T.Devan v. Assistant General Manager (Operations), State Bank of India, No.86, Rajaji Salai, Chennai-600 001

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.17580 of 2009and M.P.NO.1 OF 2009T.Devan... Petitioner Vs.1.Assistant General Manager (Operations), State Bank of India, No.86, Rajaji Salai, Chennai-600 001.2.The Assistant General Manager, (Administrations), Disciplinary Authority, State Bank of India, No.86, Rajaji Salai, Chennai-600 001. ... RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamusdirecting the respondents to defer the departmental enquiry incharge memo Dis/Con/387, dated 22.01.2009, to be conducted by thesecond respondent pending investigation in the criminal complaintpending on the file of SPE, CBI, ACB Shastri Bhavan, Chennai 600006 on 29.2.2008 at 4.30 PM and the same has been registered in RCMA1 of 2008 A 0012.For Petitioner : Mr.S.AnanthanarayananORDERThe petitioner joined the service of respondent Bank on10.8.1981 in the clerical cadre. The said appointment was given tothe petitioner on compassionate ground on account of death of hisfather. 2.While the petitioner was working as a Special Assistantin the Elephant Gate Branch, was placed under suspension by anorder, dated 11.1.2008. Subsequently, a charge memo, dated12.1.2008 was framed against him. The petitioner was also directedto make good the loss for which he was responsible for a sum ofRs.52,44,400/-, which was found missing from the ATM. Thepetitioner gave his explanation. Thereafter, a specific charge wasframed against the petitioner on 22.1.2009. An enquiry was directed https://hcservices.ecourts.gov.in/hcservices/ to be conducted by the Branch Manager, Anna Nagar. The petitioner,by a letter, dated 10.2.2009 sought for clarification in terms ofMemorandum of Settlement, dated 10.4.2002 as to whetherdisciplinary proceedings can be proceeded with when the case waspending investigation by the CBI. 3.In the meanwhile, the petitioner was directed to appearfor an enquiry on 22.1.2009. The petitioner in these circumstancesmoved this court with the present writ petition stating that sincethe charge memo as well as the complaint lodged by the CBI whichwas found registered as FIR, dated 29.2.2008 for offences underSections 120-B, 409 IPC r/w Sections 13(2) r/w 13(1)(d) ofPrevention of Corruption Act are one and the same, the domesticenquiry should be postponed. After pointing out that the criminalcase as well as the departmental charge sheet were based upon thesame set of facts and if an enquiry is conducted, he will beprejudiced. 4.The learned counsel for the petitioner also placedreliance upon the judgment of this Court in Bojan Vs. State byInspector of Police, Crime Branch reported in I-1989 (1) Crimes 4.In that that, this court directed that after the launch of criminalprosecution, proceeding with a domestic enquiry was frivolous andwill be vitiated. The said judgment cannot be a good law in thelight of the subsequent pronouncements of the Supreme Court on thevery same issue. 5.The Supreme Court vide its judgment in Commr. of Policev. Narender Singh reported in (2006) 4 SCC 265 held in paragraphs12 to 14 as follows:"12. It is not in dispute that thestandard of proof required in recording afinding of conviction in a criminal case and ina departmental proceeding are distinct anddifferent. Whereas in a criminal case, it isessential to prove a charge beyond allreasonable doubt, in a departmental proceedingpreponderance of probability would serve thepurpose. (See Kamaladevi Agarwal v. State ofW.B.1) 13. It is now well settled by reason ofa catena of decisions of this Court that if anemployee has been acquitted of a criminalcharge, the same by itself would not be aground not to initiate a departmentalproceeding against him or to drop the same inthe event an order of acquittal is passed.14. In Manager, Reserve Bank of India v. S.Mani, this Court held: (SCC p.109, para 12)“12. It is trite that a judgment of acquittalpassed in favour of the employees by giving https://hcservices.ecourts.gov.in/hcservices/ benefit of doubt per se would not be bindingupon the employer.”[See Bank of India v. Degala Suryanarayana(1999)5 SCC 762; Ajit Kumar Nag v. G.M. (PJ),Indian Oil Corpn. Ltd.(2005) 7 SCC 764]6.Even otherwise, that case does not help the present case,since there is no acquittal by a criminal court. 7.As to whether the enquiry should be stayed pendingcriminal case came to be considered by the Supreme Court in respectof very same State Bank of India case vide State Bank of India v.R.B. Sharma reported in (2004) 7 SCC 27. In paragraphs 7,8 and 11,the Supreme Court held as follows: 7. It is a fairly well-settled positionin law that on basic principles proceedings incriminal case and departmental proceedings can goon simultaneously, except where departmentalproceedings and criminal case are based on thesame set of facts and the evidence in both theproceedings is common.8. The purpose of departmental enquiryand of prosecution are two different and distinctaspects. Criminal prosecution is launched for anoffence for violation of a duty the offender owesto the society, or for breach of which law hasprovided that the offender shall makesatisfaction to the public. So crime is an act ofcommission in violation of law or of omission ofpublic duty. The departmental enquiry is tomaintain discipline in the service and efficiencyof public service. It would, therefore, beexpedient that the disciplinary proceedings areconducted and completed as expeditiously aspossible. It is not, therefore, desirable to laydown any guidelines as inflexible rules in whichthe departmental proceedings may or may not bestayed pending trial in criminal case against thedelinquent officer. Each case requires to beconsidered in the backdrop of its own facts andcircumstances. There would be no bar to proceedsimultaneously with departmental enquiry andtrial of a criminal case unless the charge in thecriminal trial is of grave nature involvingcomplicated questions of fact and law. Offencegenerally implies infringement of public duty, asdistinguished from mere private rights punishableunder criminal law. When trial for criminaloffence is conducted it should be in accordancewith proof of the offence as per the evidencedefined under the provisions of the Indian https://hcservices.ecourts.gov.in/hcservices/ Evidence Act, 1872 (in short “the Evidence Act”).Converse is the case of departmental enquiry. Theenquiry in a departmental proceeding relates toconduct or breach of duty of the delinquentofficer, to punish him for his misconduct definedunder the relevant statutory rules or law. Thatthe strict standard of proof or applicability ofthe Evidence Act stands excluded is a settledlegal position. Under these circumstances, whatis required to be seen is whether thedepartmental enquiry would seriously prejudicethe delinquent in his defence at the trial in acriminal case. It is always a question of fact tobe considered in each case depending on its ownfacts and circumstances........11. There can be no straitjacket formulaas to in which case the departmental proceedingsare to be stayed. There may be cases where thetrial of the case gets prolonged by the dilatorymethod adopted by the delinquent official. Hecannot be permitted to, on one hand, prolongcriminal case and at the same time contend thatthe departmental proceedings should be stayed onthe ground that the criminal case is pending.8.Thereafter, the Supreme Court once again in IndianOverseas Bank, Anna Salai and another Vs. P.Ganesan and othersreported in 2007 (5) CTC 632 in paragraphs 20 and 21 held asfollows:"20. ...What was necessary to benoticed by the High Court was not onlyexistence of identical facts and the evidencein the matter, it was also required to takeinto consideration the question as to whetherthe charges levelled against the delinquentofficers, both in the criminal case as also thein disciplinary proceedings, were same.Furthermore it was obligatory on the part ofthe High Court to arrive at a finding that thenon-stay of the disciplinary proceedings shallnot only prejudice the delinquent officers butthe matter also involves a complicated questionof law.21. The standard of proof in adisciplinary proceedings and that in a criminaltrial is different. If there are additionalcharges against the delinquent officersincluding the charges of damaging the propertybelonging to the Bank which was not thesubject-matter of allegations in a criminalcase, the departmental proceedings should nothave been stayed." https://hcservices.ecourts.gov.in/hcservices/

9.In the light of the above, the writ petition ismisconceived. Accordingly, the writ petition will stand dismissed.However, there will be no order as to costs. Consequently, theconnected MP also stands dismissed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarvvkTo1.The Assistant General Manager (Operations), State Bank of India, No.86, Rajaji Salai, Chennai-600 001.2.The Assistant General Manager, (Administrations), Disciplinary Authority, State Bank of India, No.86, Rajaji Salai, Chennai-600 001. W.P.NO.17580 OF 2009SR (CO)SRA 02/11/2009