P.Ravikumar v. The Deputy General Manager

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17 --11--2011CORAMThe Hon'ble Mr.Justice T.S.SivagnanamWrit Petition No.26601 of 2008andM.P.No.1 of 2008P.Ravikumar...PetitionerVersus1. The Deputy General Manager, Disciplinary Authority, Indian Overseas Bank, Central Office, 763, Anna Salai, Chennai – 600 002.2. The Enquiry Officer/ Senior Manager, Indian Overseas Bank, Central Office, 763, Anna Salai, Chennai – 600 002....RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia for the issuance of Writ of Mandamus forbearing the respondentsfrom conducting the disciplinary proceedings in DO: DGM (PS) : DA :4003/2008 dated 19.02.2008, passed by the first respondent till thedisposal of the criminal case in C.C.No.264 of 2008 of 2008, on thefile of the Judicial Magistrate, Bhavani, relating to the same set offacts.For Petitioner:Mr.N.ManokaranFor Respondents:Mr.N.G.R.Prasad O R D E RThe prayer in the Writ Petition is for issuance of Writ ofMandamus to forbear the respondents-Bank from conducting thedisciplinary proceedings, pursuant to the proceedings commenced by acharge memo dated 19.02.2008, till the disposal of the Criminal Casein C.C.No.264 of 2008, pending on the file of the JudicialMagistrate, Bhavani.2. The facts which are necessary for the disposal of the WritPetition are that the petitioner joined the service of therespondents-Bank as a Messenger, during the year 1992 and thereafter, https://hcservices.ecourts.gov.in/hcservices/ promoted to the post of Cashier during the year 2004. Whileso, by anorder dated 23.07.2007, the petitioner was placed under suspension onthe ground that the disciplinary proceedings are contemplated againstthe petitioner and pending issuance of the charge sheet.Subsequently, a criminal complaint was also lodged against thepetitioner in C.C.No.12 of 2007, on the file of the JudicialMagistrate, Bhavani, for the alleged offence punishable under Section409 of Indian Penal Code ( for short "I.P.C."). The departmentalcharge memo was issued to the petitioner on 19.02.2008, containingthe following imputations:-" On 16.07.2007, while working as Cashier atPoonachi Branch, you had arrived the closing cashbalance as Rs.10,70,932/- ( hand balance Rs.31,392/-and Vault Balance Rs.10,39,000/-) whereas, whilechecking the closing cash, the Branch Manager, ShriT.Rajendran, found that the actual closing cash wasonly Rs.711432/- ( Vault Balance RS.6,79,000/- andHand Balance Rs.31932/-). You had stealthily removedseven sections of Rs.500/- denomination and 19 piecesof Rs.500/- denomination (totally, 719 pieces ofRs.500/- denomination) aggregating to Rs.35,9500/ andmisappropriated the same. On 16.07.2007,the cashwas closed by debiting suspense account forRs.3,59,500/- "3. The petitioner submitted his reply through his Counsel on21.08.2008, denying the allegations levelled against him in thechargememo. In the meantime, the respondents-Bank, not beingsatisfied with the explanation given by the petitioner, appointed anEnquiry Officer. While the matter stood at that stage, in thecriminal proceedings, a final report was filed by the InvestigatingOfficer on 30.04.2008. The respondents-Bank sent a notice on25.7.2008, directing the petitioner to appear for the departmentalenquiry, scheduled to be held on 13.08.2008. On receipt of suchnotice, the petitioner sent a reply through his Counsel on11.08.2008, stating that the criminal case is pending against himbefore the Judicial Magistrate, Bhavani, in C.C.No.12 of 2007, andthe Revision Petition filed by the petitioner in Crl.R.C.No.434 of2007 is also pending before this Court and therefore, requested therespondents-Bank to defer the disciplinary proceedings. On receiptof the same, the Enquiry Officer sent another notice dated13.08.2008, fixing the departmental enquiry on 28.08.2008. On receiptof the said notice, the petitioner through his counsel sent a replyon 21.08.2008, reiterating the pendency of the criminal case andstated that until the criminal case in C.C.No.264 of 2008 is disposedof, the departmental enquiry may pleased to be deferred. 4. However, the request made by the petitioner was not acceptedand it appears that the Enquiry Officer proceeded ex parte andexamined three witnesses on the side of the Management viz., M.W.1 to https://hcservices.ecourts.gov.in/hcservices/ M.W.3 and submitted a report on 18.09.2008, holding that the chargeslevelled against the petitioner are proved. Based on such reportsubmitted by the Enquiry Officer, the first respondent issued asecond show cause notice to the petitioner on 15.10.2008. On receiptof the second show cause notice, the petitioner has filed this WritPetition for the aforementioned relief. 5. This Court, on 10.11.2008, while ordering notice to therespondents returnable in two weeks, directed the respondents-Bank tomaintain status-quo in respect of the disciplinary proceedings. Inview of the interim order granted by this Court, the disciplinaryproceedings have remained stayed. 6. The learned counsel appearing for the petitioner submittedthat the charges levelled against the petitioner in the departmentalcharge sheet is identical to that of the charges found in thecriminal case and the list of witnesses, who have been examined inboth the cases are one and the same and the list of documents arealso the same and the case, which has been registered against thepetitioner is for an alleged offence under Section 409 of I.P.C.,which is a serious offence and for proving the defalcation,complicated questions have to be considered and therefore, thedepartmental proceedings have to be deferred, till the completion ofthe criminal case.7. Per contra, the learned counsel for the respondents-Banksubmitted that despite several opportunities having been granted tothe petitioner, he did not attend the disciplinary enquiry andtherefore, the Enquiry Officer was fully justified in proceeding exparte. It is his further submission that the power of therespondents-Bank to initiate disciplinary action is independent andseparate as that of the power to prosecute the petitioner foroffences in a criminal case and therefore, this Court should not staythe departmental action. Further, it is submitted by the learnedcounsel for the respondents-Bank that initially, the petitionerrepresented, as if, the criminal trial has commenced, however, thetrial has not yet commenced and therefore, the respondents werejustified in proceeding with the departmental action and he reliedupon the following judgments in support of his contentioni) 2008 (1) S.C.C. 650 in the case of [ Indian Overseas Bank,Anna Salai and another Vs. P.Ganesan and others]ii) 2007 (3) C.T.C. 211 in the case of [ NOIDA Entrepreneurs Assn. Vs. NOIDA and others]iii) 2005 (10) S.C.C. 471 in the case of [ Hindustan Petroleum Corporation Ltd., and others Vs. Sarvesh Berry] 8. Heard the learned counsel for the parties and perused thematerials available on record.9. The short issue which falls for consideration is as towhether the disciplinary action initiated against the petitioner https://hcservices.ecourts.gov.in/hcservices/ should be deferred and await the disposal of the criminal case, whichis now pending before the Judicial Magistrate Court, Bhavani, inC.C.No.264 of 2008.10. The basic facts of the case are not in dispute. Thepetitioner being an employee of the respondents-Bank was placed undersuspension on 23.07.2007 and simultaneously, a criminal case was alsofiled against the petitioner for alleged offence under Section 409 ofI.P.C. 11. The allegations against the petitioner is that while he wasworking as Cashier at Poonachi Branch, he had arrived the closingcash balance as Rs.10,70,932/-, whereas, while checking the closingcash, the Branch Manager had found that the actual closing cash wasonly Rs.711432/- and the petitioner had removed seven sections ofRs.500/- denomination and 19 pieces of Rs.500/- denomination(totally, 719 pieces of Rs.500/- denomination) aggregating toRs.35,9500/- .On the same set of facts, a departmental charge memowas also filed on 23.07.2007, and it is not in dispute that withinthe time stipulated, the petitioner submitted his explanation/replyon 10.03.2008, denying the charges levelled against him.12. The Management, not being satisfied with the explanationgiven by the petitioner, appointed an Enquiry Officer. When theEnquiry Officer sent a notice on 25.7.2008, directing the petitionerto appear for the disciplinary enquiry, scheduled to be held on13.08.2008, the petitioner sent a reply through his Counsel on11.08.2008, stating that the criminal case in C.C.No.12 of 2007, ispending against him before the Judicial Magistrate, Court, Bhavani,and therefore, the departmental enquiry may be deferred. Yet, onceagain, the petitioner was directed to appear for departmentalenquiry and the petitioner once again through his Counsel sent areply on 21.08.2008, reiterating the same stand and requested fordeferring the departmental proceedings, till the disposal of thecriminal case. But the Management proceeded ex parte and recordedstatements of three witnesses on the side of the Management andcertain documents were also marked. 13. Now, the question is as to whether at this stage, thedepartmental proceedings initiated against the petitioner should bedeferred, till the completion of the criminal case? 14. Legal position holding the field on this issue in no longerres integra and as held by the Hon'ble Supreme Court in IndianOverseas Bank, Anna Salai and another Vs. P.Ganesan and others( cited supra) t “ a departmental proceedings, pending a criminalproceedings, does not warrant an automatic stay and the superiorcourts before exercising its discretionary jurisdiction in thisregard, must also take into consideration the fact, as to whether thecharges as also the evidence in both the proceedings are common and https://hcservices.ecourts.gov.in/hcservices/ as to whether any complicated question of law is involved in thematter.”15. In the said case, the Hon'ble Supreme Court referred tovarious decisions, including the celebrated decision rendered in thecase of Capt. M.Paul Anthony Vs. Bharat Gold Mines in 1999 3 S.C.C.679, and ultimately held that:- “ What was necessary to be noticed by the HighCourt was not only existence of identical facts and theevidence in the matter, it was also required to take intoconsideration the question as to whether the chargesleveled against the delinquent officers, both in thecriminal case as also in the disciplinary proceedings,were same. Furthermore, it was obligatory on the part of theHigh Court to arrive at a finding that the non-stay ofthe disciplinary proceedings shall not prejudice thedelinquent officers but the matter also involves acomplicated question of law.”16. We have seen the allegations levelled against the petitionerin the departmental charge memo. The final report filed by theInvestigating Officer before the Criminal Court, as contained in PageNo.21 of the typed-set of papers is as follows:-,e;j epiyapy; 09.07.2007 ypUe;J 14.07.2007 tiuapy; cs;s fhyj;;jpy; Kjy;“vjphp fhrhsuhft[k;, ,uz;lhtJ vjphp nkyhsh; bghWg;gpYk; ,e;jpad; Xth;rPt';fpgdhr;rp fpisapy; gzpapy; ,Ue;jnghJ me;j t';fpapy; ,Ug;gpy; ,Ue;j bkhj;jgzj;jpy; U:. 3.59.500 I ,uz:L vjphpfSk; Tl;;lhf me;j t';fpapid ek;gpf;ifJnuhfk; bra;J me;j t';fpf;Fr; nrh;e;j; U:.3.59.500-I ifalhy; bra;J mth;fsJbrhe;j cgnahfj;jpw;F cgnahfg;gLj;jp cs;shh;fs;. Mfnt ,uz;L vjphpfSk;rl;lg;gpupt[ 409 ,jrgo jz;of;fg;gl ntz;oa Fw;wk; gupe;Js;shh;fs;.”17. Thus, on comparison of the charge memo in the departmentalproceedings as well as the final report filed in the criminal case,it is evidently clear that it is for one and same set of allegationsthat the petitioner has been proceeded with. The list of witnesses,who were to be examined on the side of the prosecution has beenappended to the final report in S.Nos,1, 2 and 4 are theprosecution witnesses, who have been examined in the departmentalenquiry as M.W.1 to M.W.3. Further, from the Enquiry Officer'sreport, it is seen that 17 documents were marked and out of the 17documents, 5 documents have also been marked and relied on in thecriminal proceedings. There is one hand written note in the finalreport stating that the remaining documents are in the custody of theOfficers of the respondents-Bank. https://hcservices.ecourts.gov.in/hcservices/

18. It is stated that on behalf of the petitioner that theoriginal documents relating to the prosecution have been marked inthe departmental proceedings as Exs.M.E.4 to 17 and because, theentire documents are in the custody of the Departmental Authorities,criminal trial has not been proceeded with and the petitioner hasalso filed an application to discharge him from the criminal offence.19. Therefore, one aspect of the matter which has to beconsidered is as to whether the charges leveled against thedelinquent/petitioner in both the criminal proceedings as alsodisciplinary proceedings are one and the same. 20. In the light of the above facts, more particularly, theallegation in the departmental charge memo and the final report inC.C.No.12 of 2007, coupled with the fact that the documents in boththe proceedings are the same and three Management witnesses, who wereexamined in the domestic enquiry are also the prosecution witnessesin the criminal case, this Court has no hesitation to hold that theallegations against the petitioner in both the cases are identical innature. 21. The next aspect to be considered is as to whether thepetitioner would be put to prejudice, if the departmental action isproceeded with. 22. Admittedly, the charge against the petitioner is onepunishable under Section 409 of I.P.C. which is of serious nature andrequires to be thoroughly brought about in the criminal proceedings.Furthermore, the documents which have been relied on by theManagement in the domestic enquiry are the documents, based on whichthe case of the prosecution has been couched. That apart, 3 out of10 witnesses, who are to be examined on the side of prosecutionwitness are the witnesses M.W.1 to M.W. 3, who have been examined bythe Management in the domestic enquiry. Hence, this Court is of theview that the departmental proceedings have to be deferred, as itwould cause much prejudice to the delinquent/petitioner in thecriminal case, in view of the identical set of facts and thecomplicated questions involved in the criminal proceedings. 23. That apart, if the departmental proceedings is allowed to beproceeded with, then, it would also result in a situation, where, thepetitioner would be compelled to disclose his defence in respect ofthe charges, which are of identical in nature in the criminal caseand pending trial before the criminal court. Admittedly, the degreeof proof that is required in a departmental proceedings is not thesame as that is required in the criminal proceedings. In adepartmental proceedings, strict and sophisticated rules of evidenceare not applicable and all that is required to be looked into, is asregards the preponderance of probability of the charge. Therefore,when a person is pitted with these two proceedings, any punishment https://hcservices.ecourts.gov.in/hcservices/ that may be imposed by the Criminal Court would be more severe anddrastic. 24. Therefore, in such circumstances of the case, this Court isof the view that it is fit case, where the departmental proceedingsshould be deferred, till the conclusion of criminal proceedings. Itis needless to state that the Criminal Court shall proceed with thematter independently without being influenced by any of theobservation in this order.25. In the result, the Writ Petition is allowed with the aboveobservation. However, there shall be no order as to costs.Consequently, connected Miscellaneous Petition is closed. Sd/Assistant Registrar /True Copy/Sub Assistant Registrar sdTo1. The Deputy General Manager, Disciplinary Authority, Indian Overseas Bank, Central Office, 763, Anna Salai, Chennai – 600 002.2. The Enquiry Officer/ Senior Manager, Indian Overseas Bank, Central Office, 763, Anna Salai, Chennai – 600 002.3 The Judicial Magistrate Bhavani,+1 CC to Mr.N.Manokaran, Advocate SR 70525+1 CC to Mr.N.G.R.Prasad, Advocate SR 70561Writ Petition No.26601 of 2008RJ(CO)PKS14/12/2011