Danvir Verma vs Punjab National Bank
2005 Latest Caselaw 75 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitioner has prayed inter alia for the issuance of appropriate orders quashing (a) his suspension as well as (b) the Charge Sheet against him, and (c) to restrain the continuance of the Domestic Inquiry instituted against him. After eleven hearings, an ad interim stay of the inquiry proceedings was granted on 14.05.1999. However, on 05.02.2002, resumption of these disciplinary proceedings was permitted subject to the condition that the final order passed would not be given effect to against the Petitioner. On 15.03.2004, the Petition was set down for final disposal. The learned counsel for the parties have addressed detailed arguments in the matter.

2. The Petitioner has been acquitted of offences under Sections 420, 471/34 and 120B of the Indian Penal Code in terms of the Judgment of the Metropolitan Magistrate announced on 05.08.1995. The Respondent had also instituted a suit for the recovery of Rs. 93,325/- which has also been dismissed since the Civil Judge was of the view that the Defendant/Respondent Bank had failed to discharge the burden of proof in respect of Issues which prima facie appear to be similar to those in the Departmental/Disciplnary Inquiry. Even in the face of these two judicial pronouncements, covering the criminal culpability as well as civil liability of the Petitioner, the Inquiry Officer, who is a Zonal Manager of the Respondent Bank, has returned the finding that the petitioner had failed to discharge his duties with utmost integrity, devotion and diligence, that he failed to protect the interests of the Bank; had acted in a manner unbecoming of an officer of the Bank; and had acted in a manner prejudicial to the inteest of the Bank, in his Report dated 24.09.2002. What will have to be determined at the relevant time is whether these charges differ in material content from the scope of the criminal and civil litigation. Kundan Lal v. The Delhi Administration, Delhi and Ors., 1976 (1) SLR 133, was a decision rendered by a Learned Single Judge of this Court in which it had been prayed that the disciplinary proceedings against the Petitioner should be dropped since he had been acquitted by the criminal court in respect of a corrupt practice which was the subject matter of the Charge-sheet also. The prayer was granted. Justice Rangarajan extracted and applied the extracted conclusions condensed in Shaik Kasim Versus The Superintendent of Post Offices, Chinglept Dn. And Anr. , where again it was found that the facts/evidence and charges in both proceedings were the same; and the acquittal was `substantially on merit' connoting the contradistinction with grant of benefit of doubt:

(1)An administrative authority, in initiating disciplinary proceedings, is not bound to wait for the verdict of a criminal court but where the criminal court has tried the concerned person and acquitted him it would be improper and such a proceeding is lable to be quashed as not in consonance with the principles of natural justice if the administrative authority later initiates disciplinary proceedings on the identical facts, evidence and charges if the acquittal had been substantially on the merits;

(2)There is no rigid or inflexible rule that a finding of a Criminal Court is conclusive in every sense upon the administrative authority. For instance, it may punish on the same facts for some lesser charge, which may not amount to a criminal offence bt may well amount to a grave dereliction of duty entitling disciplinary action. This was illustrated by referring to a School Master being acquitted for a charge of rape of a girl student but still departmental action being possible against the school mster for grave impropriety in his relationship with a girl student which would disentitle him to that office;

(3)Where the acquittal is substantially on the merits, it will not be proper for a disciplinary Tribunal to record a finding of guilt on identical facts and charges and also to punish; this being a basic principle of jurisprudence the court exercising juisdiction under Article 226 of the Constitution would be justified in striking down the action based on such findings as not in consonance with principles of natural justice.''

After considering a plethora of precedents the Learned Judge preferred the opinion ''that when there is a substantial acquittal of the accused on a criminal charge there should not be a departmental proceeding against him in respect of the same charge on the same facts unless there are present conditions like the acquittal being on a technical ground or establishing conduct which would make it unworthy of the said office.''

3. This very question has been discussed in great detail by the Division Bench of the Bombay High Court in Jeevan Prakash Pandurang Mokashe v. State Bank of India and Anr., 1983 II LLJ 145, and the following passage from the Judgment is worthy of reproduction:

'' .... But it is one thing to say that a domestic tribunal can come to a contrary or contradictory conclusion in regard to the same fact and another that an inference or conclusion drawn may follow differently from the act having different aspects for which the act or conduct is under enquiry. In one case the act or conduct is enquired into for the purpose of finding out whether an offence is spelt out under the relevant enactment or is not committed, while for the other purpose the question is also whether the act committed renders the continuation of the person in the employment undesirable. While, therefore, more than one consequence is capable of following from the same act holding of an enquiry for the purpose of determining whether that other consequence has followed disentitling the person from further continuation or requiring his termination, is a question which can be legitimately gone into by a domestic tribunal, notwithstanding that no offence is disclosed. The areas, therefore of the two authorities are clearly different. We do not, however, think that this Court in coming to this conclusion had held or opined that it would be permissible for the other tribunal to come to a contrary conclusions of fact. If it had been found by the criminal Court in Bhaurao's case (supra) that no money passed from the hands of Limji to Bhaurao as a fact, then we have considerable doubt, and that is not what has been held, that it was possible for the domestic tribunal to hold as a mater of fact that an amount of Rs. 5 did pass from the hands of Limji to Bhaurao. It is this aspect of the matter and controversy which acquired considerable importance in the present case. With very great respect, we are unable to agree that the Supree Court when it made any observation in Pritam Singh's case (supra) did not mean what it said. What was said in Pritam Singh's case (supra), following the observation of Lord Mac Dermott in sambasivam's case was that verdict is binding ''and conclusiven all subsequent proceedings between the parties to the adjudication.'' In terms of Art. 141 of the Constitution of India we think that the Supreme Court approved these observations and stated in its judgment that that is the law of the land and has the followed and respected by every subordinate Court.

4. The law on the circumstances in which a Departmental Inquiry can be stayed when criminal proceedings are underway, and the law on the impact of the decision in the criminal proceedings on the Departmental Inquiry can be found in the detailed yet perspicuous judgment of the Hon'ble Supreme Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., 1999 (2) SLR 338, of which the following passages commend reproduction:

13. As we shall presently see, there is a consensus of judicial opinion amongst the High Courts whose decisions we do not intend to refer in this case, and the various pronouncements of this court, which shall be copiously referred to, on the basic priniple that proceedings in a criminal case and the departmental proceedings can proceed simultaneously with a little exception. As we understand, the basis for this proposition is that proceedings in a criminal case and the departmental proceedings operatoin distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings the standard of proofs one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facs and the evidence in both the proceedings is common without there being a variance. ...

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 evience 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 earldate, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest. ....

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 reidence and recovery of incriminating articles there from.' The findings recorded by the Inquiry 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 Pan witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were establishe 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 to 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 iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.

It should be noted that the jural scrutiny was carried out after the close of the departmental proceedings, and that the evidence in both were found to be identical. It also appears that the charges were also identical. Three necessary conting enciehad coalesced.

5. In Sulekh Chand @ Salek Chand v. Commissioner of Police and Ors., , the Departmental Promotional Committee had taken into account the prosecution under the Prevention of Corruption Act in which the Officer had been acquitted on merits. It was in those circumstances that the Hon'ble Court had observed that the need of a departmental inquiry was obviated, and that-

''it is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entiled to conduct departmental inquiry on the selfsame allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits''.

6. Learned counsel for the Respondent has contended that it is not an automatic consequence that upon a person being acquitted by a criminal court departmental proceedings against him must invariably come to an end. It is argued that the Petitioner has been tried for offences under Section 420, 468, 471/120B of the Indian Penal Code whereas the charges in the Departmental Inquiry related to the Petitioner's acts of omission and commission, fraud and loss of confidence thereby failing to discharge his duties in the utmost integrity becoming of a bank officer.

7. Learned counsel for the Respondent has also relied on the decision of the Hon'ble Supreme Court entitled Nelson Motis v. Union of India and Anr., but it is of little assistance to their cause as will be evident from the following extract from Anthony case (supra). In my view reference to the Nelson Motis case (supra) has been impliedly overruled as is discernible from the underlined sentence:

Then came the decision in Nelson Motis v. Union of India and Ors., , which laid down that the disciplinary proceedings can be legally continued even where the employee is acquitted in a criminal case as the nature and proof required in a criminal case are different from those in the departmental proceedings. Besides, the Court found that the acts which led to the initiation of departmental proceedings were not exactly the same which were the subject matter of the criminal case. The question was not considered in detail. The Court observed:

''So far the first point is concerned, namely whether the disciplinary proceedings could have been continued in the face of the acquittal of the appellant in the criminal case, the plea has no substance whatsoever and does not merit a detailed consideration. The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceedings. Besides, the Tribunal has pointed out that the acts which led to the initiation of the departmental disciplinary proceeding were not exactly the same which were the subject matter of the criminal case.''

8. If there was any lingering doubt about the opinion of the Apex Court on this conundrum, it no longer exists as can be gleaned from its decision in Krishna kant Raghunath Bibhavenekar v. State of Maharashtra and Ors. which was decided without reference to Anthony's case (supra). Pending his criminal trial the employee was placed under suspension and consequent upon his acquittal in that prosecution because of insufficient evidence, he was reinstated but consequential benefits were not granted to him. The Court opined that-

''It is true that when a government servant is acquitted of offences, he would be entitled to reinstatement. But the question is whether he would be entitled to all consequential benefits including the pensionary benefits treating the suspension period as duty period, as contended by Shri Ranjit Kumar? The object of sanction of law behind prosecution is to put an end to crime against the society and laws thereby intends to restore social order and stability. The purpose of the prosecution of a publicer vant is to maintain discipline in service, integrity, honesty and truthful conduct in performance of public duty or for modulation of his conduct to further the efficiency in public service. The Constitution has given full faith and credit to public acts. Conduct of a public servant has to be an open book; corrupt would be known to everyone. The reputation would gain notoriety. Though legal evidence may be insufficient to bring home the guilt beyond doubt or foolproof. The act of reinstatement sens ripples among the people in the office/locality and shows wrong signals for degeneration of morality, integrity and rightful conduct and efficient performance of public duty. The constitutional animation of public faith and credit given to public acts would be undermined. Every act or the conduct of a public servant should be to effectuate the public purpose and constitutional objective. Public servant renders himself accountable to the public. The very cause for suspension of the petitioner and taing punitive action against him was his conduct that led to his prosecution for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidnce, the question emerges whether the government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits. In our considered view this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would be deleterious to the maintenance of the discipline if a person suspended on valid considerations is given full back wages as a alter of course on his acquittal. Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accued did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon. Even otherwise, the authority may, on reinstatement after following the principle of natural justice, pass appropriate orderncluding treating suspension period as period of not on duty (and on payment of subsistence allowance etc.)

9. The attention of the Apex Court was again not drawn to its previous opinion expressed in Anthony's case (supra), in Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar, , where it has been opined that ''acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application.''

In any vent the commission of a criminal offence cannot be equated with a misconduct, and therefore this decision lays down a principle akin to that in Anthony's case (supra), which is also not an authority for the proportion that the Court can quash a Deartmental Inquiry even before the final decision is taken.

10. In situations such as the present one, as soon as criminal proceedings commence, the delinquent employee facing a domestic/departmental inquiry invariably prays that the Inquiry should be stayed till the final decision in the criminal case. This prayer is granted on the touchstone of the principle laid down in Anthony's case (supra) primarily to ensure that the defense of the accused in the criminal trial may not be jeopardised because of its early or prior disclosure. If the substance of the two proceedings does not overlap, it would not be proper to stay the domestic inquiry, since it is also in the interest of justice that both proceedings come to their earliest end. There is no precedent for the proposition that a criminal trial will always determine and obviate a departmental inquiry but this result would be reached in every case if the Courts were to quash the latter because of a decision in the former. The Court would have to compare the charges framed in both and hereafter to consider the nature of the evidence produced before the Magistrate/Session Judge, and then to cogitate upon whether the acquittal was as a consequence of granting the benefit of the doubt to the accused. In the present case the civil action initiated by the Bank has also been dismissed on the foundation that it had failed to discharge even the `civil' burden of proof. The domestic inquiry has been allowed to be continued by this Court but the final decision has been interdicted. The Respondent/Management prays that it should be permitted to give effect to the final decision, or at least to place it before the Court for consideration, but the prayer is vehemently opposed by the learned counsel for the Petitioner. In Pritam Singh v. State of Punjab, , the Hon'ble Court had applied the maxim `res judicata pro viritate accipitur'. Black's Law Dictionary, Fifth Edition, defines this latin maxim as ''a matter adjudged is taken for truth; a matter decideder passed upon a court of competent jurisdiction is received as evidence of truth. In the same treatise estoppel by judgment is stated to indicate that when a fact has been decided in a court neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter so long as the decision remains unreversed. Therefore, there seems to be little or no room available to the Disciplinary Authority for an independent decision in the facts of the present case.

11. I have given thought to this legal nodes for a few days, and the position which commends itself, as of general application, is that the Court should normally not interfere with or impede in the taking of the final decision by the Authority concerned. The pronouncements that have been made by the several Courts are directed for the benefit and adherence of the Disciplinary Authority which has to take the final decision on the report and recommendation of the Inquiry Officer where a Criminal Court has expressed its opinion. Only thereafter would be expected to judicially review the soundness of the Management's decision. In other words if an Inquiry Officer were to be so sanguine as to venture upon on the collection of facts, which exercise has already been undergone by a judicial authority, or which opportunity has been granted but not been availed of by one of the parties before it, then his decision may be eventually vitiated. Similarly if the Inquiry Officer or the Discilinary Authority were to be so bold as to arrive at a conclusion different to that of the judicial authority on the same evidence and charges it would more than likely be struck down. The Departmental Inquiry has to read the same evidence to the same appreciative effect as the judicial authority, but if the nature of the charges are distinct, he may use the evidence recorded by the Court to arrive at a conclusion particularly relevant to the charges framed in the Departmental Inquiry. The Inuiry Officer as well as the Disciplinary Authority must comply with the principles of res judicata/estoppel adumbrated above. It is indeed a difficult task, and the analysis is always within a small compass, to determine whether the criminal Courted acquitted the delinquent employee by granting him the benefit of the doubt. While taking the disciplinary decision this factor will always be omnipresent and whatever outcome is reached, it would be subject to judicial review. It must immediately clarified that this judicial review normally should be taken after the decision of the Disciplinary Authority and not after the judgment of the criminal Court. It would be the rarest of rare cases where the charges of misconduct are identical in all espects to the charges framed in the criminal Court. Even then the Court should be slow and loathe to interfere at the stage where I presently find myself to be. If the decision of the Management contravenes the legal principles enumerated above, the employee may not find himself permanently disadvantaged. He can always assail the decision in Court and be adequately recompensed; if his services are terminated the court is fully empowered to reinstate him and direct that all monetary benefits reachim, and make observation calculated to ensure the vindication of his honour.

12. In this analysis I recall the interim orders passed in these proceedings, and permit the Management to take a decision in the Inquiry. If the Management ignores the order of acquittal and the dismissal of the civil suit it may eventually find that it has done so to its peril and financial detriment. I.A. 2508/2004 praying that the final order may be permitted to be passed is allowed.

13. For these reasons the writ petition is dismissed. But the parties shall bear their respective costs.