JUDGMENT V.C. Misra, J.
1. Lard Sri C.K. Parekh, learned Counsel for the petitioner and Sri V.B. Singh, Senior Advocate assisted by Ms. Kirtika Singh and Mr. U.P. Singh, Learned Advocates for the respondents-Bank. On the joint request of learned Counsel for the parties this writ petition is being heard and disposed off finally at the admission stage itself in terms of the provisions of Chapter XXII, Rule 2 of the Rules of Court, 1952.
2. This writ petition has been filed for issuance of a direction in the nature of mandamus directing the respondents not to proceed with the departmental enquiry in pursuance to the order/charge sheet dated 3.1.2004 (Annexure No. 7 to the writ petition) as well as notice in respect with preliminary departmental inquiry dated 7.1.2004 (Annexure No. 8 to the writ petition) until the final conclusion of the Criminal Case No. 6178 of 1985 pending in the Court of Chief Judicial Magistrate, Varanasi under Sections 420, 467, 468 of the Indian Penal Code arising out of Crime No. 106 of 1984 or impugned Charge sheet dated 3.1.2004 and the order dated 7.1.2004, Annexure No. 7 and 8 to the writ petition respectively be quashed.
3. Facts of the case in brief are that on a complaint made to the Bank Authorities by one Sri Shyam Narayan Maurya, a holder of the Saving Bank account in question against the petitioner who is an class IV employee of the respondent-Bank of Baroda in respect with fraudulent withdrawal of an amount of Rs. 1,99,000/- from his Saving Account No. 8774 on various occasions on various occasions in cash received by the petitioner or subordinate staff or transferred to the saving Bank Account No. 8950 which is standing in the name of Smt. Phulwasi Devi wife of Ram Shankar Kushwaha. On the aforesaid complaint, respondent No. 1-Manager, Branch Nichi Bagh, Bank of Baroda, Varanasi lodged a first information report dated 30.6.1984 against the petitioner Rama Shankar Kushwaha and others upon which case crime No. 106 of 1984 Under Sections 420, 467 and 468 of the Indian Penal Code was registered at police station chowk District Varanasi.
4. On the basis of the said first information report the petitioner was suspended by respondent No. 2- Assistant Regional Manager, Bank of Baroda Regional Office Lanka, Varanasi on 2.4.1984. Sri Shyam Naraya Maurya filed Civil Suit No. 430 of 1984 (Shyam Narain Maurya v. Bank of Baroda and Ors.). After completion of the investigation, the Police submitted charge sheet on 30.3.1985 against the petitioner, his wife Smt. Phulwasi Devi and others in the court of Chief Judicial Magistrate, Varanasi upon which a criminal case No. 6178 of 1985 has been registered. The criminal case remained pending and after lapse of about ten years on 13.5.1991 the suspension order of the petitioner was revoked by the respondents Bank on the ground that since Bank had to pay the full salary to the petitioner in terms of Bipartite Settlement dated 11 June, 2000 as per the partial modification of paragraph 557 of the Shastry Award and paragraph 17.14 of the Desai Award (copy of which has been filed as Annexure No. 1 to counter affidavit) because if suspension continued beyond a period of one year the employee became entitled for payment of full salary admissible to him and as such respondent Bank though it to be more prudent to revoke the suspension order of the petitioner and take work from him since paying him full salary without taking any work from him was not in the interest of Bank and State Exchequer. It was also provided in the revocation order of the petitioner that the revocation of suspension shall be without prejudice to bank's right to take departmental action or any action against the petitioner, if so deemed fit, prior/after criminal case is concluded (Annexure No. 5 to the writ petition). The said criminal proceedings are still continuing in pending criminal case No. 6178 of 1985 before the court of Chief Judicial Magistrate, Varanasi. It is contended that on 3.1.2004 the respondents-Bank issued a charge sheet (Annexure No. 7 to the writ petition) to the petitioner and initiated the disciplinary proceedings against the petitioner by issuing a show cause notice-dated 7.1.2004 (Annexure No. 8 to the writ petition) and appointed an inquiry officer for departmental proceedings.
5. The petitioner being aggrieved by this impugned order/notice dated 3.1.2004 and 7.1.2004 has filed the instant writ petition on the grounds, inter alia, that although there is no legal bar for simultaneous proceedings (proceedings in criminal case before the criminal court and departmental disciplinary proceedings) against the employee/petitioner but the present case is one of the cases where it would be appropriate to defer disciplinary proceedings awaiting till disposal of the criminal case, since the charges levelled against the petitioner in the departmental inquiry arise out of the same incident and on the same set of facts which are the subject matter of the criminal trial and in case of acquittal in criminal case based on the same allegations it would be a circumstances to be considered in the departmental proceedings and that the evidence in the departmental proceeding is not the same as of the criminal trial as the evidence in departmental enquiry is not regulated by the Evidence Act and as such the departmental enquiry would seriously prejudice the petitioner in his defence at the trial in criminal case.
6. In the writ petition on 1.3.2004 an exparte order was passed by this Court to the effect that till the next date of listing the respondents shall not proceed with the departmental enquiries in pursuance of the orders dated 3.1.2004 and 7.1.2004.
7. The respondents-Bank filed its counter affidavit alongwith stay vacation application. As per counter affidavit, on preliminary investigations carried out by the Bank it was found that withdrawal from the aforesaid account of Sri Shyam Narayan Maurya were made fraudulently on the basis of signatures apparently on the requisition slips for issuance of two Cheque books issued on different dates, presented by the petitioner which did not apparently tally and on different dates withdrawals had been made by eight Cheques out of which five Cheques amounting to Rs. 1,60,000/- were transferred and credited to saving bank account No. 8950 standing with the Bank in the name of Phulwasi Devi wife of the petitioner and the remaining three Cheques amounting to Rs. 27,000/- and Rs. 12,000/- were encashed though withdrawal slips by the petitioner himself and the signatures upon all the aforesaid Cheques apparently did not tally with the specimen signatures of Sri Shyam Narayan Maurya, the account holder of saving bank account No. 8774. It has been stated that during investigation of the case Sri Shyam Narain Maurya had given a written statement to the Investigating Officer that he had not withdrawn any amount from his account since opening of the same and never indented for any Chequebook. On interrogation it was revealed by the petitioner that Shyam Narayan Maurya happened to be a close relative and the petitioner was also a introducer of his account. It was also found that the petitioner had got opened a current account in the name of M/S Sanjay Pharmacuticuls with four partners including his brother Mr. Ram Briksh Kushwaha, wife Smt. Phulwasi Devi, his minor son and Mr. Shyam Narayan Maurya. Thus it was found that the petitioner was engaged in a business out side scope of his duties in the Bank without Bank's permission. In the counter affidavit it has been further stated that since the criminal proceedings initiated against the petitioner has taken exclusively long time and has been unduly delayed, looking into the interest of the Bank and also the interest of the employee concerned, the departmental proceedings were ordered to be initiated against the petitioner with an intention to conclude the same at the earliest and considering the situation of the case that if the employee is not found guilty, his honour may be vindicated and in case he is found guilty then he may be suitably punished. Accordingly, it has been urged that action of the respondents Bank is perfectly legal and has been undertaken in accordance with the dictum of the Hon'ble Supreme Court propounded in the case of Captain M. Paul Anthony v. Bharat Cold Mines and Ors. 1999 ESC 1099.
8. Learned Counsel for the petitioner in support of his arguments relied upon the decisions of the apex Court rendered in the case of The Delhi Cloth and General Mills Ltd. v. Kushal Bhan ); Tata Oil Mills Co. Ltd. v. Its Workmen ; Kusheshwar Dube v. Bharat Coking Coal Ltd. and Ors. ; Depot. Manager Andhra Pradesh State Road Transport Corporation v. Mohd. Yousuf Miya, etc. ; State Bank of India and Ors. v. R.B. Sharma and in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. .
9. On the other hand learned Counsel for the respondents Bank has relied upon various decisions of the Hon. Supreme Court as well as of this Court rendered in the case of Manager, Reserve Bank of India, Bangalore v. S. Mani and Ors. ; Radhey Shyam Pandey v. the State of U.P. and Anr. (2000(1)ESC 625 (All.)}; Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr. ; State of Rajasthan v. B.K. Meena and Ors. ; Kushashwar Dube v. Bharat Coking Coal Ltd. and Ors. and lastly in the case of T.N.C.S. Corporation Ltd. and Ors. v. K. Meerabai (2006) 2 SCC 255).
10. The short question of law to be decided in this writ petition is as to whether the departmental inquiry in pursuance of the order/charge sheet dated 3.1.2004 (Annexure No. 7 to the writ petition) and order dated 7.1.2004 (Annexure No. 8 to the writ petition) be allowed to be proceed with or not till the disposal of the criminal case pending before the criminal court against the petitioner.
11. Learned Counsel for the petitioner in support of the averments made in para 16 of the writ petition has submitted that charge in the present disciplinary proceedings is of such nature and involves questions of facts and law which are not simple and, therefore, the present disciplinary proceedings be not initiated so that defence of the petitioner in the pending criminal case may not be prejudiced. More so, since in the instant case the criminal proceedings and departmental proceedings are based upon the same set of facts and that as stated in para 19 of the writ petition the evidence in the departmental proceedings is not the same as of the criminal trial. In the criminal proceedings the standard point of evidence is different than in the departmental proceedings because in the departmental proceedings the evidence is not regulated by the Evidence Act.
12. Learned Counsel for the respondents has submitted that in the present case the proceedings initiated under the departmental disciplinary proceedings and the proceedings before the criminal courts are absolutely on different footing. The proceedings are initiated against the petitioner on the ground of gross misconduct on his part. The nature and scope of a criminal case are very much different from those of a departmental disciplinary proceedings and even an order of acquittal cannot conclude the departmental proceeding, which can be legally continued thereafter. It has been further argued that in the present case the charges in the criminal case are not of a grave nature involving complicated questions of facts and law and the criminal case is unduly delayed which could itself be a good ground for going ahead with the disciplinary inquiry.
13. On perusal of the material available on the record, the authorities cited by the learned Counsel for the parties and considering the facts of the present case, I am not inclined to stay the departmental proceedings any further. The question whether the departmental proceedings should be stayed during the pendency of the criminal case before the criminal court on the same set of facts has received the attention of the Hon'ble Supreme Court in several decisions many of which have been referred to in the case of Capt. M. Paul Anthony (Supra) and after careful consideration of all the decisions of the Hon. Supreme Court in this respect it has been laid down that each case has to be looked into and decided on its own facts and there cannot be a strait-jacket formula as to whether the disciplinary proceedings should be interdicted, pending criminal trial. In the present case I do not find that defence of the petitioner in the criminal case would be prejudiced if the departmental proceedings are initiated and for that no supporting reasons has been given by the petitioner on this count that the case instituted against the petitioner does not involve complicated questions of facts and law and neither charges levelled against the petitioner in the criminal case are of grave nature. It is also found from the record of the case that proceedings in the criminal case has been unduly delayed and more than 21 years have elapsed and it does not seem to conclude finally in near future.
14. In the case of disciplinary proceedings against a Bank employee the question of trust, faith and loss of confidence are involved and factors operating in the mind of the disciplinary authority could be many such as enforcement of discipline or to investigate level of integrity of delinquent or other staff. That the requirement of standard of proof in the proceedings initiated under the departmental proceedings is different from that of required in proceedings of criminal case before the criminal courts. In the departmental proceedings, the standard of proof is one of preponderance of probabilities whereas in a criminal case, the charge has to be proved by the prosecution beyond all reasonable doubt. Even if a court pronounces a person not guilty in a criminal case filed by the office his or her job is not safe because in the departmental inquiry the delinquent employee can still be on the firing line on the same charges and evidence. The courts can hold some body guilty only if there is evidence to prove the offences against him beyond all reasonable doubt but in the case of departmental inquiry even strong probability would suffice to prove the person guilty. The standard of proof required in fastening guilt on the accused in a criminal case and in the departmental proceedings are distinct and different. In a criminal case it is essential to prove a charge beyond all reasonable doubt whereas in a departmental proceedings preponderance of probability would serve the purpose.
15. The approach and the objective in the criminal proceeding in the criminal court and departmental disciplinary proceedings are altogether distinct and different exercise of proceedings. In the disciplinary proceedings the question is as to whether the delinquent employee is guilty of such conduct and according to the gravity of the nature of the misconduct the delinquent employee would be awarded minor or major punishment like removal from service or as the case may be whereas in the criminal case the question is as to whether the offence registered against some one under the Indian Penal Code are established and if established, what punishment/sentences could be imposed upon him and the standard of proof, the mode of inquiry and the rules governing the inquiry and the trial in both the cases are entirely distinct: and different.
16. Admittedly, standard point of evidence to be led by the petitioner in the departmental proceedings is not the same as is to be led in the criminal case before the criminal court. In the present case the standard of proof required in the criminal proceedings and in the departmental proceedings are not the same and the scope of proceedings in both the places are quite distinct, exclusive and independent of each others. The prosecution proceedings launched against the petitioner is in respect of offences punishable under Sections 420, 467 and 468 of the Indian Penal Code whereas the departmental proceedings are initiated in respect with the charges of misconduct, misdemeanour and other fraudulent practices. In the present case the petitioner is a Bank employee in whom faith and trust are reposed by the respondents-Bank wherein honesty and integrity are inbuilt requirements of functioning of the employees of the Bank, which deals with public money and is engaged in financial transaction.
17. In the present set of facts I do not find as to how the defence of the petitioner in the criminal case would be prejudiced if the petitioner discloses his defence in the disciplinary proceedings. In my opinion it would not be in the interest of justice to stay the departmental proceeding any further on the facts of the present case nor it is in the interest of the administration of the respondent-bank that the disciplinary proceedings initiated against the petitioner on the charges of serious nature of misconduct and misdemeanour should be kept in abeyance indefinitely awaiting the result of the criminal case which is pending before the criminal court for the last more than 20 years. It should be resumed and proceeded with so that the same may be concluded at an early date.
18. Mr. V.B. Singh, learned Counsel appearing for the respondent-bank has very fairly undertaken to complete the disciplinary proceeding within a period of three months provided the petitioner cooperates with all sincerity in the aforesaid proceeding.
19. For the reasons aforesaid in the facts and circumstances of the present case, I do not find it to be a fit case to exercise my discretion under Article 226 of the Constitution of India. However as undertaken by Sri V.B. Singh, Senior Advocate learned Counsel for the respondents-Bank it shall conclude the departmental proceeding relating to the petitioner preferably within three months from today and the petitioner shall fully cooperative in the proceedings. The writ petition is accordingly dismissed. No order as to costs.