Jai Kishan vs Allahabad Bank And Ors.
2013 Latest Caselaw 4368 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 4898/1995

%                                                   24th September, 2013

JAI KISHAN                                       ..... Petitioner
                          Through:     Mr. Vikram Saini, Advocate.

                          versus

ALLAHABAD BANK AND ORS.                                  ..... Respondents

                Through:               Mr. Jagat Arora, Advocate with Mr.
                                       Rajat Arora, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner impugns the order dated

14.4.1984 imposed by the disciplinary authority dismissing his services, and

also the order of the appellate authority dated 3.1.1994 dismissing the appeal

filed by the petitioner against the order of the disciplinary authority.

Petitioner has been found guilty of forging bank drafts and seeking to encash

the same.

2. Since the chargesheet in the present case is a short one I

reproduce the said chargesheet dated 9.3.1984 as under:-

"Charge-Sheet-cum-Show Cause Notice You are hereby charged as under:-

That while you were posted as Clerk-cum-Cashier at out Chandni Chowk, Delhi branch you have stolen three bank draft leaves baring serial numbers 333872, 334165 and 334166 on 20.1.84, 2.2.84 and 2.2.84 respectively to forge these with an intention to defraud and cheat the Bank and converting money to your use.

2. That you have fraudulently made out a draft bearing serial number 334165 for `35,500/- dated 4.2.84 in favour of Shri Mohan Singh by forging signatures of Bank's officials and tried to encash same through our Panipat Branch. Having failed in your attempt you fraudulently manipulated encashment of the said draft from our Rohtak branch through Canara Bank, Rohtak with an intention to defraud and cheat the Bank converting the money to your use.

3. That you also tried to defraud and cheat the Bank by `65,500/- each through Ludhiana, Clock Tower and Ghaziabad branch of the Bank by fraudulently use of the drafts unauthorizedly in your possession and also made out forged draft advices bearing branch serial numbers 16 and 416 dated 20.1.84 and 28.1.84 respectively.

4. On 1.3.1984, when you were allowed entry in our Chandni Chowk branch to claim and receive subsistence allowance, you accepted your guilt as stated above and in your own accord submitted a statement in writing giving details of stealing and fraudulent use of blank draft leaves.

5. You have committed an act which tantamounts to gross misconduct within the meaning of clause 19.5(j) of Bi-partite Settlement dated 19.10.1966.

6. The misconduct has been established and accordingly I decide to impose the punishment in terms of paragraph 19.6(a) for your aforesaid act of misconduct. You are hereby advised to show cause within three days of the receipt of this notice as to why you should not be dismissed from the Bank's service. If your reply is not received within three days of the receipt of this notice, it will be presumed that you have no explanation to offer and your services will stand terminated from the Bank as from that date.

Yours faithfully, Sd/- R.S. Sharma Regional Manager, Disciplinary Authority."

3. Enquiry officer was thereafter appointed vide letter dated

30.3.1984 and enquiry proceedings were held on 9.4.1984. In the enquiry

proceedings, the petitioner admitted to the charges against him. Following

are the proceedings which were conducted on 9.4.1984:-

" Date: 9.4.1984 Departmental Enquiry against Shri Jai Kishan, Clerk-cum-Cashier, Chandni Chowk, Delhi branch held at Bank's Zonal Office, New Delhi at 11.00 A.M. on 9.4.1984 when the following were present.

1. S.P. Chopra-Enquiry Officer. 2. Shri Ram Vir Sharma, Presenting Officer and 3. Shri Jai Kishan-Charged employee. The parties are informed that the procedure as laid down in First Bipartite Settlement dated 19.10.1966 clause 19.12.(a) (which have been explained orally to the parties present).

Throughout the enquiry the tenets of natural justice will be followed.

P.O. will mean the Presenting Officer.

C.E. will mean the Charged employee.

E.O. will mean the Enquiry Officer.

D.A. will mean the Defence Assistant.

M.W. will mean the Management witness.

D.W. will mean the Defence Witness.

The following documents have been admitted and marked as Exhibits.

(i) Charge Sheet-cum-Show Cause Notice No.RO/Adm/30/10981 of 9.3.84 issued to Shri Jai Kishan (Exhibit No.1).

(ii) D.A. order No.RO/Admn/30/1599 of 30.3.84 being order for a departmental enquiry and order appointing Shiv Prakash Chopra as Enquiry Officer (Exhibit No.2)

(iii) D.A. order No.RO/Admn/31/1600 of 30.3.84 being order appointing Shri Ram Vir Sharma as Presenting Officer. (Exhibit No.3)

(iv) Regional Office order No.RO/Admn/30/1606 of 30.3.84 addressed to Shri Jai Kishan informing him that departmental enquiry has been instituted against him (Exhibit No.4).

The Charge sheet cum show cause notice dated 9.3.84 was read and explained to the Charged employee in the presence of Presenting Officer.

E.O. to C.R.- Do you plead guilty.

C.E.- Yes I plead guilty.

E.O. to C.E.- Have you made a voluntary admission of your guilt in reply to the aforementioned show cause notice of 9.3.84.

C.E. - Yes.

E.O. to P.O.- Please submit copy of voluntary admission of the guilt by the Charged Employee.

Presenting Officer has submitted copy dated 21.3.84 and of 1 st March, 1994 of voluntary admission of the guilt by Charged Employee.

E.O. to P.O. - Do you want to examine any witness.

P.O.- No. Charged Employee has pleaded guilty. In my opinion there is further no need to follow enquiry procedure. As such enquiry is completed."

4. In view of the fact that petitioner admitted to the charges

against him, the enquiry officer by his report dated 12.4.1984 gave a finding

of guilt against the petitioner. The disciplinary authority vide its order dated

14.4.1984 visited the petitioner with penalty of dismissal of removal from

service. The appeal filed by the petitioner on 14.5.1984 was dismissed by

the appellate authority on 3.1.1994. It may be noted that petitioner had

otherwise also by his letters dated 1.3.1984 and 21.3.1984 admitted his guilt.

5. Before me, counsel for the petitioner has urged the following

arguments:-

(i) Principles of natural justice have been violated because enquiry

proceedings have been unnecessarily hurried up. It is argued that the short

time given of only three days to reply to the chargesheet dated 9.3.1984

shows its illegality. It is also argued that enquiry proceedings were

completed with undue haste and therefore petitioner is prejudiced.

(ii) Petitioner never gave an admission of his guilt and he was coerced

and misrepresented to give his admission of guilt.

(iii) Petitioner has been exonerated in the criminal case which was filed

against him, and which aspect should be considered in favour of the

petitioner and the appellate authority erred in not considering this judgment

in criminal case for exonerating the petitioner.

(iv) Appeal has been decided after more than 10 years and therefore on

this ground itself the appellate authority's order dated 3.1.1994 is bound to

be set aside.

(v) Bank had no authority to initiate an enquiry for one year in terms of

relevant Rule 19.4 of the Disciplinary Action and Procedure because Rule

19.4 states that once a criminal case was registered against the petitioner, no

departmental proceedings could be commenced for one year.

6. So far as the first argument that principles of natural justice

have been violated and enquiry has been completed with unnecessary and

undue haste, the argument is without merit. This is because no doubt three

days were given to reply to the chargesheet dated 9.3.1984, however,

essentially reply to the chargesheet is only for admitting or denying of the

guilt so that detailed enquiry proceedings should or should not be conducted.

It also needs to be noted that petitioner knew the issues against him and he

had in fact admitted his guilt earlier in his letter dated 1.3.1984. Enquiry

officer in this case has been appointed around 21 days after issue of the

chargesheet and therefore in my opinion this long period was more than

sufficient for the petitioner to decide his defence to the chargesheet. By the

notice dated 2.4.1984 enquiry proceedings were fixed on 9.4.1984 and I do

not think that considering that 9.4.1984 was only the first date of hearing

fixed and which would have thereafter been followed by subsequent dates,

that the first date of hearing fixed of 9.4.1984 was in any manner illegal.

The fact that detailed enquiry proceedings became immaterial because of

admission made by the petitioner cannot mean that there is any illegality in

fixing of the first date of hearing on 9.4.1984 by the letter of the enquiry

officer dated 2.4.1984. Because of subsequent events of admission of guilt,

an initial date fixed in the enquiry proceedings even if be short cannot mean

that there is any undue haste or any pressure. In fact, from the first date of

the issue of the chargesheet on 9.3.1984 there was a gap of one month in the

date of hearing which was fixed. Surely the period of 30 days is quite

sufficient for a person such as the petitioner to introspect and reflect and

therefore it cannot be that there was any violation of principles of natural

justice on account of alleged short dates being fixed. Very frankly, I fail to

understand this argument because preliminary dates can always be short

dates, and really the issue of short dates is an issue of prejudice but I fail to

find any prejudice having been caused to the petitioner. It may be noted that

in between the first date of issue of chargesheet on 9.3.1984 and the first

date of enquiry proceedings on 9.4.1984 petitioner had written a letter dated

21.3.1984 admitting to his guilt. This letter is annexed as Annexure R-2 to

the counter affidavit of the respondent No.1-bank however petitioner has not

refuted the same by filing any rejoinder affidavit. In fact, and as already

stated above, even prior to issue of the show cause notice on 9.3.1984,

petitioner by his letter dated 1.3.1984 had admitted his guilt in writing and

this document is filed as Annexure R-1 to the counter-affidavit. As already

stated above, no rejoinder affidavit has been filed and therefore it cannot be

argued that in the facts of the present case, there is any undue haste by the

departmental authorities.

7. So far as the argument that petitioner has been forced and

coerced to admit his guilt, the discussion aforesaid while deciding the first

argument would be sufficient, however, it needs reiteration that besides the

period of 30 days in between the issue of the chargesheet and the first date of

proceedings before the enquiry officer, petitioner himself had admitted his

guilt by two letters dated 1.3.1984 (written even before issuance of the

chargesheet) and 21.3.1984 (after issuance of the chargesheet but before

admitting his guilt before the disciplinary proceedings on 9.4.1984).

Therefore besides admitting his guilt on 9.4.1984 petitioner had otherwise

admitted his guilt in writing and under his signatures on two occasions and

therefore it does not lie in the mouth of the petitioner to argue that petitioner

was forced and coerced to admit his guilt in the enquiry proceedings on

9.4.1984.

8. So far as the argument that petitioner should be exonerated

because he has been acquitted in the criminal case, two aspects show that

this argument is misconceived. First is that onus of proof in a criminal case

and a civil case of departmental proceedings are different. In a criminal case

the charge has to be proved beyond all reasonable doubts whereas in a civil

departmental proceedings case the articles of charges have to be established

only on preponderance of probabilities. Therefore acquittal of the petitioner

in the criminal case cannot mean that petitioner would automatically stand

exonerated even in the departmental proceedings. The second aspect is that

the petitioner on three occasions in writing under his signatures i.e on

1.3.1984, 21.3.1984 and 9.4.1984 admitted to his guilt and therefore I do not

find any reason as to how the acquittal in a criminal case can exonerate the

petitioner in view of his repeated admissions of guilt and in view of specific

admissions in departmental proceedings on 9.4.1984. Petitioner therefore

has been rightly found guilty in the departmental proceedings.

9. The argument urged by the petitioner that the appeal has been

decided after a delay of 10 years is an argument which is only technically

correct because delay in decision of the appeal does not automatically lead

to the order of the appellate authority becoming void. If there was any

delay surely the petitioner would have been entitled to approach the Courts

for the appellate authority to decide the case. The petitioner took no steps

from 1984 to 1993 to approach the Court for the appellate authority to

decide the case, and when the petitioner approached the Court, this Court

then passed an order on 15.7.1993 in C.W. No.2727/1993 for deciding the

appeal, and thereafter appellate authority passed the order. I therefore do not

think that any such prejudice has been caused for automatically setting aside

the appellate authority's order only on the ground of delay. I asked the

counsel for the petitioner as to whether there is any judgment that the

appellate authority's order must fail only on the ground of delay, however

counsel for the petitioner conceded that he has no judgment that appellate

authority's order automatically needs to be set aside only because of delay in

disposal of the appeal.

10. The final argument which was urged by the petitioner was in

terms of Rules 19.4 and 19.12 of the Disciplinary Rules of the bank that

departmental proceedings cannot be initiated within one year of FIR being

registered. I however do not find such mandatory language in Rule 19.4 that

no departmental proceedings can commence within one year of taking steps

to prosecute an employee. Rule 19.4 could have been better worded,

however, I cannot read Rule 19.4 that in spite of the fact that the charged

official admits his guilt still departmental proceedings cannot take place

simply because steps have been taken to prosecute an employee or get him

prosecuted for an offence. This argument therefore urged on behalf of the

petitioner is also therefore rejected.

11. In view of the above, I do not find any merit in this petition

and the same is therefore dismissed, leaving the parties to bear their own

costs.

SEPTEMBER 24, 2013                           VALMIKI J. MEHTA, J.
Ne