Bhojraj Singh vs Zonal Manager, Central U.P. Zone, ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. -  7
 
Case :- WRIT - A No. - 25686 of 2001
 
Petitioner :- Bhojraj Singh
 
Respondent :- Zonal Manager, Central U.P. Zone, Punjab National Bank & Ors.
 
Counsel for Petitioner :- M.C. Singh, Indra Mani Tripathi, Kapil Tyagi
 
Counsel for Respondent :- H.A. Kumar, A.M. Srivastava, Dharmendra Vaish, Hari Ashok Kumar, S.C. Tarun Verma
 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Indra Mani Tripathi, learned counsel for the petitioner and Sri Dharmendra Vaish, learned counsel appearing for the respondent - Bank.

The petitioner was appointed as Clerk - cum - Cashier in the respondent - Punjab National Bank (hereinafter referred to as the Bank). He became Head Cashier in the year 1992. On 19.2.1998 the petitioner was suspended by the respondent no. 3, the Branch Manager of the Bank on the allegation of misappropriation of bank money. A first information report dated 24.4.1998 was lodged against the petitioner by the Branch Manager on the ground that the petitioner has misappropriated the money of the borrowers and had not deposited the same in the bank, which was registered as Case Crime No. 30 of 1998, under Sections 420/409 IPC. On 27.5.1998 a final report was submitted by the Police after investigation on the ground that since the money has already been deposited in the bank account, therefore, no offence has been made out against the petitioner. Against the same, a protest petition was filed which too was rejected by the concerned Magistrate on 24.9.1998 and the final report was accepted. The protest petition revision was also dismissed on the ground that all the dues are paid upto date to its creditors hence no case of criminal misappropriation, criminal breach of trust and cheating is made out against the petitioner. A criminal revision was filed by the bank before this Court, which was dismissed on 22.8.2000 in the absence of the counsel for the revisionist - bank. It is pertinent to note that prior to dismissal of the criminal revision on 19.6.1999 a charge-sheet was served on the petitioner by the respondent no. 2, the Regional Manager/disciplinary authority. The petitioner filed his reply to the charge-sheet dated 24.7.1999. Subsequently, after affording opportunity of hearing to the petitioner, the enquiry report dated 26.7.1999 was submitted by the enquiry officer and the petitioner was served with a communication dated 27.7.2000 regarding proposed punishment of dismissal from service. The petitioner filed his objection dated 5.8.2000 against the proposed punishment. By order dated 31.8.2000 the proposed punishment of dismissal was confirmed and the petitioner was dismissed from service clearly providing therein that he shall not be entitled to any wages for the period he remained under suspension except the subsistence allowance paid to him as per the provisions of Bipartite Settlement. The petitioner filed departmental appeal against the order of dismissal, which too was dismissed by the respondent no. 1, the Zonal Manager, Central U.P. Zone of the Bank by an order dated 23.4.2001.

Further necessary facts for disposal of the present dispute are that the first information report dated 24.4.1998 was lodged on the ground that one Sant Raj vide his complaint dated 14.2.1998 had informed that on 29.8.1996 he deposited a sum of Rs. 7,000/- in the concerned branch of the bank and he handed over money to the petitioner Sri Bhojraj Singh who filled up the pay-in-slip and returned the counterfoil after putting the seal and his own signature on the same to Sant Raj. Again on 30.8.1996 Sant Raj came to the branch for depositing Rs. 500/-, which too was deposited by the petitioner in the same manner and on the letterhead of the bank he issued no dues certificate to Sant Raj by putting seal of the bank after signing the same. When on 14.2.1998 the receipts were handed over to the Branch Manager it was found that the aforesaid amount was not deposited in the bank account of Sant Raj and there was no entry of the same in the bank accounts. Similarly, one Rajveer came to the bank on 30.7.1997 and deposited a sum of Rs. 1,300/- in his own account. On 26.2.1998 when he handed over such receipts it was found that no such amount was deposited in the bank and the receipts handed over by him were signed by the petitioner. One Hemraj also came to the bank on 2.3.1998 and complained that on 30.7.1996 he had deposited a sum of Rs. 3,444/- which was got deposited by the petitioner in the same fashion as noted above and on enquiry it was found that there is no entry of such deposit of the amount in the bank account books and therefore, a first information report was lodged under Section 420/409 IPC, which was registered as Case Crime No. 30 of 1998.

The submission of the first final report was simply based on subsequent deposit of the amount by the complainant Sant Raj on 30.3.1998 who filed an affidavit to this effect. Similarly Rajveer also deposited the amount on 26.3.1998 and submitted an affidavit to the effect that earlier he had not deposited any amount in the bank. Complainant Hemraj also deosited the amount due on 26.3.1998 and tried to explain the deposit made in the year 1996 in his own manner to protect the interest of the petitioner.

In the light of the aforesaid deposits made in the year 1998 a final report was submitted that as the amount has already been deposited in the bank account, no offence is made out against the petitioner. Criminal Revision no. 2166 of 1998 was dismissed in the absence of the counsel for the revisionist simply recording a finding that the Court have perused the order and do not find illegality in the order. Thus, the ultimate result of the criminal proceedings was based on the fact that for the offence committed in the year 1996 under Sections 420/409 IPC, the money having been deposited in the year 1998, it was recorded that since money has been deposited, no offence has been made out.

Under these circumstances after acceptance of the final report by rejecting the protest petition of the respondent - Bank on 24.9.1998 the petitioner was chargesheeted on 19.6.1999 departmentally on following charges:

"1) You misappropriated funds meant for the bank by packeting the money received from the customers for deposit in their loan accounts aggregaion rs. 12144/- in the manner given hereunder:

(a) On 30.7.1996 sri Hemraj s/o Sh. Karan Singh came to withdraw Rs. 4000/- you deducted a sum of Rs. 3444/- from Rs. 4000/- and paid the balance of rs. 556/0. Your issue cash receipt from 3444/- to shri Hemraj after stemping and signing it is taken of having received the cash for deposit in his loan a/c NO. PA/117 (Buffalo loan) on behalf of the bank. You did not deposit the cash collection of Rs. 5444/- with the bank.

(b) On 29.8.1996 Shri Santraj s/o Shri Kanchid, r/o village bhadoraia P.O. Aurangabad, Dist. Bulandshahr came to deposit Rs. 7,000/- in his loan a/c No. PA/146. Although you were not working at cash counter on that date but still you collected the cash from the above loanee and returned the counterfoil to Shri Sanraj after stamping and signing it with date 29.30.8.1996 in token of having received the cash on behalf of the bank. You did not deposit the cash collection of Rs. 7000/- with the bank.

(c) On 30.8.1996 Shri Santraj again came to deposit Rs. 400/- in the above loan A/c No. PA/146. Although you were not working at the cash counter on that date also but still you collected the cash from Shri Santraj and returned the counterfoil after stamping and signing it in taken of having received the cash on behalf of the bank. You did not deposit the cash collection of Rs. 400/- with the bank.

(d) On 30.7.1997 Shri Rajveer s/o shri Harswaroop r/o village Khanoda came to deposit Rs. 1300 in his term loan a/c. Althouh you were not working at cash counter on that day also but still you collected the cash from Shri Rajveer and returned the counterfoil after stamping and signing it is taken of having received the cash on behalf of the bank. You did not deposit the cash collection of Rs. 1300/- with the bank.

2) Although the bank's dues were recoverable from Shri Santraj s/o Shri Kanchaid of village Bhadoria, the loanee (PA A/C 146) and he was not entitled for 'No Dues Certificate' but still you issued an undated 'No Dues Certificate' for which you were not authorized to issue on behalf of the bank.

Your acts at S.No. 1 & 2 committed by you are prejudicial to the interest of the bank and are Gross Misconduct as defined in para 19.5 (j) of B.P.S. 1966 as amended from time to time.

You were advised to submit your written statement of defence from the above charges within 3 days on receipt here of failing which it shall be presumed that you have nothing to say in your defence, admit the charges and matter shall be proceeded ex-parte against you."

A perusal of the charges levelled against the petitioner clearly indicates that apart from factual charges of non-deposit of cash so collected by the petitioner, the petitioner was also charged with the allegation that he had acted in an unauthorized manner by accepting the money although he was not entitled to issue no dues certificate but still he issued the same on behalf of the bank. It was clearly noticed that the acts of the petitioner at Serial nos. 1 and 2 are prejudicial to the interest of the bank and are gross misconduct as defined in Section 19.5 (j) of the Bipartite Settlement, 1966 (BPS 1996). It is pertinent to note that in reply to the aforesaid charges the petitioner only filed half page reply dated 24.6.1999, which is quoted as under:

"Through Proper Channel

The Regional Manager

(Disciplinary Authority)

Punjab National Bank,

Regional Office,

Aaykar Bhawan,

Teachers Colony, Bulandshahr.

Reg. Charge Sheet dated 19.06.99 served upon me.

Dear Sir,

With reference to the chargesheet dated 19.06.99 served upon me by Branch Manager on 23.07.00 I have to inform you that all the allegations levelled against me are false, fabricated and baseless. I deny all the allegations in toto. The allegations have been levelled against me with some ulterior motive best known to the management just to cause me harassment & mental torture.

I never misappropriated the funds of the bank.

Thanking you,

Dated 24.7.1999

Yours faithfully,

Sd/Illegible

(BHOJ RAJ SINGH)

Cashier-Incharge

(under suspension)

B/o Aurangabad, Bulandshahr.

Copy to:

Branch Manager B.O.

Aurangabad,'

Received

24.7.1999"

Subsequently, admittedly, the enquiry officer proceeded with the enquiry in which the petitioner was afforded full opportunity of hearing.

In view of the allegation of malafide raised against the Branch Manager by the petitioner, it may be pointed out that the petitioner had challenged his suspension order dated 19.2.1998 before this Court by filing Writ Petition No. 8943 of 1999 on the ground that the Branch Manager has no jurisdiction to suspend the petitioner, which was dismissed by this Court on 11.3.1999. A detailed enquiry report dated 27.1.2000 was submitted by the enquiry officer after thoroughly considering the factual aspects regarding allegations, reply, evidence adduced by both the sides and after recording statements. The conclusion drawn by the enquiry officer is quoted as under:

"On the basis of documentary and oral evidence of the Management's witnesses, defence witnesses and the case as made out by the Presenting Officer and the C.S.E. in their written briefs as discussed in detail hereinabove, I hold that it is PROVED beyond any doubt that C.S.E. - Shri Bhoj Raj Singh misappropriated funds meant for the bank by pocketing the money received from the customers i.e. S/Shri Hemraj, Santraj and Rajveer for deposit in their loan accounts aggregating Rs. 12144/- though the loan accounts of the said customers/loanees were subsequently adjusted when the acts of omission and/or commission on the part of C.S.E. came to notice of the bank through the complaints lodged by the said customers. I also hold that it is PROVED beyond any doubt that although bank's dues were recoverable from Shri Santraj s/o Kanchid of Village Bhadoria, the loanee (PA a/c 146) and he was not entitled for "No Dues Certificate", yet Shri Bhoj Raj Singh, the C.S.E. Issued an undated "No Dues Certificate" for which he was not authorized to issue on behalf of the bank.

The above acts of omission and/or commission on the part of Shri Bhoj Raj Singh having been PROVED, it is also PROVED that said acts on his part tentamount "GROSS MISCONDUCT" in terms of Para 19.5 (j) of the Bi-Partite Settlement dated 19.10.66 as amended up to date for doing acts prejudicial to the interest of the bank.

 
Date 27.01.2000
 
Place DANPUR						Sd/-
 
							     S.D. JETLY
 
							ENQUIRY OFFICER
 
							MANAGER, BO 							        DANPUR"
 

 

Alongwith the counter affidavit receipts issued by the petitioner under his signature regarding deposit of the amount in the year 1996 have been annexed as Annexure-CA-5 to the counter affidavit. No dues certificate issued by the petitioner bearing his signature is Annexure-CA-4 to the counter affidavit. Photo stat copies of the complaints made by the complainant as noted above in the year 1998 have also been filed alongwith the counter affidavit.

The respondent -Bank has filed counter affidavit and supplementary counter affidavits denying all the allegations and the grounds made in the petition. Rejoinder affidavit as well as supplementary rejoinder affidavit were filed by the petitioner reiterating the stand taken by the petitioner.

Much emphasis was placed to challenge the findings recorded by the enquiry officer on the ground that no effective opportunity of hearing was afforded to the petitioner and that the entire proceedings including enquiry proceedings, dismissal order as well as the appellate order suffers from non-application of mind and they have been conducted with pre-determined mind to punish the petitioner as the Branch Manager was prejudiced against the petitioner. It was submitted by the learned counsel for the petitioner that there was serious breach of principles of natural justice and as such the same are liable to be set aside. It was further submitted by the learned counsel for the petitioner that since the petitioner was prosecuted on criminal side, in which respondent -Bank had failed, therefore, the petitioner could not have been proceeded against as per Clause 19.5 (j). The order of dismissal passed against the petitioner is contrary to Clause 19.4 of the BPS, 1996 and he could not have been dismissed from service but could have only been terminated with three months pay or allowances in lieu of notice and thus the dismissal order passed against the petitioner is contrary to the Bipartite Settlement.

Per contra learned counsel for the respondent - bank supported the orders impugned herein and submitted that all the charges of issuing receipts under his signature without depositing the money in the accounts of the complainants reflects seriously on the integrity of the petitioner and his act of receiving money when he was not working at the cash counter and issuing no dues certificate was clearly unauthorized and the respondent - bank has lost faith in the petitioner.

He further submits that the bank has proceeded against the petitioner under clause 19.5 (j) which provides that gross misconduct includes doing any act prejudicial to the interest of the bank or gross negligence involving or likely to involve the bank in serious loss. He further pointed out that Clause 19.6 provides that an employee found guilty of gross misconduct may (a) be dismissed without notice. He further submitted that the petitioner was proceeded against under Clause 19.11 and 19.12 of the Bipartite Settlement, 1996, which is very much within the powers of the bank. The further submission was that the proceedings were initiated against the petitioner departmentally as per Clause 19.5 (j) after acceptance of final report by the trial court. It was submitted that the provisions of Clause 19.4 are not attracted in the present case as the criminal proceedings and the departmental proceedings are entirely different and the charges levelled against the petitioner in the departmental proceedings were distinct inasmuch as in the departmental proceedings he was also charged for unauthorized act. The submission was that the incident of issuance of receipts and no dues certificate is of the year 1996 whereas the money was got deposited in the year 1998 and it is only the petitioner who managed affidavits of the complainants in his favour after depositing the amount in the year 1998 and thus this does not absolve the petitioner of his misconduct which he had already committed in the year 1996.

Now coming to the rival submissions advanced by learned counsel for both sides suffice to say that the petitioner had submitted only few lines reply to the charge-sheet served on him. Subsequently he had contested the enquiry proceedings at full length and the enquiry officer had recorded findings of fact after considering the documentary evidence as well as oral statements of the witnesses of the management and the defence and therefore, such finding of fact cannot be re-appreciated by this Court under Article 226 of the Constitution of India.

Although learned counsel for the petitioner has placed before this Court various judgments of the Hon'ble Apex Court in the cases of (i) A. K. Kraipak Vs. Union of India AIR 1970 SC 150; (ii) Ratan Lal Sharma Vs. Managing Committee and others 1993 (4) SCC 10; (iii) Chairman and Managing Director, United Commercial Bank Vs. P.C. Kakkar; and (iv) Satwaiti Deswal Vs. State of Haryana and others 2009 (7) (Supreme) 229 to contend that there had been violation of principles of natural justice and hence entire enquiry proceedings are vitiated.

A perusal of the record and the enquiry proceedings clearly indicates that full opportunity of hearing was afforded to the petitioner and there was no violation of principles of natural justice, hence the rulings relied upon by the counsel for the petitioner are of no help to him.

A reference may be made to the recent judgment of the Hon'ble Supreme Court in the case of Union of India Vs. P. Gunasekaran 2015 (2) SCC 610 wherein the entire law regarding judicial review in such matters has been discussed by the Hon'ble Supreme Court and parameters were laid down under which circumstances interference by the High Court under Article 226 can be made and cannot be made. Relevant paragraphs 12, 13, 14, 16 and 17 are quoted as under:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Courtcan only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience.

14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

16. These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh, 1977 (2) SCC 491. To quote the unparalled and inimitable expressions:

"4. .... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."

17. In all the subsequent decisions of this Court upto the latest in Chennai Metropolitan Water Supply and Sewarage Board v. T. T. Murali Babu, 2014 (4) SCC 108, these principles have been consistently followed adding practically nothing more or altering anything.

It is also well settled law that it is not open to the High Court in exercise of its jurisdiction under Articles 226/227 of the Constitution of India to go into proportionality of punishment so long as the punishment does not shock the conscience of the Court. Reference may be made to paragraphs 20 and 21 of the abovenoted case Union of India Vs. P. Gunasekaran (supra), which are quoted as under:

"20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.

21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749, Union of India and another v. G. Ganayutham, 1997 (7) SCC 463, Om Kumar and others v. Union of India, 2001 (2) SCC 386, Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another, 2007 (4) SCC 669, Coal India Limited and another v. Mukul Kumar Choudhuri and others, 2009 (15) SCC 620 and the recent one in Chennai Metropolitan Water Supply (supra)."

Reference may also be made to the judgment rendered by this Court in Writ Petition No. 69093 of 2006, Ram Rayis Tyagi Vs. UPSRTC through Chairman, decided on 20.7.2015 wherein similar view was taken following P. Gunasekaran's case (supra).

As such, in view of the aforesaid, no interference is warranted in so far as the findings recorded by the enquiry officer and the punishment awarded to the petitioner is concerned.

Now the second question that remains to be considered is as to whether the order of dismissal passed against the petitioner is contrary to Clause 19.4 of the Bipartite Settlement, 1966. It is necessary to consider various relevant Clauses of the Bipartite Settlement, 1966 which are quoted as under:

"19.2 By the expression "offence" shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law.

19.3 (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended.

(b) ............

(c) If he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct.

19.4. If after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence, the management may then deal with him as if he had committed an act of "gross misconduct" or of "minor misconduct", as defined below: provided that if the authority which was to start prosecution proceedings refuses to do so or come to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 19.11 and 19.12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination within three months' pay and allowances in lieu of notice as provided in Clause 19.3 supra. If within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 19.3 above shall apply.

19.5 By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of the employee:

(j) doing any act prejudicial the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss.

19.6 An employee found guilty of gross misconduct may:

(a) be dismissed without notice; or

In case of acquittal Clause 19.3 (c) clarifies that the employee can be proceeded against as per Clauses 19.11 and 19.12. Clause 19.4 also provides that when an employee is not put on trial within a period of one year of the commission of offence, the management may then deal with him as if he had committed an act of "gross misconduct" provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution it would be open to the management to proceed against the employee under the provisions set out in Clauses 19.11 and 19.12. Learned counsel for the petitioner submits that as per Clause 19.4 though the management could have proceeded under Clauses 19.11 and 19.12 but under such circumstances the petitioner shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to full wages and allowances and to all other privileges for such period and he could have been terminated with three months' pay and allowances in lieu of notice as provided in Clause 19.4 in case the management decides after enquiry not to continue the employee in service.

Learned counsel for the respondents has submitted that the unauthorized act of the petitioner was prejudicial to the interest of the bank and is covered under the clause "gross misconduct" as mentioned in Clause 19.5 (j) of the BPS, 1966 and therefore, he was proceeded against as per Clause 19.6 (a) which provides that an employee may be dismissed without notice. He further submits that there is no dispute about the fact that the enquiry proceedings were conducted as per Clauses 19.11 and 19.12 in which the petitioner has participated. He submitted that Clause 19.4 has no application in the present case as the criminal proceedings and the departmental proceedings are entirely different and charges were also different.

I have considered the rival submissions on this issue.

Reference may be made to the judgment rendered by the Apex Court in the case of Allahabad Bank and another Vs. Deepak Kumar Bhola (1997) 4 SCC 1. In this case suspension of a bank employee was under challenge and the term "moral turpitude" was interpreted by the Hon'ble Court and in the case of a banking company it was observed that one of the most serious offence involving moral turpitude would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw. Paragraphs 8, 9 and the relevant extract of paragraph 11 of the aforesaid judgment are quoted as under:

"8. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public. commits forgery and wrongfully withdraws money which he is not entitled to withdraw.

9. This Court in Pawan Kumar v. State of Haryana and another (1996) 4 SCC 17 at page 21 dealt with the question as to what is the meaning of expression "moral turpitude" and it was observed as follows"

"Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity".

This expression has been more elaborately explained in Baleshwar Singh v. Distt. Magistrate and Collector, AIR 1959 All. 71 where it was observed as follows:

"The expression "moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must beheld to be due to vileness and deprivity. It will be contrary to accepted customary rule and duty between man and man"

11. ......... It would be indeed inconceivable that a bank should allow an employee to continue to remain on duty when he is facing serious charges of corruption and mis-appropriation of money. Allowing such a employee to remain in the seat would result in giving him further opportunity to indulge in the acts for which he was being prosecuted. Under the circumstances, it was the bounden duty of the appellant to have taken recourse to the provisions of clause 19.3 of the First Bipartite Settlement, 1966. The mere fact that nearly 10 years have elapsed since the charge-sheet was filed. can also be no ground for allowing the respondent to come back to duty on a sensitive post in the bank, unless he is exonerated of the charge."

Criminal prosecution was towards misappropriation of funds, which were subsequently deposited by the customers/loanee of the Bank. The gross misconduct is not only with regard to misappropriation of fund but was also for unauthorized act of issuing receipts and no objection certificate by the petitioner, although after deposit of the amount after a gap of 2 years by customer/loanee, the loss suffered by the bank was recovered but still the act of the petitioner was entirely covered under Clause 19.5 (j). Thus, criminal prosecution has no relevance in so far as disciplinary proceedings have been initiated for unauthorized act or any other act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss. Thus, the grounds for taking action against the petitioner in criminal proceedings as well as in the departmental proceedings or in the present case are entirely different, therefore, in my opinion, Clause 19.4 is not attracted in the present case in so far as the claim of the petitioner regarding termination with three months' pay and allowance in lieu of notice and that during the period of suspension he would be entitled for full wages and allowances and to all other privileges for such period as provided in Clause 19.4 is concerned. The authority of the bank to proceed under Clauses 19.11 and 19.12 is not under challenge.

From the material on record, it is quite apparent that the Bank has decided to proceed with the departmental proceedings and was not depending upon the conclusion of the criminal proceedings wherein final report was submitted by the Police simply on the ground that the money which was alleged to have been embezzled was deposited, without taking into account that the said money was deposited after commission of the offence, which is also a misconduct as per BPS 1966, has come to the notice of the bank. Apparently the offence itself had actually taken place on the date when the amount was embezzled, however, now the issue is as to whether the misconduct had taken place or not. It cannot be disputed that the misconduct of the petitioner was fully covered under Clause 19.5 (j) and undisputedly the Bank had a right to proceed under Clauses 19.11 and 19.12. It may also be noticed that under such circumstances right to proceed under Clauses 19.11 and 19.12 has been recognized under all clauses. Therefore, once the Bank has proceeded to conduct enquiry for gross misconduct as provided under Clause 19.5 (j) and the petitioner was under suspension throughout, the claim that Clause 19.4 would apply is not acceptable. Therefore, the claim for payment of full backwages and allowance and other privileges for the period during which he was under suspension is liable to be rejected.

Even otherwise, a person who as per law laid down by the Hon'ble Apex Court in the case of Allahabd Bank and another Vs. Deepak Kumar Bhola (supra) is guilty of moral turpitude, allowing claim of such monetary benefit would amount to putting premium on misconduct and dishonesty, which cannot be permitted under any circumstances.

In such view of the matter, I hold that the act of the petitioner was covered under Clause 19.5 (j) and Clause 19.4 has no application in the present case and for this reason the impugned order of punishment of dismissal from service without notice and that he shall not be entitled for wages for the period he was under suspension except the subsistence allowance, is perfectly just and legal and there was no illegality in the dismissal of the departmental appeal filed by the petitioner.

For the reasons and discussions made hereinabove, the writ petition lacks merit and is, accordingly, dismissed. However, there shall be no order as to costs.

Order Date :- 28.8.2015

p.s.