Punjab-Haryana High Court
Suresh Kumar Bunker vs Syndicate Bank And Ors on 23 April, 2024
Neutral Citation No:=2024:PHHC:054924
CWP-5475-2012 (O&M) -1- 2024:PHHC:054924
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
208 CWP-5475-2012 (O&M)
Date of Decision: 23.04.2024
SURESH KUMAR BUNKER ... PETITIONER
Versus
SYNDICATE BANK AND ORS ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr.Sunil K.Chaudhary, Advocate
for the petitioner.
Mr. Vipin Mahajan, Advocate and
Ms. Tejinder Kaur, Advocate
for the respondent.
****
JAGMOHAN BANSAL, J. (Oral)
1. The petitioner through instant petition under Articles 226/227 of the
Constitution of India is seeking setting aside of:
(i) order dated 27.05.2011 (Annexure P-13) whereby he was
compulsorily retired from service and;
(ii) order dated 05.01.2012 (Annexure P-15) whereby his appeal has
been dismissed.
2. The petitioner joined respondent-bank as Clerk on 10.09.1985. The
respondent No.2 in June' 1994 found one pay order missing which was
presented for clearance on 25.06.1994 through Oriental Bank of Commerce. The
respondent conducted enquiry and found that instrument was forged. During the
course of enquiry, it was further found that three demand drafts were missing.
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The respondent conducted enquiry and ultimately found the petitioner guilty for
the missing of three demand drafts. He came to be suspended from service. The
respondent on one hand initiated departmental enquiry and on the other lodged
FIR under Section 409/411/34 of IPC against the petitioner and his accomplice
Roshan Lal Gora. The police, during the course of search, conducted at the
residence of petitioner recovered one demand draft. The enquiry officer in his
report dated 06.08.1996 (Annexure P-4) declared him guilty of misconduct. It
was found that the petitioner in connivance with one private person namely
Roshan Lal Gora has misappropriated three demand drafts and one pay order.
The disciplinary authority accepted report of enquiry officer and issued a show
cause notice dated 31.10.1996 (Annexure P-5) proposing punishment of
dismissal from service. In show cause notice, there was proposal of dismissal
from service, however, he was awarded punishment of compulsory retirement
with superannuation benefits. The trial Court vide judgment dated 19.01.1998
(Annexure P-6) on account of lack of proper evidence acquitted him. He
preferred statutory appeal before Appellate Authority against the order of
compulsory retirement which came to be dismissed.
3. Mr.Sunil K.Chaudhary, Advocate submits that the petitioner was
acquitted by trial Court. The criminal proceedings as well as departmental
proceedings were initiated on the same set of allegations. As the petitioner has
been acquitted in criminal proceedings, he deserves to be reinstated and
extended all service benefits. In support of his contention, he relies upon
judgments of the Apex Court in Capt. M. Paul Anthony vs. Bharat Gold Mines
Ltd. 1999 (3) SCC 679 and G.M. Tank vs. State of Gujarat and another, 2006
(5) SCC 446.
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4. Per contra, Mr. Vipin Mahajan, Advocate submits that it is a settled
proposition of law that yardstick for departmental proceedings is different from
criminal proceedings. In case of criminal proceedings, the prosecution has to
prove beyond reasonable doubt whereas departmental proceedings depend upon
preponderance of evidence. The departmental and criminal proceedings cannot
be weighed with the same scale.
5. I have heard the arguments of learned counsel for the parties and
perused the record with their able assistance.
6. In Deputy Inspector General of Police and another vs. S.
Samuthiram, (2013) 1 SCC 598, the Apex Court placing reliance upon its
earlier judgment in Southern Railway Officers'Association vs. UOI, (2009) 9
SCC 24 has held that acquittal in criminal case itself cannot be a ground for
interfering with the order of punishment imposed by the Disciplinary Authority.
7. In Kendriya Vidyalaya Sangathan and others vs. T. Srinivas, 2004
(7) SCC 442, the Apex Court set aside the order of the Tribunal which had been
upheld by the High Court wherein disciplinary proceedings had been ordered to
be stayed till the criminal trial is over. It was accordingly held that both the said
proceedings were altogether distinct and different while placing reliance upon
the judgment in State of Rajasthan vs. B.K. Meena, 1996 (6) SCC 417. The
relevant extracts of judgment in Kendriya Vidyalaya's case (supra) reads as:-
"In the instant case, from the order of the tribunal as also
from the impugned order of the High Court, we do not find
that the two forums below have considered the special facts
of this case which persuaded them to stay the departmental
proceedings. On the contrary, reading of the two impugned
orders indicates that both the tribunal and the High Court
proceeded as if a departmental enquiry had to be stayed in
every case where a criminal trial in regard to the same
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misconduct is pending. Neither the tribunal nor the High
Court did take into consideration the seriousness of the
charge which pertains to acceptance of illegal gratification
and the desirability of continuing the appellant in service
inspite of such serious charges levelled against him. This
Court in the said case of State of Rajasthan (supra) has
further observed that the approach and the objective in the
criminal proceedings and the disciplinary proceedings is
altogether distinct and different. It held that in the
disciplinary proceedings the question is whether the
respondent is guilty of such conduct as would merit his
removal from service or a lesser punishment, as the case may
be, whereas in the criminal proceedings the question is
whether the offences registered against him are established
and, if established, what sentence should be imposed upon
him. The court in the above case further noted that the
standard of proof, the mode of enquiry and the rules
governing the enquiry and trial in both the cases are distinct
and different. On that basis, in the case of State of Rajasthan
the facts which seems to be almost similar to the facts of this
case held that the tribunal fell in error in staying the
disciplinary proceedings."
8. A two-judge Bench of Supreme Court in Union of India and others
vs. Subrata Nath, 2022 LiveLaw (SC) 998 while adverting with scope of
interference under Article 226 of the Constitution of India in disciplinary
proceedings has held that departmental authorities are fact finding authorities.
On finding the evidence to be adequate and reliable during the departmental
enquiry, the Disciplinary Authority has the discretion to impose appropriate
punishment on the delinquent employee keeping in mind the gravity of the
misconduct. The Hon'ble Supreme Court has considered its judicial precedents
including a two-judge Bench judgment in Union of India and Others v. P.
Gunasekaran. The relevant extracts of the judgment read as:
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"19. Laying down the broad parameters within which the
High Court ought to exercise its powers under Article
226/227 of the Constitution of India and matters relating to
disciplinary proceedings, a two Judge Bench of this Court in
Union of India and Others v. P. Gunasekaran held thus:
"12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry
officer. The finding on Charge I was accepted by the
disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a
second court of first appeal. The High Court, in
exercise of its powers under Articles 226/227 of the
Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can
only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice
in conducting the proceedings;
(d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
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arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of
India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry,
in case the same has been conducted in
accordance with law; (iii) go into the adequacy
of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on
which findings can be based.
(vi) correct the error of fact however grave it
may appear to be;
(vii) go into the proportionality of punishment
unless it shocks its conscience."
X X X X
22. To sum up the legal position, being fact finding
authorities, both the Disciplinary Authority and the Appellate
Authority are vested with the exclusive power to examine the
evidence forming part of the inquiry report. On finding the
evidence to be adequate and reliable during the departmental
inquiry, the Disciplinary Authority has the discretion to
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impose appropriate punishment on the delinquent employee
keeping in mind the gravity of the misconduct. However, in
exercise of powers of judicial review, the High Court or for
that matter, the Tribunal cannot ordinarily reappreciate the
evidence to arrive at its own conclusion in respect of the
penalty imposed unless and until the punishment imposed is
so disproportionate to the offence that it would shock the
conscience of the High Court/Tribunal or is found to be
flawed for other reasons, as enumerated in P. Gunasekaran
(supra). If the punishment imposed on the delinquent
employee is such that shocks the conscience of the High
Court or the Tribunal, then the Disciplinary/Appellate
Authority may be called upon to re-consider the penalty
imposed. Only in exceptional circumstances, which need to
be mentioned, should the High Court/Tribunal decide to
impose appropriate punishment by itself, on offering cogent
reasons therefor."
9. In the case in hand, the petitioner was subjected to departmental and
criminal proceedings. The criminal proceedings were initiated after initiation of
departmental proceedings. The foundation of proceedings was mis-
appropriation of demand drafts and pay order. The enquiry officer in its report
found that the petitioner was guilty of misconduct. He had misappropriated all
the four instruments. The police during investigation recovered one demand
draft from his residence. He has been acquitted by trial Court on the ground that
prosecution has failed to prove its case beyond reasonable doubt. It is not a case
where criminal proceedings are foundation of departmental proceedings. The
petitioner is relying upon judgment of Supreme Court in Capt. M. Paul
Anthony's case (supra) which is not applicable to his case. In the said case, the
delinquent employee was guilty of theft. Police initiated investigation against
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him and during the course of search of his residence recovered gold. On account of
said fact, departmental proceedings were initiated.
10. The sole ground to challenge findings of departmental authorities is
acquittal in criminal case. This Court is of the considered opinion that if criminal
proceedings are initiated on account of departmental proceedings, the outcome of
departmental proceedings besides the fact that both proceedings are independent
and different yardstick is applied, cannot be ignored or brushed aside on account of
dropping of criminal proceedings. In case of departmental proceedings, the
department is not bound to prove its case beyond the reasonable doubt whereas
findings depend upon preponderance of evidence. The petitioner was subjected to
departmental enquiry wherein he was found guilty. The disciplinary authority
though issued show cause notice for dismissal from service but taking a lenient
view ordered to prematurely retire him. The Appellate Authority has considered all
the averments of the petitioner. The petitioner cannot be exonerated on the sole
ground that he has been acquitted in criminal proceedings.
11. In view of judgment of Supreme Court in Subrata Nath''s case
(supra) and P. Gunasekaran's case (supra), the scope of interference is very
limited and in the instant case no ground to interfere with findings recorded by the
departmental authority is made out.
12. In the wake of above discussion and findings, the present petition
deserves to be dismissed and accordingly dismissed.
13. Pending miscellaneous application(s), if any, shall also stand disposed
of.
23.04.2024 (JAGMOHAN BANSAL)
anju JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
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