Mr. Subhash Jina Kamble vs Dena Bank Through General Manager
2016 Latest Caselaw 1215 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                            
                                 WRIT PETITION No.12828 OF 2015




                                                                    
    Mr.Subhash Jina Kamble                                             ....Petitioner
         Vs.
    Dena Bank                                                          ...Respondent




                                                                   
                                                     ...
    Ms.A.P.Madhuri, for the Petitioner.
    Mr.Sudhir Talsania, Senior Advocate with Mr.Sagar Sheth with
    Ms.Radha Ved i/b. Sanjay Udeshi & Co., for the Respondent.
                                        .... 




                                                   
                                   ig                 CORAM  :    ANOOP V. MOHTA & 
                                                                      A.A.SAYED, JJ.

DATED : 5 APRIL 2016

ORAL JUDGMENT: (Per Anoop V.Mohta, J.)

Rule. Returnable forthwith. Heard finally by consent of parties.

2. The Petitioner invoked the jurisdiction of Article 226 of the

Constitution of India by filing the present Writ Petition on 3 December 2015

thereby praying to stay the departmental inquiry initiated by the

Respondent, pending the criminal case before the Addl.Chief Metropolitan

Magistrate Court, Kurla Court vide CC-629/PW/12 and before the

Addl.Chief Metropolitan Magistrate Court, Dadar - also on the foundation

that the Petitioner is about to retire on 31 May 2016.

    Uday P. Kambli                                         1/9






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3. The Petitioner's case can be crystallized as per the synopsis as

under:

The Petitioner was working as a cashier at Govandi branch of the

Respondent-Bank. On 4 January 2013, it was inter alia reported that the

Petitioner collected cash from single lock and double lock from the safe and

brought to cash cabin bit did not make entries in Double Lock Register

mentioning how many bundles or cash was withdrawn from Double Lock

Safe and also failed to take signatures of officers. Then the Petitioner himself

reported shortage of cash to the extent of Rs.13,48,100/- from the

safe/locker at Govandi branch of the Respondent-Bank.

4. A suspension order dated 5 January 2013 was issued against the

Petitioner for the above misconduct. An FIR was lodged on 22 January 2013

with Govandi Police Station regarding shortage of cash at Govandi Branch of

Respondent. The Petitioner was arrested by the Govandi Police on 4

February 2013 on the charge of committing an offence under section 409

and section 34 of Indian Penal Code, 1860. The Petitioner moved for a Bail

Application before the Sessions Court, Mumbai, which was rejected by the

Court. Thereafter, the bail was granted to the Petitioner by this Court vide

order dated 16 April 2013. The Police also filed FIR in C.C.No.629/13 before

the 11th Addl.Chief Metropolitan Magistrate Court, Kurla. The Petitioner

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was, thereafter, given a show cause notice bearing reference No.MSZO-

AGM:DA:21:2013 dated 22 November 2013 for negligence in performance

of his duty as an officer of the Bank. The Petitioner filed Reply dated 4

December 2013 denying the charges and allegations made. On 26 December

2013, vide a memorandum, the Disciplinary Authority revoked the

suspension of the Petitioner - posted him at Matunga branch.

5. Since the Reply of the Petitioner to the show cause notice was not

satisfactory, a charge sheet dated 2 January 2014 was issued, which

enumerated the misconducts of the Petitioner. On 10 March 2014, a

memorandum was issued by the Disciplinary Authority appointing

Mr.A.G.Zade as presiding officer and Mr.S.S.More as Inquiry officer.

Mr.S.S.More, after being appointed as an Inquiry Officer issued a letter dated

11 April 2014 to the Petitioner intimating the date of commencement of

inquiry proceedings. The detailed enquiry was conducted following the due

process of law and the Petitioner was given adequate chance to represent

himself before the inquiry officer. The Petitioner had fully participated in the

inquiry and was represented by the representative of his choice.

Representations were made by both the parties and the witnesses have also

been examined during the course of enquiry. On 4 th September, 2014 the

defense representative of the Petitioner filed his written arguments with the

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Disciplinary Authority. The inquiry officer concluded the inquiry and

submitted his findings to the disciplinary authority vide letter dated 16 th

November, 2015 and the copy of the findings of the inquiry officer was given

to the Petitioner.

6. Pursuant to the receipt of findings given by inquiry officer, the

Petitioner filed his written submissions dated 17 th December, 2015 with the

Disciplinary Authority. The Disciplinary Authority, after the analyzing the

submissions of the Petitioner, vide Memorandum dated 19 th December 2015

issued a show cause notice on punishment. The memorandum also provided

the details of the personal hearing granted to Petitioner against the

memorandum issued by the Disciplinary Authority. The Petitioner vide letter

dated 23rd December, 2015 informed the Disciplinary Authority regarding

filling of this writ petition and seeking an adjournment to make submissions

at personal hearing. Personal hearing was held on 7 th January 2016. The

Petitioner has made his representation before the Disciplinary Authority.

7. Following judgments are relevant for consideration as cited, read

and referred by the Counsel in support of their rival contentions. These

judgments are as under:

(i) Stanzan Toyoetsu India Pvt. Ltd. v/s Girish V & Ors. 1

1 (2014) 3 SCC pg. 636.

    Uday P. Kambli                                        4/9






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(ii) Baljinder Pal Kaur v/s State of Punjab & Ors. 2

(iii)State of Maharashtra v/s. Raju Vishwanath Bhushanwar 3

(iv)Dev Prakash Tewari v/s. Uttar Pradesh Co-operative

Institutional Service Board, Lucknow and ors 4

The Petitioner has relied upon the judgment of the Supreme Court

in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd.5

8. Learned Senior Counsel appearing for the Respondent resisted the

case in all respect by distinguishing the judgment cited by the Petitioner

(Capt.M.Paul Anthony) (supra) and also placed on record the judgments

(supra) in support of his submissions, basically on the background that the

Respondent has already completed the departmental inquiry and the same

is pending for final hearing/disciplinary order. The Show Cause Notice is

now also given to the Petitioner based upon the Inquiry Report informing

why future action should not be initiated against the Petitioner.

9. It is a settled position in law that both the Departmental Enquiry

and Criminal Complaint can proceed together; and that even if a delinquent

is acquitted in criminal proceedings, the Disciplinary Authority can take its

2 (2016) 1 SCC pg. 671 3 2015 SCC OnLine Bom 6536 4 (2014) 7 SCC 260 5 MANU/SC/0225/1999

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own course and punish the guilty as per the terms and regulations.

[Stanzan Toyoetsu India Pvt. Ltd. (supra)]. Learned Counsel submitted

that even after acquittal in the criminal trial, the employer can proceed

departmentally as standard of proof in criminal trial and departmental

proceedings are different. [Baljinder Pal Kaur (supra)]. These Judgments

have taken notice of earlier Supreme Court Judgments also.

10. The Petitioner has actively participated in the Departmental

Inquiry before the Inquiry Officer and was represented by the Defence

Representative of his choice. The departmental proceedings are completed

and therefore there is no question of the defense of the Petitioner in criminal

trial being prejudiced. The charges under the Departmental Inquiry and

under the Criminal Complaint though are inter-connected but shall no way

affect the outcome of each other in every matter. The Petitioner retires on

31st May, 2016 after which Disciplinary Authority cannot take any against

him even after finding him guilty under the Departmental Inquiry is

additional factor against the Petitioner. [Dev Prakash Tewari v/s. Uttar

Pradesh Co-operative Institutional Service Board, Lucknow and ors.(supra)]

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11. In the present case, admittedly departmental inquiry was

conducted after giving full opportunity to the Petitioner. The Petitioner

participated without any objection pending the criminal proceedings so

referred above. The law is well settled that the criminal proceedings as well

as departmental inquiry can run simultaneously. Having once acted upon

the same, now at this stage merely because main criminal proceeding is

pending (out of two criminal proceedings, in other proceeding on different

issue he was acquitted) that itself in our opinion cannot be the reason to

stay the further course of action, after completion of departmental inquiry,

particularly when he has already led evidence and disclosed his case and

defence and basically before the Department. A criminal proceedings, even

if pending, should not be a reason in view of the above settled position in

the present facts and circumstances.

12. It is settled that such disciplinary proceedings should not be stayed

to this extent that the Department would not be in a position to pass any

final order based upon the completed inquiry, once the Petitioner retires.

Admittedly, the Petitioner is about to retire on 31 May 2016. Though the

matter was filed on 3 December 2015, we have not granted stay of the

departmental proceedings, except that the final order would not be passed

as recorded through a statement.

    Uday P. Kambli                                   7/9






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13. Having once noted the fact and circumstances so recorded above

and also the fact that the Petitioner has actually participated in the

departmental inquiry and the departmental proceedings are complete, there

is no question of defence of the Petitioner of criminal charge being

prejudiced. The Department as per the law can take own stand and pass

appropriate order as per the Regulations. Charges under the departmental

inquiry and the criminal complaint will not affect the outcome of each other.

The criminal proceedings, even if are pending, need to proceed in

accordance with law. The departmental inquiry and action even if completed

before the date of retirement, the Petitioner has a departmental remedy

available. The Department, therefore, needs to consider the case of the

Petitioner in accordance with law.

14. In the circumstances where the Petitioner is admittedly retiring on

31 May 2016 and in view of the judgments so cited, it is necessary for the

Department to pass order and/or take action based upon the completed

inquiry prior to his retirement. We see no reason to stay further the

departmental inquiry now and the action based upon it, at this stage, as

contended by the Counsel appearing for the Petitioner, for the reason so

recorded above. This is also for the reason that once the Petitioner is retired,

it will be difficult for the Respondent/Department to pass final order based

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upon the concluded inquiry. There is force in the submission that in the

absence of any other contrary Rules and Regulations, the Department should

not be held responsible for their lapses on the ground based upon the

disciplinary inquiry, that they failed to pass the final order/action before the

Petitioner's retirement. This peculiarity and being the relevant factor, apart

from the reasons so recorded, based upon the judgments so cited, we are

inclined to dismiss the present Petition.

15. The Petition is accordingly dismissed. The statement made by the

learned Counsel for the Respondent stands vacated. No costs.

     (A.A. SAYED, J.)                                             (ANOOP V. MOHTA J.)
      
   






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