The prayer in the writ petition is for a writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order dated 06.12.2008, in Charge Sheet No.MDUC DAC 818 F 230 W ? 05/2002 dated 11.11.2002, on the file of the Respondent No.2 and quash the same and consequently direct the Respondents to reinstate the Petitioner in service with all consequential benefits.
2.The short facts which are leading to the filing of the Writ Petition are that when the petitioner was working as Peon in the respondents bank, a charge memo was issued against him on 11.11.2002, simultaneously a criminal proceedings has also been initiated. Pursuant to the charge memo, enquiry was conducted and the enquiry officer gave his findings on 13.05.2003. According to him, two out of three charges framed against the petitioner, have been proved. After the enquiry officer's findings, the copy of the same was given to the petitioner and personal hearing was also given to the petitioner to elucidate his views as to the proposal of the respondent to impose the punishment of removal of service. The said personal hearing was given on 24.12.2003. Exactly on that date, the petitioner has moved a writ petition before this Court in W.P.No.26999 of 2003, wherein on the very same date i.e., 24.12.2003, an order of status-quo was given. Therefore, the petitioner by communicating the said order of status-quo, granted in the writ petition filed against the departmental proceedings, did not choose to attend the personal hearing on the same date i.e., 24.12.2003. However, the respondents bank proceeded with an exparte personal hearing on 24.12.2003 and the same was recorded and based on which the disciplinary authority has inflicted the punishment of removal of service by order dated 30.03.2007, as against which the petitioner had filed appeal before the appellate authority, who in turn dismissed the appeal by confirming the punishment, by order dated 06.12.2008. Challenging both the orders of disciplinary authority and also the appellate authority the petitioner has approached this Court.
3.Heard both sides.
4.The learned counsel appearing for the petitioner would submit that along with the disciplinary proceedings criminal proceedings also went on. Ultimately, the Criminal Court by its judgment dated 12.12.2006, acquitted the petitioner on all charges honourably. Therefore, the learned counsel for the petitioner would submit that on the very same set of charges, criminal court has acquitted the petitioner, but in the domestic enquiry conducted on the very same set of charges, two out three charges have been proved as per the report of the enquiry officer. Therefore, the punishment of removal of service by the disciplinary authority, without giving opportunity of hearing as has been originally fixed by him on 24.12.2003. is bad in law.
5.The learned counsel appearing for the petitioner would further submit that the writ petition filed by the petitioner had been finally disposed on 09.08.2004, wherein the following order has been passed:
?With the result, in view of Regulation 21(6), the departmental proceedings have to be stayed and further proceedings could be continued only after the conclusion of the proceedings before the Criminal Court, as provided under the said Regulation. The writ petition is allowed, subject to the above observation. No costs. Consequently, W.P.M.P.No.738 of 2004 is closed.?
Since it was a specific direction that the enquiry should be conducted only after the conclusion arrived at by the criminal proceedings pending before the competent Court, the conclusion of the departmental proceedings which is ended in punishment is bad in law and therefore, the impugned order is bad in law and required to be interfered with.
6.Per contra, the learned Standing Counsel appearing for the respondents Bank would submit that it is settled principles of law that merely because criminal case is pending or is going on on the same set of charges, the department is not precluded to proceed with departmental enquiry. Therefore, separate charges were framed against the petitioner and for the three charges framed against the petitioner enquiry officer was appointed and enquiry has been conducted. Ultimately enquiry officer has given a finding that two charges out of three have been proved against the petitioner. Subsequently, on the findings of the enquiry officer against the petitioner, punishment of termination of service was proposed. Therefore, in this regard a personal hearing date was fixed on 18.12.2003. However, on 17.12.2003 the petitioner had sent a telegram seeking postponement of the personal enquiry and pursuant to the same personal hearing of the matter was adjourned to 24.12.2003. On that day, since the petitioner did not turn up personal hearing was conducted exparte and the same was recorded. Based on the enquiry findings as well as taking into account of the fact that the criminal Court has not given any honourable acquittal to the petitioner, the disciplinary authority has inflicted punishment of removal from service, as the charges proved against the petitioner is very serious in nature and therefore for the said proved charges maximum punishment of removal from service was awarded and the same cannot be treated as on the higher side. The punishment inflicted on the petitioner has been considered and confirmed by the appellate authority. Therefore, the orders of both the authorities, namely, disciplinary and the appellate authorities absolutely require no interference by this Court and therefore, these orders can be upheld.
7.This Court has considered the said rival submissions made by both sides.
8.It is admitted fact that only on the same set of facts charges were framed against the petitioner departmental wise and on the same set of charges criminal case was pending. During the pendency of the criminal proceedings, the departmental proceedings went on and it has been concluded and ultimately the enquiry officer gave his findings that two out of three charges have been proved against the petitioner. Thereafter, personal hearing was fixed on 24.12.2003 and on the same day petitioner has moved before this Court by filing W.P.No.26999 of 2003, wherein order of status-quo has been obtained. Even though its was claimed that on the very same day the order passed by this Court, that is, status-quo was communicated to the second respondent, the second respondent disciplinary authority has proceeded with the exparte enquiry by way of personal hearing on 24.09.2004 and on recording the same the order of punishment was inflicted.
9.In this regard, even though the learned Standing Counsel appearing for the respondents stated that the said communication of order of status- quo, as granted by this Court, in the writ petition, passed on 24.12.2003, was not communicated to the respondents and therefore the second respondent had proceeded with the enquiry on the date fixed for personal enquiry, the said action on the part of the second respondent may not be justified, merely because there was a communication gap. It is a fact that on 24.12.2003 order of status quo was passed by this Court, if that being so, proceeding further on the enquiry and recording the exparte hearing on the very same date i.e., on 24.12.2003 would not be justifiable one and therefore based on which the impugned proceedings issued by the disciplinary authority, inflicting punishment on the petitioner, cannot be sustainable one.
10.Moreover, in the criminal case also as per the judgment of the Special Court for CBI Cases, Madurai through its judgment dated 12.12.2006, in C.C.No.9 of 2003, the learned Judge has given his findings at paragraph No.279 and 282, which reads as follows:
?279.That the involvement of A5 had not been proved beyond reasonable doubt by the prosecution, or rather has been disproved by the defence is seen from the fact that A5 as sub-staff had no right to choose his work out of his will and pleasure and that his work will be allotted to him by the 2nd Line Manager and that the Work Entrustment Register had not been produced and that he had also worked in extension counter and currency chest and the specific dates as to when he opted for tapal duty had not been given and no evidence has been let in of any special relationship between himself and A4 or with A2.
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282. On an analysis of the entire materials on record in this case, circumstantial oral and documentary, I hold that the prosecution has not sufficiently and satisfactorily proved its case against A5 and A6 and I acquit A5 and A6 u/s. 235(1) Cr.P.C. on all the charges framed against them.?
11.In the aforesaid findings of the Criminal Court it is clearly stated that the prosecution has not sufficiently and satisfactorily proved the case against A5 i.e., the petitioner herein. Based on the above said findings, since the petitioner had already been acquitted, the disciplinary authority herein has taken it as a acquittal not as a honourable acquittal but because of benefit of doubt. No where in the said judgment it has been mentioned that the petitioner has been acquitted merely because of benefit of doubt. The wordings used by the learned Judge is that the prosecution has not sufficiently proved the case against the petitioner only be considered as Honourable Acquittal and not as an acquittal out of benefit of doubt. But any how, this issue still is not a major hurdle for the second respondent to independently take a decision in departmental proceedings, which has been concluded, by which, the enquiry officer has given his findings. The said issue is also left open.
12.In the said writ petition filed by the petitioner in W.P.(MD) No.921 of 2010 final order was passed on 09.08.2004, wherein the learned Judge of this Court has held as has been extracted above. The learned Judge specifically directed that the departmental proceedings being stayed for the time being and the further proceedings could be continued only after conclusion of the criminal proceedings. It means that the departmental proceedings which was initiated against the petitioner had to be stopped at that stage itself and the same can be continued only after the outcome of the criminal case pending at that time. If at all the respondents wanted to proceed by continuing the departmental proceedings they could have done so only after the verdict is made by the competent criminal Court in the parallel criminal proceedings. Even before the criminal Court had decided the issue on one way or other, the departmental proceedings has continued and has also concluded against the petitioner, which is totally unjustifiable on the part of the second respondent to conclude by inflicting punishment on the petitioner. Even the appellate authority has not considered these aspects and they have mechanically confirmed the order of punishment issued by the disciplinary authority. Therefore, for all these reasons, this Court is of the view that the impugned orders are liable to be interfered with.
13.Accordingly, the impugned orders are hereby quashed. The matter is remanded to the disciplinary authority to proceed from the stage, it was of giving opportunity of personal hearing to the petitioner based on the enquiry officer's report and after getting defence and views of the petitioner by way of personal hearing, further proceedings may go on at the hands of the disciplinary authority. In this regard, it is made clear that since the petitioner has already been acquitted in the criminal case on the same set of charges and the enquiry officer has given a finding that atleast one charge was not proved against the petitioner and therefore, all these aspects, the disciplinary authority has to bear in mind before taking a final decision regarding the punishment to be inflicted, if the disciplinary authority decided to give any punishment on the petitioner. The aforesaid needful as indicated shall be done and a decision to be taken within a period of 12 weeks from the date of receipt of a copy of this order.
14.With these directions, this Writ Petition is allowed to the extent as indicated above. No costs.
To
1.General Manager, Appellate Authority, Canara Bank, Head Office, Bangalore.
2.The Deputy General Manager, Canara Bank, DA Cell, Circle Office, Madurai..