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Bishnupada Patra v/s United Bank of India & Others

    W.P. No. 7286 (W) of 2018

    Decided On, 06 March 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE DR. JUSTICE SAMBUDDHA CHAKRABARTI

    For the Petitioner: S. M. Obaidullah, Lal Ratan Mondal, Advocates. For the Respondent: R. N. Majumder, Advocate.



Judgment Text

Sambuddha Chakrabarti, J.

The petitioner was an employee of the United Bank of India (the bank, for short). While posted at Dandabelboni Branch as Cash-cum- General Clerk, a charge-sheet was issued to him by the respondents alleging misappropriation of customer's money and he was placed under suspension.

A departmental enquiry followed. The enquiry officer submitted his report. The disciplinary authority dismissed the petitioner from service without notice. From this, the petitioner preferred an appeal beyond time as a result of which it was not placed before the appellate authority.

The petitioner mentions that on the same allegations the bank lodged a First Information Report against the petitioner under Sections 409/420 of the Indian Penal Code. In the trial that followed he was acquitted by a judgment and order dated, July 21, 2014.

The petitioner on June 26, 2015, sent detailed representation to the respondents requesting them to reinstate him in service with full back wages immediately in view of the order of acquittal pas

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sed by the learned trial judge.

The petitioner alleges that since on the self-same facts of the case there has been an order of acquittal by the trial court the petitioner is entitled to be reinstated in service with full back wages. By this writ petition, he has, inter alia, prayed for a writ in the nature of mandamus commanding the respondents to cancel and revoke the order of dismissal, dated April 7, 2004 and to reinstate him in service with full back wages.

On July 3, 2018, the respondent no. 4 was directed to file a report in the form of an affidavit in response to the allegation made in the writ petition, on the next date of hearing.

The matter next appeared on August 6, 2018 when none appeared for the respondents and no report in the form of an affidavit was also forthcoming. No accommodation was prayed for on their behalf. On December 19, 2018, the hearing of the writ petition was concluded.

Mr. Obaidullah, the learned advocate for the petitioner, submitted that if on the self-same charges an employee is departmentally proceeded against and is ultimately dismissed from service and if on the same charges a criminal action is initiated against him where on a full-fledged trial he is acquitted of the charges, the finding of the trial court shall have a precedence over the finding arrived at by the disciplinary authority in case the witnesses in both these cases are same or substantially the same. In support of his contention, he relied on the judgment in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, reported in (1999) 3 SCC 679, where the Supreme Court after recognizing the consensus of judicial opinion observed that proceedings in a criminal case and departmental proceeding can go simultaneously. But it made an exception to circumstances where departmental proceeding and criminal case were based on the same set of facts and the evidence in both the proceedings were common. With reference to the particular facts in that case the Supreme Court observed that the same witnesses were examined both in the criminal case as well as in the departmental proceeding. The court on a consideration of the entire evidence acquitted the appellant by throwing out the whole case of the prosecution. The Supreme Court observed that where the appellant was acquitted by a judicial pronouncement it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.

Mr. Obaidullah further relied on the judgment in the case of S. Bhaskar Reddy and Another Vs. Superintendent of Police and Another, reported in (2015) 2 SCC 365. In that case the charges against the delinquent were the same in the departmental proceeding as in the criminal case and the delinquent proceeded against was honourably acquitted of the charges levelled against him by the criminal court. The Supreme Court set aside the order of dismissal passed against the appellant by accepting the alternative legal plea having regard to the facts and circumstances of the case.

Thus, the question that needs to be answered in the present case is whether the principle enunciated in the two judgments above can be applied to the facts of the present one. Even if the substance of the allegation made in the charge-sheet in the departmental proceeding as well as in the criminal case were substantially the same, it cannot be glossed over that the former charge-sheet contains a confessional statement made by the petitioner on January 17, 2003 that he had accepted cash deposits on different dates against various accounts putting his initials and entered the amount in the respective passbooks without accounting for the same. This constituted an act of misappropriation. After detection of this, the petitioner had deposited the amount in the deposit suspense account of the Bank. In respect of a withdrawal of another account holder a lesser sum was paid although the withdrawal slip was for a larger sum. The petitioner had made good the loss by depositing the differential amount privately.

In order to decide whether the petitioner is entitled to be reinstated because of the order of acquittal in the criminal trial on the ratio of the judgments referred to above it is necessary to examine the reasons for the acquittal. The learned Trial Judge observed that in the charges of the nature brought against the petitioner the counterfoils issued by the accused was very vital documents along with ledger books. But those counterfoils kept in the deposit slip had neither been produced by the bank nor were seized by the police. The Court had to observe that it was very shocking to find that the I.O. of the case had practically done nothing regarding the basic investigation by way of seizure of the customers' slips showing the deposit of the amount of the customers. Even the copies of the ledger books were not available on record. Failure of the seizure of these two documents had basically shaken the prosecution case and in the absence of any documentary evidence the Court found it to be very unsafe to rely on the oral evidence of the bank Manager. The Court expressed its anguish in the manner in which the investigation had been conducted by the police as also the manner in which the bank officer acted while dealing with the case.

Therefore, the Court had to hold that in the absence of those two vital documents it could be safely said that this was a case in which neither the entrustment nor the misappropriation by the petitioner had been proved. The prosecution had hopelessly failed to prove the case against the petitioner. The Court, therefore, acquitted the petitioner of the charges framed against him.

Thus, it appears that the acquittal of the petitioner was entirely due to insufficiency of evidence and it was not an acquittal upon assessment of the evidence adduced by the prosecution in the case. In the departmental proceeding, however, the bank authorities adduced sufficient evidence.

The Supreme Court in the case of Nelson Motis Vs. Union of India and Others, reported in AIR 1992 SC 1981, had observed that the nature and scope of a criminal case are very different from those of a departmental enquiry and an order of acquittal cannot conclude the departmental proceedings. That was the general view maintained by the Supreme Court as well as several High Courts for a fairly long length of time. It is only more recently that in some cases the Supreme Court had held that if the criminal case as well as departmental proceeding are based on similar facts and evidence, acquittal of the accused in the criminal case will entitle him to have the order of dismissal from service set aside in view of the judgment and order passed by the criminal court.

That being what it is it rationally and logically follows that in a case where the evidence before the two authorities i.e., the disciplinary authority as well as the criminal court are different the benefit of setting aside the order of dismissal cannot be availed of by a dismissed employee. It appears from the order of the disciplinary authority that the records of enquiry had revealed that the confessional statement of the petitioner was produced at the enquiry as management exhibit. The management exhibits were verified by the petitioner as well as his representative and not a single such exhibit was questioned by the petitioner. It is also on record that the defence representative did not ask a single question in course of the cross- examination of the management witnesses about the veracity of the confessional statement. On the contrary the specific finding was that the facts narrated by the complainants in their letter were totally proved in the enquiry. The disciplinary authority has given a list of the facts established at the enquiry through various management exhibits which were not produced in the Court at all.

A very major aspect of the case is that after the detection of the fraudulent activities the petitioner had refunded the amount which were misappropriated by him. This by itself was a major pointer to the admission of the charges against the petitioner. The disciplinary authority had rightly observed that enjoying the bank's money unduly for the personal gain and purpose by an employee even for a temporary period is construed to be misappropriation. The case is, therefore, not so much whether the bank had suffered any financial loss as the petitioner had refunded the amount but the unseemly conduct resorted to by him by misappropriating the Bank's money.

It appears from the order of the disciplinary authority that the evidence adduced at the enquiry established the fact of the fraudulent acts on the part of the petitioner. The same, however, could not be said of the criminal trial where the evidence itself was entirely lacking which resulted in the acquittal of the petitioner.

Thus it cannot be said that on the self same evidence the petitioner had been acquitted by a criminal court. The petitioner had been acquitted for want of evidence. The judgments relied on by the petitioner are, therefore, very easily distinguishable and have no application to the facts of the present case as it cannot be said that the evidence, both documentary and oral, adduced before the two authorities were the same.

For the reasons stated above, I find no merit in the writ petition and the same is dismissed.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities
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