Uco Bank Zonal Office Hazratganj ... vs Harihar Prasad Pandey
2019 Latest Caselaw 1941 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment Reserved
 
A.F.R.
 

 
Court No. - 9
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 673 of 2013
 

 
Appellant :- Uco Bank Zonal Office Hazratganj Lko.Thro.Dy.G.M.And Anr.
 
Respondent :- Harihar Prasad Pandey
 
Counsel for Appellant :- Vidhu Bhushan Kalia,Umesh Kumar Srivastava
 
Counsel for Respondent :- Ramesh Kumar Singh,Mohit Kumar Singh,Siddhrth Dhaon,Virendra Singh Chandel
 

 
Hon'ble Shabihul Hasnain,J.

Hon'ble Saurabh Lavania,J.

(Dictated by Hon'ble Saurabh Lavania,J.)

This is an Appeal under Chapter-VIII, Rule-5 of the Allahabad High Court Rules, 1952, assailing the judgment and order dated 04.07.2012 passed in Writ Petition No. 5929 (S/S) of 1994 (Harihar Prasad Pandy v. Uco Bank) and the judgment dated 17.04.2013 passed in Review Petition No. 330 of 2012 (Uco Bank v. Harihar Prasad Pandy).

The appeal, under consideration, has been filed along with the application for condonation of delay.

Cause shown in the affidavit filed in support of the application for condonation of delay is sufficinet.

Accordingly, delay is condoned.

The appeal be treated as regular appeal.

Brief facts of the case are that the respondent-petitioner filed the Writ Petition No. 5929 (S/S) of 1994 (Harihar Prasad Pandy v. Uco Bank) for the following main relies:-

(i) Issue a writ, direction or order in the nature of mandamus directing the opposite parties not to proceed departmentally against the petitioner till disposal of the criminal case vide Annexure No. 2.

(ii) Issue a writ, direction or order in the nature of certiorari quashing the suspension order contained in the Annexure No. 1 passed by the opposite party No. 2.

In the writ petition, for the purposes of reliefs sought, the respondent-petitioner has stated that the respondent-petitioner was suspended vide order dated 28.09.1992 in contemplation of enquiry with respect to certain irregularities, as alleged, by the Employer/Appellant-Bank. An FIR was also lodged against the respondent-petitioner and Sri Ram Surat Pandey on 11.03.1993 under Section- 420, 467, 468, 471 and 409 IPC at P.S. Kotwali Ayodhya District- Faizabad. The respondent-petitioner was arrested and subsequently he was granted bail vide order dated 22.01.1994. Charge-sheet with respect to the departmental proceedings dated 31.01.1994 was also issued and served on the respondent-petitioner.

It has also been stated in the writ petiton by the respondent-petitioner that charges in the criminal proceedings and the departmental proceedings are similar and accordingly, disciplinary proceedings should not continue.

Considering the facts, as pleaded in the writ petiton by the respondent-petitioner, this Court vide order dated 22.12.1994 stayed the disciplinary proceedings against the respondent-petitioner untill the criminal case pending against the respondent-petitioner is finally decided.

In response to the contents of the writ petition, the counter affidavit was filed by the appellant-Bank wherein the Bank has taken the specific plea that normally two proceedings i.e. criminal and departmental, may not go together but no hard and fast rule has been laid down by the Hon'ble Apex Court and each case has to be judged separately on its own merits.

Before the writ Court, the respondent-petitioner has filed the rejoinder affidavit reiterating the earlier stand taken in the writ petiton.

The Writ Petition No. 5929 (S/S) of 1994 (Harihar Prasad Pandy v. Uco Bank) was taken up on 04.07.2012 and finally disposed of by the following order:-

"Heard Mr. Ramesh Kumar Singh, learned counsel for the petitioner. Despite repeated calls, no body appears for the respondent.

The petitioner challenged the order of suspension dated 28.9.1992 issued by the opposite party No.2. This Court by means of order dated 22.12.1994 issued notice and as an interim measure provided that in the matter the respondents will not proceed in the disciplinary proceeding against the petitioner until the criminal case pending against the petitioner is finally decided. The learned counsel for the petitioner submits that for the same very charge an F.I.R. was lodged against the petitioner as well as one Mr. Ram Surat Pandey on 11.3.1993. They were put on trial. However, ultimately they have been acquitted by means of order dated 31.3.2012 passed by the CJM, Faizabad in Criminal Case No. 15238/09. The order passed by the CJM has been brought on record through Supplementary Affidavit.

I am informed that petitioner as well as Mr. Ram Surat Pandey both were charged with the same very allegations but Mr. Ram Surat Pandey was not placed under suspension and he has been permitted to continue in service without any interruption. Thus petitioner also claims the action of respondent as discriminatory. Since petitioner has been acquitted in the criminal proceeding from the same very charge, I do not feel it appropriate, at this stage, to put him under the subject of disciplinary proceeding, therefore, the order impugner dated 28.9.1992 is hereby quashed. The petitioner shall be reinstated forthwith. However, since the order was not interfered by this Court and the petitioner remains under suspension, I hereby provide that for intermediate period, the petitioner shall be entitled only for half of the salary, after adjustment of subsistence allowance paid to the petitioner. It is clarified that the petitioner's services shall be treated in continuation and accordingly the petitioner shall be en tilted for other consequential benefits including promotion etc.

The writ petitioner stands disposed of finally."

With respect to the final judgment and order dated 04.07.2012, the Review Petition was filed by the appellant-Bank and the same was rejected vide order dated 17.04.2013. Being aggrieved by the judgment and order 04.07.2012 and 17.04.2013, the present appeal has been filed.

Assailing the aforementioned orders dated 04.07.2012 and 17.04.2013, the submission of counsel for the appellant-Bank is that the Hon'ble Single Judge, vide judgment and order dated 04.07.2012, under appeal, for all practical purposes, quashed the departmental proceedings and granted the relief to the effect that respondent-petitioner shall be treated in continuation and shall be entitled for all consequential benefits including the promotion and by providing the relief, which was not prayed for, the Hon'ble Single Judge exceeded its jurisdiction.

In support of this contention, learned counsel for the appellant-Bank drew attention of this Court on the main reliefs sought in the writ petition, quoted above, and submitted that the reliefs sought in the writ petiton were only with respect of staying the departmental proceedings till disposal of criminal case and for quashing of order of suspension and no relief was sought by the respondent-petitioner for quashing the departmental proceedings and submitted that the judgment under appeal requires interference by this Court.

Counsel for the appellant-Bank further submitted that the acquittal of the respondent-petitioner is not an honourable acquittal and therefore, the respondent-petitioner was not liable to be re-instated in service.

Further submitted that the Hon'ble Single Judge failed to appreciate that the nature of two proceedings i.e. departmental and criminal. In criminal proceedings, the charges are to be proved beyond doubt and in the departmental proceedings, the degree of standard of proof is lower i.e. on preponderance of probability, the employee can be punished. Acquittal in criminal case, that too on account of inefficiency of evidence, the respondent-petitioner cannot be absolved from his liability in the departmental proceedings.

With regard to the order dated 17.04.2013 passed in the Review Petition filed by the appellant-Bank, the counsel for the appellant-Bank submitted that the Hon'ble Single Judge rejected the Review Petition without considering and discussing the pleas taken in the Review Petition and the judgment cited at the time of hearing of the Review Petition. The observation of the Hon'ble Single Judge in the order dated 17.04.2013 is to the effect that the order dated 04.07.2012 was passed on the main ground of acquittal of respondent-petitioner in the criminal case. The grounds taken, while rejecting the Review Petition as well as the judgment dated 04.07.2012, are unsustainable as according to the law laid down by this Court as well as the Hon'ble Apex Court the departmental proceedings and criminal proceedings can go on simultaneously and even after acquittal in the criminal case, an employee can be punished in the departmental proceedings.

Per contra, counsel for the respondent-petitioner submitted that the judgment of the Hon'ble Single Judge is just and proper as has been passed keeping in view the acquittal of the respondent-petitioner in the criminal case

Further submitted that the charges in criminal proceedings and departmental proceedings are same and the respondent-petitioner has already been acquitted and thus, he is not liable to be proceeded with in the departmental proceedings.

In response to the submission of the counsel for the respondent-petitioner, the counsel for the appellant-Bank submitted that the judgment of the trial court is not final as the Bank has preferred an appeal against the said judgment which is pending disposal.

Counsel for the appellant-Bank also placed reliance before this Court on the judgment of the trial court and therefrom pointed out that the acquittal of the respondent-petitioner is not an honourable acquittal.

Considered the material available on record and submissions made by the counsel for the respective parties, what transpires from the record is that the respondent-petitioner filed the writ petition only with respect of staying the departmental proceedings till the conclusion of criminal trial and also challenged the order of suspension and the Hon'ble Single Judge vide judgment and order dated 04.07.2012, under appeal, has interfered in the departmental proceedings. The impact of the judgment and order dated 04.07.2012 is that the departmental proceedings against the petitioner cannot be proceeded with by the appellant-Bank and for all practical purposes, the departmental proceedings has been quashed. The Hon'ble Single Judge also provided the service benefits to the respondent-petitioner by the judgment dated 04.07.2012.

Further impact of the order, under appeal, is that the respondent-petitioner became entitled to be re-instated with all consequential benefits.

The judgment of the Hon'ble Single Judge, under appeal, dated 04.07.2012 is against the law settled by the Hon'ble Apex Court to the effect that the relief, more than the reliefs sought, cannot be granted by the Court and on this ground alone, the judgment, under appeal dated 04.07.2012, as well as the order passed on the Review Petition dated 17.04.2013 are liable to be interfered with under this appeal.

"In Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar AIR 1953 SC 235, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as under:

"It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

A similar view has been re-iterated by this Court in Krishna Priya Ganguly etc. v. University of Lucknow & Ors. etc. AIR 1984 SC 186; and Om Prakash & Ors. v. Ram Kumar & Ors., AIR 1991 SC 409, observing that a party cannot be granted a relief which is not claimed.

Dealing with the same issue, this Court in Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC 475 held:

"Though the Court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner."

In Fertilizer Corporation of India Ltd. & Anr. v. Sarat Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for."

In view of the above, law on the issue can be summarised that the Court cannot grant a relief which has not been specifically prayed by the parties."

On the issue of proceeding with department proceedings simultaneously and after acquittal, this Court considered the judgments, on which the reliance has been placed by the respective parties.

In the case of Depot Manager, A.P. State Raod Transport Corporation v. Mohd. Yousuf Miya:(1997) 2 SCC 699, the Hon'ble Apex Court has held as under:-

"The rival contentions give rise to the question whether it would be right to stay the criminal proceedings pending departmental enquiry? This Court in Meena case [(1996) 6 SCC 417 : (1996) 7 Scale 363] had elaborately considered the entire case law including Kusheshwar Dubey case [(1988) 4 SCC 319 : 1988 SCC (L&S) 950] relieving the necessity to consider them once over. The Bench, to which one of us, K. Venkataswami, J., was a member, had concluded thus:

"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be ''desirable', ''advisable' or ''appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can be enunciated in that behalf. The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is ''that the defence of the employee in the criminal case may not be prejudiced'. This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, ''advisability', ''desirability', or ''propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. The ground indicated in D.C.M. [Delhi Cloth and General Mills Ltd. v. Kushal Bhan, (1960) 3 SCR 227 : AIR 1960 SC 806 : (1960) 1 LLJ 520] and Tata Oil Mills [Tata Oil Mills Co. Ltd. v. Workmen, (1964) 7 SCR 555 : AIR 1965 SC 155 : (1964) 2 LLJ 113] is also not an invariable rule. It is only a factor which will go into the scales while judging the advisability or desirability of staying the disciplinary proceedings. One of the contending considerations is that the disciplinary enquiry cannot be -- and should not be -- delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly even reach a prompt conclusion. That is the reality in spite of repeated advice and admonitions from this Court and the High Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pending criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the decisions referred to above.

There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogetherdistinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."

We are in respectful agreement with the above view. The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. The enquiry in the departmental proceedings relates to the conduct of the delinquent officer and proof in that behalf is not as high as in an offence in criminal charge. It is seen that invariably the departmental enquiry has to be conducted expeditiously so as to effectuate efficiency in public administration and the criminal trial will take its own course. The nature of evidence in criminal trial is entirely different from the departmental proceedings. In the former, prosecution is to prove its case beyond reasonable doubt on the touchstone of human conduct. The standard of proof in the departmental proceedings is not the same as of the criminal trial. The evidence also is different from the standard point of the Evidence Act. The evidence required in the departmental enquiry is not regulated by the Evidence Act. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, we have seen that the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338, IPC. Under these circumstances, the High Court was not right in staying the proceedings."

In the case of Commissioner of Police, New Delhi v. Narendra Singh:(2006) 4 SCC 265, the Hon'ble Apex Court has observed as under:-

"It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose. (See Kamaladevi Agarwal v. State of W.B. [(2002) 1 SCC 555 : 2002 SCC (Cri) 200] )

It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.

In Kuldip Singh v. State of Punjab [(1996) 10 SCC 659 : 1997 SCC (L&S) 346] this Court held: (SCC p. 664, para 10)

"10. Now coming to the main contention of the learned counsel for the appellant, it is true that a confession or admission of guilt made by a person accused of an offence before, or while in the custody of, a police officer is not admissible in a court of law according to Sections 25 and 26 of the Evidence Act, 1872 but it is equally well settled that these rules of evidence do not apply to departmental enquiries...."

It is now well settled that the provisions of the Evidence Act are not applicable in a departmental proceeding. (See Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya [(1997) 2 SCC 699 : 1997 SCC (L&S) 548] ; Lalit Popli v. Canara Bank [(2003) 3 SCC 583 : 2003 SCC (L&S) 353] and N. Rajarathinam v. State of T.N. [(1996) 10 SCC 371 : 1997 SCC (L&S) 90] )"

In the case of K. Venkateshwarlu v. State of Andhra Pradesh:(2012) 8 SCC 73, the Hon'ble Apex Court after considering the judgment of constitutional Bench passed in R.P. Kapur v. Union of India [AIR (1964) SC 787] has observed as under:-

"In R.P. Kapur v. Union of India [AIR 1964 SC 787] the Constitution Bench of this Court has held that if the trial of a criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted, but even in case of acquittal departmental proceedings may follow, when the acquittal is other than honourable. We are not aware whether any disciplinary proceedings are pending against the appellant. But, if they are, the authority concerned shall proceed with them independently, uninfluenced by this judgment and in accordance with law."

In the case of Commissioner of Police, New Delhi v. Mehar Singh:(2013) 7 SCC 685, the Hon'ble Apex Court has observed as under:-

"We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India [AIR 1964 SC 787] this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when the acquittal is other than honourable.

The expression "honourable acquittal" was considered by this Court in S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] . In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] , where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it."

In the case of G.M. Tank v. State of Gujrat : (2006) 5 SCC 446 the Hon'ble Apex Court, after considering the earlier judgments with respect to continuation of departmental proceedings even after the acquittal in the facts of the case particularly on being found that the acquittal of G.M. Tank (supra) was an honourable acquittal, held that departmental proceedings against G.M. Tank (supra) was not justified. The relevant paras are quoted below:-

In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In para 34, this Court held as under: (SCC p. 695)

"34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, ''the raid conducted at the appellant's residence and recovery of incriminating articles therefrom'. The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the ''raid and recovery' at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand."

In R.P. Kapur v. Union of India [(1964) 5 SCR 431 : AIR 1964 SC 787] a Constitution Bench of this Court observed: (SCR p. 444)

"If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted. Even in case of acquittal proceedings may follow, where the acquittal is other than honourable."

In Corpn. of the City of Nagpur v. Ramchandra [(1981) 2 SCC 714 : 1981 SCC (L&S) 455 : AIR 1984 SC 626] the same question arose before this Court. This Court, in para 6, held as under: (SCC p. 718)

"6. The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction [discretion] in any way fettered."

The rulings cited by the learned counsel appearing for the respondent are:

In Krishnakali Tea Estate v. Akhil Bharatiya Chah Mazdoor Sangh [(2004) 8 SCC 200 : 2004 SCC (L&S) 1067] it was argued before this Court on behalf of the respondent Sangh that the Labour Court ought not to have brushed aside the finding of the criminal court which according to the learned Single Judge "honourably" acquitted the accused workmen of the offence before it. The learned Judges were taken through the judgment of the criminal court. The Bench was of the opinion that the acquittal by the criminal court was "honourable" as it was based on the fact that the prosecution did not produce sufficient material to establish its charge which was clear from the following observations found in the judgment of the criminal court: (SCC p. 211, para 25)

"Absolutely in the evidence on record of the prosecution witnesses I have found nothing against the accused persons. The prosecution totally fails to prove the charges under Sections 147, 353, 329 IPC."

Before the learned Judges, Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] was relied on in regard to the above contentions. The learned Judges held that the decision in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] would not support the respondent therein because in Paul Anthony case [(1999) 3 SCC 679 : 1999 SCC (L&S) 810] the evidence led in the criminal case as well as in the domestic enquiry was one and the same and the criminal case having acquitted the workmen on the very same evidence and this Court came to the conclusion that the finding to the contrary on the very same evidence by the domestic enquiry would be unjust, unfair and rather oppressive. The Bench further held as follows: (Krishnakali Tea Estate case [(2004) 8 SCC 200 : 2004 SCC (L&S) 1067] , SCC pp. 211-12, para 26)

"It is to be noted that in that case the finding by the Tribunal was arrived at in an ex parte departmental proceeding. In the case in hand, we have noticed that before the Labour Court the evidence led by the management was different from that led by the prosecution in the criminal case and the materials before the criminal court and the Labour Court were entirely different. Therefore, it was open to the Labour Court to have come to an independent conclusion dehors the finding of the criminal court. But at this stage it should be noted that it is not as if the Labour Court in the instant case was totally oblivious of the proceedings before the criminal court. The Labour Court has in fact perused the order of the Judicial Magistrate and the exhibits produced therein and come to an independent conclusion that the order of the criminal court has no bearing on the proceedings before it; which finding of the Labour Court, in our opinion, is justified."

In Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd. [(2005) 7 SCC 764 : 2005 SCC (L&S) 1020] this Court in para 11 held as under: (SCC p. 776)

"11. As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused ''beyond reasonable doubt', he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of ''preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."

This Court in Depot Manager, A.P. SRTC v. Mohd. Yousuf Miya [(1997) 2 SCC 699 : 1997 SCC (L&S) 548] in para 8 held as under: (SCC pp. 704-05)

"The purpose of departmental enquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental enquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental enquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offence generally implies infringement of public (sic duty), as distinguished from mere private rights punishable under criminal law. When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, ... the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."

The judgment in State of A.P. v. S. Sree Rama Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723] was cited for the purpose that the High Court is not constituted in a proceeding under Article 226 of the Constitution as 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.

We are not inclined to give any finding on the issue of acquittal of the respondent-petitioner that whether the acquittal of the respondent-petitioner is an honourable acquittal or not as any finding or observation on the issue of honourble acquittal would prejudice the case of the respondent-petitioner.

What transpires from the law laid down by the Hon'ble Apex Court, as noted hereinabove, is that even after acquittal in the criminal case, the department has a right to proceed with the departmental proceedings and department can always consider the findings of the criminal Court.

In the instant case, by the judgment, under appeal, dated 04.07.2012, the right to hold the departmental proceedings by the appellant/Bank against the respondent-petitioner has taken away, that too without scrutinising the entire case of the appellant-Bank as well as the respondent-petitioner and without any pleading and prayer in this respect in the writ petition.

At this juncture, it is relevant to point out that in compliance of order dated 04.07.2012, under issue, the respondent-petitioner was re-instated vide order dated 19.09.2013 and it appears from the age of the respondent-petitioner mentioend in the affidvit dated 19.07.2018 that he must have retired from the services of the Bank.

Looking into the facts and circumstacnes of the case as well as the observations and findings recorded by us in the preceding paras, the judgment dated 04.07.2012 and the order dated 17.04.2013, under appeal, are hereby, set-aside.

It is open for the appellant-Bank to proceed with the departmental proceedings, if so desires.

Appeal is, accordingly, allowed.

Order Date :- 29.03.2019

Arun/-