Having once noted the fact and circumstances so recorded above
and also the fact that the Petitioner has actually participated in the
departmental inquiry and the departmental proceedings are complete, there
is no question of defence of the Petitioner of criminal charge being
prejudiced. The Department as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The criminal proceedings, even if are pending, need to proceed in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available. The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry prior to his retirement. We see no reason to stay further the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based
upon the concluded inquiry. There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement. This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12828 OF 2015
Mr.Subhash Jina Kamble ....Petitioner
Vs.
Dena Bank ...Respondent
CORAM : ANOOP V. MOHTA &
A.A.SAYED, JJ.
DATED : 5 APRIL 2016
Citation:2016 (3) ALLMR 849
Rule. Returnable forthwith. Heard finally by consent of parties.
2. The Petitioner invoked the jurisdiction of Article 226 of the
Constitution of India by filing the present Writ Petition on 3 December 2015
thereby praying to stay the departmental inquiry initiated by the
Respondent, pending the criminal case before the Addl.Chief Metropolitan
Magistrate Court, Kurla Court vide CC629/PW/12 and before the
Addl.Chief Metropolitan Magistrate Court, Dadar also on the foundation
that the Petitioner is about to retire on 31 May 2016.
3. The Petitioner’s case can be crystallized as per the synopsis as
under:
The Petitioner was working as a cashier at Govandi branch of the
RespondentBank. On 4 January 2013, it was inter alia reported that the
Petitioner collected cash from single lock and double lock from the safe and
brought to cash cabin bit did not make entries in Double Lock Register
mentioning how many bundles or cash was withdrawn from Double Lock
Safe and also failed to take signatures of officers. Then the Petitioner himself
reported shortage of cash to the extent of Rs.13,48,100/ from the
safe/locker at Govandi branch of the RespondentBank.
4. A suspension order dated 5 January 2013 was issued against the
Petitioner for the above misconduct. An FIR was lodged on 22 January 2013
with Govandi Police Station regarding shortage of cash at Govandi Branch of
Respondent. The Petitioner was arrested by the Govandi Police on 4
February 2013 on the charge of committing an offence under section 409
and section 34 of Indian Penal Code, 1860. The Petitioner moved for a Bail
Application before the Sessions Court, Mumbai, which was rejected by the
Court. Thereafter, the bail was granted to the Petitioner by this Court vide
order dated 16 April 2013. The Police also filed FIR in C.C.No.629/13 before
the 11th Addl.Chief Metropolitan Magistrate Court, Kurla. The Petitioner
was, thereafter, given a show cause notice bearing reference No.MSZOAGM:DA:21:2013
dated 22 November 2013 for negligence in performance
of his duty as an officer of the Bank. The Petitioner filed Reply dated 4
December 2013 denying the charges and allegations made. On 26 December
2013, vide a memorandum, the Disciplinary Authority revoked the
suspension of the Petitioner posted him at Matunga branch.
5. Since the Reply of the Petitioner to the show cause notice was not
satisfactory, a charge sheet dated 2 January 2014 was issued, which
enumerated the misconducts of the Petitioner. On 10 March 2014, a
memorandum was issued by the Disciplinary Authority appointing
Mr.A.G.Zade as presiding officer and Mr.S.S.More as Inquiry officer.
Mr.S.S.More, after being appointed as an Inquiry Officer issued a letter dated
11 April 2014 to the Petitioner intimating the date of commencement of
inquiry proceedings. The detailed enquiry was conducted following the due
process of law and the Petitioner was given adequate chance to represent
himself before the inquiry officer. The Petitioner had fully participated in the
inquiry and was represented by the representative of his choice.
Representations were made by both the parties and the witnesses have also
been examined during the course of enquiry. On 4th September, 2014 the
defense representative of the Petitioner filed his written arguments with the
Disciplinary Authority. The inquiry officer concluded the inquiry and
submitted his findings to the disciplinary authority vide letter dated 16th
November, 2015 and the copy of the findings of the inquiry officer was given
to the Petitioner.
6. Pursuant to the receipt of findings given by inquiry officer, the
Petitioner filed his written submissions dated 17th December, 2015 with the
Disciplinary Authority. The Disciplinary Authority, after the analyzing the
submissions of the Petitioner, vide Memorandum dated 19th December 2015
issued a show cause notice on punishment. The memorandum also provided
the details of the personal hearing granted to Petitioner against the
memorandum issued by the Disciplinary Authority. The Petitioner vide letter
dated 23rd December, 2015 informed the Disciplinary Authority regarding
filling of this writ petition and seeking an adjournment to make submissions
at personal hearing. Personal hearing was held on 7th January 2016. The
Petitioner has made his representation before the Disciplinary Authority.
7. Following judgments are relevant for consideration as cited, read
and referred by the Counsel in support of their rival contentions. These
judgments are as under:
(i) Stanzan Toyoetsu India Pvt. Ltd. v/s Girish V & Ors.1
1 (2014) 3 SCC pg. 636.
(ii) Baljinder Pal Kaur v/s State of Punjab & Ors.2
(iii)State of Maharashtra v/s. Raju Vishwanath Bhushanwar3
(iv)Dev Prakash Tewari v/s. Uttar Pradesh Cooperative
Institutional Service Board, Lucknow and ors4
The Petitioner has relied upon the judgment of the Supreme Court
in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd.5
8. Learned Senior Counsel appearing for the Respondent resisted the
case in all respect by distinguishing the judgment cited by the Petitioner
(Capt.M.Paul Anthony) (supra) and also placed on record the judgments
(supra) in support of his submissions, basically on the background that the
Respondent has already completed the departmental inquiry and the same
is pending for final hearing/disciplinary order. The Show Cause Notice is
now also given to the Petitioner based upon the Inquiry Report informing
why future action should not be initiated against the Petitioner.
9. It is a settled position in law that both the Departmental Enquiry
and Criminal Complaint can proceed together; and that even if a delinquent
is acquitted in criminal proceedings, the Disciplinary Authority can take its
2 (2016) 1 SCC pg. 671
3 2015 SCC OnLine Bom 6536
4 (2014) 7 SCC 260
5 MANU/SC/0225/1999
own course and punish the guilty as per the terms and regulations.
[Stanzan Toyoetsu India Pvt. Ltd. (supra)]. Learned Counsel submitted
that even after acquittal in the criminal trial, the employer can proceed
departmentally as standard of proof in criminal trial and departmental
proceedings are different. [Baljinder Pal Kaur (supra)]. These Judgments
have taken notice of earlier Supreme Court Judgments also.
10. The Petitioner has actively participated in the Departmental
Inquiry before the Inquiry Officer and was represented by the Defence
Representative of his choice. The departmental proceedings are completed
and therefore there is no question of the defense of the Petitioner in criminal
trial being prejudiced. The charges under the Departmental Inquiry and
under the Criminal Complaint though are interconnected but shall no way
affect the outcome of each other in every matter. The Petitioner retires on
31st May, 2016 after which Disciplinary Authority cannot take any against
him even after finding him guilty under the Departmental Inquiry is
additional factor against the Petitioner. [Dev Prakash Tewari v/s. Uttar
Pradesh Cooperative Institutional Service Board, Lucknow and ors.(supra)]
11. In the present case, admittedly departmental inquiry was
conducted after giving full opportunity to the Petitioner. The Petitioner
participated without any objection pending the criminal proceedings so
referred above. The law is well settled that the criminal proceedings as well
as departmental inquiry can run simultaneously. Having once acted upon
the same, now at this stage merely because main criminal proceeding is
pending (out of two criminal proceedings, in other proceeding on different
issue he was acquitted) that itself in our opinion cannot be the reason to
stay the further course of action, after completion of departmental inquiry,
particularly when he has already led evidence and disclosed his case and
defence and basically before the Department. A criminal proceedings, even
if pending, should not be a reason in view of the above settled position in
the present facts and circumstances.
12. It is settled that such disciplinary proceedings should not be stayed
to this extent that the Department would not be in a position to pass any
final order based upon the completed inquiry, once the Petitioner retires.
Admittedly, the Petitioner is about to retire on 31 May 2016. Though the
matter was filed on 3 December 2015, we have not granted stay of the
departmental proceedings, except that the final order would not be passed
as recorded through a statement.
13. Having once noted the fact and circumstances so recorded above
and also the fact that the Petitioner has actually participated in the
departmental inquiry and the departmental proceedings are complete, there
is no question of defence of the Petitioner of criminal charge being
prejudiced. The Department as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The criminal proceedings, even if are pending, need to proceed in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available. The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
14. In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry prior to his retirement. We see no reason to stay further the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based
upon the concluded inquiry. There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement. This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
15. The Petition is accordingly dismissed. The statement made by the
learned Counsel for the Respondent stands vacated. No costs.
(A.A. SAYED, J.) (ANOOP V. MOHTA J.)
Print Page
and also the fact that the Petitioner has actually participated in the
departmental inquiry and the departmental proceedings are complete, there
is no question of defence of the Petitioner of criminal charge being
prejudiced. The Department as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The criminal proceedings, even if are pending, need to proceed in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available. The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry prior to his retirement. We see no reason to stay further the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based
upon the concluded inquiry. There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement. This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12828 OF 2015
Mr.Subhash Jina Kamble ....Petitioner
Vs.
Dena Bank ...Respondent
CORAM : ANOOP V. MOHTA &
A.A.SAYED, JJ.
DATED : 5 APRIL 2016
Citation:2016 (3) ALLMR 849
Rule. Returnable forthwith. Heard finally by consent of parties.
2. The Petitioner invoked the jurisdiction of Article 226 of the
Constitution of India by filing the present Writ Petition on 3 December 2015
thereby praying to stay the departmental inquiry initiated by the
Respondent, pending the criminal case before the Addl.Chief Metropolitan
Magistrate Court, Kurla Court vide CC629/PW/12 and before the
Addl.Chief Metropolitan Magistrate Court, Dadar also on the foundation
that the Petitioner is about to retire on 31 May 2016.
3. The Petitioner’s case can be crystallized as per the synopsis as
under:
The Petitioner was working as a cashier at Govandi branch of the
RespondentBank. On 4 January 2013, it was inter alia reported that the
Petitioner collected cash from single lock and double lock from the safe and
brought to cash cabin bit did not make entries in Double Lock Register
mentioning how many bundles or cash was withdrawn from Double Lock
Safe and also failed to take signatures of officers. Then the Petitioner himself
reported shortage of cash to the extent of Rs.13,48,100/ from the
safe/locker at Govandi branch of the RespondentBank.
4. A suspension order dated 5 January 2013 was issued against the
Petitioner for the above misconduct. An FIR was lodged on 22 January 2013
with Govandi Police Station regarding shortage of cash at Govandi Branch of
Respondent. The Petitioner was arrested by the Govandi Police on 4
February 2013 on the charge of committing an offence under section 409
and section 34 of Indian Penal Code, 1860. The Petitioner moved for a Bail
Application before the Sessions Court, Mumbai, which was rejected by the
Court. Thereafter, the bail was granted to the Petitioner by this Court vide
order dated 16 April 2013. The Police also filed FIR in C.C.No.629/13 before
the 11th Addl.Chief Metropolitan Magistrate Court, Kurla. The Petitioner
was, thereafter, given a show cause notice bearing reference No.MSZOAGM:DA:21:2013
dated 22 November 2013 for negligence in performance
of his duty as an officer of the Bank. The Petitioner filed Reply dated 4
December 2013 denying the charges and allegations made. On 26 December
2013, vide a memorandum, the Disciplinary Authority revoked the
suspension of the Petitioner posted him at Matunga branch.
5. Since the Reply of the Petitioner to the show cause notice was not
satisfactory, a charge sheet dated 2 January 2014 was issued, which
enumerated the misconducts of the Petitioner. On 10 March 2014, a
memorandum was issued by the Disciplinary Authority appointing
Mr.A.G.Zade as presiding officer and Mr.S.S.More as Inquiry officer.
Mr.S.S.More, after being appointed as an Inquiry Officer issued a letter dated
11 April 2014 to the Petitioner intimating the date of commencement of
inquiry proceedings. The detailed enquiry was conducted following the due
process of law and the Petitioner was given adequate chance to represent
himself before the inquiry officer. The Petitioner had fully participated in the
inquiry and was represented by the representative of his choice.
Representations were made by both the parties and the witnesses have also
been examined during the course of enquiry. On 4th September, 2014 the
defense representative of the Petitioner filed his written arguments with the
Disciplinary Authority. The inquiry officer concluded the inquiry and
submitted his findings to the disciplinary authority vide letter dated 16th
November, 2015 and the copy of the findings of the inquiry officer was given
to the Petitioner.
6. Pursuant to the receipt of findings given by inquiry officer, the
Petitioner filed his written submissions dated 17th December, 2015 with the
Disciplinary Authority. The Disciplinary Authority, after the analyzing the
submissions of the Petitioner, vide Memorandum dated 19th December 2015
issued a show cause notice on punishment. The memorandum also provided
the details of the personal hearing granted to Petitioner against the
memorandum issued by the Disciplinary Authority. The Petitioner vide letter
dated 23rd December, 2015 informed the Disciplinary Authority regarding
filling of this writ petition and seeking an adjournment to make submissions
at personal hearing. Personal hearing was held on 7th January 2016. The
Petitioner has made his representation before the Disciplinary Authority.
7. Following judgments are relevant for consideration as cited, read
and referred by the Counsel in support of their rival contentions. These
judgments are as under:
(i) Stanzan Toyoetsu India Pvt. Ltd. v/s Girish V & Ors.1
1 (2014) 3 SCC pg. 636.
(ii) Baljinder Pal Kaur v/s State of Punjab & Ors.2
(iii)State of Maharashtra v/s. Raju Vishwanath Bhushanwar3
(iv)Dev Prakash Tewari v/s. Uttar Pradesh Cooperative
Institutional Service Board, Lucknow and ors4
The Petitioner has relied upon the judgment of the Supreme Court
in Capt.M.Paul Anthony vs. Bharat Gold Mines Ltd.5
8. Learned Senior Counsel appearing for the Respondent resisted the
case in all respect by distinguishing the judgment cited by the Petitioner
(Capt.M.Paul Anthony) (supra) and also placed on record the judgments
(supra) in support of his submissions, basically on the background that the
Respondent has already completed the departmental inquiry and the same
is pending for final hearing/disciplinary order. The Show Cause Notice is
now also given to the Petitioner based upon the Inquiry Report informing
why future action should not be initiated against the Petitioner.
9. It is a settled position in law that both the Departmental Enquiry
and Criminal Complaint can proceed together; and that even if a delinquent
is acquitted in criminal proceedings, the Disciplinary Authority can take its
2 (2016) 1 SCC pg. 671
3 2015 SCC OnLine Bom 6536
4 (2014) 7 SCC 260
5 MANU/SC/0225/1999
own course and punish the guilty as per the terms and regulations.
[Stanzan Toyoetsu India Pvt. Ltd. (supra)]. Learned Counsel submitted
that even after acquittal in the criminal trial, the employer can proceed
departmentally as standard of proof in criminal trial and departmental
proceedings are different. [Baljinder Pal Kaur (supra)]. These Judgments
have taken notice of earlier Supreme Court Judgments also.
10. The Petitioner has actively participated in the Departmental
Inquiry before the Inquiry Officer and was represented by the Defence
Representative of his choice. The departmental proceedings are completed
and therefore there is no question of the defense of the Petitioner in criminal
trial being prejudiced. The charges under the Departmental Inquiry and
under the Criminal Complaint though are interconnected but shall no way
affect the outcome of each other in every matter. The Petitioner retires on
31st May, 2016 after which Disciplinary Authority cannot take any against
him even after finding him guilty under the Departmental Inquiry is
additional factor against the Petitioner. [Dev Prakash Tewari v/s. Uttar
Pradesh Cooperative Institutional Service Board, Lucknow and ors.(supra)]
11. In the present case, admittedly departmental inquiry was
conducted after giving full opportunity to the Petitioner. The Petitioner
participated without any objection pending the criminal proceedings so
referred above. The law is well settled that the criminal proceedings as well
as departmental inquiry can run simultaneously. Having once acted upon
the same, now at this stage merely because main criminal proceeding is
pending (out of two criminal proceedings, in other proceeding on different
issue he was acquitted) that itself in our opinion cannot be the reason to
stay the further course of action, after completion of departmental inquiry,
particularly when he has already led evidence and disclosed his case and
defence and basically before the Department. A criminal proceedings, even
if pending, should not be a reason in view of the above settled position in
the present facts and circumstances.
12. It is settled that such disciplinary proceedings should not be stayed
to this extent that the Department would not be in a position to pass any
final order based upon the completed inquiry, once the Petitioner retires.
Admittedly, the Petitioner is about to retire on 31 May 2016. Though the
matter was filed on 3 December 2015, we have not granted stay of the
departmental proceedings, except that the final order would not be passed
as recorded through a statement.
13. Having once noted the fact and circumstances so recorded above
and also the fact that the Petitioner has actually participated in the
departmental inquiry and the departmental proceedings are complete, there
is no question of defence of the Petitioner of criminal charge being
prejudiced. The Department as per the law can take own stand and pass
appropriate order as per the Regulations. Charges under the departmental
inquiry and the criminal complaint will not affect the outcome of each other.
The criminal proceedings, even if are pending, need to proceed in
accordance with law. The departmental inquiry and action even if completed
before the date of retirement, the Petitioner has a departmental remedy
available. The Department, therefore, needs to consider the case of the
Petitioner in accordance with law.
14. In the circumstances where the Petitioner is admittedly retiring on
31 May 2016 and in view of the judgments so cited, it is necessary for the
Department to pass order and/or take action based upon the completed
inquiry prior to his retirement. We see no reason to stay further the
departmental inquiry now and the action based upon it, at this stage, as
contended by the Counsel appearing for the Petitioner, for the reason so
recorded above. This is also for the reason that once the Petitioner is retired,
it will be difficult for the Respondent/Department to pass final order based
upon the concluded inquiry. There is force in the submission that in the
absence of any other contrary Rules and Regulations, the Department should
not be held responsible for their lapses on the ground based upon the
disciplinary inquiry, that they failed to pass the final order/action before the
Petitioner's retirement. This peculiarity and being the relevant factor, apart
from the reasons so recorded, based upon the judgments so cited, we are
inclined to dismiss the present Petition.
15. The Petition is accordingly dismissed. The statement made by the
learned Counsel for the Respondent stands vacated. No costs.
(A.A. SAYED, J.) (ANOOP V. MOHTA J.)
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