State Bank of India v. P. Zadenga

JUDGMENT

SANJAY KAROL, J. The instant lis presents two questions for consideration by this Court. They are-

(a) Does clause 4 of the Memorandum of Settlement dated 10th April 2002 create a bar on departmental proceedings continuing when the person subjected thereto is being tried before a criminal court for offences of the same origin?

(b) Does acquittal in some of the connected proceedings entail a benefit in the surviving proceedings? Further, inuring a right upon the delinquent employee of automatic discharge in disciplinary proceedings? This appeal, by way of special leave, is directed against the final judgement and order dated 7 th January 2009 passed in Writ Appeal No.03/2006 by which the order passed in Writ Petition (Civil) No. 12 of 2005 dated 25 th July 2005 allowing the appeal of the Respondent herein against the order of dismissal from bank services dated 28 th March 2003 and the rejection of the departmental appeal vide order 16 th August 2004, was allowed and the order of the Learned Single Judge confirmed. Background

¶3The facts of the instant dispute as they emanate from the record are:-

3.1 The respondent namely P. Zadenga1 was employed in the State Bank 1 Hereinafter referred to as “the delinquent empl oyee” 743STATE BANK OF INDIA v. P. ZADENGA of India2 as Assistant (CAT) at the Dawrpui Branch, Aizawl. Three government retailers lodged a complaint with the Ai zawl Police Station that their challan-deposits with the said Bra nch had not been entered into the cash receipt scroll. The Distri ct Civil Supply Officer, Aizawl West, also lodged a complaint that a certain retailer had taken the delivery of particular food stuffusing a fake challan.

3.2 Pursuant thereto, disciplinary proceedings were initiated against the respondent with the issuance of a Memor andum dated 8 th December 1999, wherein it was alleged that he had received Rs.61,908 for a deposit on 19 th April,1996 in respect of which a challan was issued, but the amount never deposited in the respective account. Two other similar occurr ences dated 21st February 1995 regarding Rs.24,640 and Rs.27,412 we re also alleged.

3.3 Three different FIRs stood registered against h im, under which he was arrested but later released on bail. I n his written show cause to this Memorandum, the Delinquent emplo yee contended that the disciplinary proceedings should be either dropped or closed since criminal cases were pending him, arising from the same set of transactions.

3.4 The appellant-bank proceeded to appoint an inqui ry officer who, in his report, submitted that three out of fou r charges stood established. The Delinquent Employee, again d enying the charges, filed a response to that but was eventuall y dismissed from the services at the bank, vide the order of di smissal dated 28th March 2003. The departmental appeal filed by him, after due opportunity of hearing, was dismissed on 16 th August 2004.

¶4Aggrieved by the dismissal of the departmental a ppeal, the delinquent employee filed Writ Petition (Civil) No. 12 of 2005 before the Gauhati High Court. The question before the sai d Court was: whether, in view of the Memorandum of Settlement da ted 10 th April 2 Hereinafter, the “Appellant Bank” 2002 3, the disciplinary proceedings against the delinquent em ployee (respondent) herein ought to have been stayed or not.

¶5Having recorded that post signing of the said MoS, th e Shastri Award as confirmed by the Desai Award “ceased to exist for all intents and purposes” the Court observed that clause 4 of the said document was clear and unambiguous and, therefore, it was not correct for the bank to have subjected him to disciplinary proceeding during the pendency of criminal proceedings.

¶6However, it would be open for the disciplinary authori ty to act under the clauses of the MoS after the criminal cases against the delinquent employee having reached a conclusion, one way or the other.

¶7Dissatisfied by the order of the learned Single Judge, a Writ Appeal was filed bearing No.03 of 2006. Having discussed the ba ckground of the case, the Division Bench discussed the contention on behalf of the bank regarding the applicability of the Shastri Award and observed that the continuation of the disciplinary proceedings during th e pendency of criminal cases would be an infraction, given para 521(3) t hereof.

¶8In conclusion, the Division Bench upheld the ord er of the learned Single Judge and confirmed the setting aside of the disciplinary proceedings. The Present Appeal

¶9We have heard Mr. Vikas Singh, learned senior counsel for the appellant bank and Mr. Jitendra Bharti for the delinquent employee.

¶10Inviting attention to several decisions rendered by this Co urt, it is argued on behalf of the appellant-bank that (i) initiation of departmental proceedings binding criminal trial would not amount to an automatic stay unless, of course, a complicated question of law is involved in the matter;

(ii) acquittal in a criminal trial in relation to the very same impugned action would not preclude the employer to initiate departmental proceedings; 3 Hereinafter referred to as “MoS”: between the M anagement of 52 ‘A’ Class Banks as represented by the Indian Banks’ Association and their workmen as represented by the All India Bank Employees’ Association, National Confederation of Bank Employees, Indian National Bank Employees’ Federation. 745STATE BANK OF INDIA v. P. ZADENGA and (iii) mere non-compliance of the provisions of bipartite agreement, in attending facts, would not result in the disciplinary action to be void ab initio.

¶11On the other hand, it is argued on behalf of the delinquent employee that the disciplinary proceedings, the subject matter of the instant lis, were in gross violation of the bipartite agreement, which has been held to have the force of law. In any case, Respondent stand acquitted in two out of three criminal trials. Also, the action initiated by the employer was belated and an afterthought only to harass the delinquent employee.

¶12Before proceeding to the merits of the issue at hand, it would be appropriate to reproduce clause 4 of the MoS dated 10th April 2002, which is the bone of contention in this dispute, for the delinquent employee contends an apparent embargo on proceedings with disciplinary enquiry when criminal cases arising from the same transactions are pending, and the appellant-bank submitting to the contrary of there being no such restriction. Clause 4 reads as under: - “If after steps have been taken to prosecute an employee or get him prosecuted, for an offence, he is not put on trial within a year of the commission of the office, the management may then deal with him as if he had committed an act of “gross misconduct” or of “minor misconduct”, as defined below; provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in Clauses 11 and 12 infra relating to discharge, but he shall out below in Clauses 11 and 12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. In the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months’ pay and allowances in lieu of notice as provided in Clause 3 above. If within the pendency of the proceedings thus instituted is put on trial, such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in Clause 3 above shall apply.” (Emphasis Supplied)

¶13In respect of the interpretation of clause 4, we find this Court to have observed in State Bank of India & Ors. v. Neelam Nag4 as follows:- “21. In the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely, merely because of the pendency of a criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continua tion of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material.

¶22As can be culled out from the last sentence of Clause 4, whic h applies to a case where the criminal case has in fact proceeded, as in this case, for trial. The term “completion of the trial” thereat, must be construed as completion of the trial within a reasonable time-frame. This clause cannot come to the aid of the delinquent employee—who has been named as an accused in a criminal case and more so is party to prolongation of the trial.”

¶14Against this backdrop, it is also imperative that we look into the position of law regarding two proceedings of similar origin conti nuing simultaneously.

14.1 This Court in State of Rajasthan v. B.K. Meena and Ors. 5 referred to some decisions on the aspect of stay on disciplinary proceedings and observed :- “14. It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be ‘desirable’, ‘advisable’ or ‘approp riate’ to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. The staying of disciplinary proceedings, it is emphasised, is a matter to be determined having regard to the facts and circumstances of a given case and that no hard and fast rules can 4 (2016) 9 SCC 491 5 (1996) 6 SCC 417 be enunciated in that behalf…The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings . If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be deal t with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be contin ued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administr ation. It only serves the interest of the guilty and dishonest. While it is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings, we found it necessary to emphasise some of the important considerations in view of the fact that very often the disciplinary proceedings are being stayed for long periods pen ding criminal proceedings. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. …” (Emphasis supplied)

14.2 Further, this Court in M Paul Anthony v. Bharat Gold Mines Ltd.6 elucidated the following principles in dealing with departmental and criminal proceedings simultaneously:- a. No bar exits on both proceedings continuing simultaneously, though in an appropriate, separate forum. b. If said proceedings are on identical/similar facts and if the charges levied against the delinquent employee are of a serious nature, then it would be desirable if the departmental proceedings are stayed till the conclusion of the other. c. The nature of the charge or the involvement of complex questions of law and fact depends on the facts and circumstances of each case, i.e., the offence, nature of the case launched, evidence and material collected. d. Sole consideration of the above-mentioned factors cannot be the reason to stay the departmental proceedings. 6 (1999) 3 SCC 679 e. It must be remembered that departmental proceedings cannot be unduly and unjustly delayed. f. If the criminal proceedings are delayed, the other, havi ng been stayed on account thereof, may be resumed to conclude the same at the earliest. This may result in two possibilities: either the vindication of the position of the delinquent employee or he being found guilty, enabling the department concern to show him out the door.

14.3 The view taken in M. Paul Anthony (supra) was referred to by this Court in Karnataka Power Transmission Corpn. Ltd. v. C. Nagaraju7.

¶15As is evident from the judicial pronouncements referred to above, it may be desirable or, in certain circumstances, advisable for disciplinary proceedings to be stayed when criminal proceedings are ongoing; however, stay is not “a matter of course” and is only to be given after consideration of all factors, for and against.

¶16Keeping in view Neelam Nag (supra), the following essentialities may be culled out for the operation of clause 4 – a. At least one year ought to have passed since attempts to get the delinquent employee prosecuted; b. If, after the passage of such time, no prosecution is initiated, then the department may proceed in accordance with its procedure f or disciplinary action; c. If the prosecution commences later in point of time to the disciplinary proceedings, the latter shall be stayed, but not indefin itely. Such proceedings are to be stayed only for a reasonable period of t ime, which is a matter of determination per the circumstances of each case.

¶17The next aspect we must consider is whether an acquittal in one of the proceedings entails an acquittal in the other.

17.1 In Nelson Motis v. Union of India 8 it was observed that the question whether departmental proceedings could have continued 7 (2019) 10 SCC 367 8 (1992) 4 SCC 711 in the face of acquittal in criminal proceedings had no for ce as “the nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of ac quittal, therefore, cannot conclude the departmental proceeding.”

17.2 In C. Nagaraju (supra) it was observed: “9. Acquittal by a criminal court would not debar an em ployer from exercising the power to conduct departmental proceeding s in accordance with the rules and regulations. The two proc eedings, criminal and departmental, are entirely different. They op erate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 ]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, a s the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417] (Emphasis supplied)

17.3 This observation was quoted with profit in the State of Karnataka v. Umesh.9

¶18It is a matter of record that concerning the incident(s) in question, the FIR was registered sometime in 1996, and disciplinary proc eedings were initiated on 8 th December 1999. With the completion thereof in the year 2002 and pursuant to further completion of formalities m andatorily required to be complied with, including the principles of natural justice, the delinquent employee was dismissed from service with the pass ing of the order dated 28th March 2003.

¶19An appeal preferred by the delinquent employee was also dismissed in 2004. It is only after the completion of the entire process of disciplinary 9 (2022) 6 SCC 563 proceedings that the delinquent employee, in February 2005, seeking reliance upon clause 4 of the MoS, filed a writ petition challenging the action, which, to our mind, was a belated attempt, only to forestall its implementation.

¶20Repetitive as it may sound, we reiterate the princi ple of law enunciated in Neelam Nag (supra) that the completion of trial must be construed as completion “within the reasonable time frame” a nd that the clause cannot come to the aid of the employee “more so”, for “prolongation on the trial”. In the instant case, the completion of the trial concerning the crime registered in the year 1996 is nowhere nearing completion.

¶21As a principle of law, we have already observed that a departmental proceeding pending criminal trial would not warrant an automatic stay unless, of course, a complicated question of law is involved. Also, acquittal in a criminal case ipso facto would not be tantamount to closure or culmination of proceedings in favour of a delinquent employee.

¶22Having perused the delinquent employee’s response to the initiation of inquiry proceedings, most significantly, we notice that no plea of MoS was ever taken. No specific plea of postponement of disciplinary proceedings awaiting conclusion of a criminal trial was made.

¶23It is seen that the officer neither pleaded nor indicated the prejudice caused to him as a consequence of the initiation of criminal proceedings or simultaneous continuation of both proceedings.

¶24Applying all of the above-noted principles to the facts of the case, we find that neither was it the case of the delinquent employee that the trial to which he was subjected to begin within one year of the commission of the offence nor does the record speak to this effect. It is in the inquiry report10, dated 3rd December 2001, that an objection to the disciplinary proceedings being conducted while a criminal case was being tried is registered, but even there, no date stands specified.

¶25Further, it is not the case of the delinquent employee that the principles of natural justice were not complied with in the di sciplinary proceedings of the bank. 10 Annexure P-4 Pg.109 of the Paperbook

¶26Both these aspects, taken along with the fact that it is not mandatory to stay the disciplinary proceedings, particularly when the y have been initiated after the prescribed period of one year, we cannot bring ourselves to agree with the courts below. The restriction within clause 4 is not complete and is to be applied on facts. In such a situation, the Division Benc h’s reliance on United Commercial Bank & Ors. v. P.C. Kakkar,11 is entirely misconceived. Contrary to the conclusion arrived at by the High Court in Writ Appeal, Kakkar (supra) furthers the position of the appellant-bank as it states, “acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case.”

¶27Surprisingly, having referred to Kakkar (supra), which takes the above-mentioned position, the High Court, in the very next paragraph, takes a diametrically opposite view without any reasoning to that. We may, in fact, refer to Kakkar (supra) to reiterate what is expected of persons employed in a bank while also observing that the conduct of the delinquent employee herein flies in the face of these principles. This Court noted : - “14.A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors a nd the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/ employee of the bank… The very discipline of an organization more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one’s authority is by itself a breach of discipline and is a misconduct.” (Emphasis Supplied)

¶28Given the foregoing discussion and in the light of judicial pronouncements discussed supra, the appeal succeeds . We set aside the judgment and order dated 7 th January 2009 passed in Writ Appeal 11 (2003) 4 SCC 364 No.03/2006, and consequentially, the order passed in Writ Petition (Civil) No.12 of 2005 dated 25th July 2005.

¶29The questions presented in this appeal are answered as under :

29.1 Clause 4 of the MoS dated 10 th April 2002 does not envisage a complete standstill of departmental proceedings as a result of the pendency of criminal proceedings. The position of law is that the stay of the latter is desirable, but the same is to be affected only for a reasonable period of time.

29.2 The nature of proceedings being wholly separate and distinc t, acquittal in criminal proceedings does not entitle t he delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings.

¶30Consequently, Mr. P. Zadenga’s dismissal from service as per the Memorandum dated 28th March 2003 (D.P.S.No.2003/02) is restored.

¶31Interlocutory Applications, if any, stand disposed of.

¶32Parties to bear their own costs. Headnotes prepared by: Appeal allowed. Divya Pandey

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2518 of 2012. From the Judgment and Order dated 07.01.2009 of the High Court of Gauhati in WA No. 3 of 2006.

Vikas Singh, Sr. Adv., Sanjay Kapur, Surya Prakash, Arjun Bhatia , Ms. Deepeika Kalia, Keshav Khandelwal, Advs. for the Appellants. Jitendra Bharti, Deepak Goel, Mithilesh Kumar Jaishwal, Ms. Alka Goyal, Advs. for the Respondent.