STATE BANK OF INDIA & Ors. v. NEELAMNAG

Accused La.xman Ratre not oresent Accused Neelam Na11 not oresent Prosecution witnesses not nresent Accused nersons not 11rcsent ADPO not nrcscnt Documents Anmments · Annlication for bail Receiving of demand letter Case Diarv sent to the Magistrate Receiving of Diarv Court holiday Strike of Advocates Service of conv of the case Change of charges Time sought by the Advocates of accused nersons Presiding Officer on leave Transfer of Presidio!!: Officer Reply Keeping current status Evidence Case sent to copying deoartment Issuance of instruction regarding case hand-over Receivin!! of case on transfer Framing of charges Order . TOTAL= 06 14 IO 05 23 07 05 07 06 05 04 03 02 01 01 01 05 03 04 04 10 03 01 01 01 01 133DAYS A B c D E F G H STATE BANK OF INDIA & ORS. v. NEELAM NAG [A.M. KHANWILKAR, J.] 289 I 0. It is further submitted that the perusal of the Court proceedings A reveal the dates on which, the prosecution witness were present and the outcome on that date :

30.06.2007

02.07.2007

18.07.2008 Prosecution witnesses Joy C. Aryakara and Pushpk'ala present in Court, however, since the matter was fixed for 02.07.2007, they were asked B to come again on that date. The above 2 prosecution witnesses were present, however, they could not examined due to non- availability of case diary and seized documents. prosecution witness Pushpkala present in Court c however, she could not be examined since the Ld. Presiding Officer was on leave.

09.03.2009 . Prosecution witness Pushpkala present in Court however, she could not be examined.

08.10.2010

22.07.2011

15.09.2011

24.09.2011 Prosecution witnesses Joy C. Aryakara and Ms. Pushpkala present in Court, however, they couid not be examined since co-accused Laxman Ratre was not present nor any advocate appeared on his behalf. D E Prosecution witness Pushpkala was examined Prosecution witness Joy C. Aryakara also present in Court however, the defence refused to cross-examine on the ground of non- availability of certain bank documents. This prosecution witness was therefore could not F be cross-examined. prosecution witness K.G. Goswami present in Court however, the examination could not take place due to absence of accused /respondent No.1 Neelam Nag. Prosecution witnesses KG. Goswami and N. Chandrashekhar present. in Court. The CO" accused Laxman R>atre is absent. Witness N. Chandrashekhar ~ould not be examined due to non-availabilityof some documents. G H 290 SUPREME COURT REPORTS [2016] 5 S.C.R. A

04.11.2011

01.09.2012

03.09.2015

02.11.2015 Witness N. Chandrashekhar present. The examination could not take place due to non availability of certain documents. Prosecution witness A.S. Jitendra present in Court. The accused I Respondent No.1 Neelam Nag was absent, however, at the request of his Counsel, the examination ·of prosecution witness was deferred. Prosecution witness Ramesh Kumar present in Court. The accused Neelam Nag was absent. Examination of witness did not take place. Prosecution witness Ramesh Kumar Present. The accused Neelam Nag was absent. Examination of witness did not take place.

11. It is submitted that 3 prosecution witnesses have been examined. The delay in completion of trial is due to reasons mentio~ed in the above paras." Relying on these facts, the appellants contend that no further indulgence can be shown to the respondent and the protection given to the respondent by the High Court should be vacated keeping in mind the exposition in the above mentioned reported decision. As regards the argument of the respondent that the disciplinary proceedings must be suspended in view of Clause 4 of the Memorandum of Settlement dated I om April 2002, arrived at by the Management of 52 'A' Class Banks as represented by the Indian Banks' Association and their workmen under Section 2(p) and Section 18( I) of the Industrial Disputes Act, that cannot be considered as a legal bar atleast in the fact situation of the present case. The interpretation of Clause 4 of the said settlement, as put forth by the appellant, would further the cause of justice and in particular larger public interest, 9onsidering the fact that thte misconduct is in relation to embezzlement of substantial amount by an employee of the public sector bank- which has caused financial loss not only to the bank but resultantly to the public exchequer. It is in the interest of all concerned that the action, as permissible in law, must be taken forward in connection with the gross misconduct and the provision in the Memorandum of Settlement such as Clause 4 can,not be treated as an impediment thereto. Any other interpretation of Clause 4 of the Settlement would be against public policy B c D E F G H STATE BANK OF INDIA & ORS. v. NEELAM NAG [A.M. KHANWILKAR, J.] -- and also encouraging unscrupulous employees of the bank to stall the disciplinary proceedings by taking advantage ofthi;; pending criminal case, which is an independent action in law. The respondent being named as an accused in the criminal case; and also responsible for prolonging the trial of the criminal case, cannot be permitted to take advantage_ of her own wrong.

7. The respondent, on the other hand, supported the view taken by the High Court and contends that, in view of Clause 4 of the Memorandum of Settlement and the settled legal position, the disciplinary proceedings must be put on hold atleast until the recording and closure of evidence of prosecution witnesses in the criminal case, as directed by the Division Bench. That is essential because the charge framed against the respondent in the criminal case and the charge-sheet issued by the disciplinary authority against the respondent is based on the same set of facts. The defence of the respondent in disciplinary proceedings may cause serious prejudice to the respondent in the criminal case. According to the respondent, in view of the complexity of the facts and the evidence necessary to substantiate the same, it is advisable and essential to protect the respondent from being exposed to disclosure of her defence which may be identical to one to be taken in the criminal case or (or that matter compel her to depose against herself on those facts ... ___ _

8. We have heard the learned counsel for. the parties at some length. The only question.that arises for consideration, is no more res integra. lt is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in series of decisions. This Court in Karnatakii SRTC vs. M.G Vittal Rao2 has sm~med up the same in the following words: 291 A B c D E F "(i) There is no legal bar for both the proceedings to go on · simultaneously. (ii) The only valid ground for claiming that the. disciplinary · G proceedings may be stated woulii be to ensure that the defence · of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex questions of facts or law. 2 (2012) 1 sec 442 H 292 SUPREME COURT REPORTS [2016) 5 S.C.R. A B c D E F G H (iii) Such defence ought not to be pennitted to unnecessarily delay the departmental proceedings. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinru:y proceedings. (iv) Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common." (emphasis supplied)

9. The recent decision relied by the appellant in the case ofStanzen (supra), has adverted to the relevant decisions 3 including the case of M.G Vittal Rao (supra). After adverting to those decisions, in paragraph 16, this Court opined as under: "16. Suffice it to say that while there is no legal bar to the holding of the disciplinary proceedings and the criminal trial simultaneously, stay of disciplinary proceedings may be an advisable course in cases where the criminal charge against the employee is grave and continuance of the disciplinary proceedings is likely to prejudice their defence before the criminal Court. Gravity of the charge is, however, not by itself enough to determine the question unless the charge involves complicated question oflaw and fact. The Court examining the question must also keep in mind that criminal trials get prolonged indefinitely especially where the number of accused arraigned for trial is large as is the case at hand and so are the number of witnesses cited by the prosecution. The Court, therefore, has to draw a balance between the need for a fair trial to the accused on the one hand and the competing demand for an expeditious conclusion of the ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest ofthe employees." (emphasis supplied)

10. The Court then went on to examine the facts of that case and observed in para 18 as follows: