Shreechand Saraiya vs Central M.P. Gramin Bank
2023 Latest Caselaw 280 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                 AT J A B A L P U R
                          BEFORE
          HON'BLE SHRI JUSTICE VIVEK AGARWAL
                ON THE 5th OF JANUARY, 2023


               WRIT PETITION No. 11765 of 2012
BETWEEN:-
SHREECHAND SARAIYA S/O SHRI SOHANE SINGH SARAIYA, AGED
ABOUT 57 YEARS, PURANI DINDORI, JURKI TOLA, AWAS WARD NO.14
DINDORI (MADHYA PRADESH)
                                              .....PETITIONER

(SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI RAHUL
CHOUBEY - ADVOCATE)

AND
   SATPURA NARBADA KSHETRIYA GRAMIN BANK (AJOINT
1. UNDERTAKING OF GOVERNMENT OF INDIA) M.P.GOVERNMENT
   AND CENTRAL BANK, HEAD OFFICE, 800/19 SOUTH CIVIL LINES,
   CHHINDWARA TH:ITS CHAIRMAN (MADHYA PRADESH)

2. REGIONAL MANAGER SATPURA NARBADA KSHETRIYA GRAMIN
   BANK REGIONAL OFFICE MANDLA (MADHYA PRADESH)

     MADHYA PRADESH GRAMIN BANK REGIONAL RURAL BANK
3.
     (UNDER THE SPONSORSHIP OF BANK OF INDIA) THROUGH ITS
     CHAIRMAN HEAD OFFICE INDORE (MADHYA PRADESH)

                                          .....RESPONDENTS

(BY SHRI ASHISH SHROTI - ADVOCATE)
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                 WRIT PETITION No. 18409 of 2012
BETWEEN:-
SHREECHAND SARAIYA S/O SOHANE SINGH SARAIYA, AGED ABOUT
57 YEARS, R/O PURANI DINDORI TURKI TOLA AWASWARD NO. 14
DINDORI M.P. (MADHYA PRADESH)

                                                       .....PETITIONER
(BY SMT. SHOBHA MENON - SENIOR ADVOCATE ASSISTED BY SHRI
RAHUL CHOUBEY - ADVOCATE)

AND

   CENTRAL M.P. GRAMIN BANK THROUGH: ITS OFFICER ON
1. SEPCIAL DUTY HEAD OFFICE AT CHHINDWARA (MADHYA
   PRADESH)
   SHRI P.K. GUPTA OCCUPATION: OFFICER OF SPECIAL DUTY
2.
   CENJTRAL GRAMIN BANK HEAD OFFICE (MADHYA PRADESH)
   MADHYA PRADESH GRAMIN BANK REGIONAL RURAL BANK
3. (UNDER THE SPONSORSHIP OF BANK OF INDIA) THROUGH ITS
   CHAIRMAN HEAD OFFICE INDORE (MADHYA PRADESH)

                                                    .....RESPONDENTS
(BY SHRI ASHISH SHROTI - ADVOCATE)

      These petitions coming on for hearing this day, the court passed

the following:

                               ORDER

1. These writ petitions are filed respectively being aggrieved of

decision of the respondents to not release annual increments for the

period with effect from 2005 and the chargesheet issued on 6/10/2012.

2. Petitioner's case is that there was no disciplinary enquiry against

the petitioner nor any penalty in the nature of withholding of any annual

increment was passed, therefore, arbitrarily, respondents chose not to

release the annual increments, merely because petitioner was facing

criminal prosecution for offences registered against him under Sections

418 and 420 of I.P.C. while he was functioning as a 'Branch Manager' of

Satpura Narbada Kshetriya Gramin Bank, Samnapur.

3. It is submitted that petitioner was placed under suspension on

17/09/2005. Later on, vide order dated 23/11/2007, suspension was

revoked. Thereafter, petitioner was exonerated in the criminal case in

ST No. 1009/08 on 10/09/2008 but respondents despite the fact that

petitioner was exonerated in the criminal case did not release the annual

increments for the period with effect from 2005 till the date of filing of

the writ petition.

4. In the second petition, petitioner's grievance is that respondents

had issued memo of chargesheet dated 6/10/2012. It is submitted that

respondent no. 2 was working as Officer on Special duty and with effect

from 8/10/2012, there was amalgamation of Satpura Narbada Kshetriya

Gramin Bank and a new entity being the Central MP Gramin Bank

came into effect, therefore, allegation is that a chargesheet was

antedated by the authority who was later on posted as Officer on

Special Duty in Central MP Gramin Bank, therefore, said chargesheet is

nonest in the eyes of law and a prayer is made seeking quashing of the

chargesheet Annexure P-1 and the entire action intended to be taken

thereon.

5. Learned senior counsel for the petitioner Smt. Shobha Menon

submits that disciplinary proceedings start with issuance of chargesheet

and not with issuance of a show-cause notice as is the ratio of law laid

down by the Supreme Court in Union of India, etc. etc., Vs. K.V.

Jankiraman, etc. etc. AIR 1991 SC 2010.

6. Placing reliance on this judgment, it is submitted that since

chargesheet was issued in 2012, no disciplinary proceedings was

pending prior to that, therefore, as per para 6 of the judgment of the

Supreme Court in K.V. Jankiraman (supra), disciplinary/criminal

proceedings can be said to have commenced only after charge-

memo/chargesheet was issued for adopting a procedure of sealed cover.

7. Accordingly, it is submitted that delay in issuance of a

chargesheet is not condonable and the chargesheet be quashed as per the

law laid down by the Supreme Court in P.V. Mahadevan Vs. MD, T.N.

Housing Board (2005) 6 SCC 636.

8. Shri Ashish Shroti in his turn submits that a chargesheet was

issued prior to amalgamation, therefore, in terms of the regulation 39

applicable to the Bank employees of the relevant service regulations,

since, chargesheet was issued by the competent authority namely the

disciplinary authority, therefore, there is no illegality in the impugned

chargesheet calling for quashing on the ground of lack of authority or

being antedated.

9. At this stage, Smt. Shobha Menon submits that as per the

envelope Annexure P-4 available on record, a chargesheet was

dispatched on 12/10/2012, therefore, it was antedated.

10. Shri Ashish Shroti places reliance on the judgment of the

Supreme Court in P.V. Shrinivas Sastry and others Vs. Controller

and Auditor General and others (1993) 1 SCC 419 to submit that a

departmental enquiry can be initiated by any authority superior to the

delinquent and in the present case, though, chargesheet is not antedated

but even O.S.D. being superior to the petitioner will not vitiate a

chargesheet as held by the Supreme Court that Article 311(1) does not

say that the departmental proceeding must be initiated only by the

Appointing Authority.

11. After hearing learned counsel for the parties and going through

the record, it is evident that two claims have been putforth by the

petitioner namely suspension on 17/09/2005 and its revocation on

23/11/2007 are not sufficient circumstances to withhold the increments

during the pendency of period of suspension or criminal case in which

eventually, petitioner was exonerated vide order dated 10/09/2008

because order of suspension has been passed only on the ground of

petitioner being taken in judicial custody which according to the

Regional Rural Bank (Officers and Employees) Service Regulation

2000, Regulation 29(1) makes a provision for deemed suspension.

12. Another aspect which is to be seen and which has been putforth

by learned counsel for the parties that whether an undertaking furnished

by the petitioner at the time of revocation of suspension on 23/11/2007

that his claims will be subject to outcome of the criminal case and the

proposed departmental enquiry, if any, will be binding on the petitioner

or not ?

13. The third issue is that whether chargesheet issued on 6/10/2012

will be considered nonest on the allegations of the petitioner that it is

antedated inasmuch as on 8/10/2012, merger and amalgamation of

Satpura Narbada Kshetriya Gramin Bank had taken place and a new

entity Central MP Gramin Bank came into existence.

14. The fourth issue is that whether issuance of a show-cause notice

which was issued on 13/08/2008 and which was replied to on

22/09/2008 will be the relevant date for the purposes of initiation of

departmental enquiry or the relevant date will be the date on which the

chargesheet was issued on 6/10/2012.

15. As far as issue of release of increment is concerned, the first

requirement is to understand as to when an employee becomes entitled

to release of increment. The increment is a reward for satisfactory

services for the preceding one year as increments take effect from the

anniversary of the date of appointment.

16. Thus, it is evident that increments are earned on the basis of past

services rendered by an employee. If a departmental enquiry is pending

or contemplated, inquiring into the conduct of an employee, as to

whether he is entitled to release of increments earned, then a decision to

release such increment will be subject to satisfaction of the authorities

and outcome of the said departmental enquiry.

17. In the present case, in W.P. No. 18409/2012, whereby petitioner

has challenged the issuance of a chargesheet dated 6/10/2012, two

charges have been levelled on the petitioner namely :-

vkjksi dz0 01%& vkids }kjk 13 dslhlh [kkrksa esa fgrxzkfg;ksa dks _.k Lohd`r

,oa forj.k esa fuEu vfu;ferrk;sa fd;s tkuk ftldk [kkrkokj fooj.k layXu

lwph esa miyC/k gS %&

1½ fu;ekuqlkj fof/kor csckdh izek.ki= ugha fy;k x;k gSA 'kiFk i= fy;s

x;s gSa ftuesa vU; cSadks ds cdk;k dk dksbZ mYys[k ugha gSA

2½ fgrxzkfg;ksa dks iznRr _.k] ik=rk ls vf/kd fn;k x;k gSA

3½ dqqN _.k [kkrksa esa Hkwfe dh fd'rcanh ugha ikbZ xbZA

4½ d`f"k m/kkj vkosnu esa mYysf[kr Hkwfe dk fooj.k fgrxzkgh dh okLrfod

Hkwfe ls fHkUu gSA

5½ fgrxzkgh dk QksVks vfHkizekf.kr ugha gSA

6½ forfjr _.k jkf'k dk fudklh i= ls Hkqxrku fd, tkus ij vf'kf{kr

dks Hkqxrku ds le; nks xokg vko';d gS ds funsZ'kksa dk ikyu ugha fd;k

x;kA

7½ [kkrsnkj dks forfjr _.k jkf'k HkyhHkakfr Hkqxrku ugha fd;k x;kA

nyky ds ek/;e ls Hkqxrku fd;k x;k gS ftlls [kkrsnkj dks lEiw.kZ _.k

jkf'k izkIr ugh gqbZ gSaA

vkids }kjk mDr izdkj ls _.k forj.k ds dkj.k fgrxzkgh okLrfod :i ls

ykHkkfUor gksus ls oafpr jgs ,oa mUgsa dslhlh ;kstuk dk iw.kZ ykHk ugha fey

ldk tks fd ,d xaHkhj foRrh; vuq'kklughurk gSA

vkids }kjk fd;k x;k mDr dk;Z lriqM+k ueZnk {ks=h; xzkeh.k cSad

¼vf/[email protected]½ lsok fofue; 2010 dh /kkjk 18 ,oa 20 ds rgr xaHkhj

dnkpkj ,oa foRrh; vuq'kklughurk gS tks /kkjk 39 ds rgr n.Muh; gSA

vkjksi dz0 02%& vkids }kjk dslhlh 190] 191] 192 ds _.k forj.k esa

[kkrsnkjksa dh fcuk lgefr ds varj.k Ogkmpj ij gLrk{kj izkIr fd, fcuk

vukf/kd`r :i ls lacaf/kr ds cpr [kkrksa dks ukesa dj _.k [kkrksa esa jkf'k

tek fd;k tkukA

1½ Jh [email protected] ds [kkrk ,[email protected] dks fnukad 10-09-2005 dks

varj.k Ogkmpj ls :i;s [email protected]& ukesa dj jkf'k dslhlh [kkrk dzekad 190

esa varj.k ls tek dh xbZ gSA varj.k Ogkmpj ij jkf'k varfjr djus ds

[kkrsnkj ds lgefr ds gLrk{kj ugha ik;s x;sA

2½ Jh [email protected] ds [kkrk ,[email protected] dks fnukad 10-09-2005 dks

varj.k Ogkmpj ls :i;s [email protected]& ukesa dj jkf'k dslhlh [kkrk dzekad 191

esa varj.k ls tek dh xbZ gSA varj.k Ogkmpj ij jkf'k varfjr djus ds

[kkrsnkj ds lgefr ds gLrk{kj Ukgha ik;s x;sA

3½ Jh HkYyk ds [kkrk ,[email protected] dks fnukad 10-09-2005 dks varj.k

Ogkmpj ls :i;s [email protected]& ukesa dj jkf'k dslhlh [kkrk dzekad 192 esa

varj.k ls tek dh xbZ gSA varj.k Ogkmpj ij jkf'k varfjr djus ds [kkrsnkj

ds lgefr ds gLrk{kj ugha ik;s x;sA

bl izdkj vkids }kjk fgrxzkfg;ksa ds [kkrksa dks vukf/kd`r rjhds ls ukes ,oa

tek fd;k x;k tks cSafdx fu;eksa ds foijhr gS rFkk xaHkhj foRrh;

vuq'kklughurk gSA

18. Thus, it is evident that charges are of serious financial irregularity

which is subject matter of enquiry. Due to stay on the proceedings in

the departmental enquiry vide order dated 2/11/2012, enquiry could yet

not be completed.

19. Since, there is stay in the enquiry, petitioner's claim that he was

placed under suspension and then suspension was revoked on an

undertaking and thereafter, petitioner was exonerated in the criminal

case on 10/09/2008, that precludes the authorities from conducting

departmental enquiry is contrary to the law laid down by the Supreme

Court in Nelson Motis Vs. Union of India and another AIR 1992 SC

1981, wherein it is held in absolute terms that irrespective of the

acquittal of the appellant, the disciplinary proceedings could have been

continued or initiated.

20. Infact, the Full Bench of the Orissa High Court in Jayaram

Panda Vs. D.V. Raiyani and others (1990) II LLJ 186 (Orissa) has

held that even if the delinquent secures acquittal in a criminal case,

discretion is left with the authorities and if in the facts and

circumstances of the case, the authorities feel that notwithstanding the

acquittal, a departmental enquiry is expedient, the court should not

ordinarily interfere.

21. Similarly, in the case of Chief Regional Manager State Bank of

India Vs. S. Eswara Rao (1995) II LLJ 874 (A.P.) (D.B.), it is held

that there are differing objects of holding a departmental enquiry and

criminal prosecution.

22. Thus, decision of the authorities to initiate departmental enquiry

cannot be criticized or set aside, merely because petitioner was

acquitted in a criminal case.

23. It is urged that the delay in proceedings will be fatal for the

prosecution but fact of the matter is that mere delay in issuance of a

chargesheet for which show-cause notice was already issued on

13/08/2008 will not be fatal, inasmuch as the judgment rendered in P.V.

Mahadevan (supra) and relied by the petitioner is distinguishable on

facts of the case.

24. In that case, there was inordinate delay of ten years in initiating

departmental enquiry. Petitioner therein was subjected to issuance of a

chargesheet in the year 2000 for the irregularity committed by him in

the year 1990.

25. In the present case, petitioner secured exoneration on 10/09/2008.

Thereafter, a chargesheet was issued. Therefore, issuance of a

chargesheet for which show-cause notice was issued in August, 2008

and reply was filed in September, 2008 cannot be said to be arbitrary

and illegal specially looking to the fact that there are serious allegations

of financial irregularity touching upon the functioning of the Bank as a

financial institution.

26. It is true that for the purposes of adopting a sealed cover

procedure, relevant date is the date of issuance of the chargesheet but in

the present case, for the purposes of determining the entitlement for

release of increments, relevant date is not the date of issuance of the

chargesheet specially when there is an undertaking of an

employee/petitioner and there is a specific mention of this fact in the

order of revocation of suspension that period of suspension shall be

regularized in terms of Regulation 46 subject to the outcome of the

pending court case and departmental proceedings. Therefore, the first

petition (W.P. No. 11765/2012) seeking release of increments and

difference of arrears of salary is subject to the outcome of the

disciplinary proceedings which are still pending, therefore, petitioner is

not entitled to claim any relief of release of difference of arrears of

salary for the period of suspension with interest, inasmuch as, it will be

determined on the outcome of the departmental enquiry and, therefore,

he will have to wait and cooperate with the departmental authorities to

seek early conclusion of the departmental enquiry subject to outcome of

which the petitioner's period of suspension will be regularized.

27. Therefore, the first petition (W.P. No. 11765/2012) deserves to be

dismissed and is dismissed with an observation that dismissal of the

petition will not prejudice the departmental authorities and on

conclusion of the departmental enquiry and subject to its outcome,

petitioner's claim for regularization of the period of suspension and

consequential benefits will be decided by the authorities.

28. The quashing of chargesheet is sought on two grounds namely it

is antedated and secondly that there is a delay in initiating disciplinary

proceedings.

29. As far as delay is concerned, it is held by Madras High Court in

G. Anandam Vs. Tamilnadu Electricity Board and another (1996) II

LLJ 1198 Madras that mere delay alone is not sufficient to vitiate

disciplinary proceedings. It is necessary for the delinquent employee to

show some prejudice caused to him on account of delay.

30. The Supreme Court in case of Secretary to Government,

Prohibition and Excise Department Vs. L. Srinivasan (1996) 3 SCC

157 has held that where a chargesheet has been issued and a

departmental enquiry is in process, it will be erroneous to set aside the

enquiry and quash the chargesheet on the ground of delay in initiation

of the proceedings having regard to the nature of the charges namely

embezzlement and fabrication of false record which will be liable to

take a long time to detect and which should be done in secrecy.

31. In Bharat Coking Coal Limited Vs. Bibhuti Kumar Singh and

others 1994 Supp (3) SCC 628, it is held that if there is no any

inordinate delay, then the disciplinary proceedings should be permitted

to continue particularly when the delinquent is not under suspension.

32. In the case of Deputy Registrar, Cooperative Societies Vs.

Sachindra Nath Pandey and others (1995) 3 SCC 134, it is held that

where the complaint is of delay, the court is required to consider

whether the charges are of serious nature or not ?

33. It is a settled principle of law that the parameters of applicability

of rules of evidence to a criminal case and to a departmental

proceedings are different. Therefore, mere acquittal in a criminal case

is not sufficient to curb the right of the authorities to conduct a

departmental enquiry.

34. In view of such settled legal position, once the disciplinary

proceedings are initiated by issuance of a chargesheet, the court should

be slow to interfere in such departmental proceedings initiated with an

object to discover the truth in the allegation of the charges. The judicial

review has limited application.

35. In the case of State of Andhra Pradesh and others Vs. S. Sree

Rama Rao AIR 1963 SC 1723 so also in the case of B.C. Chaturvedi

Vs. Union of India and others (1995) 6 SCC 749 and in the case of

High Court of Judicature at Bombay Vs. Shashikant S. Patil and

another (2000) 1 SCC 416, it is held that the grounds of judicial review

are if violation of principles of natural justice is established or

proceedings are shown to be in violation of statutory regulations or a

decision to initiate a departmental enquiry is shown to be vitiated by

considerations extraneous to the evidence and if the conclusion made

by the authority is ex facie arbitrary or capricious that no reasonable

person could have arrived at such conclusion, then only power to

judicial review should be exercised and not otherwise. When tested on

these grounds, none of these grounds are made out by the petitioner.

36. As far as issue of communication of chargesheet is concerned, in

Delhi Development Authority Vs. H.C. Khurana AIR 1993 SC 1488

and in State of M.P. Vs. L.P. Tiwari AIR 1994 SC 2175, it is held that

a chargesheet is issued once a decision to initiate disciplinary

proceedings is taken.

37. "The issue" of the chargesheet in the context of a decision taken

to initiate a disciplinary proceeding means the framing of the

chargesheet and taking of the necessary action to dispatch the

chargesheet to the employee. It does not comprehend the further effect

of service of the chargesheet on the employee.

38. Thus, in the light of the decision of the Supreme Court in H.C.

Khurana (supra), once the chargesheet is framed and dispatched, it

cannot be said to be antedated.

39. The chargesheet was prepared on 6/10/2012 and was forwarded

to the concerned Branch Manager, Dindori on 6/10/2012, therefore, it

cannot be said that there was any delay in dispatch of the chargesheet,

vitiating the chargesheet on face of it.

40. Thus, once the charges are formulated and put into motion prior

to 8/10/2012, then it cannot be said that chargesheet has been antedated

unless cogent material is produced by the petitioner on record to show it

otherwise.

41. Therefore, in view of the law laid down by the Supreme Court in

the case of S. Sree Rama Rao (supra), B.C. Chaturvedi (supra) and

Shashikant S. Patil (supra), there being a limited scope of judicial

review and none of the grounds of judicial review are made out, I do not

find it to be a fit case to show indulgence in the matter to quash the

chargesheet.

42. Thus, the second petition (W.P. No. 18409/2012) too fails and is

dismissed.

(VIVEK AGARWAL) JUDGE

vy/-

VAIBHAV YEOLEKAR 2023.01.12 17:23:49 +05'30'