Jina Kamble ....Petitioner
Vs.
Dena Bank ...Respondent

              CORAM  :    ANOOP V. MOHTA & 
     A.A.SAYED, JJ.
     DATED   :    5 APRIL 2016
Citation:2016 (3) ALLMR 849

Rule. Returnable forthwith. Heard finally by consent of parties.
2. The   Petitioner   invoked   the   jurisdiction   of   Article   226   of   the
Constitution of India by filing the present Writ Petition on 3 December 2015
thereby   praying   to   stay   the   departmental   inquiry   initiated   by   the
Respondent, pending the criminal case before the Addl.Chief Metropolitan
Magistrate   Court,   Kurla   Court   vide   CC­629/PW/12   and   before   the
Addl.Chief Metropolitan Magistrate Court, Dadar ­ also on the foundation
that the Petitioner is about to retire on 31 May 2016.

3. The Petitioner’s case can be crystallized as per the synopsis as
under:
The Petitioner was working as a cashier at Govandi branch of the
Respondent­Bank.   On 4 January 2013, it was inter alia reported that the
Petitioner collected cash from single lock and double lock from the safe and
brought to cash cabin bit did not make entries in Double Lock Register
mentioning how many bundles or cash was withdrawn from Double Lock
Safe and also failed to take signatures of officers. Then the Petitioner himself
reported   shortage   of   cash   to   the   extent   of   Rs.13,48,100/­   from   the
safe/locker at Govandi branch of the Respondent­Bank.
4. A suspension order dated 5 January 2013 was issued against the
Petitioner for the above misconduct.  An FIR was lodged on 22 January 2013
with Govandi Police Station regarding shortage of cash at Govandi Branch of
Respondent.   The   Petitioner   was   arrested   by   the   Govandi   Police   on   4
February 2013 on the charge of committing an offence under section 409
and section 34 of Indian Penal Code, 1860.  The Petitioner moved for a Bail
Application before the Sessions Court, Mumbai, which was  rejected by the
Court.  Thereafter, the bail was granted to the Petitioner by this Court vide
order dated 16 April 2013. The Police also filed FIR in C.C.No.629/13 before
the 11th  Addl.Chief Metropolitan Magistrate Court, Kurla.   The Petitioner

was, thereafter, given  a  show cause  notice  bearing reference  No.MSZOAGM:DA:21:2013
dated 22 November 2013 for negligence in performance
of his duty as an officer of the Bank.   The Petitioner filed Reply dated 4
December 2013 denying the charges and allegations made. On 26 December
2013,   vide   a   memorandum,   the   Disciplinary   Authority   revoked   the
suspension of the Petitioner ­ posted him at Matunga branch.
5. Since the Reply of the Petitioner to the show cause notice was not
satisfactory,   a   charge   sheet   dated   2   January   2014   was   issued,   which
enumerated   the   misconducts   of   the   Petitioner.   On   10   March   2014,   a
memorandum   was   issued   by   the   Disciplinary   Authority   appointing
Mr.A.G.Zade   as   presiding   officer   and   Mr.S.S.More   as   Inquiry   officer.
Mr.S.S.More, after being appointed as an Inquiry Officer issued a letter dated
11 April 2014 to the Petitioner intimating the date of commencement of
inquiry proceedings. The detailed enquiry was conducted following the due
process of law and the Petitioner was given adequate chance to represent
himself before the inquiry officer. The Petitioner had fully participated in the
inquiry   and   was   represented   by   the   representative   of   his   choice.
Representations were made by both the parties and the witnesses have also
been examined during the course of enquiry. On 4th  September, 2014 the
defense representative of the Petitioner filed his written arguments with the

Disciplinary   Authority.   The   inquiry   officer   concluded   the   inquiry   and
submitted his findings to the disciplinary authority vide letter dated 16th
November, 2015 and the copy of the findings of the inquiry officer was given
to the Petitioner.
6. Pursuant to the receipt of findings given by inquiry officer, the
Petitioner filed his written submissions dated 17th December, 2015 with the
Disciplinary Authority. The Disciplinary Authority, after the analyzing the
submissions of the Petitioner, vide Memorandum dated 19th  December 2015
issued a show cause notice on punishment. The memorandum also provided
the   details   of   the   personal   hearing   granted   to   Petitioner   against   the
memorandum issued by the Disciplinary Authority. The Petitioner vide letter
dated 23rd  December, 2015 informed the Disciplinary Authority regarding
filling of this writ petition and seeking an adjournment to make submissions
at personal hearing. Personal hearing was held on 7th  January 2016. The
Petitioner has made his representation before the Disciplinary Authority.
7. Following judgments are relevant for consideration as cited, read
and referred by the Counsel in support of their rival contentions. These
judgments are as under:
(i) Stanzan Toyoetsu India Pvt. Ltd. v/s Girish V & Ors.1
1  (2014) 3 SCC pg. 636.

(ii) Baljinder Pal Kaur v/s State of Punjab & Ors.2
(iii)State of Maharashtra v/s. Raju Vishwanath Bhushanwar3
(iv)Dev Prakash Tewari v/s. Uttar Pradesh Co­operative 
      Institutional Service Board, Lucknow and ors4
The Petitioner has relied upon the judgment of the Supreme Court
in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd.5
8. Learned Senior Counsel appearing for the Respondent resisted the
case in all respect by distinguishing the judgment cited by the Petitioner
(Capt.M.Paul Anthony)  (supra) and also placed on record the judgments
(supra) in support of his submissions, basically on the background that the
Respondent has already completed the  departmental inquiry and the same
is pending for final hearing/disciplinary order. The Show Cause Notice is
now also given to the Petitioner based upon the Inquiry Report informing
why future action should not be initiated against the Petitioner.
9. It is a settled position in law that both the Departmental Enquiry
and Criminal Complaint can proceed together; and that even if a delinquent
is acquitted in criminal proceedings, the Disciplinary Authority can take its
2  (2016) 1 SCC pg. 671
3 2015 SCC OnLine Bom 6536
4  (2014) 7 SCC 260
5   MANU/SC/0225/1999

own   course   and   punish   the   guilty   as   per   the   terms   and   regulations.
[Stanzan Toyoetsu India Pvt. Ltd. (supra)]. Learned Counsel submitted
that even after acquittal in the criminal trial, the employer can proceed
departmentally   as   standard   of   proof   in   criminal   trial   and   departmental
proceedings are different. [Baljinder Pal Kaur (supra)]. These Judgments
have taken notice of earlier Supreme Court Judgments also.
10. The   Petitioner   has   actively   participated   in   the   Departmental
Inquiry   before   the   Inquiry   Officer   and   was   represented   by   the   Defence
Representative of his choice. The departmental proceedings are completed
and therefore there is no question of the defense of the Petitioner in criminal
trial being prejudiced. The charges under the Departmental Inquiry and
under the Criminal Complaint though are inter­connected but shall no way
affect the outcome of each other in every matter. The Petitioner retires on
31st  May, 2016 after which Disciplinary Authority cannot take any against
him   even   after   finding   him   guilty   under   the   Departmental   Inquiry   is
additional   factor   against   the   Petitioner.   [Dev   Prakash   Tewari   v/s.   Uttar
Pradesh Co­operative Institutional Service Board, Lucknow and ors.(supra)]

11.  In   the   present   case,   admittedly     departmental   inquiry   was
conducted   after   giving   full   opportunity   to   the   Petitioner.   The   Petitioner
participated   without   any   objection   pending   the   criminal   proceedings   so
referred above. The law is well settled that the criminal proceedings as well
as  departmental inquiry can run simultaneously.  Having once acted upon
the same, now at this stage merely because main criminal proceeding is
pending (out of two criminal proceedings, in other proceeding on different
issue he was acquitted) that itself in our opinion cannot be the reason to
stay the further course of action, after completion of departmental inquiry,
particularly when he has already led evidence and disclosed his case and
defence and basically before the Department.  A criminal proceedings, even
if pending, should not be a reason in view of the above settled position in
the present facts and circumstances.
12. It is settled that such disciplinary proceedings should not be stayed
to this extent that the Department would not be in a position to pass any
final order based upon the completed inquiry, once the Petitioner retires.
Admittedly, the Petitioner is about to retire on 31 May 2016. Though the
matter was filed on 3 December 2015, we have not granted stay of the
departmental proceedings, except that the final order would not be passed
as recorded through a statement.

13. Having once noted the fact and circumstances so recorded above
and   also   the   fact   that   the   Petitioner   has   actually   participated   in   the
departmental inquiry and the departmental proceedings are complete, there
is   no   question   of   defence   of   the   Petitioner   of   criminal   charge   being
prejudiced.  The Department  as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The   criminal   proceedings,   even   if   are   pending,   need   to   proceed   in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available.   The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
14. In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry   prior   to   his   retirement.     We   see   no   reason   to   stay   further   the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based

upon the concluded inquiry.   There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement.  This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
15. The Petition is accordingly dismissed. The statement made by the
learned Counsel for the Respondent stands vacated.  No costs. 
(A.A. SAYED, J.)   (ANOOP V. MOHTA J.)

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