Punjab-Haryana High Court
Ashu Kumar vs State Bank Of India on 18 January, 2024
Neutral Citation No:=2024:PHHC:006526
CWP-28296-2018 & 1 2024:PHHC:006526
CWP-6408-2023
244 (2)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) CWP-28296-2018
Date of Decision:18.01.2024
ASHU KUMAR ......... Petitioner
Versus
STATE BANK OF INDIA ..... Respondent
2) CWP-6408-2023
AJAY RAJ .....Petitioner
Versus
STATE BANK OF INDIA AND OTHERS .....Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. R.K. Handa, Advocate,
Mr. Dharam Bir Bhargav, Advocate,
Ms. Gauri Handa, Advocate and
Mr. Kulwinder Bhargav, Advocate
for the petitioner(s) (in both case).
Mr. Vikas Chatrath, Advocate,
Mr. B.P.S. Thakur, Advocate
Mr. Rajbir Singh, Advocate and
Mr. Dharam Vir Singh, Advocate
for the respondent(s) (in both case).
****
JAGMOHAN BANSAL, J. (Oral)
1. Written statement filed on behalf of respondents No.1 and 2
through Sh. Ran Singh, Regional Manager, State Bank of India and
Regional Business Officer, Ambala (Haryana) is taken on record.
Registry is directed to tag the same at an appropriate place.
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2. By this common order CWP-28296-2018 & CWP-6408-
2023 are hereby disposed of since issue involved in both the petitions and
prayer sought are common. With the consent of parties and for the sake
of brevity, facts are borrowed from CWP-28296-2018.
3. The petitioner through instant petition under Articles
226/227 of the Constitution of India is seeking setting aside of charge
sheet dated 05.02.2016 (Annexure P-2); order dated 10.03.2017
(Annexure P-3) whereby Enquiry Officer was appointed; order dated
26.10.2017 (Annexure P-5) whereby Disciplinary Authority awarded
punishment of removal from service and order dated 18.05.2018
(Annexure P-8) whereby Deputy General Manager has dismissed appeal
of the petitioner.
4. The petitioner was appointed as Customer Assistant, State
Bank of India, SME Branch, Yamuna Nagar on 11.02.2015. An FIR
No.119 dated 30.08.2015 under Sections 454, 380, 409 and 120-B of
Indian Penal Code came to be registered alleging theft of Rs.12,91,800/-
from the ATM of respondent-Bank. The petitioner was not named in the
FIR, however, he came to be arrested and recovery of Rs. 1 Lakh was
effected from him. On the basis of alleged recovery, the respondent-Bank
issued charge sheet dated 26.10.2017 alleging that police has recovered a
sum of Rs.1 lakh out of stolen money. The Enquiry Officer conducted
enquiry and found petitioner guilty of commission of offence of theft.
The Disciplinary Authority i.e. Assistant General Manager vide order
dated 26.10.2017 ordered to remove the petitioner from service. It was
further ordered that removal would be with superannuation benefits i.e.
pension, provident fund and gratuity. The petitioner had joined just 6
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months prior to alleged incident, thus, petitioner, practically, was not
entitled to any superannuation benefit. The Disciplinary Authority in its
order dated 26.10.2017 with respect to all the charges concluded that
police has recovered a sum of Rs.1 lakh from the petitioner and challan
has been filed against him, thus, he is liable to be punished. In other
words, the foundation of the impugned order was involvement of the
petitioner in aforesaid FIR. The relevant extracts of order dated
26.10.2017 passed by Disciplinary Authority read as:
"Charge No.1
You divulged stolen secret information regarding
Sadhaura branch ATM password and system of
handling of ATM machine to an outsider Sh. Chander
Mohan, with an ulterior motive of stealing ATM Cash.
Thus, you connived with Sh. Chander Mohan an
outsider and also Sh. Ajay Raj, Customer Assistant,
Sadhaura Branch to commit fraud in Bank by way of
embezzlement of ATM Cash of Sadhaura Branch.
My findings:
To prove the charge No 1, the PO has produced CCTV
footage, copy of FIR, final report of FIR, apart from
deposition of Sh Balinder Kumar and Sh Sulekh
Chand. It has come on record that Sh Ajay Raj shared
the password with you. You further shared it with
Chander Mohan apart from system of handling of
ATM. It is also matter of record that out of total
amount recovered, Rs. One lac has also been
recovered from you by the Police. All these incidents
are sufficient to prove the charge as all such evidences
in all probabilities lead to your involvement and
therefore I agree with the findings of the EO and hold
the charge as proved.
Charge No.2
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On account of your involvement in the fraud, FIR was
lodged with local Police and you were arrested by
Police on 02.09.2015. You remained under judicial /
police custody till 05.04.2016, which adversely
affected the reputation of the Branch and image of the
Bank.
My findings:
To prove the charge No 2, the PO has produced the
copy of FIR, Final report of FIR, cuttings of Various
News Papers regarding your involvement in this ATM
case, apart from depositions of Sh Sulekh Chand, Sh
Balinder Kumar, Sh Pawan Kumar, and Sh Davinder
Kumar Chawla. All these depositions and news items
are sufficient to prove that you had remained in
Police/ Judicial custody, it leads to adversely affected
the reputation and Image of the bank in the eyes of the
public. Therefore, I agree with the findings of the EO
and hold the charge as Proved.
Charge No.3
The part amount of Rs. 1,00,000.00 (approximately),
out of total fraud amount of Rs. 12,74,800/- has been
recovered from you by the Police and the same has
been deposited in the court. This establish your
involvement in the fraud.
My findings:
To prove the charge No. 3, the PO has produced copy
of letter received from Police regarding recovery of
Rs. One lac from you, out of total amount of theft of Rs
12,74,000.00. He also produced copy of court order
dated 30.08.16 wherein the amount covered by police
released by the court to the Bank. These evidences
lead to prove that the recovery has been made by the
police from the you. Therefore, I hold the charge as
Proved."
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The petitioner preferred appeal before the Appellate
Authority against the aforesaid order which came to be dismissed by
Deputy General Manager vide order dated 18.05.2018 (Annexure P-8).
5. On the one hand, the petitioner was subjected to
departmental proceedings and on the other hand, he was made to face
criminal trial. The police after completing investigation filed its report
under Section 173 of Cr.P.C. alleging commission of offence of theft.
The police as well as respondent-Bank led its evidence before the Trial
Court. Judicial Magistrate 1st Class, Sub Division, Bilaspur vide judgment
dated 03.12.2022 acquitted both the petitioners. The Trial Court came to
a conclusion that prosecution has miserably failed to prove guilt of the
accused beyond reasonable doubt.
6. Learned counsel for the petitioner submits that foundation of
charge sheet as well order of removal was alleged recovery of Rs.1 lakh
from the petitioner and filing of challan by the police in the aforesaid
FIR. The petitioner was not named in the FIR. The Trial Court has found
that petitioner was never entrusted with alleged money nor was in-charge
of ATM. The petitioner was not posted in the Branch which was
in-charge of the ATM in question. The security guard did not support
case of the prosecution. CCTV footage could not help the prosecution.
The denomination of notes recovered by police did not match with
denomination proposed by Bank. The alleged theft took place during day
time and ATM was situated in a busy locality. The Trial Court has
threadbare dealt with each and every allegation of the prosecution, thus,
impugned order of dismissal from service cannot sustain. There is no
concept of honorable acquittal and this fact has duly been considered by a
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Division Bench of this Court in Bhag Singh vs. Punjab & Sind Bank
Baldev Singh, 2005 (6) SLR 464 as well as Hon'ble Supreme Court in
Joginder Singh vs. Union Territory of Chandigarh, 2015 (2) SCC 377.
7. Per contra, Mr. Vikas Chatrath, learned counsel for the
respondents submits that petitioner has not challenged findings of
Enquiry Officer, thus, he cannot take advantage of acquittal. The
petitioner was bound to challenge findings of Enquiry Officer and in the
absence of challenge to findings of Enquiry Officer, the challenge to
punishment order is not sustainable. It is settled proposition of law that
conviction in criminal trial is recorded if prosecution proves its case
beyond the reasonable doubt whereas departmental proceedings are based
upon preponderance of evidence. The standards and yardstick of scrutiny
of evidence in departmental and criminal proceedings are different, thus,
petitioner cannot be reinstated on the basis of acquittal by Trial Court.
In support of his contention, he relied upon the judgment of
Supreme Court in 'U.P. State Road Transport Corporation Vs. Vinod
Kumar' 2008 (1) SCC (L&S)1 and 'State of Karnataka and another Vs.
Umesh' 2022 (6) SCC 563.
On being asked, counsel for the respondent expressed his
inability to controvert the fact that the charges imputed in the
departmental proceeding were based upon FIR and evidence led in
departmental and criminal proceeding were same.
8. I have heard the arguments of learned counsel for the
parties and with their able assistance perused the record.
9. Supreme Court in the case of Umesh (supra) has held that
punishment awarded in departmental proceeding cannot be quashed on
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the ground of acquittal in criminal trial. High Court does not act as an
Appellate Authority over the findings of Disciplinary Authority. The
relevant extracts of the judgment reads as:
"22. In the exercise of judicial review, the Court does
not act as an appellate forum over the findings of the
disciplinary authority. The court does not
reappreciate the evidence on the basis of which the
finding of misconduct has been arrived at in the
course of a disciplinary enquiry. The Court in the
exercise of judicial review must restrict its review to
determine whether:
(i) the rules of natural justice have been complied
with;
(ii) the finding of misconduct is based on some
evidence;
(iii) the statutory rules governing the conduct of the
disciplinary enquiry have been observed; and
(iv) whether the findings of the disciplinary
authority suffer from perversity; and
(v) the penalty is disproportionate to the proven
misconduct.
23. However, none of the above tests for attracting
the interference of the High Court were attracted in
the present case. The Karnataka Administrative
Tribunal having exercised the power of judicial review
found no reason to interfere with the award of
punishment of compulsory retirement. The Division
Bench of the High Court exceeded its jurisdiction
under Article 226 and trenched upon a domain which
falls within the disciplinary jurisdiction of the
employer. The enquiry was conducted in accordance
with the principles of natural justice. The findings of
the enquiry officer and the disciplinary authority are
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sustainable with reference to the evidence which was
adduced during the enquiry. The acquittal of the
respondent in the course of the criminal trial did not
impinge upon the authority of the disciplinary
authority or the finding of misconduct in the
disciplinary proceeding."
10. Supreme Court in M. Paul Anthony v. Bharat Gold Mines
Ltd., (1999) 3 SCC 679 after adverting with previous enunciation of law,
laid down guidelines with respect to stay of departmental proceeding
when criminal proceedings on the same set of allegations are pending
before competent court. The appellant therein was acquitted in criminal
trial, however in disciplinary proceedings he was dismissed from service.
The order of dismissal was passed ex-parte and appellant was not given
subsistence allowance during the period of suspension. The Supreme
Court has held:
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
residence and recovery of incriminating articles
therefrom". The findings recorded by the enquiry
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 panch
witnesses, who had raided the house of the appellant
and had effected recovery. They were the only
witnesses examined by the enquiry officer and the
enquiry officer, relying upon their statements, came to
the conclusion that the charges were established
against the appellant. The same witnesses were
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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
not 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.
11. Supreme Court while noting the fact that standard of
evidence in departmental and criminal proceedings is different, in G.M.
Tank v. State of Gujarat, (2006) 5 SCC 446 has held that where both
proceedings are based upon same set of allegations and evidence, on
acquittal in criminal proceedings, the employee cannot be punished in
departmental proceedings. The relevant extracts of the judgment read as:
29. The judgment in State of A.P. v. S. Sree Rama
Rao [(1964) 3 SCR 25 : AIR 1963 SC 1723] was cited
for the purpose that the High Court is not constituted
in a proceeding under Article 226 of the Constitution
as a court of appeal over the decision of the
authorities holding a departmental enquiry against a
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public servant, it is concerned to determine whether
the enquiry is held by an authority competent in that
behalf and according to the procedure prescribed in
that behalf and whether the rules of natural justice are
not violated.
30. The judgments relied on by the learned counsel
appearing for the respondents are distinguishable on
facts and on law. In this case, the departmental
proceedings and the criminal case are based on
identical and similar set of facts and the charge in a
departmental case against the appellant and the
charge before the criminal court are one and the
same. It is true that the nature of charge in the
departmental proceedings and in the criminal case is
grave. The nature of the case launched against the
appellant on the basis of evidence and material
collected against him during enquiry and investigation
and as reflected in the charge-sheet, factors mentioned
are one and the same. In other words, charges,
evidence, witnesses and circumstances are one and the
same. In the present case, criminal and departmental
proceedings have already noticed or granted on the
same set of facts, namely, raid conducted at the
appellant's residence, recovery of articles therefrom.
The Investigating Officer Mr V.B. Raval and other
departmental witnesses were the only witnesses
examined by the enquiry officer who by relying upon
their statement came to the conclusion that the
charges were established against the appellant. The
same witnesses were examined in the criminal case
and the criminal court on the examination came to the
conclusion that the prosecution has not proved the
guilt alleged against the appellant beyond any
reasonable doubt and acquitted the appellant by its
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judicial pronouncement with the finding that the
charge has not been proved. It is also to be noticed
that the judicial pronouncement was made after a
regular trial and on hot contest. Under these
circumstances, it would be unjust and unfair and
rather oppressive to allow the findings recorded in the
departmental proceedings to stand.
31. In our opinion, such facts and evidence in the
departmental as well as criminal proceedings were the
same without there being any iota of difference, the
appellant should succeed. The distinction which is
usually proved between the departmental and criminal
proceedings on the basis of the approach and burden
of proof would not be applicable in the instant case.
Though the finding recorded in the domestic enquiry
was found to be valid by the courts below, when there
was an honourable acquittal of the employee during
the pendency of the proceedings challenging the
dismissal, the same requires to be taken note of and
the decision in Paul Anthony case [(1999) 3 SCC
679 : 1999 SCC (L&S) 810] will apply. We, therefore,
hold that the appeal filed by the appellant deserves to
be allowed.
12. By majority, a three judge bench of the Supreme Court in
Radheshyam Kejriwal v. State of W.B., (2011) 3 SCC 581, while
dealing with outcome of departmental vis-a-vis criminal proceeding has
concluded:
38. The ratio which can be culled out from these
decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution
can be launched simultaneously;
(ii) Decision in adjudication proceedings is not
necessary before initiating criminal prosecution;
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(iii) Adjudication proceedings and criminal
proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution
in the adjudication proceedings is not binding on the
proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement
Directorate is not prosecution by a competent court of
law to attract the provisions of Article 20(2) of the
Constitution or Section 300 of the Code of Criminal
Procedure;
(vi) The finding in the adjudication proceedings in
favour of the person facing trial for identical violation
will depend upon the nature of finding. If the
exoneration in adjudication proceedings is on
technical ground and not on merit, prosecution may
continue; and
(vii) In case of exoneration, however, on merits where
the allegation is found to be not sustainable at all and
the person held innocent, criminal prosecution on the
same set of facts and circumstances cannot be allowed
to continue, the underlying principle being the higher
standard of proof in criminal cases.
13. In a recent judgment, Supreme Court in Ram Lal vs. State of
Rajasthan, 2023 SCC Online SC 1618 has held that Courts are supposed
to look into the judgment of acquittal while adjudicating departmental
proceedings. The relevant extracts of the judgment read as :
"28. Expressions like "benefit of doubt" and
"honorably acquitted", used in judgments are not to
be understood as magic incantations. A court of law
will not be carried away by the mere use of such
terminology. In the present case, the Appellate Judge
has recorded that Exh. P-3, the original marksheet
carries the date of birth as 21.04.1972 and the same
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has also been proved by the witnesses examined on
behalf of the prosecution. The conclusion that the
acquittal in the criminal proceeding was after full
consideration of the prosecution evidence and that the
prosecution miserably failed to prove the charge can
only be arrived at after a reading of the judgment in
its entirety. The court in judicial review is obliged to
examine the substance of the judgment and not go by
the form of expression used."
14. A Division Bench of this Court in Bhag Singh's case
(supra) has adverted with question of acquittal, honorable acquittal,
benefit of doubt etc. The Court has held that mere use of expression
"benefit of doubt" or "not proved beyond reasonable doubt" by the trial
Court or the appellate Court, cannot be permitted to convert an acquittal
on the ground of no evidence, to something less than that. The concepts
of "honourable acquittal", "fully exonerated" or "acquitted of blame" are
all unknown to the Criminal Procedure Code, 1973. Therefore, the term
"benefit of doubt" cannot detract impact of the acquittal.
15. A two-judge Bench of Hon'ble Supreme Court in Joginder
Singh's case (supra) while adverting with appointment on the post of
Constable has adverted with question of acquittal vis-a-vis honourable
acquittal. The Court has held that acquittal of a person is an
"honourable" acquittal in every sense and purpose. A candidate should
not be deprived from being appointed to the post, in the public
employment, by declaring him as unsuitable to the post even though he
was acquitted in the criminal case registered against him. It is apt to
notice that in the said case, the appellant therein was acquitted by trial
Court still he was denied appointment to the post of Constable. The
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relevant extracts of the judgment read as :
"16. However, adverting to the criminal proceeding
initiated against the appellant, we would first like to
point out that the complainant did not support the case
of the prosecution as he failed to identify the
assailants and further admitted that the contents of
Section 161 CrPC statement were not disclosed to him
and his signatures were obtained on a blank sheet of
paper by the investigating officer. Further, Sajjan
Singh, who was an eyewitness of the case, who was
also injured, had failed to identify the assailants. Both
the witnesses were declared hostile on the request of
the prosecution.
17. The learned Additional Sessions Judge, Bhiwani
held that the prosecution has not been able to prove in
any way the allegations against the appellant. Thus,
the learned Judge held that the prosecution had
miserably failed to prove the charges levelled against
the appellant in the criminal proceedings. Therefore,
we are in agreement with the findings and judgment of
the learned Additional Sessions Judge and are of the
opinion that the acquittal of the accused from the
criminal case was an honourable acquittal.
18. The learned counsel has rightly placed reliance
upon the decision of this Court in Inspector General of
Police v. S. Samuthiram [(2013) 1 SCC 598 : (2013) 1
SCC (Cri) 5661 : (2013) 1 SCC (L&S) 229] of which
relevant paragraph is extracted as under : (SCC p.
609, para 24)
"24. The meaning of the expression 'honourable
acquittal' came up for consideration before this Court
in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 :
1994 SCC (L&S) 594 : (1994) 26 ATC 619] . In that
case, this Court has considered the impact of
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Regulation 46(4) dealing with honourable acquittal by
a criminal court on the disciplinary proceedings. In
that context, this Court held that the mere acquittal
does not entitle an employee to reinstatement in
service, the acquittal, it was held, has to be
honourable. The expressions 'honourable acquittal',
'acquitted of blame', 'fully exonerated' are unknown
to the Code of Criminal Procedure or the Penal Code,
which are coined by judicial pronouncements. It is
difficult to define precisely what is meant by the
expression 'honourably acquitted'. When the accused
is acquitted after full consideration of prosecution
evidence and that the prosecution had miserably failed
to prove the charges levelled against the accused, it
can possibly be said that the accused was honourably
acquitted." (emphasis supplied)
19. Further, an acquittal of the appellant is an
"honourable" acquittal in every sense and purpose.
Therefore, the appellant should not be deprived from
being appointed to the post, in the public employment,
by declaring him as unsuitable to the post even though
he was honourably acquitted in the criminal case
registered against him.
20. Further, undisputedly, there has been no
allegation of concealment of the fact that a criminal
case was registered against him by the appellant.
Thus, the appellant has honestly disclosed in his
verification application submitted to the selection
authority that there was a criminal case registered
against him and that it ended in an acquittal on
account of compromise between the parties involved
in the criminal case, he cannot be denied an
opportunity to qualify for any post including the post
of a Constable.
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21. Reliance has been placed on the decision of this
Court in Deptt. of Home, A.P. v. B. Chinnam Naidu
[(2005) 2 SCC 746 : 2005 SCC (L&S) 323] which
states herein : (SCC p. 750, para 9)
"9. A bare perusal of the extracted portions
shows that the candidate is required to indicate
as to whether he has ever been convicted by a
court of law or detained under any
State/Central preventive detention laws for any
offences whether such conviction is sustained or
set aside by the appellate court, if appealed
against. The candidate is not required to
indicate as to whether he had been arrested in
any case or as to whether any case was
pending. Conviction by a court or detention
under any State/Central preventive detention
laws is different from arrest in any case or
pendency of a case. By answering that the
respondent had not been convicted or detained
under preventive detention laws it cannot be
said that he had suppressed any material fact or
had furnished any false information or
suppressed any information in the attestation
form to incur disqualification. The State
Government and the Tribunal appeared to have
proceeded on the basis that the respondent
ought to have indicated the fact of arrest or
pendency of the case, though Column 12 of the
attestation form did not require such
information being furnished. The learned
counsel for the appellants submitted that such a
requirement has to be read into an attestation
form. We find no reason to accept such
contention. There was no specific requirement
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to mention as to whether any case is pending or
whether the applicant had been arrested. In
view of the specific language so far as Column
12 is concerned the respondent cannot be found
guilty of any suppression."
(emphasis supplied)
16. From the above cited judgments, following guiding
principles can be culled out:
i) Standard of evidence and yardstick adopted to
adjudicate same matter in departmental and criminal
proceedings are different.
ii) Conviction in criminal trial rests upon proving
guilt beyond reasonable doubt whereas punishment in
departmental proceedings rests upon preponderance
of evidence.
iii) High Court, in exercise of power conferred by
Article 226 of Constitution of India, while deciding
petition against departmental punishment cannot act
as an appellate authority.
iv) If the departmental and criminal proceedings
are based upon same set of allegations, charges and
evidence either oral or documentary and there is
acquittal in criminal trial, the departmental
proceedings may be set aside.
v) It is duty of the court to examine findings of
criminal court and it should not sway by use of
expression 'acquittal', 'honourable acquittal' and
'beyond reasonable of doubt' etc.
17. The contention of respondent that petitioner has not
specifically disputed findings of Enquiry Officer is misconceived because
petitioner has specifically challenged charge sheet, appointment of
Enquiry Officer, order of Disciplinary Authority as well as Appellate
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Authority. It is apt to notice here that petitioner was acquitted by Trial
Court after filing of present petition. In any case, this Court being a
Constitutional Court cannot turn a blind eye and ignore factual position
when question of livelihood of two families is involved.
18. In view of above-cited judgments, an employee cannot be
reinstated merely on acquittal from criminal trial. The Court is duty
bound to look at nature of allegations made in departmental and criminal
proceedings. The Court is further supposed to look into findings of Trial
Court where an employee claims reinstatement on the basis of his
acquittal in criminal trial. If the foundation of departmental proceedings
and criminal trial is same, the Court has to look into judgment of acquittal
and if it finds that acquittal is neither based upon technical grounds nor
turning of witnesses hostile, question of reinstatement needs to be
examined.
19. The petitioner was subjected to punishment of dismissal on
the same set of evidence and allegations which formed foundation of
criminal trial. The Disciplinary Authority has ordered to dismiss the
petitioner on the sole ground that petitioner is involved in a criminal case
and police has recovered a sum of Rs.1 lakh from his possession. The
Trial Court has returned findings with respect to each and every aspect.
The Court has found that petitioner was neither in-charge of the ATM nor
he was entrusted with the alleged money. The petitioner was not named
in the FIR. The alleged theft took place during day time and ATM was in
a busy locality. The denomination of notes recovered by police did not
match with denomination furnished by Bank. No electronic evidence
could be proved even though in the investigation there was discussion
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about electronic evidence. The guard who was posted at ATM did not
support case of the prosecution. The theft took place in the day time and
it came in the knowledge of Bank officials in the evening, however, FIR
was lodged next day. The presence of petitioner was not found in any
CCTV footage. The finger prints were captured, however, petitioner
could not be connected with captured finger prints.
20. Keeping in mind judgment of Division Bench of this Court
in Bhag Singh (supra), Judgment of Supreme Court in Joginder Singh
(supra) as well in Ram Lal (supra) and findings of Trial Court, this Court
comes to a conclusion that petitioner has been acquitted after a full
fledged trial and he has neither being acquitted on technical grounds nor
witnesses have turned hostile.
21. In the case in hand, charge sheet as well as punishment order
rested upon allegations made in the FIR and thereafter challan presented
before the Trial Court. The respondent-Bank has not considered or
examined evidence independent from criminal proceedings. There was
full fledged trial and petitioner has been acquitted after considering
evidence led by prosecution. It is not a case of acquittal by chance or
because of winning over of witnesses, thus, departmental action needs to
be re-examined.
22. In the wake of above discussion and findings, this Court is of
the considered opinion that impugned orders deserve to be quashed and
accordingly quashed. The Disciplinary Authority is hereby directed to re-
examine the matter, in the light of judgment of acquittal as well as
findings recorded by this Court. The needful shall be done within 3
months from today. It is further made clear that the Disciplinary
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Authority shall consider question of back-wages in the light of findings
recorded by Supreme Court in Ram Lal's case (supra) and 'Allahabad
Bank and other Vs. Avtar Bhushan Bhartiya' 2022 Livelaw (SC) 405.
( JAGMOHAN BANSAL )
JUDGE
18.01.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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