P.Renu v. The State Bank Of India And ORS.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONALWRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE DEBANGSU BASAK WPA/178/2018 P. Renu ... Petitioner Vs.

The State Bank of India and Others ... Respondents For the petitioner : Mr. Deep Chaim Kabir, Advocate For the respondents : Mrs. Anjili Nag, Advocate Hearing concluded on : December14, 2021 Judgment on :December 17, 2021 DEBANGSU BASAK, J.

1.

The petitioner has assailed an order of dismissal from service issued by the Bank as upheld by the Appellate Authority. 2.

Learned advocate appearing of the petitioner has submitted that, the contract of employment between the petitioner and the Bank is governed by a bipartite settlement dated April 10, 2002. The bipartite settlement has attained a statutory flavor. In

support of such contention he has relied upon (2003) 2 SCC 721 ( Bank of India and others vs. O.P. Swaranakar and others). 3.

Referring to clauses 3 and 4 of the bipartite settlement dated April 10, 2002, learned advocate appearing for the petitioner has submitted that such clauses establish the rights of the petitioner. According to him, such rights have been violated. He has construed clauses 3 and 4 of the bipartite settlement dated April 10, 2002 to mean that, once a first information report is lodged in respect of the same incident over which a disciplinary proceedings have been initiated, then, the Bank has to await the final decision in the criminal proceedings. The result of the criminal proceeding, will have effect on the disciplinary proceeding. He has referred to various clauses of the bipartite settlement dated April 10, 2002 in support of his contentions. 4.

Relying upon (2012) 11 SCC 336 (Sushila Tiwary and others vs. Allahabad Bank and others), learned advocate appearing for the petitioner has submitted that, the procedural steps enshrined in the bipartite settlement dated April 10, 2002 is required to be rigorously followed. Infraction of such procedural aspect will vitiate the disciplinary proceeding.

5.

Learned advocate appearing of the petitioner has contended that, the first information report should be allowed to run its Course and result in a conclusion prior to the Bank taking any measure in the disciplinary proceeding against the petitioner. According to him, experts in investigation could then have the opportunity to investigate into the matter and arrive at a specific conclusion as to the commission of the offence if, there be any. A disciplinary proceeding cannot be said to be a substitute for the expertise of an investigation agency.

6.

Referring clauses 11 and 12 of the bipartite settlement dated April 10, 2002, learned advocate appearing for the petitioner has submitted that it is only upon acquittal from the criminal proceeding would the bank acquire necessary jurisdiction to proceed against the petitioner. He has relied upon (2004) 1 CHN 321 (Lakshman Kumar Mondal vs. U. Co. Bank and others) in support of his contentions.

7.

Learned advocate appearing for the petitioner has submitted that, the Bank need not await for an indefinite period for the conclusion of the criminal proceedings. All that is required, in terms of clause 4 of the bipartite settlement dated April 10, 2002 is that the Bank waits for a period of one year and

if the trial does not start by them, the Bank is at liberty to proceed in the disciplinary proceeding.

8.

In the facts of the present case, learned advocate appearing for the petitioner has contended that, the Bank proceeded against the petitioner prior to the lodgment of the first information report. Therefore, the Bank has obviated the protections granted to the petitioner under clauses 3 and 4 of the bipartite settlement dated April 10, 2002. He has contended that, the Bank has denied the petitioner rights in equity. In support of such contentions, he had relied upon (2006) 4 CHN 53 (Aomiya Kumar Biswas vs. United Bank of India and others). 9.

According to the learned advocate appearing for the petitioner, the Bank is denuded of jurisdiction to embark upon a disciplinary proceeding without the criminal proceedings coming to a logical conclusion. In the facts of the present case, since the Bank has passed an order of dismissal confirmed on appeal prior to the first information report receiving its logical conclusions, the Bank had acted without jurisdiction . In doing so, the Bank has caused prejudice to the petitioner. The petitioner has been forced to disclose a defence by participating in a disciplinary proceedings which amounts to prejudicing the petitioner in

criminal proceedings.

The Bank's internal mechanism of investigation is no substitute to the expertise of the investigation agencies. The valuable rights available to an accused under Article 22 of the Constitution of India and 303 of the Code of Criminal Procedure, 1973 have been prejudiced. The petitioner has not been allowed to have the services of a legal practitioner. The petitioner has been compelled to deal with complicated issues of law and facts. The petitioner has been prejudiced by not being given a fair trial which is violative of the Article 21 of the Constitution of India. He has relied upon (1999) 3 SCC 679 (M. Paul Anthony vs. Bharat Gold Mines Ltd. and others) and submitted that, even if a departmental proceeding and criminal proceeding can proceeds simultaneously, the department proceeding should await the result of the criminal proceeding so as to avoid causing prejudice, as has been caused in the present proceeding.

10.

Learned advocate appearing for the petitioner has contended that, the petitioner was granted the right to engage defence counsel by a writing dated February 13, 2002 . Despite such permission being granted the petitioner has not been allowed to obtain legal assistance.

11.

Learned advocate appearing for the petitioner has submitted that, the petitioner was made a scapegoat to save a senior official who was actually at fault. He has therefore sought quashing of the order of dismissal.

12.

Learned advocate appearing of the Bank has submitted that, the petitioner approached the High Court earlier. She has drawn the attention of the Court to the order dated March 21, 2017 passed in WP No. 069 of 2017 and submitted that, the issue as to examination of document by an expert was gone into. Therefore, the petitioner cannot be heard to re-agitate the same point. According to her, the petitioner had not suffered any prejudice in the departmental proceeding.

13.

The petitioner had been appointed by the Bank on January 14, 2013 as the Customer Assistant and joined such post on July 26, 2016. She had been working as the Customer Assistant until August 29, 2016 when she was placed under suspension. The Bank had issued a show cause notice against the petitioner on November 25, 2016. By such show cause notice, the Bank had leveled fourteen charges against the petitioner. In such show cause notice the Bank has primarily alleged that, the petitioner was guilty of fraud, manipulation and alteration of cheque and

unauthorized debit of borrower's account with Rs. 27,69,820/- during banking hours from the counter. The petitioner had submitted a reply to such show cause notice dated December 16, 2016 where she had contended that, some irregular act happened by mistake or by negligence or typographical error. She had admitted in her reply that she acted negligently and committed errors and mistakes in the procedures. She had however denied to have committed any intentional act to defraud or misappropriate any amount. The Bank had issued a charge-sheet against the petitioner on December 27, 2016 charging the petitioner with eight sets of charges. The petitioner had been found prima facie liable for committing an act of gross misconduct under clause 5(j) of the bipartite settlement dated April 10, 2002.

The Bank had thereafter by a letter dated January 6, 2017 informed the petitioner that an enquiry had been instituted to decide the charges framed against her. By such letter, the Bank had informed the petitioner that she cannot appoint any lawyer to defend her case in the enquiry. However, the petitioner would have the right to engage a defence representative whose particulars should be submitted to the Enquiry Officer.

14.

By a letter dated February 13, 2017, the Bank responding to a letter dated February 3, 2017 of the petitioner had informed the petitioner that she may defend her case at the enquiry either by herself or through her defence counsel subject to the relevant rules, and as clarified in the Bank's letter dated December 26, 2016.

15.

By a letter dated February 27, 2017, the petitioner had requested permission to engage an advocate to defend her case. The Bank had turned down such request. In the disciplinary proceedings resulting the order of dismissal dated August 4, 2017 and the order of the Appellate Authority dated December 2, 2017, the petitioner had not been allowed to engage an advocate. 16.

The Assistant General Manager of the Bank had lodged a first information report with the police in respect of the incident involving inter alia the petitioner on October 16, 2017. The first information report had been lodged inter alia under Sections 420/467/468/470/471 and 34B of the India Penal Code. The first information report has similar allegations of financial fraud allegedly committed by the petitioner for which the petitioner suffered the disciplinary proceedings. In the facts of the present case therefore, the first information report had been lodged

subsequent to the order of dismissal dated August 04, 2017 and prior to the order of dismissal being confirmed by the Appellate Authority on December 2, 2017.

17.

The petitioner has contended that, the Bank acted without jurisdiction and in violation of the provisions of the bipartite settlement dated April 10, 2002, in proceeding with the disciplinary proceedings before the first information report reached its conclusion.

18.

An interim order dated August 14, 2018 had been passed. A further interim order had been passed on August 20, 2018. The Bank had preferred an appeal from the two orders.Such appeal had been disposed of by an order dated August 27, 2018 by setting aside both the interim orders.

19.

In O.P. Swaranakar and others (supra), the Supreme Court had answered the question as to whether an employee who opts for the voluntary retirement scheme pursuant to or furtherance of scheme floated by the nationalized bank and the State Bank of India would be precluded from withdrawing such offer or not. The Supreme Court had noted that there appears to be some differences in the scheme floated by the State Bank of India and the nationalized Bank. It had held that, once the basic concept of

the voluntary retirement scheme underwent a change which also goes to show that the Bank had sought to invoke its power of amending the scheme or an apprehension was created in the mind of the employee that they would not receive the entire benefits as envisaged in the original scheme, they were entitled to revoke their offers. In respect of the State Bank of India, it had held that, State Bank of India did not amend the scheme. State Bank of India had permitted withdrawal of application for voluntary retirement scheme. The ratio laid down therein have no manner of application in the facts of present case as the facts of present case are different and it involves an order of dismissal from service and not consideration of an application of voluntary retirement.

20.

Clauses 3, 4, 11 and 12 of the bipartite settlement dated April 10, 2002 have to be construed in the facts of the present case. The opening paragraph of the bipartite settlement dated April 10, 2002 has stipulated that a person against whom disciplinary action is proposed or likely to be taken in the first instance, be informed of the particular charge against him and he shall have a proper opportunity to gave his explanation to such charge.It has contemplated that, final order shall be passed after due consideration of all the facts and circumstances. It has

observed that, with such object in view the clauses following the opening paragraph shall apply. The opening paragraph therefore governs the subsequent clauses. In other words, the subsequent clauses have to be understood and construed in light of the opening paragraph.

21.

Clause 2 has defined an offence to mean an offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. 22.

Clause 3 has four various sub-clauses. Sub-clause (a) of clause 3 allows the Bank to take steps to prosecute an employee or getting him prosecuted and in which case the employee may also be suspended. Sub-clause (b) of clause 3 has stipulated that, if the employee is convicted such employee may be dismissed from service with effect from date of his/her conviction or may be given a lesser form of punishment as mentioned in clause 6. Sub-clause (c) of clause 3 has dealt with a scenario where the employee is acquitted. Sub-clause (d) of clause 3 has contemplated a situation where the employee prefers an appeal or applies for revision against an order of conviction and thereafter acquitted.

23.

Clause 4 of the bipartite settlement dated April 10, 2002 has provided for the situation where after steps being taken to prosecute an employee or getting prosecuted for an offence, he is not put in a trial within a year of the commission of the offence. It has provided that in such scenario, the management may deal with such employee as if he had committed an act of gross misconduct or minor misconduct as defined. Gross misconduct has been defined in clause 5 while clause 7 has defined minor misconduct.

24.

Clauses 11 and 12 of bipartite settlement dated April 10, 2002 have provided for a scenario, where the Bank has decided to take the disciplinary proceedings against the employee. In such a scenario such decision has to be communicated to the employee within three days. Clause 12 has laid down the procedure in such case.

25.

The opening paragraph of the bipartite settlement dated April 10, 2002 read with clauses 11 and 12 thereof, in my view have not prevented a Bank from initiating a disciplinary proceeding, prior to the lodgment of first information report. Neither such clauses nor the entirety of the bipartite settlement dated April 10, 2002 relating to disciplinary action against

workmen, staff and procedure thereof, have prevented the Bank from commencing a disciplinary proceeding and taking a final decision thereon and thereafter initiating a criminal proceeding. Clause 4 of the bipartite settlement dated April 10, 2002 has provided for the scenario where the criminal prosecution has not reached the stage of trial from the date of lodgment of the complaint.

26.

M. Paul Anthony (supra) has considered the question as to whether departmental proceeding and proceeding in a criminal case launched on the basis of same set of facts can be continued simultaneously or not. After reviewing various authorities, it has held as follows:- "22. The Conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii) Whether the nature of charge in a criminal case is grave and whether complicated question of

fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest."

27.

Lakshman Kumar Mondal (supra) has considered M. Paul Anthony (supra). It has held that M. Paul Anthony (supra) is attracted only when the trial in criminal proceeding starts. It has explained that M. Paul Anthony (supra) never intended that the departmental proceeding would be stayed as soon as first information report is lodged and police investigation is continuing and before the criminal trial starts. It has interpreted clauses 19.4 and 6.3 of the bipartite settlement entered into by U. Co. Bank. Significantly, clause 6.3 of the bipartite settlement of U. Co. bank had allowed two mutually exclusive options to the Bank. The options were to either prosecute the employee or get

him prosecuted by filing first information report with the police or proceed against him departmentally. It hadalso provided that in the event Bank opts for criminal prosecution it has to wait for one year from the date of the commission of the offence. If, within this period (one year) the employee is not on put on trial the Bank has liberty to proceed against the employee departmentally. Consequentto clauses 19.4 and 6.3 of such bipartite settlement, the Court had held that, there was no impediment in proceeding departmentally since the trial did not commence. 28.

Aomiya Kumar Biswas (supra) has dealt with subsistence allowance. Similarly Sushila Tiwary and others (supra) has dealt with the question whether the delinquent was deemed to be continuing under suspension or not. The fact scenarios in both of two such authorities are different than those obtaining in the present case.

29.

Nothing has been placed on record to suggest that trial of the criminal complaint had commenced subsequent to the lodgment of the first information report on October 16, 2017 and prior to the Appellate Authority passing its order of affirmation dated December 2, 2017. In fact, in response to a query from the Court, it has been submitting on behalf of the petitioner that the

trial is yet to commence. On the strength of Lakshman Kumar Mondal (supra) as has been cited on behalf of the petitioner, there was no impediment on the management to continue with the disciplinary proceeding as the trial in the criminal complaint did not commence. M. Paul Anthony (supra) has recognized that departmental proceedings and proceeding in a criminal case can proceed simultaneously. None of the Sections as has been imputed in the first information report naming the petitioner are trialable by the Sessions Court. Nothing has been placed on record to suggest that complicated facts and law are involved in the Departmental proceedings.

30.

No prejudice has been caused to the petitioner by the Bank proceeding with the departmental proceeding in the manner as it did and initiating a criminal proceeding in respect of the same incident, against the petitioner. Criminal and departmental proceedings are different and they operate in different fields having different objectives. In criminal proceedings, the object is to punish the accused while in a departmental proceeding the objective is to impose penalty against the delinquent according with the service rule. The standards of proof in the two proceedings are different. In criminal proceedings, the accused has to be proven guilty beyond reasonable doubt while in a

departmental proceedings, a penalty can be imposed on the delinquent on the basis of preponderance of probability. 31.

In the facts of the present case, the petitioner was issued a show caused notice to which the petitioner had replied. The petitioner was issued a charged-sheet to which the petitioner had replied.

The petitioner had participated in the enquiry proceedings.

The disciplinary authority had imposed the punishment as recorded in its order. Being dissatisfied therewith, the petitioner had preferred an appeal. The Appellate Authority had affirmed the decision of the disciplinary authority. Both the disciplinary authority as well as the Appellate Authority have assigned elaborate reasons for arriving at their decisions. The petitioner has been dismissed from service considering the gravity of the incident, the complicity of the petitioner therein and the fact that, the Bank has to maintain the faith of the public in the banking system and that the charges proved against the petitioner called for dismissal from service. The petitioner has not challenged the order of dismissal being disproportionate to the charges proved.

32.

Significantly, the petitioner had approached the High Court under Article 226 of the Constitution of India being W.P. No. 69 of

2017 which was disposed of by the order dated March 21, 2017. Although the petitioner had raised the issue of permission to engage an advocate before the authorities much prior to such order, before the High Court the petitioner did not raise the same. By the order dated March 21, 2017 the High Court had permitted the petitioner to cross-examine the witness who were examined ex parte.

33.

In a disciplinary proceeding ipso facto the delinquent is not entitled to legal assistance. Legal assistance is provided to a delinquent only when complicated and intricate questions of law are fact involved in the disciplinary proceeding. In the facts of the present case, the petitioner has not established that any intricate question of law or complicated issue of fact was involved in the disciplinary proceeding. The Bank had allowed the petitioner to take the assistance of a defence representative / defence counsel. The prayer made on behalf of the petitioner for appointment of an advocate had been rejected. There is no infirmity in the decision of the bank in rejecting the prayer for appointment of an advocate by the petitioner in the departmental proceeding.

34.

In view of the discussions above, I find no merit in the present writ petition. WPA/178/2018 is dismissed, however without any order as to costs.

(DEBANGSU BASAK, J.)