Ponamala Dharma Teja vs The Krishna District Cooperative ...
2023 Latest Caselaw 792 AP

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

                 WRIT PETITION No.27373 OF 2021

ORDER:-

     The present Writ Petition is filed under Article 226 of the

Constitution of India, seeking the following relief:

      "..to issue a Writ, Order or Direction, more particularly
     one in the nature of Writ of Mandamus declaring the
     action of the Respondents No.1 & 2 in issuing proceedings

dated 16-11-2021 vide Ref No.Estt./805/2021-22 by appointing the 3rd Respondent as Enquiry Officer and directing to complete the Disciplinary Enquiry against the Petitioner on the same set of charges which are subject matter in Crime No.34 of 2020 on the file of Koduru Police Station, Krishna District for the offences punishable under Section 409, 417, 419 & 420 r/w Section 34 of IPC as illegal, arbitrary, violation of Principles of Natural Justice, violation of Articles 14, 19(1)(g) and 21 of the Constitution of India and set-aside the same and consequentially direct the Respondents to stall the disciplinary proceedings against the Petitioner in pursuance to the Charge-Memo dated 30.01.2020 till finaliszation of the criminal proceedings and to pass such other order or orders.."

2. Heard the learned counsel for the petitioner, learned

standing counsel for the respondents.

3. The brief facts of the petitioner in nutshell that he is

working as Assistant Manager in the 2nd Respondent Branch of

1st respondent Bank and discharging his duties to the utmost

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satisfaction of the authorities concerned, wherein a false criminal

case was registered against him with false allegations that he

misappropriated the bank funds to an extent of

Rs.1,42,77,133.91/-. Based on the allegations a Crime No.34 of

2020 was registered on the file of Koduru Police Station, Krishna

District, U/s. 409, 417, 419 and 420, r/w. Section 34 I.P.C. In

this case the petitioner was arrested by the Station House

Officer, Koduru Police Station on 26.02.2020 and he was

remanded before the Judicial Magistrate of First Class,

Avanigadda. The Trial Court dismissed the petitioner Bail

Petition and hence he approached this Court and filed Crl.P.

No.1862 of 2020 seeking Regular Bail. Then this Court was

pleased to consider the material on record and was pleased to

allow the Bail Petition on 11.05.2020. The further case of the

petitioner that the investigation by the Police Investigation

agency is pending and charge-sheet was not filed but suddenly

the 1st and 2nd respondents were issued proceedings dated

16.11.2021 vide Ref.No.Estt./805/2021-22, wherein it is stated

that the 3rd respondent who was an Advocate was appointed as

Enquiry Officer to deal with the departmental enquiry pending

criminal proceedings against him. The petitioner further

submitted that he was falsely implicated in the present

disciplinary case and on the same set of charges/allegations he

was also falsely implicated in a criminal case.

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4. Learned counsel for the petitioner submits that

pursuant to the charge memo dated 30.01.2020 the petitioner

submitted his detailed explanation on 15.02.2020. After

considering the detailed explanation in which the enquiry

officer specifically directed to complete the enquiry and

submitted the report within 15 days and the respondent

authorities are proceeded further and appointed domestic

enquiry officer vide proceeding dated 16.11.2021 and opined

that the explanation is not satisfactory. Hence challenging

the same the present writ petition is filed.

5. Learned counsel for the petitioner submits that the

charges under departmental domestic enquiry and criminal

charges in criminal proceedings are one and the same the

witnesses in domestic enquiry as well as criminal proceedings

are one and the same (All witnesses are staff members of the

Bank). Therefore, both the proceedings cannot be proceeded

simultaneously when charges as well as witnesses are one

and the same. He further submits that the Sub Clause 8 of

Rule 66 of the Staff regulations / conduct rules specifically

provides that the management may await the decision of the

trial Court and stay the enquiries into the misconduct of the

employee pending the decision of the Criminal trial dealing

with the same facts. For convenience extracted the Sub

Clause 8 of Rule 66 of the Staff Regulations / Conduct Rules

is extracted as under:

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"(viii) Cases involving Criminal Trial etc.,:-

Where the charges are of grave nature involving serious criminal act or / and where it involves questions of fact or law, which are not simple, the Management may await the decision of the Trail Court and stay the enquiries into the misconduct of the employee, pending the decision of the criminal trial Court dealing with the same facts, so that the defence of the employee in the criminal case may not be prejudiced."

6. Learned counsel for the petitioner further submits that

the petitioner also submitted a representation to the 1st

respondent seeking not to proceed with the departmental

enquiry dated 16.11.2021. He further submits that the

petitioner also raised objections against the disciplinary

action and also forwarded the said objections to the enquiry

officer as well as chief executive officer of the respondent bank

for consideration of his objections but so far the respondents

neither acted upon nor replied to the petitioner. He further

submits that in view of the reasons stated above, the

respondent authorities should not proceed with the domestic

enquiry contrary to the Sub Rule-8 of Rule-66 of Conduct

Rules apart from that and without considering the

representations as well as objections submitted by the

petitioner. He further submits that the Hon'ble Apex Court as

well as this Court time and again directed the respondent

authorities concern not to proceed with the domestic enquiry

pending criminal case in the case of charges are similar in

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both the proceedings as well as and if the witnesses are also

one and the same, the departmental enquiry cannot be

proceeded as ratio laid down by the Hon'ble Apex Court as

well as other Courts as under.

7. In D. Ravi Babu Vs. Director General of Police AP the

Hon'ble Supreme Court in para Nos. 21, 24,25,28,29 & 41 of

its judgment held as follows:

"21. In view of the law declared by the Apex Court in the judgment (referred supra). it is clear that when the cause for initiation of both the departmental enquiry and criminal prosecution is one and the same, charges and documents are one and the same, the Court can interdict such departmental enquiry by exercising power under Article 226 of the Constitution of India.

24. On analysis of the law laid down by the Apex Court in the said judgments, there is no bar to grant stay of all further proceedings in the enquiry as divulgence of defence in the departmental enquiry would cause prejudice and it will seriously affect the right of the fair trial in the criminal prosecution, which is pending before the Court.

25. The principle laid down in the judgments (referred supra) has no direct application to the present facts of the case. In "M. Paul Anthony v. Bharat Gold Mines Limited" the Apex Court while dealing with similar question held as follows:

"The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which

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involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly-delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest."

28. In the present case, the petitioner charged for the grave offence punishable under Section 302, 120(B), 201, 497, 506 and 500 of 1.P.C. and Section (1)(xii) of S.Cs and S.TS (POA) Act and its trial is a complicated one. If the petitioner disclosed defence, there is every possibility of causing prejudice to the petitioner since the prosecution will prepare to adduce evidence based on the defence set up by the petitioner before the enquiry officer and such trial would cause prejudice to the Government Servant. Therefore, taking into consideration of gravity of charges and genesis of both the departmental enquiry and criminal prosecution, witnesses and nature of evidence to be adduced in both the matters, it is difficult to apply the principle laid down in the judgments referred above as there is no straight jacket formula for grant of stay of all further proceedings.

29. Apart from that, the Court has to weigh the pros and cons in case the departmental enquiry and criminal prosecution launched against the Government servant are proceeding simultaneously,

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as the circumstances to grant stay vary from case to case. Therefore, taking into consideration of the facts and circumstances of the case, prejudice likely to be caused in the criminal case, in case final order is passed against the petitioner in the above matter, I find that it is appropriate to grant stay of all further proceedings.

41. Cumulative effect of the law declared by various Courts in the judgments (referred supra) and mandatory requirement in Police Standing Order 150, I find that it is appropriate to grant stay of all further proceedings including inquiry report in C.. No. 01/OE/DIG-VR-VSP/2020 dated-10-2020 and consequential show cause notice in Rc. No. 302/02/2017 dated 11.11.2020 till pronouncement of judgment in the criminal cases relating crime No. 123 of 2017 of New Port Police station and 668 of 2017 of Gajuwaka Police Station. Accordingly, the point is answered in favour of the petitioner and against the respondents."

8. In Rubina Bano Vs. State of Chhattisgarh the High

Court of Chhattisgarh in para Nos.4, 5, 6 & 7 of its judgment

held as follows:

4. It is relevant at this juncture to refer to the judgment of Hon'ble Supreme Court in the case of Avinash Sadashiv Bhosle (Died) through LRS. v. Union of India, (2012) 13 SCC 142 wherein the Hon'ble Supreme Court dealing with the similar set of facts and issues has categorically held that the departmental proceedings can go on simultaneously to the criminal trial except where both the proceedings are based on the same set of facts and the evidences in preceding case are common. The said principle of law has been reiterated by the Hon'ble Supreme Court in many other decisions previously and subsequently in the case of State Bank of India v. Neelam Nag.

5. The fact which needs to be kept in mind or that needs to be considered at this juncture is the set of witnesses cited by the Department in the departmental enquiry and the list of witnesses in the criminal case. A perusal of the two in the present case would reveal that the list of witnesses and evidences are similar and the nature of allegations in the

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criminal case as also in the charge-sheet are also same. Again, in a recent decision the Hon'ble Supreme Court in the case of Shashi Bhushan Prasad v Inspector General of C.I.S.F. in case no. C.A. No. 7130/2009, decided on 01.08.2019 has categorically held that the two proceedings can go simultaneously except where the witnesses and the evidences are same which in the instant case appears to be same.

6. Therefore, in the light of the aforesaid legal position as it stands for, this Court is of the opinion that in the present case also keeping in view the judgment of the Hon'ble Supreme Court referred to in the preceding paragraphs, since the witnesses in the two proceedings are similar, if not identical, in the interest of justice, it would be more appropriate if the evidences in the departmental enquiry is deferred till the evidences or witnesses in the criminal case of those witnesses who have been cited in the departmental enquiry are examined, which would include the recording of the statement of the delinquent herself who should not be compelled to depose in the departmental enquiry ahead of the evidence on behalf of the department in the criminal case. It is ordered accordingly.

7. With the aforesaid observation and direction, the present writ petition is disposed of directing the respondent authorities to ensure that the departmental enquiry proceedings shall defer till the witnesses cited in the departmental enquiry, if at all. they are the witnesses in the criminal case are examined in the criminal case as witnesses."

9. In A. Peddanna Vs. Divisional Security

Commissioner, Railway Protection Force this Court in para

Nos.11, 12, 13, 14 &15 of its judgment held as follows:

"[11] It is true that in the charge levelled against the petitioner in the departmental proceedings, emphasis is upon the disrepute caused to the RPF on account of the nature of allegations being faced by the petitioner in the criminal proceedings. However, the basis for such an allegation is ultimately, the very involvement of the petitioner in a crime punishable under Section 3(1)(x) of the Act, which in turn was

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specifically mentioned in the charge framed in the departmental proceedings. The petitioner can be said to have resorted to the misconduct as indicated in the charge, if only a finding is recorded to the effect that he has abused certain individuals in the name of their caste. Without such a finding, the charge against the petitioner cannot at all be sustained.

[12] In the departmental proceedings, it is but natural that the petitioner has to plead certain facts, touching upon the truth or otherwise of the allegation that he has abused certain individuals in the name of their caste. This exactly is the subject-matter of the criminal proceedings pending against him. Any stand taken by the petitioner in the departmental proceedings touching on this aspect, would have a direct bearing on the criminal proceedings pending against him.

[13] There a predominant legal authority the form of precedents, both for and against the continuance the departmental proceedings, where the purport of the charge almost akin the one the criminal proceedings. The underlying principle such precedents that irrespective the similarity or identity of the charge in both sets proceedings, the requirement law that the delinquent-employee must not required reveal the defence, available him the criminal proceedings, in the departmental proceedings. Viewed from that angle, becomes evident that requiring the petitioner respond the charge contained in the impugned memo would invariably require him to reveal his defence, which he may take in the criminal proceedings. This naturally would result prejudice to him.

[14] The matter can be examined from another angle also. If the charge levelled against employee, it in criminal or departmental proceedings, is so serious, the department cannot be burdened with having the employee on its rolls, till the criminal proceedings are concluded. In such case, suspension pending enquiry is resorted to. There may be instances, where continuance of an employee under suspension would result in financial burden, and the gravity of the charges does not enable the appointing authority to reinstate such an employee into service, before the criminal proceedings are concluded. In the instant case, the petitioner was placed under suspension, the moment he was taken into judicial custody. The respondent reviewed the case within three months

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thereafter and has chosen to reinstate the petitioner, obviously on being satisfied that it is not in the interest of the RPF to continue the petitioner under suspension. Therefore, it cannot be said that there is any imminent necessity for the RPF to initiate departmental proceedings against the petitioner on the allegation that he has committed a crime punishable under Section 3(1)(x) of the Act.

[15] For the foregoing reasons, this Court is of the view that the respondent cannot proceed with the disciplinary proceedings, at this stage. The writ petition is accordingly allowed directing that the respondent shall defer further steps in pursuance of the impugned Memo dated 21.9.2005 till the criminal case filed against the petitioner is decided. There shall be no order as to costs."

10. In Capt. M.Paul Anthony Vs. Bharat Gold Mines Ltd.

the Hon'ble Supreme Court in para Nos.22, 34, 35 & 36 of its

judgment held as follows:

"22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on Identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case. will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the

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departmental proceedings but due regard has to be given to the fact that the departmental proceedings. cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.

34. There is yet another reason for discarding the whole of the case of thespondents. As pointed out earlier, the criminal case as also the amental proceedings were based on identical set of facts, namely, "the and conducted at the appellant's residence and recovery of incriminating cles therefrom" The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the pellant were sought to be proved by police officers and panch witnesses. who had vaided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry vices, 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 floding 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.

35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any lots of difference, the distinction, which is usually drawn as berween the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.

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36. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge, insofar as it purports to allow the writ petition, is upheld. The learned Single Judge has also given liberty to the respondents to initiate fresh disciplinary proceedings. In the peculiar circumstances of the case, specially having regard to the fact that the appellant is undergoing this agony since 1985 despite having been acquitted by the criminal court in 1987, we would not direct any fresh departmental enquiry to be instituted against him on the same set of facts. The appellant shall be reinstated forthwith on the post of Security Officer and shall also be paid the entire arrears of salary, together with all allowances from the date of suspension till his reinstatement, within three months. The appellant would also be entitled to his cost which is quantified at Rs 15,000."

11. The learned counsel for the respondents filed a counter

on behalf of the 1st respondent, wherein it is stated that the

petitioner was appointed in the 1st respondent Bank, while

working as Assistant Manager in the 2nd respondent branch

committed grave misconduct of misappropriation of funds to

an extent of Rs. 1,42,77,133.91/- conveying with other

employees of the bank and the preliminary enquiry was

initiated to conduct enquiry in the alleged misappropriation.

He further stated that in the Preliminary Enquiry report dated

30.10.2019, an amount of Rs. 1,42,77,133.91/- was found to

be misappropriated by the petitioner along with other officers

of the 1st respondent, there upon, a complaint was lodged by

the 2nd respondent, a crime was registered in Cr.No.34/2020

on file of Koduru Police station under sections 409, 417, 419

and 420 of IPC r/w 34 of IPC. He also stated that the

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petitioner was arrested and there upon he was enlarged on

bail been granted by this Court. He submitted that

considering the preliminary enquiry report dated 30.10.2019,

the petitioner was placed under suspension pending

disciplinary proceedings contemplated against him and the

charge memo was issued to the petitioner vide proceedings

reference No. 805/Estt/2019-2020 dated 30.01.2020 levelling

the charge that the petitioner has shown gross negligence in

discharge of his duties as Assistant Manager of Koduru

branch and misappropriated the funds of the bank to an

extent of Rs. 1,42,77,133.91/- which is prejudicial to the

interest of the bank and there by acted in a manner

unbecoming of an employee of the bank. More so, the

behaviour of the petitioner is more derogatory to the code of

conduct apart from committing grave misconduct by stating

the manner in which he has committed illegality. It is further

stated that the petitioners savings bank account was locked

to prevent him from transferring the misappropriated amount

for which the petitioner filed W.P.No.6951 of 2021 before this

Court questioning the blocking of the account, not permitting

him to withdraw his monthly subsistence allowances from his

bank account. He further submits that this Court on

24.03.2021 disposed the W.P.No.6951 of 2021 by giving

liberty to the petitioner to approach the respondent branch

and to give separate bank account Number for deposit of

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monthly subsistence allowances in new account and on such

request the respondents are directed to consider the same

and act accordingly. The subsistence allowances have been

paying to the petitioner by the 2nd respondent branch and he

has been in receipt of the subsistence allowances every month

as per regulations in vogue.

12. The learned counsel for the respondents would submit

that the present writ petition is not maintainable as there is

no violation of any statutory provision or statutory rule or

regulation in initiating disciplinary proceedings against the

petitioner. On the other hand the respondent authority is the

competent authority and also empowered under service

regulations of the 1st respondent to initiate and conclude the

disciplinary proceedings. He further submits that the

preliminary enquiry conducted by the enquiry officer and

submitted a report dated 30.10.2019, wherein it is found

that the petitioner has shown gross negligence in discharge of

his duties as Assistant Manager of Koduru Branch and miss

appropriated the funds of the bank to an extent of Rs.

1,42,77,133.91/- against the interest of the bank and

committed grave misconduct and illegality for which the

respondents bank is empowered to conduct domestic enquiry

regarding misconduct and misappropriation of funds by the

petitioner.

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13. The learned counsel for the respondents further

submits that so far the investigation is still in process, no

charge sheet is filed and it is not known when the

investigation will be completed and when the trial will be

completed before the Court below. Due to the delay in

criminal proceedings, the disciplinary proceedings should not

be got delayed in view of the regulations of Rule 66 of the

Conduct Rules, much less there is no illegality in initiating

and concluding the disciplinary proceedings against the

petitioner. He further submits that as per the jurisprudence

of criminal law the standard proof of charges are required in

criminal case is strict in sense but whereas in departmental

proceedings that much of strict in sense is not required. More

over the standard of proof in departmental proceedings is on

preponderance of probabilities but whereas in criminal case

the charge was to be proved by the prosecution beyond

reasonable doubts. Therefore, the disciplinary proceedings

may not come in the way as contended by the petitioner. He

further submits that the disciplinary proceedings are to probe

to find out misconduct of the petitioner but whereas the

criminal proceedings should be proceeded to find the guilt of

the accused. Therefore, the contention of the petitioner that

the disciplinary proceedings as well as the criminal

proceedings cannot be proceeded simultaneously is not

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sustainable. Since both are independent and may not cause

prejudice to the petitioner as urged by the petitioner.

14. The learned counsel for the respondents further

submits that as per the Service law jurisprudence the

respondents are empowered to proceed with the disciplinary

proceedings, pending criminal proceedings to find out truth

and misconduct of the employee as per the ratio laid down by

this Court as well High Court for the State of Telangana.

15. In Ch.Vinay Vs. High Court of Andhra Pradesh this

Court in para Nos.17 & 18 this Court of its judgment held as

follows:

"17. From the above, is clear that the contents of the articles of charge and the facts in the criminal case are totally different. The proceedings in the criminal case were mainly with regard to acceptance of money as bribe for causing delay in execution of attachment the facts in the departmental proceedings relate to his misconduct, under the Conduct Rules ie., keeping the warrant with him even after it was signed by Presiding Officer; not handing the same to Central Nazir or to the entrustment Amin [FA] for its entrustment to the Field Assistant, per roster book and he on his own threatening the complainant of executing the warrant though. not authorized. These acts do not form part of criminal proceedings nor could they form part of the charge-sheet or charges in criminal case. As held by the Apex Court in Karnataka Power Corp. Ltd. case [supra), the object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The court further held that, the standard of proof in a Departmental Inquiry is not based on the rules of evidence and the nature of the evidence before the Inquiry Officer to prove the misconduct would also be different.

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18. Such being the position and as the facts in the instant case are not complicated in nature or involves complicated question of law, and that the substance of charge in both the proceeding are different, we feel that, question of staying the departmental proceedings till completion of trial would not arise."

16. In Ch. Mr. Kedarnath Mahapatra Vs. Union of India

(Telangana), the Telangana High Court in para Nos.8, 9, 24,

27, 29 & 34 of its judgment held as follows:

"8. The only issue for consideration is whether it is permissible to the disciplinary authority to initiate and continue disciplinary proceedings on the charge levelled against the petitioner, impugned herein, even though the gravemen of charge relates to an alleged incident of sexual harassment of girl student and filing of charge sheet in the Court of Metropolitan Sessions Judge, Cyberabad at L.B. Nagar in Crime No.820 of 2017 of Kushaiguda Police Station, where petitioner is accused.

9. Whenever allegations of misconduct are made against an employee, employer is competent to take disciplinary action and punish him on proven misconduct. Such punishment can vary from removal/dismissal to warning. Before acting against an employee on the alleged misconduct, the employer is required to follow due process and on establishment of misconduct appropriate punishment can be imposed. The gravemen of allegation in disciplinary proceedings may also attract penal provisions which may entail launch of prosecution by police. In such a case, the employee would be facing disciplinary action under the employer and criminal prosecution. Thus, on same allegation, a person who is also an employee of an organisation can face two pronged action, disciplinary action by employer and criminal proceedings by the State.

24. In the charge sheet filed by the police, police alleged that petitioner sexually assaulted and there was physical assault to the minor girl and outraged her modesty in the respondent school premises attracting penal consequences of Section 354-A of IPC and Section 12 of POCSO Act. In the Criminal case, if the petitioner is found guilty of the charge levelled against him, he would be punished under Section 12 of the POCSO Act, which may result in imprisonment for three years. Conducting of trial and

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finding the accused guilty in criminal case is based on principle of proof beyond reasonable doubt as distinct from disciplinary proceedings, where theory of preponderance of probabilities would apply to hold an employee guilty of charge levelled against him.

27. What is of utmost importance to note is, the incident occurred within the precincts of an educational institution where young girls prosecute their education, many of whom are adolescents. At this stage of their life, any ill treatment/ misbehaviour would disturb them mentally, would effect their education and health. They would be subjected to lot of agony and humiliation. The invisible scar would stare at them for the rest of their life. At that age, many students suffer in silence and do not even share the incidents with other students and even with their parents. Thus, consequences are more grave. Parents would be careful in sending their daughters to a school. They would be doubly confident when they get admission into a school run by the respondent society. Thus, lot is at stake for the respondent society when such issues crop up. The Principal/ Head Master of such institution must be a pious man with greater concern and compassion towards all students, with emphasis on girl students and should ensure that no teacher or student would behave indecently with them and make them uncomfortable in the school. He should be a guardian to look after the students, make them comfortable in the school and would ensure they reach home safely. Thus, if a person who is supposed to be a guardian himself turns out to be a devil, the agony of the girl students and their parents would multiply and the reputation of the institute nose dives to the bottom of deep sea.

29. At this stage, it is necessary to consider whether petitioner has made out a case for interference by this Court. The pleadings in the affidavit filed in support of writ petition are vague. It is not asserted as to how prejudice would be caused to him in criminal case if domestic enquiry is conducted and what are the complicated questions of law and facts. It is not stated how his defense in criminal case would affect if school management relies on material in their possession and by examining the witnesses. Thus, petitioner failed in discharging his burden to pray for stalling departmental proceedings. As noted above, in criminal case, prosecution has to prove with clear evidence that by his actions petitioner has committed offence under IPC and POCSO Act. In the domestic enquiry employer can consider circumstances in which alleged incident happened to hold

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against employee. Further, the alleged incident occurred on 24.11.2017 and proceedings are not concluded even after two years. As observed by the Supreme Court in Apparel Export Promotion Council, whenever allegations of sexual harassment are made the disciplinary proceedings should be concluded expeditiously.

32. In the above analysis and in the facts of this case, it is neither advisable nor desirable to differ holding disciplinary action. Petitioner is not entitled to stall the disciplinary proceedings further, merely on the ground that criminal case is pending against him. The Writ Petition is dismissed. Petitioner shall cooperate in early conclusion of disciplinary proceedings. It is made clear that there is no expression of opinion on merits and the defense of petitioner in departmental proceedings and in criminal case is preserved. It is open to petitioner to set up defense as available in law in the domestic enquiry. Miscellaneous petitions, if any pending stand dismissed."

17. Having regard to the submissions made by the learned counsel for

the petitioner as well as learned counsel for the respondents that it is an

admitted fact that the charges framed in disciplinary proceedings as well

as in criminal proceedings are one and the same. The contention of the

learned counsel for the petitioner that apart from the similarity of

charges in both the proceedings that the witnesses are also to be one and

the same. Since the charges are out of the employment that the

employees of the bank are the independent witnesses either in the

disciplinary proceedings or in the criminal proceedings. Therefore, both

departmental proceedings as well as criminal proceedings cannot be

proceeded simultaneously is valid and acceptable in view of the ratio laid

down by the Hon'ble Apex Court as well as this Court as relied by the

counsel for the petitioner.

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18. The other contention of the learned counsel for the petitioner that if

the disciplinary proceedings are allowed to proceed, the petitioner should

be deprived of the defence in criminal proceedings is sustainable and

acceptable in view of the charges and witnesses are one and the same

who are none other than of the Bank staff. The other contention of the

learned counsel for the petitioner even as per the Sub Rule 8 of the Rule

66 of Misconduct Rules of the regulations, once the criminal proceedings

are pending, this rule contemplates disciplinary proceedings must await

till the finalisation of the criminal proceedings is valid and liable to be

upheld.

19. The other contention of the learned counsel for the petitioner that

after completion of the criminal proceedings the respondents can proceed

with the departmental proceedings by which no prejudice will be caused

to the respondents is not valid and unacceptable. The undue delay in

criminal proceedings also causing undue delay in departmental

proceedings by which the person who caused misconduct or

misapproprtion or illegality may not be punished within the time.

20. On the other hand the contention of the learned standing counsel is

that no prejudice will be caused to the petitioner, if the disciplinary

proceedings as well as criminal proceedings are proceeded

simultaneously is not correct and unacceptable, in view of the petitioner

may suffer to defend his case, in view of the evidence adduced by the

witnesses regarding similar charges in both the proceedings.

NV,J W.P.No.27373 of 2021

21. The other contention of the learned standing counsel that the

objects of the disciplinary proceedings is to find out truth and

misconduct and also to recovery of the money and there is no need of

applicability and to adduce evidence in strict sense as is required in

criminal proceedings and it is based upon preponderance of probabilities

is valid and acceptable.

22. In view of the foregoing discussion and material placed before this

Court and also on perusal of the facts and circumstances and ratio laid

down by the Hon'ble Apex Court, the present writ petition is disposed of

directing the respondents not to proceed with the departmental

proceedings hereafter and if the departmental proceedings were already

completed, not to finalise the domestic enquiry till the date of completion

of trial in criminal proceedings. The petitioner shall cooperate to

complete and conclude the criminal proceedings with the police at the

earliest.

23. Accordingly, the writ petition is disposed of. There shall be no order

as to costs.

Consequently, Miscellaneous Petitions, if any, pending in this Writ

Petition shall stand closed.

____________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA

10th February, 2023.

knr

NV,J W.P.No.27373 of 2021

HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION No.27373 of 2021 10th February, 2023

KNR