In the peculiar facts of the present case, therefore, we accede
to the contention of the appellants that the pendency of the
criminal case against the respondent cannot be the sole basis to
suspend the disciplinary proceedings initiated against the
respondent for an indefinite period; and in larger public interest,
the order as passed in Stanzen’s case be followed even in the fact
situation of the present case, to balance the equities.
13. The next question is: whether Clause 4 of the Settlement
would denude the appellants from continuing with the disciplinary
proceedings pending against the respondent. Clause 4 of the
Settlement reads thus:
“4. If after steps have been taken to prosecute an employee or
to get him prosecuted, for an offence, he is not put on trial
within a year of the commission of the offence, 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)
14. Ordinarily, the scope of Clause 4 of the Memorandum of
Settlement pressed into service would be a matter of an Industrial
Dispute, to be adjudicated by the competent Forum, if the
respondent can be termed as a workman. The respondent herein
was appointed in a clerical cadre of the appellant-bank; but when
the alleged misconduct was committed on 29th May 2006, she was
working as Assistant (Clearing). Neither before the learned Single
Judge, the Division Bench nor before us any argument has been
canvassed on the factum of whether the respondent can be treated
as a workman within the meaning of the Industrial Disputes Act,
1947. Both sides, however, have relied on the said Clause and
invited us to spell out its purport.
15. On 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 criminal case against the delinquent employee. On
the other hand, it is an enabling provision permitting the institution
or continuation 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.
16. As can be culled out from the last sentence of Clause 4, which
applies to a case where the criminal case has in fact proceeded, as
in this case, for trial. The term “completion of the trial” there at,
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.
17. Notably, in the present case inspite of a peremptory direction
of the Division Bench given on 28th June 2010 to the concerned
criminal Court to proceed with the trial on day-to-day basis, as
noted above, no effective progress has been made in that trial
(except recording of evidence of three prosecution witnesses out of
eighteen witnesses) so far. In the last six years, evidence of only two
additional prosecution witnesses has been recorded. The
respondent has not pointed out any material on record to even
remotely suggest that she had tried her best to dissuade the
criminal Court from adjourning the trial, in breach of direction
given by the Division Bench of the High Court to proceed on day-today
basis and to conclude the trial within one year from 28th June,
2010. Pendency of criminal trial for around 10 years, by no means,
can be said to be a reasonable time frame to withhold the
disciplinary proceedings. We are fortified in taking this view on the
principle underlying the former part of the same clause, which
envisages that if the Authority which has to start the prosecution
refuses (read fails) to do so within one year from the commission of
the offence, the departmental action can proceed under the
provisions as set out in Clauses 11 and 12 of the Settlement.
18. In the fact situation of the present case, it is possible to take
the view that the first part of Clause is attracted. In that,
respondent has been put on trial in connection with the alleged
offence, by framing of charges on 12th June 2007. That has
happened after one year from the commission of the offence.
19. Be that as it may, the remedy of writ being an equitable
jurisdiction and keeping in mind the larger public interests (atleast
in cases of involvement of the employees of the Public Sector Banks
in offence of breach of trust and embezzlement), the arrangement
predicated in the case of Stanzen (supra) would meet the ends of
justice. For, the disciplinary proceedings instituted against the
respondent cannot brook any further delay which is already
pending for more than 10 years.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4715 of 2011
State Bank of India & Ors.
Vs.
Neelam Nag
Citation:(2016) 9 SCC491
The short question involved in this appeal is: whether the High
Court was justified in directing stay of the disciplinary proceedings
initiated by the appellant-Bank against the respondent until the
closure of recording of prosecution evidence in the criminal case
instituted against the respondent, based on the same facts?
2. The respondent was appointed in the clerical cadre of the
appellant-Bank. At the relevant time, she was working as an
Assistant (Clearing). Allegedly, some time on 29th May 2006, the
respondent by her acts of commission and omission caused loss to
the Bank in the sum of Rs. 44,40,819/- by granting credit to one
Laxman Parsad Ratre (who was an employee of Bhilai Steel Plant).
The respondent herself introduced Laxman Parsad Ratre to open an
account in the appellant Bank. On 7th November 2006, the
respondent was placed under suspension for indulging in gross
irregularities and misconduct including of misplacing the clearing
instruments relating to various customers. The respondent vide
letter dated 8th November 2006, not only admitted her misdeeds but
assured the Chief Manager of returning the amount commensurate
to the financial loss caused to the Bank because of her lapses at the
earliest, failing which suitable action can proceed against her. The
said communication reads thus:
“To,
Chief Manager
State Bank of India
Main Branch, Durg (Ch.G.)
Sir,
Context :- Your memo number – Serial
number/branch/2006 – 07/196
dated 30.10.2006.
In context of your aforesaid memo I am sorry for the
wrong ways adopted by me. I admit that I have done a
wrong deed and I am suffering from the feeling of guilt.
1. Whatever amount comes in this context that I will try
to pay as early as possible after obtaining the amount
from the known sources. At present I am able to
arrange Rs. 60,000/- and I am depositing the same.
2. By mortgaging the family movable and immovable
property, arrangement for obtaining the amount,
thought and efforts are continued for making such
arrangement as early as possible. Because this works
take time, I should be given proper time to go further
in effort and to finish the work of mortgage.
3. Our relatives staying nearby and far away and in
other states, with them my contact is continued and
arrangement for the amount is continued. This work
is also taking time. Therefore to continue my effort
proper time to be given to me.
4. Amount of my C.P.F and salary is to be used for
compensating this amount. I will keep on informing
you regarding my every effort and will deposit the
money received in bank account.
I have done this work in mental stress and due to
pressure of situation for which my heart is feeling
sorry that I have used all wrong ways and means. I
have two small children, wife and old and ill mother
and father, considering all this give me an opportunity
to deposit the amount received from my aforesaid
efforts for which I will be grateful to you for my whole
life. I have not taken such a wrong step in fourteen
years of my bank service but this step I have taken
due to mental stress and situation. By giving me
apology, proper time to accomplish my efforts.
I assure you that I will not commit this kind of mistake
in future.
If I fail in the above efforts, you are independent for
initiating proceedings on me.
Thanking you
Dated :- 8.11.06
Sd/-
(Neelam Nag)
Senior Assistant “Page 4
4
3. Nevertheless, a FIR was lodged in connection with the said
irregularities and misdeeds committed by the respondent bearing
FIR No.1043/2006, for offences punishable under Sections 409, 34
of the IPC by appellant-Bank. Laxman Parsad Ratre has also been
named as an accused in the said FIR. It is alleged in the FIR that
Laxman Parsad Ratre who had account in State Bank of India
issued two cheques in favour of Tanishk Securities both valued
Rs.6,50,000/-, knowing that he did not have balance in his
account. Those cheques were deposited by Tanishk Securities in
their U.T.I. Branch Bhilai for clearance. U.T.I. Branch dispatched
those cheques to State Bank of India at Durg, Bhilai. The
respondent was posted in that Branch at the relevant time, who in
connivance with the co-accused dispatched those cheques to State
Bank of India, Malviya Nagar Branch even though Laxman Parsad
Ratre did not have account in that Branch. The cheques were
returned by that Branch. The respondent intentionally did not
immediately return those cheques to U.T.I. Branch at Bhilai.
Resultantly, U.T.I. Branch at Bhilai as per the settled practice
assumed that the cheques have been cleared and released the
payment to Tanishk Securities, by endorsing payment in the name
of State Bank of India. Thereby causing a loss of Rs. 13 lakhs to
State Bank of India. That was revealed only on 28.10.2006 during
reconciliation of accounts of the two Banks. Further, the
respondent herself had introduced Laxman Parsad Ratre for
opening an account in the appellant-Bank. She has admitted her
lapse in the communication sent by her to the Chief Manager of the
appellant-Bank dated 8th November, 2006. In a written admission
given on 6th November, 2006 Laxman Parsad Ratre mentioned that
he was involved in a criminal activity in connivance with the
respondent. The FIR has been registered for offence of possible loss
of Rs. 29,53,262/-.
4. After registration of the FIR, the local police proceeded with
the investigation and filed charge-sheet No. 63/2007, under Section
173 of the Criminal Procedure Code, on 6th February, 2007, before
the Magistrate. Criminal Complaint No. 1043/2006 was registered
for offences punishable under Sections 409, 34 of IPC. The
competent Court then proceeded to frame charges against the
respondent on 12th June 2007. Thereafter, on 7th April, 2008, the
appellants, through appellant No.2, called upon the respondent to
offer an explanation about the alleged irregularities and misdeeds
committed by her. The respondent vide communication dated 15th
April, 2008 simply denied all the allegations. The Competent
Authority, therefore, decided to initiate departmental enquiry
against the respondent, for which, charge-sheet dated 19th
September, 2008 was issued to the respondent, which reads thus:
“Shri Neelam Nag,
Senior Assistant
(Suspended)
Indian State bank
Bhilai Steel Plant Area Branch
Bhilai
Sr. No. Ankara/Area 3/ Anushansha / 820 19th Sep,
2008
Charge sheet
I in the capacity of disciplinary authority charge
following charges upon you
You have committed following mistake during
working in Durg Branch.
i. You have given identification to Lachhman Parsad
Ratre for opening the account thereafter through
this account through accounts you have manage
the operation of the Fund of other administrative
accounts.
ii. Through saving account no. 01119-0021348 two
cheques bearing no. 463553 and 4635554 which
is amounting to Rs. 6,50,00.00 each in favour of
Tanishk Securities on 29.5.2006 which was due
Durg Branch. Which was submitted by U.T.I.
Bank for adjustment, due to not insufficient
amount in Durg Branch instead of returning to
Bhilai Branch intentionally for making the
balance of adjustment has transfer to Malviya
Nagar Durg Branch with responding.
iii. Two cheque bearing no. 4635553 and 463554
each amounting to Rs. 65,0000/- which were due
to Durg Branch, Malviya Nagar Branch had
returned with T.R. on 31.5.2006, which should
have return by you to Head Branch Bililai without
any proceeding, but you intentionally keep it with
you.
iv. The above incident detail (information come in
light) on 28.10.2006 held branch clearing of the
general account in clearing it make clear that in
Udhavi schedule 07 Rupees 13,00,000 entries
which was originate by Malviya Nagar Durg
Branch, it was not responded by Durg Branch.
v. You had attached with Tanishk Securities
commodity trading and you by misusing the
amount of Chattisgarh State Electricity division
got deposit in the account of Shri Lachhman
Parsad Ratre. You have removed the original slip
of deposit of the account of chattisgarh State
Electricity division and in place of it install the
slip of Shri Rate saving bank account therefore
the dealing and clearing of the saving bank
account which has committed by you, the
complete detail is clear and enclosed in Annexure
– 2.
vi. Therefore you with the intention of cheating you
have divert the total amount of Rs. 48,0000 of 16
challan of State Govt. on 4.5.2006 (Annexure
2(11)).
vii. The Head Branch Bhilai through clearing house
has closed to submit due cheque in Durg Branch,
there after the cheque of various bank situated at
Bhilai which has deposited in Durg Branch
should presented for collection, you changing the
deposit slip of Chattisgarh State Electricity
Division current account preparing the deposit
slip of Lachhman Ratre has changed. Therefore
the FDR of current of Chattisgarh State
Electricity division has misused (Annexure 2
(12)).
viii. On 9th August, 2006 Chattisgarh State Electricity
divisions has deposited two cheque total
amounting to Rs. 125916/- of other banks for
deposit in their current account you by changing
the slip. Due to reference on the same day
cheque no. 463549 amounting to Rs. 125916
I.D.B.I. Branch Bhilai has submitted these
cheque in Durg Branch which was in the saving
bank account of Shri Ratre, due to not having
insufficient fund in the account of Shri Ratre
returned but the above cheque through clearing
by not returning but by you in the deposit of
clearing scroll and transfer both side with
cunning make balance. Therefore you by not
returning the cheque intentionally with cheating
has tampered the current account cheque of
Chattisgarh State Electricity division.
ix. Therefore with well plan manner the amounting
to Rs. 4440891 has deposit in the fake of account
of Shri Rate and misuse the above amount and
fix in commodity market. It clear detail is
enclosed in Annexure 1 & 2 in which the current
account of Chattisgarh State Electricity division
and the amount of Govt. challan with cheating
deposit in the account of Shri Ratre and misuse
by you. Therefore the current amount of
Chattisgarh State Electricity Division amounting
to Rs. 1653262 which has not cleared until now,
in the same manner branch clearing general
account amounting to Rs. 1300000 which is still
unclear pending in Malviya Nagar Durg Branch.
Therefore a huge amount loss has suffered by
bank, for which you are completely liable. Your
above conduct against the bank interest and
second party compromise dt. 6.8.2002 para
Sardi/P&HRD/57 page 7 para 5(a) and J comes
under gross misconduct and punishable.
(2) In this regard you are hereby directed in regard to
charge sheet submit your written reply within 7
days of the receipt of this letter, in case during
this period you did not give your reply then I
should admit that in regard to this letter you did
not want to say nothing and in this regard bank
shall fee to take action.
3) In the second copy of this letter by making
complete signature and date given the
acknowledgement.
Sd/-
Disciplinary Officer and
Assistant Chief Managing Director Administration)
Sd/-
Enclosure : above.
57/dpc/staff
Signature 20.9.2008”
5. The appellant No.2 then instituted disciplinary proceedings
against the respondent on 23rd October 2008, which fact was
notified to the respondent on 31st October 2008, by the appellant
No. 3 calling upon her to attend the same. The respondent did not
cooperate and instead protested the initiation of such disciplinary
proceedings against her. She was then advised to file a writ petition
bearing Writ Petition No.4629/2009 before the High Court of
Chhatisgarh at Bilaspur. The learned Single Judge found merits in
the stand taken by the respondent - that the facts involved in the
criminal case registered against the respondent and initiation of
disciplinary proceedings, was based on the same facts. The learned
Single Judge also adverted to Clause 4 of the Memorandum of
Settlement dated 10th April, 2002 which grants protection to the
employees of the appellant-Bank from facing departmental
proceedings until the completion of the trial of the criminal case.
On that reasoning, the learned Single Judge allowed the Writ
Petition and directed the appellants to forbear from proceeding with
the disciplinary proceedings until completion of the trial. This
decision was challenged by the appellants by way of Writ Appeal
No.80/2010 before the Division Bench. The Division Bench affirmed
the view taken by the learned Single Judge and negatived the stand
taken by the appellant in her favour. The Division Bench held that
the respondent may suffer disadvantage and prejudice if she was
compelled to disclose her defence in the departmental proceedings,
which is likely to be used in the criminal case pending against her.
The Division Bench, however, modified the operative order passed
by the learned Single Judge by passing following directions:
“Therefore, we dispose of this appeal by upholding the
order of the learned Single Judge with the following
directions:
(i) The A.C.J.M. Durg is directed to conclude the
trial which is pending since 2006 on day to day
basis, in which we have been informed that one
witness has already been examined,
(ii) The writ appellants would be free to proceed
further in the disciplinary proceedings as soon
as the case from the prosecution side is closed.”
(emphasis supplied)
6. The appellants relying on a recent decision of this Court in the
case of Stanzen Toyotetsu India Private Limited vs. Girish V. &
Ors.1
contend that the departmental proceedings cannot be
suspended indefinitely or delayed unduly. It is contended that
inspite of the direction given by the Division Bench to the concerned
criminal Court to take up the case pending since 2006 on day-to-
1
(2014) 3 SCC 636
day basis, the trial is still pending and only 3 witnesses out of total
18 prosecution witnesses cited in the charge-sheet have been
examined. There is no hope of an early completion of the trial nor of
completion of prosecution evidence. The delay is attributable to the
accused in the said criminal case, including the respondent herein.
In the backdrop of this grievance vide order dated 1st July 2016, the
State of Chhattisgarh was directed by this Court to file a status
report regarding the criminal proceedings launched against the
respondent, giving details of the total number of prosecution
witnesses cited in the charge-sheet; number of witnesses examined
so far; and the cause for delay in the completion of trial. The State
of Chhattisgarh has filed an affidavit of the Additional
Superintendent of Police dated 1st August 2016. From this affidavit,
it is noticed that the criminal trial No.1043/2006 before framing of
charge on 12th June 2007, was listed on 13 dates. After framing of
charge, the matter has proceeded before the Sessions Court on 133
dates. In paragraph 9 to 11 of the affidavit, the break up has been
given as under:
“9. It is further respectfully submitted that the
perusal of Court proceedings of 133 dates reveal that
the delay in completion of trial was due to multiple
reasons. It is submitted that on some dates, the case
was adjourned due to absence of accused persons. On
some dates, the case was adjourned as the prosecutor
was absent. The case was also adjourned due to
non-availability of files as it was sent to the Sessions
Court for deciding the Bail Application u/s 439 CrPC.
The case was also adjourned on the application made
by the accused persons to make available some
documents. The case was also adjourned due to Ld.
Presiding Officer on leave, the transfer of Presiding
Officer, the change of Court. The case was also
adjourned due to strike by the Lawyers or due to Court
holiday. In the gist of dates on which the case was
listed before the Ld. Trial Court, are as follows:
S.No. Particulars (Reason for Delay) Dates
1. Accused Laxman Ratre not present 06
2. Accused Neelam Nag not present 14
3. Prosecution witnesses not present 10
4. Accused persons not present 05
5. ADPO not present 23
6. Documents 07
7. Arguments 05
8. Application for bail 07
9. Receiving of demand letter 06
10. Case Diary sent to the Magistrate 05
11. Receiving of Diary 04
12. Court holiday 03
13. Strike of Advocates 02
14. Service of copy of the case 01
15. Change of charges 01
16. Time sought by the Advocates of
accused persons
01
17. Presiding Officer on leave 05
18. Transfer of Presiding Officer 03
19. Reply 04
20. Keeping current status 04
21. Evidence 10
22. Case sent to copying department 03
23. Issuance of instruction regarding
case hand-over
01
24. Receiving of case on transfer 01
25. Framing of charges 01
26. Order 01
TOTAL= 133 DAYS
10. It is further submitted that the perusal of the
Court proceedings reveal the dates on which, the
prosecution witness were present and the outcome on
that date :
30.06.2007 Prosecution witnesses Joy C. Aryakara
and Pushpkala present in Court,
however, since the matter was fixed for
02.07.2007, they were asked to come
again on that date.
02.07.2007 The above 2 prosecution witnesses were
present, however, they could not
examined due to non-availability of case
diary and seized documents.
18.07.2008 prosecution witness Pushpkala present
in Court however, she could not be
examined since the Ld. Presiding Officer
was on leave.
09.03.2009 Prosecution witness Pushpkala present
in Court however, she could not be
examined.
08.10.2010 Prosecution witnesses Joy C. Aryakara
and Ms. Pushpkala present in Court,
however, they could not be examined
since co-accused Laxman Ratre was not
present nor any advocate appeared on
his behalf.
22.07.2011 Prosecution witness Pushpkala was
examined Prosecution witness Joy C.
Aryakara also present in Court however,
the defence refused to cross-examine
on the ground of non-availability of
certain bank documents. This
prosecution witness was therefore
could not be cross-examined.
15.09.2011 prosecution witness K.G. Goswami
present in Court however, the
examination could not take place due to
absence of accused / respondent No.1
Neelam Nag.
24.09.2011 Prosecution witnesses KG. Goswami and
N. Chandrashekhar present in Court.
The co-accused Laxman Ratre is absent.
Witness N. Chandrashekhar could not be
examined due to non-availability of some
documents.
04.11.2011 Witness N. Chandrashekhar present.
The examination could not take place
due to non-availability of certain
documents.
01.09.2012 Prosecution witness A.S. Jitendra
present in Court. The accused /
Respondent No.1 Neelam Nag was
absent, however, at the request of his
Counsel, the examination of
prosecution witness was deferred.
03.09.2015 Prosecution witness Ramesh Kumar
present in Court. The accused Neelam
Nag was absent. Examination of
witness did not take place.
02.11.2015 Prosecution witness Ramesh Kumar
Present. The accused Neelam Nag was
absent. Examination of witness did
not take place.
11. It is submitted that 3 prosecution witnesses
have been examined. The delay in completion of trial
is due to reasons mentioned in the above paras.”
Relying on these facts, the appellants contend that no further
indulgence can be shown to the respondent and the protection
given to the respondent by the High Court should be vacated
keeping in mind the exposition in the above mentioned reported
decision. As regards the argument of the respondent that the
disciplinary proceedings must be suspended in view of Clause 4 of
the Memorandum of Settlement dated 10th April 2002, arrived at by
the Management of 52 ‘A’ Class Banks as represented by the IndianPage 15
15
Banks’ Association and their workmen under Section 2(p) and
Section 18(1) of the Industrial Disputes Act, that cannot be
considered as a legal bar atleast in the fact situation of the present
case. The interpretation of Clause 4 of the said settlement, as put
forth by the appellant, would further the cause of justice and in
particular larger public interest, considering the fact that the
misconduct is in relation to embezzlement of substantial amount by
an employee of the public sector bank - which has caused financial
loss not only to the bank but resultantly to the public exchequer. It
is in the interest of all concerned that the action, as permissible in
law, must be taken forward in connection with the gross
misconduct and the provision in the Memorandum of Settlement
such as Clause 4 cannot be treated as an impediment thereto. Any
other interpretation of Clause 4 of the Settlement would be against
public policy and also encouraging unscrupulous employees of the
bank to stall the disciplinary proceedings by taking advantage of
the pending criminal case, which is an independent action in law.
The respondent being named as an accused in the criminal case;
and also responsible for prolonging the trial of the criminal case,
cannot be permitted to take advantage of her own wrong.
7. The respondent, on the other hand, supported the view taken
by the High Court and contends that, in view of Clause 4 of the
Memorandum of Settlement and the settled legal position, the
disciplinary proceedings must be put on hold atleast until the
recording and closure of evidence of prosecution witnesses in the
criminal case, as directed by the Division Bench. That is essential
because the charge framed against the respondent in the criminal
case and the charge-sheet issued by the disciplinary authority
against the respondent is based on the same set of facts. The
defence of the respondent in disciplinary proceedings may cause
serious prejudice to the respondent in the criminal case. According
to the respondent, in view of the complexity of the facts and the
evidence necessary to substantiate the same, it is advisable and
essential to protect the respondent from being exposed to disclosure
of her defence which may be identical to one to be taken in the
criminal case or for that matter compel her to depose against
herself on those facts.
8. We have heard the learned counsel for the parties at some
length. The only question that arises for consideration, is no more
res-integra. It is well-settled that there is no legal bar to the
conduct of the disciplinary proceedings and criminal trial
simultaneously. However, no straightjacket formula can be spelt
out and the Court has to keep in mind the broad approach to be
adopted in such matters on case to case basis. The contour of the
approach to be adopted by the Court has been delineated in series
of decisions. This Court in Karnataka SRTC vs. M.G.Vittal Rao2
has summed up the same in the following words:
“(i) There is no legal bar for both the proceedings to go on
simultaneously.
(ii) The only valid ground for claiming that the disciplinary
proceedings may be stated would be to ensure that the defence
of the employee in the criminal case may not be prejudiced.
But even such grounds would be available only in cases
involving complex questions of facts or law.
(iii) Such defence ought not to be permitted to unnecessarily
delay the departmental proceedings. The interest of the
delinquent officer as well as the employer clearly lies in a
prompt conclusion of the disciplinary proceedings.
(iv) Departmental proceedings can go on simultaneously to
the criminal trial, except where both the proceedings are based
on the same set of facts and the evidence in both the
proceedings is common.”
(emphasis supplied)
2 (2012) 1 SCC 442
9. The recent decision relied by the appellant in the case of
Stanzen (supra), has adverted to the relevant decisions3
including
the case of M.G.Vittal Rao (supra). After adverting to those
decisions, in paragraph 16, this Court opined as under:
“16. Suffice it to say that while there is no legal bar to the
holding of the disciplinary proceedings and the criminal trial
simultaneously, stay of disciplinary proceedings may be an
advisable course in cases where the criminal charge against
the employee is grave and continuance of the disciplinary
proceedings is likely to prejudice their defence before the
criminal Court. Gravity of the charge is, however, not by itself
enough to determine the question unless the charge involves
complicated question of law and fact. The Court examining the
question must also keep in mind that criminal trials get
prolonged indefinitely especially where the number of accused
arraigned for trial is large as is the case at hand and so are the
number of witnesses cited by the prosecution. The Court,
therefore, has to draw a balance between the need for a fair
trial to the accused on the one hand and the competing
demand for an expeditious conclusion of the ongoing
disciplinary proceedings on the other. An early conclusion of
the disciplinary proceedings has itself been seen by this Court
to be in the interest of the employees.”
(emphasis supplied)
10. The Court then went on to examine the facts of that case and
observed in para 18 as follows:
3 (2005) 10 SCC 471 Hindustan Petroleum Corpn. Ltd. V. Sarvesh Berry
(1999) 3 SCC 679 Capt. M. Paul Antony v. Bharat Gold Mines Ltd.
(1997) 2 SCC 699 A.P. SRTC v. Mohd. Yousuf Miya
(1996) 6 SCC 417 State of Rajasthan v. B.K. Meena
“18. ……….The charge-sheet, it is evident from the record,
was filed on 20.8.2011. The Charges were framed on
20-12-2011. The trial Court has ever since then examined
only three witnesses so far out of a total of 23 witnesses cited
in the charge-sheet. Going by the pace at which the trial Court
is examining the witnesses, it would take another five years
before the trial may be concluded. The High Court has in the
judgment under appeal given five months to the trial Court to
conclude the trial. More than fifteen months has rolled by ever
since that order, without the trial going anywhere near
completion. The disciplinary proceedings cannot remain
stayed for an indefinitely long period. Such inordinate delay is
neither in the interest of the appellant Company nor the
respondents who are under suspension and surviving on
subsistence allowance………”
(emphasis supplied)
In paragraph 19, the Court proceeded to conclude thus:
“19. In the circumstances and taking into consideration all
aspects mentioned above as also keeping in view the fact that
all the three Courts below have exercised their discretion in
favour of staying the ongoing disciplinary proceedings, we do
not consider it fit to vacate the said order straightaway.
Interests of justice would, in our opinion, be sufficiently
served if we direct the Court dealing with the criminal
charges against the respondents to conclude the proceedings
as expeditiously as possible but in any case within a period of
one year from the date of this order. We hope and trust that
the trial Court will take effective steps to ensure that the
witnesses are served, appear and are examined. The Court
may for that purpose adjourn the case for no more than a
fortnight every time an adjournment is necessary. We also
expect the accused in the criminal case to cooperate with the
trial Court for an early completion of the proceedings. We
say so because experience has shown that the trials often
linger on for a long time on account of non-availability of the
defence lawyers to cross-examine the witnesses or on
account of adjournments sought by them on the flimsiest of
the grounds. All that needs to be avoided. In case, however,
the trial is not completed within the period of one year from
the date of this order, despite the steps which the trial Court
has been directed to take the disciplinary proceedings
initiated against the respondents shall be resumed and
concluded by the inquiry officer concerned. The impugned
orders shall in that case stand vacated upon expiry of the
period of one year from the date of the order.”
11. Reverting to the facts of the present case, indisputably, the
alleged misconduct has been committed as far back as May 2006.
The FIR was registered on 5th December, 2006 and the charge-sheet
was filed in the said criminal case on 6th February, 2007. The
contents of the charge-sheet are indicative of involvement of the
respondent in the alleged offence. Resultantly, the criminal Court
has framed charges against the respondent as far back as 12th
June, 2007. The trial of that case, however, has not made any
effective progress. Only 3 witnesses have been examined by the
prosecution, out of 18 witnesses cited in the charge-sheet filed
before the criminal Court. Indeed, listing of criminal case on 133
different dates after framing of charges is not solely attributable to
the respondent. From the information made available by the
Additional Superintendent of Police on affidavit, it does indicate
that atleast 26 adjournments are directly attributable to the
accused in the criminal case. That is not an insignificant fact. This
is inspite of the direction given by the Division Bench on 28th June,
2010, to the concerned criminal Court to proceed with the trial on
day-to-day basis. The progress of the criminal case since then, by
no means, can be said to be satisfactory. The fact that the
prosecution has named 18 witnesses does not mean that all the
witnesses are material witness for substantiating the factum of
involvement of the respondent in introducing the co-accused for
opening a new bank account, to misplace the clearing instruments
relating to various customers or for the payment released to the
undeserving customer causing huge financial loss to the bank. The
charge in the criminal case is for offences under Section 409, 34 of
IPC, one of criminal breach of trust by a public servant.
12. In the peculiar facts of the present case, therefore, we accede
to the contention of the appellants that the pendency of the
criminal case against the respondent cannot be the sole basis to
suspend the disciplinary proceedings initiated against the
respondent for an indefinite period; and in larger public interest,
the order as passed in Stanzen’s case be followed even in the fact
situation of the present case, to balance the equities.
13. The next question is: whether Clause 4 of the Settlement
would denude the appellants from continuing with the disciplinary
proceedings pending against the respondent. Clause 4 of the
Settlement reads thus:
“4. If after steps have been taken to prosecute an employee or
to get him prosecuted, for an offence, he is not put on trial
within a year of the commission of the offence, 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)
14. Ordinarily, the scope of Clause 4 of the Memorandum of
Settlement pressed into service would be a matter of an Industrial
Dispute, to be adjudicated by the competent Forum, if the
respondent can be termed as a workman. The respondent herein
was appointed in a clerical cadre of the appellant-bank; but when
the alleged misconduct was committed on 29th May 2006, she was
working as Assistant (Clearing). Neither before the learned Single
Judge, the Division Bench nor before us any argument has been
canvassed on the factum of whether the respondent can be treated
as a workman within the meaning of the Industrial Disputes Act,
1947. Both sides, however, have relied on the said Clause and
invited us to spell out its purport.
15. On 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 criminal case against the delinquent employee. On
the other hand, it is an enabling provision permitting the institution
or continuation 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.
16. As can be culled out from the last sentence of Clause 4, which
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.
17. Notably, in the present case inspite of a peremptory direction
of the Division Bench given on 28th June 2010 to the concerned
criminal Court to proceed with the trial on day-to-day basis, as
noted above, no effective progress has been made in that trial
(except recording of evidence of three prosecution witnesses out of
eighteen witnesses) so far. In the last six years, evidence of only two
additional prosecution witnesses has been recorded. The
respondent has not pointed out any material on record to even
remotely suggest that she had tried her best to dissuade the
criminal Court from adjourning the trial, in breach of direction
given by the Division Bench of the High Court to proceed on day-today
basis and to conclude the trial within one year from 28th June,
2010. Pendency of criminal trial for around 10 years, by no means,
can be said to be a reasonable time frame to withhold the
disciplinary proceedings. We are fortified in taking this view on the
principle underlying the former part of the same clause, which
envisages that if the Authority which has to start the prosecution
refuses (read fails) to do so within one year from the commission of
the offence, the departmental action can proceed under the
provisions as set out in Clauses 11 and 12 of the Settlement.
18. In the fact situation of the present case, it is possible to take
the view that the first part of Clause is attracted. In that,
respondent has been put on trial in connection with the alleged
offence, by framing of charges on 12th June 2007. That has
happened after one year from the commission of the offence.
19. Be that as it may, the remedy of writ being an equitable
jurisdiction and keeping in mind the larger public interests (atleast
in cases of involvement of the employees of the Public Sector Banks
in offence of breach of trust and embezzlement), the arrangement
predicated in the case of Stanzen (supra) would meet the ends of
justice. For, the disciplinary proceedings instituted against the
respondent cannot brook any further delay which is already
pending for more than 10 years.
20. We make it clear that we may not be understood to have
expressed any final view on the scope of Clause 4 of the Settlement.
21. Accordingly, we exercise discretion in favour of the respondent
of staying the ongoing disciplinary proceedings until the closure of
recording of evidence of prosecution witnesses cited in the criminal
trial, as directed by the Division Bench of the High Court and do
not consider it fit to vacate that arrangement straightway. Instead,
in our opinion, interests of justice would be sufficiently served by
directing the criminal case pending against the respondent to be
decided expeditiously but not later than one year from the date of
this order. The Trial Court shall take effective steps to ensure that
the witnesses are served, appear and are examined on day-to-day
basis. In case any adjournment becomes inevitable, it should not
be for more than a fortnight when necessary.
22. We also direct that the respondent shall extend full
cooperation to the Trial Court for an early disposal of the trial,
which includes cooperation by the Advocate appointed by her.
23. If the trial is not completed within one year from the date of
this order, despite the steps which the Trial Court has been directed
to take the disciplinary proceedings against the respondent shall be
resumed by the enquiry officer concerned. The protection given to
the respondent of keeping the disciplinary proceedings in abeyance
shall then stand vacated forthwith upon expiring of the period of
one year from the date of this order.
24. In the result, we partly allow this appeal to the extent
indicated above. The parties are left to bear their own costs.
25. A copy of this order be forwarded to the concerned Sessions
Court for information and necessary action for ensuring compliance
of the direction.
…………………………..CJI
(T.S.Thakur)
…………………………….J.
(A.M.Khanwilkar)
New Delhi,
16th September, 2016
Print Page
to the contention of the appellants that the pendency of the
criminal case against the respondent cannot be the sole basis to
suspend the disciplinary proceedings initiated against the
respondent for an indefinite period; and in larger public interest,
the order as passed in Stanzen’s case be followed even in the fact
situation of the present case, to balance the equities.
13. The next question is: whether Clause 4 of the Settlement
would denude the appellants from continuing with the disciplinary
proceedings pending against the respondent. Clause 4 of the
Settlement reads thus:
“4. If after steps have been taken to prosecute an employee or
to get him prosecuted, for an offence, he is not put on trial
within a year of the commission of the offence, 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)
14. Ordinarily, the scope of Clause 4 of the Memorandum of
Settlement pressed into service would be a matter of an Industrial
Dispute, to be adjudicated by the competent Forum, if the
respondent can be termed as a workman. The respondent herein
was appointed in a clerical cadre of the appellant-bank; but when
the alleged misconduct was committed on 29th May 2006, she was
working as Assistant (Clearing). Neither before the learned Single
Judge, the Division Bench nor before us any argument has been
canvassed on the factum of whether the respondent can be treated
as a workman within the meaning of the Industrial Disputes Act,
1947. Both sides, however, have relied on the said Clause and
invited us to spell out its purport.
15. On 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 criminal case against the delinquent employee. On
the other hand, it is an enabling provision permitting the institution
or continuation 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.
16. As can be culled out from the last sentence of Clause 4, which
applies to a case where the criminal case has in fact proceeded, as
in this case, for trial. The term “completion of the trial” there at,
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.
17. Notably, in the present case inspite of a peremptory direction
of the Division Bench given on 28th June 2010 to the concerned
criminal Court to proceed with the trial on day-to-day basis, as
noted above, no effective progress has been made in that trial
(except recording of evidence of three prosecution witnesses out of
eighteen witnesses) so far. In the last six years, evidence of only two
additional prosecution witnesses has been recorded. The
respondent has not pointed out any material on record to even
remotely suggest that she had tried her best to dissuade the
criminal Court from adjourning the trial, in breach of direction
given by the Division Bench of the High Court to proceed on day-today
basis and to conclude the trial within one year from 28th June,
2010. Pendency of criminal trial for around 10 years, by no means,
can be said to be a reasonable time frame to withhold the
disciplinary proceedings. We are fortified in taking this view on the
principle underlying the former part of the same clause, which
envisages that if the Authority which has to start the prosecution
refuses (read fails) to do so within one year from the commission of
the offence, the departmental action can proceed under the
provisions as set out in Clauses 11 and 12 of the Settlement.
18. In the fact situation of the present case, it is possible to take
the view that the first part of Clause is attracted. In that,
respondent has been put on trial in connection with the alleged
offence, by framing of charges on 12th June 2007. That has
happened after one year from the commission of the offence.
19. Be that as it may, the remedy of writ being an equitable
jurisdiction and keeping in mind the larger public interests (atleast
in cases of involvement of the employees of the Public Sector Banks
in offence of breach of trust and embezzlement), the arrangement
predicated in the case of Stanzen (supra) would meet the ends of
justice. For, the disciplinary proceedings instituted against the
respondent cannot brook any further delay which is already
pending for more than 10 years.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4715 of 2011
State Bank of India & Ors.
Vs.
Neelam Nag
Citation:(2016) 9 SCC491
The short question involved in this appeal is: whether the High
Court was justified in directing stay of the disciplinary proceedings
initiated by the appellant-Bank against the respondent until the
closure of recording of prosecution evidence in the criminal case
instituted against the respondent, based on the same facts?
2. The respondent was appointed in the clerical cadre of the
appellant-Bank. At the relevant time, she was working as an
Assistant (Clearing). Allegedly, some time on 29th May 2006, the
respondent by her acts of commission and omission caused loss to
the Bank in the sum of Rs. 44,40,819/- by granting credit to one
Laxman Parsad Ratre (who was an employee of Bhilai Steel Plant).
The respondent herself introduced Laxman Parsad Ratre to open an
account in the appellant Bank. On 7th November 2006, the
respondent was placed under suspension for indulging in gross
irregularities and misconduct including of misplacing the clearing
instruments relating to various customers. The respondent vide
letter dated 8th November 2006, not only admitted her misdeeds but
assured the Chief Manager of returning the amount commensurate
to the financial loss caused to the Bank because of her lapses at the
earliest, failing which suitable action can proceed against her. The
said communication reads thus:
“To,
Chief Manager
State Bank of India
Main Branch, Durg (Ch.G.)
Sir,
Context :- Your memo number – Serial
number/branch/2006 – 07/196
dated 30.10.2006.
In context of your aforesaid memo I am sorry for the
wrong ways adopted by me. I admit that I have done a
wrong deed and I am suffering from the feeling of guilt.
1. Whatever amount comes in this context that I will try
to pay as early as possible after obtaining the amount
from the known sources. At present I am able to
arrange Rs. 60,000/- and I am depositing the same.
2. By mortgaging the family movable and immovable
property, arrangement for obtaining the amount,
thought and efforts are continued for making such
arrangement as early as possible. Because this works
take time, I should be given proper time to go further
in effort and to finish the work of mortgage.
3. Our relatives staying nearby and far away and in
other states, with them my contact is continued and
arrangement for the amount is continued. This work
is also taking time. Therefore to continue my effort
proper time to be given to me.
4. Amount of my C.P.F and salary is to be used for
compensating this amount. I will keep on informing
you regarding my every effort and will deposit the
money received in bank account.
I have done this work in mental stress and due to
pressure of situation for which my heart is feeling
sorry that I have used all wrong ways and means. I
have two small children, wife and old and ill mother
and father, considering all this give me an opportunity
to deposit the amount received from my aforesaid
efforts for which I will be grateful to you for my whole
life. I have not taken such a wrong step in fourteen
years of my bank service but this step I have taken
due to mental stress and situation. By giving me
apology, proper time to accomplish my efforts.
I assure you that I will not commit this kind of mistake
in future.
If I fail in the above efforts, you are independent for
initiating proceedings on me.
Thanking you
Dated :- 8.11.06
Sd/-
(Neelam Nag)
Senior Assistant “Page 4
4
3. Nevertheless, a FIR was lodged in connection with the said
irregularities and misdeeds committed by the respondent bearing
FIR No.1043/2006, for offences punishable under Sections 409, 34
of the IPC by appellant-Bank. Laxman Parsad Ratre has also been
named as an accused in the said FIR. It is alleged in the FIR that
Laxman Parsad Ratre who had account in State Bank of India
issued two cheques in favour of Tanishk Securities both valued
Rs.6,50,000/-, knowing that he did not have balance in his
account. Those cheques were deposited by Tanishk Securities in
their U.T.I. Branch Bhilai for clearance. U.T.I. Branch dispatched
those cheques to State Bank of India at Durg, Bhilai. The
respondent was posted in that Branch at the relevant time, who in
connivance with the co-accused dispatched those cheques to State
Bank of India, Malviya Nagar Branch even though Laxman Parsad
Ratre did not have account in that Branch. The cheques were
returned by that Branch. The respondent intentionally did not
immediately return those cheques to U.T.I. Branch at Bhilai.
Resultantly, U.T.I. Branch at Bhilai as per the settled practice
assumed that the cheques have been cleared and released the
payment to Tanishk Securities, by endorsing payment in the name
of State Bank of India. Thereby causing a loss of Rs. 13 lakhs to
State Bank of India. That was revealed only on 28.10.2006 during
reconciliation of accounts of the two Banks. Further, the
respondent herself had introduced Laxman Parsad Ratre for
opening an account in the appellant-Bank. She has admitted her
lapse in the communication sent by her to the Chief Manager of the
appellant-Bank dated 8th November, 2006. In a written admission
given on 6th November, 2006 Laxman Parsad Ratre mentioned that
he was involved in a criminal activity in connivance with the
respondent. The FIR has been registered for offence of possible loss
of Rs. 29,53,262/-.
4. After registration of the FIR, the local police proceeded with
the investigation and filed charge-sheet No. 63/2007, under Section
173 of the Criminal Procedure Code, on 6th February, 2007, before
the Magistrate. Criminal Complaint No. 1043/2006 was registered
for offences punishable under Sections 409, 34 of IPC. The
competent Court then proceeded to frame charges against the
respondent on 12th June 2007. Thereafter, on 7th April, 2008, the
appellants, through appellant No.2, called upon the respondent to
offer an explanation about the alleged irregularities and misdeeds
committed by her. The respondent vide communication dated 15th
April, 2008 simply denied all the allegations. The Competent
Authority, therefore, decided to initiate departmental enquiry
against the respondent, for which, charge-sheet dated 19th
September, 2008 was issued to the respondent, which reads thus:
“Shri Neelam Nag,
Senior Assistant
(Suspended)
Indian State bank
Bhilai Steel Plant Area Branch
Bhilai
Sr. No. Ankara/Area 3/ Anushansha / 820 19th Sep,
2008
Charge sheet
I in the capacity of disciplinary authority charge
following charges upon you
You have committed following mistake during
working in Durg Branch.
i. You have given identification to Lachhman Parsad
Ratre for opening the account thereafter through
this account through accounts you have manage
the operation of the Fund of other administrative
accounts.
ii. Through saving account no. 01119-0021348 two
cheques bearing no. 463553 and 4635554 which
is amounting to Rs. 6,50,00.00 each in favour of
Tanishk Securities on 29.5.2006 which was due
Durg Branch. Which was submitted by U.T.I.
Bank for adjustment, due to not insufficient
amount in Durg Branch instead of returning to
Bhilai Branch intentionally for making the
balance of adjustment has transfer to Malviya
Nagar Durg Branch with responding.
iii. Two cheque bearing no. 4635553 and 463554
each amounting to Rs. 65,0000/- which were due
to Durg Branch, Malviya Nagar Branch had
returned with T.R. on 31.5.2006, which should
have return by you to Head Branch Bililai without
any proceeding, but you intentionally keep it with
you.
iv. The above incident detail (information come in
light) on 28.10.2006 held branch clearing of the
general account in clearing it make clear that in
Udhavi schedule 07 Rupees 13,00,000 entries
which was originate by Malviya Nagar Durg
Branch, it was not responded by Durg Branch.
v. You had attached with Tanishk Securities
commodity trading and you by misusing the
amount of Chattisgarh State Electricity division
got deposit in the account of Shri Lachhman
Parsad Ratre. You have removed the original slip
of deposit of the account of chattisgarh State
Electricity division and in place of it install the
slip of Shri Rate saving bank account therefore
the dealing and clearing of the saving bank
account which has committed by you, the
complete detail is clear and enclosed in Annexure
– 2.
vi. Therefore you with the intention of cheating you
have divert the total amount of Rs. 48,0000 of 16
challan of State Govt. on 4.5.2006 (Annexure
2(11)).
vii. The Head Branch Bhilai through clearing house
has closed to submit due cheque in Durg Branch,
there after the cheque of various bank situated at
Bhilai which has deposited in Durg Branch
should presented for collection, you changing the
deposit slip of Chattisgarh State Electricity
Division current account preparing the deposit
slip of Lachhman Ratre has changed. Therefore
the FDR of current of Chattisgarh State
Electricity division has misused (Annexure 2
(12)).
viii. On 9th August, 2006 Chattisgarh State Electricity
divisions has deposited two cheque total
amounting to Rs. 125916/- of other banks for
deposit in their current account you by changing
the slip. Due to reference on the same day
cheque no. 463549 amounting to Rs. 125916
I.D.B.I. Branch Bhilai has submitted these
cheque in Durg Branch which was in the saving
bank account of Shri Ratre, due to not having
insufficient fund in the account of Shri Ratre
returned but the above cheque through clearing
by not returning but by you in the deposit of
clearing scroll and transfer both side with
cunning make balance. Therefore you by not
returning the cheque intentionally with cheating
has tampered the current account cheque of
Chattisgarh State Electricity division.
ix. Therefore with well plan manner the amounting
to Rs. 4440891 has deposit in the fake of account
of Shri Rate and misuse the above amount and
fix in commodity market. It clear detail is
enclosed in Annexure 1 & 2 in which the current
account of Chattisgarh State Electricity division
and the amount of Govt. challan with cheating
deposit in the account of Shri Ratre and misuse
by you. Therefore the current amount of
Chattisgarh State Electricity Division amounting
to Rs. 1653262 which has not cleared until now,
in the same manner branch clearing general
account amounting to Rs. 1300000 which is still
unclear pending in Malviya Nagar Durg Branch.
Therefore a huge amount loss has suffered by
bank, for which you are completely liable. Your
above conduct against the bank interest and
second party compromise dt. 6.8.2002 para
Sardi/P&HRD/57 page 7 para 5(a) and J comes
under gross misconduct and punishable.
(2) In this regard you are hereby directed in regard to
charge sheet submit your written reply within 7
days of the receipt of this letter, in case during
this period you did not give your reply then I
should admit that in regard to this letter you did
not want to say nothing and in this regard bank
shall fee to take action.
3) In the second copy of this letter by making
complete signature and date given the
acknowledgement.
Sd/-
Disciplinary Officer and
Assistant Chief Managing Director Administration)
Sd/-
Enclosure : above.
57/dpc/staff
Signature 20.9.2008”
5. The appellant No.2 then instituted disciplinary proceedings
against the respondent on 23rd October 2008, which fact was
notified to the respondent on 31st October 2008, by the appellant
No. 3 calling upon her to attend the same. The respondent did not
cooperate and instead protested the initiation of such disciplinary
proceedings against her. She was then advised to file a writ petition
bearing Writ Petition No.4629/2009 before the High Court of
Chhatisgarh at Bilaspur. The learned Single Judge found merits in
the stand taken by the respondent - that the facts involved in the
criminal case registered against the respondent and initiation of
disciplinary proceedings, was based on the same facts. The learned
Single Judge also adverted to Clause 4 of the Memorandum of
Settlement dated 10th April, 2002 which grants protection to the
employees of the appellant-Bank from facing departmental
proceedings until the completion of the trial of the criminal case.
On that reasoning, the learned Single Judge allowed the Writ
Petition and directed the appellants to forbear from proceeding with
the disciplinary proceedings until completion of the trial. This
decision was challenged by the appellants by way of Writ Appeal
No.80/2010 before the Division Bench. The Division Bench affirmed
the view taken by the learned Single Judge and negatived the stand
taken by the appellant in her favour. The Division Bench held that
the respondent may suffer disadvantage and prejudice if she was
compelled to disclose her defence in the departmental proceedings,
which is likely to be used in the criminal case pending against her.
The Division Bench, however, modified the operative order passed
by the learned Single Judge by passing following directions:
“Therefore, we dispose of this appeal by upholding the
order of the learned Single Judge with the following
directions:
(i) The A.C.J.M. Durg is directed to conclude the
trial which is pending since 2006 on day to day
basis, in which we have been informed that one
witness has already been examined,
(ii) The writ appellants would be free to proceed
further in the disciplinary proceedings as soon
as the case from the prosecution side is closed.”
(emphasis supplied)
6. The appellants relying on a recent decision of this Court in the
case of Stanzen Toyotetsu India Private Limited vs. Girish V. &
Ors.1
contend that the departmental proceedings cannot be
suspended indefinitely or delayed unduly. It is contended that
inspite of the direction given by the Division Bench to the concerned
criminal Court to take up the case pending since 2006 on day-to-
1
(2014) 3 SCC 636
day basis, the trial is still pending and only 3 witnesses out of total
18 prosecution witnesses cited in the charge-sheet have been
examined. There is no hope of an early completion of the trial nor of
completion of prosecution evidence. The delay is attributable to the
accused in the said criminal case, including the respondent herein.
In the backdrop of this grievance vide order dated 1st July 2016, the
State of Chhattisgarh was directed by this Court to file a status
report regarding the criminal proceedings launched against the
respondent, giving details of the total number of prosecution
witnesses cited in the charge-sheet; number of witnesses examined
so far; and the cause for delay in the completion of trial. The State
of Chhattisgarh has filed an affidavit of the Additional
Superintendent of Police dated 1st August 2016. From this affidavit,
it is noticed that the criminal trial No.1043/2006 before framing of
charge on 12th June 2007, was listed on 13 dates. After framing of
charge, the matter has proceeded before the Sessions Court on 133
dates. In paragraph 9 to 11 of the affidavit, the break up has been
given as under:
“9. It is further respectfully submitted that the
perusal of Court proceedings of 133 dates reveal that
the delay in completion of trial was due to multiple
reasons. It is submitted that on some dates, the case
was adjourned due to absence of accused persons. On
some dates, the case was adjourned as the prosecutor
was absent. The case was also adjourned due to
non-availability of files as it was sent to the Sessions
Court for deciding the Bail Application u/s 439 CrPC.
The case was also adjourned on the application made
by the accused persons to make available some
documents. The case was also adjourned due to Ld.
Presiding Officer on leave, the transfer of Presiding
Officer, the change of Court. The case was also
adjourned due to strike by the Lawyers or due to Court
holiday. In the gist of dates on which the case was
listed before the Ld. Trial Court, are as follows:
S.No. Particulars (Reason for Delay) Dates
1. Accused Laxman Ratre not present 06
2. Accused Neelam Nag not present 14
3. Prosecution witnesses not present 10
4. Accused persons not present 05
5. ADPO not present 23
6. Documents 07
7. Arguments 05
8. Application for bail 07
9. Receiving of demand letter 06
10. Case Diary sent to the Magistrate 05
11. Receiving of Diary 04
12. Court holiday 03
13. Strike of Advocates 02
14. Service of copy of the case 01
15. Change of charges 01
16. Time sought by the Advocates of
accused persons
01
17. Presiding Officer on leave 05
18. Transfer of Presiding Officer 03
19. Reply 04
20. Keeping current status 04
21. Evidence 10
22. Case sent to copying department 03
23. Issuance of instruction regarding
case hand-over
01
24. Receiving of case on transfer 01
25. Framing of charges 01
26. Order 01
TOTAL= 133 DAYS
10. It is further submitted that the perusal of the
Court proceedings reveal the dates on which, the
prosecution witness were present and the outcome on
that date :
30.06.2007 Prosecution witnesses Joy C. Aryakara
and Pushpkala present in Court,
however, since the matter was fixed for
02.07.2007, they were asked to come
again on that date.
02.07.2007 The above 2 prosecution witnesses were
present, however, they could not
examined due to non-availability of case
diary and seized documents.
18.07.2008 prosecution witness Pushpkala present
in Court however, she could not be
examined since the Ld. Presiding Officer
was on leave.
09.03.2009 Prosecution witness Pushpkala present
in Court however, she could not be
examined.
08.10.2010 Prosecution witnesses Joy C. Aryakara
and Ms. Pushpkala present in Court,
however, they could not be examined
since co-accused Laxman Ratre was not
present nor any advocate appeared on
his behalf.
22.07.2011 Prosecution witness Pushpkala was
examined Prosecution witness Joy C.
Aryakara also present in Court however,
the defence refused to cross-examine
on the ground of non-availability of
certain bank documents. This
prosecution witness was therefore
could not be cross-examined.
15.09.2011 prosecution witness K.G. Goswami
present in Court however, the
examination could not take place due to
absence of accused / respondent No.1
Neelam Nag.
24.09.2011 Prosecution witnesses KG. Goswami and
N. Chandrashekhar present in Court.
The co-accused Laxman Ratre is absent.
Witness N. Chandrashekhar could not be
examined due to non-availability of some
documents.
04.11.2011 Witness N. Chandrashekhar present.
The examination could not take place
due to non-availability of certain
documents.
01.09.2012 Prosecution witness A.S. Jitendra
present in Court. The accused /
Respondent No.1 Neelam Nag was
absent, however, at the request of his
Counsel, the examination of
prosecution witness was deferred.
03.09.2015 Prosecution witness Ramesh Kumar
present in Court. The accused Neelam
Nag was absent. Examination of
witness did not take place.
02.11.2015 Prosecution witness Ramesh Kumar
Present. The accused Neelam Nag was
absent. Examination of witness did
not take place.
11. It is submitted that 3 prosecution witnesses
have been examined. The delay in completion of trial
is due to reasons mentioned in the above paras.”
Relying on these facts, the appellants contend that no further
indulgence can be shown to the respondent and the protection
given to the respondent by the High Court should be vacated
keeping in mind the exposition in the above mentioned reported
decision. As regards the argument of the respondent that the
disciplinary proceedings must be suspended in view of Clause 4 of
the Memorandum of Settlement dated 10th April 2002, arrived at by
the Management of 52 ‘A’ Class Banks as represented by the IndianPage 15
15
Banks’ Association and their workmen under Section 2(p) and
Section 18(1) of the Industrial Disputes Act, that cannot be
considered as a legal bar atleast in the fact situation of the present
case. The interpretation of Clause 4 of the said settlement, as put
forth by the appellant, would further the cause of justice and in
particular larger public interest, considering the fact that the
misconduct is in relation to embezzlement of substantial amount by
an employee of the public sector bank - which has caused financial
loss not only to the bank but resultantly to the public exchequer. It
is in the interest of all concerned that the action, as permissible in
law, must be taken forward in connection with the gross
misconduct and the provision in the Memorandum of Settlement
such as Clause 4 cannot be treated as an impediment thereto. Any
other interpretation of Clause 4 of the Settlement would be against
public policy and also encouraging unscrupulous employees of the
bank to stall the disciplinary proceedings by taking advantage of
the pending criminal case, which is an independent action in law.
The respondent being named as an accused in the criminal case;
and also responsible for prolonging the trial of the criminal case,
cannot be permitted to take advantage of her own wrong.
7. The respondent, on the other hand, supported the view taken
by the High Court and contends that, in view of Clause 4 of the
Memorandum of Settlement and the settled legal position, the
disciplinary proceedings must be put on hold atleast until the
recording and closure of evidence of prosecution witnesses in the
criminal case, as directed by the Division Bench. That is essential
because the charge framed against the respondent in the criminal
case and the charge-sheet issued by the disciplinary authority
against the respondent is based on the same set of facts. The
defence of the respondent in disciplinary proceedings may cause
serious prejudice to the respondent in the criminal case. According
to the respondent, in view of the complexity of the facts and the
evidence necessary to substantiate the same, it is advisable and
essential to protect the respondent from being exposed to disclosure
of her defence which may be identical to one to be taken in the
criminal case or for that matter compel her to depose against
herself on those facts.
8. We have heard the learned counsel for the parties at some
length. The only question that arises for consideration, is no more
res-integra. It is well-settled that there is no legal bar to the
conduct of the disciplinary proceedings and criminal trial
simultaneously. However, no straightjacket formula can be spelt
out and the Court has to keep in mind the broad approach to be
adopted in such matters on case to case basis. The contour of the
approach to be adopted by the Court has been delineated in series
of decisions. This Court in Karnataka SRTC vs. M.G.Vittal Rao2
has summed up the same in the following words:
“(i) There is no legal bar for both the proceedings to go on
simultaneously.
(ii) The only valid ground for claiming that the disciplinary
proceedings may be stated would be to ensure that the defence
of the employee in the criminal case may not be prejudiced.
But even such grounds would be available only in cases
involving complex questions of facts or law.
(iii) Such defence ought not to be permitted to unnecessarily
delay the departmental proceedings. The interest of the
delinquent officer as well as the employer clearly lies in a
prompt conclusion of the disciplinary proceedings.
(iv) Departmental proceedings can go on simultaneously to
the criminal trial, except where both the proceedings are based
on the same set of facts and the evidence in both the
proceedings is common.”
(emphasis supplied)
2 (2012) 1 SCC 442
9. The recent decision relied by the appellant in the case of
Stanzen (supra), has adverted to the relevant decisions3
including
the case of M.G.Vittal Rao (supra). After adverting to those
decisions, in paragraph 16, this Court opined as under:
“16. Suffice it to say that while there is no legal bar to the
holding of the disciplinary proceedings and the criminal trial
simultaneously, stay of disciplinary proceedings may be an
advisable course in cases where the criminal charge against
the employee is grave and continuance of the disciplinary
proceedings is likely to prejudice their defence before the
criminal Court. Gravity of the charge is, however, not by itself
enough to determine the question unless the charge involves
complicated question of law and fact. The Court examining the
question must also keep in mind that criminal trials get
prolonged indefinitely especially where the number of accused
arraigned for trial is large as is the case at hand and so are the
number of witnesses cited by the prosecution. The Court,
therefore, has to draw a balance between the need for a fair
trial to the accused on the one hand and the competing
demand for an expeditious conclusion of the ongoing
disciplinary proceedings on the other. An early conclusion of
the disciplinary proceedings has itself been seen by this Court
to be in the interest of the employees.”
(emphasis supplied)
10. The Court then went on to examine the facts of that case and
observed in para 18 as follows:
3 (2005) 10 SCC 471 Hindustan Petroleum Corpn. Ltd. V. Sarvesh Berry
(1999) 3 SCC 679 Capt. M. Paul Antony v. Bharat Gold Mines Ltd.
(1997) 2 SCC 699 A.P. SRTC v. Mohd. Yousuf Miya
(1996) 6 SCC 417 State of Rajasthan v. B.K. Meena
“18. ……….The charge-sheet, it is evident from the record,
was filed on 20.8.2011. The Charges were framed on
20-12-2011. The trial Court has ever since then examined
only three witnesses so far out of a total of 23 witnesses cited
in the charge-sheet. Going by the pace at which the trial Court
is examining the witnesses, it would take another five years
before the trial may be concluded. The High Court has in the
judgment under appeal given five months to the trial Court to
conclude the trial. More than fifteen months has rolled by ever
since that order, without the trial going anywhere near
completion. The disciplinary proceedings cannot remain
stayed for an indefinitely long period. Such inordinate delay is
neither in the interest of the appellant Company nor the
respondents who are under suspension and surviving on
subsistence allowance………”
(emphasis supplied)
In paragraph 19, the Court proceeded to conclude thus:
“19. In the circumstances and taking into consideration all
aspects mentioned above as also keeping in view the fact that
all the three Courts below have exercised their discretion in
favour of staying the ongoing disciplinary proceedings, we do
not consider it fit to vacate the said order straightaway.
Interests of justice would, in our opinion, be sufficiently
served if we direct the Court dealing with the criminal
charges against the respondents to conclude the proceedings
as expeditiously as possible but in any case within a period of
one year from the date of this order. We hope and trust that
the trial Court will take effective steps to ensure that the
witnesses are served, appear and are examined. The Court
may for that purpose adjourn the case for no more than a
fortnight every time an adjournment is necessary. We also
expect the accused in the criminal case to cooperate with the
trial Court for an early completion of the proceedings. We
say so because experience has shown that the trials often
linger on for a long time on account of non-availability of the
defence lawyers to cross-examine the witnesses or on
account of adjournments sought by them on the flimsiest of
the grounds. All that needs to be avoided. In case, however,
the trial is not completed within the period of one year from
the date of this order, despite the steps which the trial Court
has been directed to take the disciplinary proceedings
initiated against the respondents shall be resumed and
concluded by the inquiry officer concerned. The impugned
orders shall in that case stand vacated upon expiry of the
period of one year from the date of the order.”
11. Reverting to the facts of the present case, indisputably, the
alleged misconduct has been committed as far back as May 2006.
The FIR was registered on 5th December, 2006 and the charge-sheet
was filed in the said criminal case on 6th February, 2007. The
contents of the charge-sheet are indicative of involvement of the
respondent in the alleged offence. Resultantly, the criminal Court
has framed charges against the respondent as far back as 12th
June, 2007. The trial of that case, however, has not made any
effective progress. Only 3 witnesses have been examined by the
prosecution, out of 18 witnesses cited in the charge-sheet filed
before the criminal Court. Indeed, listing of criminal case on 133
different dates after framing of charges is not solely attributable to
the respondent. From the information made available by the
Additional Superintendent of Police on affidavit, it does indicate
that atleast 26 adjournments are directly attributable to the
accused in the criminal case. That is not an insignificant fact. This
is inspite of the direction given by the Division Bench on 28th June,
2010, to the concerned criminal Court to proceed with the trial on
day-to-day basis. The progress of the criminal case since then, by
no means, can be said to be satisfactory. The fact that the
prosecution has named 18 witnesses does not mean that all the
witnesses are material witness for substantiating the factum of
involvement of the respondent in introducing the co-accused for
opening a new bank account, to misplace the clearing instruments
relating to various customers or for the payment released to the
undeserving customer causing huge financial loss to the bank. The
charge in the criminal case is for offences under Section 409, 34 of
IPC, one of criminal breach of trust by a public servant.
12. In the peculiar facts of the present case, therefore, we accede
to the contention of the appellants that the pendency of the
criminal case against the respondent cannot be the sole basis to
suspend the disciplinary proceedings initiated against the
respondent for an indefinite period; and in larger public interest,
the order as passed in Stanzen’s case be followed even in the fact
situation of the present case, to balance the equities.
13. The next question is: whether Clause 4 of the Settlement
would denude the appellants from continuing with the disciplinary
proceedings pending against the respondent. Clause 4 of the
Settlement reads thus:
“4. If after steps have been taken to prosecute an employee or
to get him prosecuted, for an offence, he is not put on trial
within a year of the commission of the offence, 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)
14. Ordinarily, the scope of Clause 4 of the Memorandum of
Settlement pressed into service would be a matter of an Industrial
Dispute, to be adjudicated by the competent Forum, if the
respondent can be termed as a workman. The respondent herein
was appointed in a clerical cadre of the appellant-bank; but when
the alleged misconduct was committed on 29th May 2006, she was
working as Assistant (Clearing). Neither before the learned Single
Judge, the Division Bench nor before us any argument has been
canvassed on the factum of whether the respondent can be treated
as a workman within the meaning of the Industrial Disputes Act,
1947. Both sides, however, have relied on the said Clause and
invited us to spell out its purport.
15. On 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 criminal case against the delinquent employee. On
the other hand, it is an enabling provision permitting the institution
or continuation 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.
16. As can be culled out from the last sentence of Clause 4, which
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.
17. Notably, in the present case inspite of a peremptory direction
of the Division Bench given on 28th June 2010 to the concerned
criminal Court to proceed with the trial on day-to-day basis, as
noted above, no effective progress has been made in that trial
(except recording of evidence of three prosecution witnesses out of
eighteen witnesses) so far. In the last six years, evidence of only two
additional prosecution witnesses has been recorded. The
respondent has not pointed out any material on record to even
remotely suggest that she had tried her best to dissuade the
criminal Court from adjourning the trial, in breach of direction
given by the Division Bench of the High Court to proceed on day-today
basis and to conclude the trial within one year from 28th June,
2010. Pendency of criminal trial for around 10 years, by no means,
can be said to be a reasonable time frame to withhold the
disciplinary proceedings. We are fortified in taking this view on the
principle underlying the former part of the same clause, which
envisages that if the Authority which has to start the prosecution
refuses (read fails) to do so within one year from the commission of
the offence, the departmental action can proceed under the
provisions as set out in Clauses 11 and 12 of the Settlement.
18. In the fact situation of the present case, it is possible to take
the view that the first part of Clause is attracted. In that,
respondent has been put on trial in connection with the alleged
offence, by framing of charges on 12th June 2007. That has
happened after one year from the commission of the offence.
19. Be that as it may, the remedy of writ being an equitable
jurisdiction and keeping in mind the larger public interests (atleast
in cases of involvement of the employees of the Public Sector Banks
in offence of breach of trust and embezzlement), the arrangement
predicated in the case of Stanzen (supra) would meet the ends of
justice. For, the disciplinary proceedings instituted against the
respondent cannot brook any further delay which is already
pending for more than 10 years.
20. We make it clear that we may not be understood to have
expressed any final view on the scope of Clause 4 of the Settlement.
21. Accordingly, we exercise discretion in favour of the respondent
of staying the ongoing disciplinary proceedings until the closure of
recording of evidence of prosecution witnesses cited in the criminal
trial, as directed by the Division Bench of the High Court and do
not consider it fit to vacate that arrangement straightway. Instead,
in our opinion, interests of justice would be sufficiently served by
directing the criminal case pending against the respondent to be
decided expeditiously but not later than one year from the date of
this order. The Trial Court shall take effective steps to ensure that
the witnesses are served, appear and are examined on day-to-day
basis. In case any adjournment becomes inevitable, it should not
be for more than a fortnight when necessary.
22. We also direct that the respondent shall extend full
cooperation to the Trial Court for an early disposal of the trial,
which includes cooperation by the Advocate appointed by her.
23. If the trial is not completed within one year from the date of
this order, despite the steps which the Trial Court has been directed
to take the disciplinary proceedings against the respondent shall be
resumed by the enquiry officer concerned. The protection given to
the respondent of keeping the disciplinary proceedings in abeyance
shall then stand vacated forthwith upon expiring of the period of
one year from the date of this order.
24. In the result, we partly allow this appeal to the extent
indicated above. The parties are left to bear their own costs.
25. A copy of this order be forwarded to the concerned Sessions
Court for information and necessary action for ensuring compliance
of the direction.
…………………………..CJI
(T.S.Thakur)
…………………………….J.
(A.M.Khanwilkar)
New Delhi,
16th September, 2016
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