JUDGMENT
Ghulam Mohammed, J.
1. This writ appeal is directed against the judgment dated 24-11-1997 in Writ Petition No. 15797 of 1994, passed by the learned single Judge of this Court.
2. Facts of the case, which are relevant for the purpose of the disposal of the case, are as follows :
3. The respondent herein, who is the writ petitioner, joined the services of the appellant-Bank on 16-3-1966 as Clerk. On
1-1-1976 he was promoted as Officer Scale I; and was posted as Accountant at Guntur in the month of June, 1976 and thereafter wards in the month of April, 1979 he was transferred as Manager to Nellore Branch. It seems that on the alleged ground that he granted ten bricks loans and three duck loans, unauthorizedly and in violation of the regulations governing grant of such loans, in the year 1982 itself, the bank-management ordered preliminary enquiry by appointing one Sri S. Srinivasan and the report was submitted by the officer in the year 1982.
4. Subsequently, on 23-3-1987 the crime alleged against the petitioner was taken over by the C.B.I, and it lodged the complaint. After due trial the respondent was acquitted by the C.B.I. Court on
11-12-1992. It is stated that C.B.I, did not appeal against the acquittal order. Further, the C.B.I. Court while acquitting the accused categorically observed that it was a fit case for taking departmental action.
That acquittal order has become final. The appellant-bank revoked the suspension of the respondent and reinstated him into service on 4-5-1992. During the years 1993-94, the respondent made several representations to the Bank-management for payment of back wages for the period during which he was kept under suspension pending trial before the C.B.I. Court deeming him to be in service although. Since there was no positive response from the bank-management, the respondent herein filed WP No. 11651 of 1994 in this Court.
5. This Court by its order dated 29-6-1994 disposed of the writ petition directing the bank-management to consider the representation of the respondent, writ petitioner therein, dated 16-2-1994 for payment of back wages. The bank again declined to accede to his request by its proceedings dated 28-7-1994. Then came the impugned-charge-memo dated 6-8-1994. Hence, the writ petition was filed seeking the following reliefs.
“For the reasons stated in the accompanying affidavit, the petitioner prays this Hon’ble Court may be pleased to issue a writ of mandamus or any other writ order or direction of like nature.
A. to declare as void, without jurisdiction and illegal the commencement of proceedings under Regulation 6 of the UCO Bank Officer Employees’ (Discipline and Appeal) Regulations 1976, in pursuance of the communication of the 2nd respondent bearing ref. No. SZ/VIG/94/353 dated 30-7-1994/ 6-8-1994 and the statement of allegations and articles of charge enclosed to the said communication;
B. to direct the respondents to forbear from taking any proceedings including holding of any enquiry under Regulation 6 of the UCO Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976.”
6. The learned single Judge of this Court by his order dated 24-11-1997 in
W.P.No. 15797 of 1994 quashed the impugned charge memo and allowed the writ petition mainly on two grounds that (1) the acquittal of the writ petitioner by the criminal Court is not on technical grounds but on merits, and (2) on the ground of laches in initiating departmental action after lapse of 13 years, and that no public interest would be served by subjecting the writ petitioner for one more enquiry at the hands of the management at this distance of time.
7. Aggrieved by the said order, the present appeal has been preferred by the appellant-UCO Bank.
8. Heard Sri K. Subrahmanya Reddy, learned senior Counsel appearing on behalf of the appellant-Bank and Smt A. Anasuya, learned Counsel for the respondent-writ petitioner.
9. Learned senior Counsel appearing on behalf of the appellant-Bank contended that the learned Judge has erred in allowing the writ petition on the premise that the respondent was acquitted by the criminal Court, on merits; and on the ground of alleged laches on the part of the Bank in not initiating the departmental enquiry for about 13 years from the date of occurrence of the alleged misconduct in the year 1982. In fact, it is contended that the delinquent employee was acquitted on technical grounds and on benefit of doubt. Learned senior Counsel further submitted that since there is no limitation period prescribed under the regulations of the appellant-Bank for initiation of disciplinary proceedings, and the bank was handicapped for want of records seized by the C.B.I. Court, therefore, the delay was occasioned due to non-receipt of records from the C.B.I. Court. Immediately after the receipt of the records the disciplinary proceedings were initiated by issuing charge memo. The learned senior Counsel would further contend that the
settled preposition of law enunciated by the Supreme Court in catena of decisions is that the acquittal in criminal case is not a bar for the management to initiate disciplinary proceedings against the delinquent-employee.
10. Learned senior Counsel has drawn our attention to the judgments reported in C. Pattabhirama Sastry v. Bank of Baroda, Bombay, , R. Fakruddin v. A.P.S.E.B., , Registrar, Co-operative Societies v. F.X. Fernando, , State of Punjab v. Chaman Lal Goyal, and in Deputy Registrar, Cooperative Societies v. Sachindra Nath Pandey, .
11. He further contended that mere delay itself is not a ground, to quash the impugned charge memo, unless the writ petitioner, shows that he suffered some prejudice on that count. The earlier preliminary enquiry is only a fact finding one, which was completed in the year 1982, and when once the matter was referred to C.B.I. Court, it is only after the judgment of the C.B.I. Court and that too pursuant to the observations made by that Court, the department has issued a charge memo and there is no legal bar to proceed departmentally.
12. On the other hand, learned Counsel for the respondent Smt A. Anasuya contended that because of political rivalry in the village, the delinquent employee was prosecuted. She further contended that since the villagers were illiterate, the delinquent employee was holding the applications and that since the amount is repaid, and that in earlier preliminary enquiry, the Enquiry Officer one Mr. S. Srinivasan has submitted his report in the year 1982, and thereafter the respondent was promoted to Scale II Officer with effect from 1-7-1983, and C.B.I took over the matter only on 23-3-1987,
there is no explanation from the management as to why the management thought it unnecessary to proceed against the petitioner departmentally during that period of five years. She further contended that even after the acquittal from the CBI Court, the appellant-bank took nearly two years to issue charge memo, and the same was initiated with an oblique motive.
13. She further contended that since the appellant-bank declined to pay back wages, the respondent approached this Court by way of writ petition and because of that they have initiated proceedings with an oblique motive. She further contended that the learned single Judge has rightly allowed the writ petition on the ground of long lapse of 13 years for initiation of departmental proceedings. In support of her contentions, learned Counsel for the respondent has drawn our attention to the judgment of the Supreme Court in State of Andhra Pradesh v. N. Radhakishan, ), State of Madhya Pradesh v. Bani Singh, ), Corporation of Nagpur v. Ramchandra G. Modak, ), and in State of Rajasthan v. B.K. Meena, 1996 Lab. I.C. 2750).
14. We have given our anxious consideration to the relevant contentions advanced on behalf of Counsel for both parties.
15. In C.Pattabhtrama Sastry’s case (supra), relied on by the learned senior Counsel for the appellant, it was held as follows :
…… the petitioner nowhere in the affidavit
has stated that due to the delay, he suffered any prejudice or he was placed in a disadvantageous position to defend himself. The Court perused the reply submitted by the petitioner to the charge memo on 12-11-1987. In his reply also, the petitioner has not made any grievance against the delay in issuing the charge memo. The petitioner did not make any grievance either
before the disciplinary Authority or before the Appellate Authority or before the Reviewing Authority in that regard. Since the petitioner has failed to take this plea at the earliest point of time in the course of Disciplinary proceedings, he cannot be permitted to make any grievance before this Court on the ground that the charge memo was issued after more than three years from the date of complained acts. Added to this, the petitioner did not lay any foundation in the affidavit filed before this Court to satisfy the Court that the petitioner suffered any prejudice or disadvantage due to the delay in issuing the charge memo.”
16. In R. Fakruddin ‘s case (supra), the learned single Judge of this Court has held as follows:
“The charge levelled against the petitioners are very serious in nature touching on moral turpitude of the petitioners. It is not the case of the petitioners that prior to 25-11-1995 any such allegations were levelled against the petitioners and the Board slept over the matter for years. It is of utmost importance in public employment that the persons who seek employment should not practice any form of fraud, and if fraud could be detected and proved at any stage of the tenure, mere delay in initiating disciplinary proceedings cannot be a valid ground for the Court to quash the charge-sheet and if the Court were to do so, the fraudulent and dishonest employees go scot-free and unpunished and fraud will triumph. The Court cannot stall the unearthing of fraud alleged to have committed by the petitioners while securing public employment by quashing the charge-sheets on the ground of delay. On the other hand, detection of fraud and punishing the guilty is a must and imperative to uphold the sanctity of public employment The fraudulent persons have no place in public employment. Passage of time does not cure vice of fraud.”
17. In F.X. Fernanda’s case (supra), the Apex Court held as follows :
“…..Then again the finding that there is long delay in initiating of departmental
proceedings cannot be supported because in this case the Directorate of Vigilance and Anti-Corruption had not been prompt.
Therefore, the appellant cannot be faulted. Accordingly, we set aside the order of the Tribunal and direct that the matter be proceeded with from the stage at which it was left.”
18. In Chaman Lal Goyal’s case (supra), the Apex Court while considering the aspect of delay in initiating departmental enquiry, observed as follows
“Now remains the question of delay. There is undoubtedly a delay of five and half a years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceedings must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the Court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the Court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the Court has to indulge in a process of balancing.”
19. In Deputy Registrar, Co-operative Societies case (supra), it was held as follows:
“On a perusal of charges, we find that the charges are very serious. We are, therefore, not inclined to close the matter only on the
ground that about 16 years have elapsed since the date of commencement of disciplinary proceedings, more particularly when the appellant alone cannot be held responsible for this delay. So far as the merits are concerned, we regret to say that the High Court has not dealt with the submissions – and facts in support of the submission of the appellant – that inspite of being given a number of opportunities the first respondent has failed to avail of them. If the appellant’s allegations are true then the appellant cannot be faulted for not holding a regular inquiry (recording the evidence of witnesses and so on). The High Court has assumed, even without referring to Regulation 68 aforesaid that holding of an oral inquiry was obligatory. Indeed, one of the questions in the writ petition may be the interpretation of Regulation 68. On facts, the first respondent has his own version. In the circumstances, the writ petition could not have been allowed unless it was held that the appellant’s version of events is not true and that the first respondent’s version is true. In the circumstances, we have no alternative but to set aside the order under appeal and remit the matter to the High Court once again for disposal of the writ petition afresh in the light of the observations made herein. Since the matter is a very old one it is but appropriate that the matter is dealt with expeditiously. Perhaps, it would be appropriate if the Court looks into the records relating to the disciplinary proceedings also.”
20. Coming to the decisions relied on by the learned Counsel for the respondent, in N. Radhakishan’s case (supra), the Supreme Court has held that it is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings and whether on that ground the disciplinary proceedings are to be terminated, each case has to be examined on the facts and circumstances in that case. The judgment further reads as under :
“The essence of the matter is that the Court has to take into consideration all relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay……..
In considering whether the delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the fact of it. It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee.”….
21. In Bani Singh’s case (supra), the irregularities, which were the subject-matter of the enquiry, were said to have taken place between the years 1975-77 and it was not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. There was no satisfactory explanation for the inordinate delay in issuing the charge memo. That being the position, the Apex Court observed that it will be unfair to permit the departmental enquiry to be proceeded with at that stage. In that case the delinquent suffered prejudice and disadvantage in defending his action due to the delay in issuing the charge memo. That is not the position obtaining in the present case.
22. In B.K. Meena’s case (supra), the Apex Court, has held as follows :
“…..one of the contending consideration is that the disciplinary enquiry cannot be – and should not be – delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public
offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. That is the reality inspite of repeated advice and admonitions from Courts. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even when the disciplinary proceedings are held over at an earlier stage. The interests of administration and good* Government demand that these proceedings are concluded expeditiously. It must be remembered that interest of administration demand that undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interests of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanor should be continued in office indefinitely, i.e. for long period awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of guilty and dishonest. It is not possible to enumerate the various factors, for and against the stay of disciplinary proceedings.”
23. What was held by the Supreme Court in Ramchandra G. Modak’s case (supra) is that the question whether or not the departmental inquiry pending against the employee involved in the criminal case should be continued even after his acquittal in criminal case is a matter which is to be decided by the department after considering the nature of the findings given by the criminal Court. It was further clarified by the Apex Court that normally where the accused is acquitted honorably and completely exonerated of the charges, it is not expedient to continue a departmental
enquiry on the very same charges or grounds of evidence. Merely because the accused is acquitted, the power of the authority concerned to continue departmental inquiry is not taken away nor is its discretion in any away fettered.
24. The judgments relied on by the learned Counsel for the respondent are of no assistance. In the instant case, on the alleged ground that the respondent was guilty of granting ten brick loans and three duck loans unauthorizedly and in violation of the regulations governing grant of such loans, in the year 1982, the bank ordered preliminary enquiry by appointing the Enquiry Officer, who submitted his fact finding report in the year 1982. However, on 23-3-1987 the crime alleged against the respondent was taken over by CBI and it lodged the complaint. After due trial the respondent was acquitted by the CBI Court on 11-12-1992.
25. Further, as contended by the learned senior Counsel, the CBI Court while discussing the evidence on record, has observed at para 12 of its judgment that, “the offence of forgery cannot be made out by mere circumstances that Ex. P. 31 and P.69 contained the thumb impressions of A.I (respondent ) provided ultimately the evidence of P.W.30 is taken into consideration, but certainly it is to be viewed seriously by taking departmental action, but not penal action”; though the CBI Court acquitted the accused ultimately. It is apt to quote relevant portion of the judgment passed by the CBI Court, which reads as under:
“The prosecution has also failed to examine the two persons Sudhakar and Janardhan Reddy, who are important to throw light on the merits of the case. Under the circumstances, certainly benefit of doubt should go to the accused.
Consequently, it is obvious that the prosecution is not able to bring home the
guilt to the accused beyond all reasonable doubt.”
26. The charge memo was issued pursuant to the observations of the CBI Court referred to above to proceed departmentally, but not penal action, while acquitting the accused on benefit of doubt. There is no legal bar on the part of the bank to initiate disciplinary proceedings against delinquent-employee on the alleged ground of mis-conduct. It is well settled proposition that the criminal proceedings and disciplinary proceedings are altogether different and distinct. In disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether offence registered against him under the Prevention of Corruption Act and the Indian Penal Code if any, are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. In fact there is one and half years of delay for issuing charge memo, after order of acquittal was passed by the C.B.I. Court and that delay has been caused due to non-receipt of records from the CBI Court. The appellant-bank was handicapped for want of records seized by the C.B.I. Court, and after passing of orders by the C.B.I. Court, departmental proceedings were sought to be initiated. There is no satisfactory explanation by the writ petitioner as to any prejudice has been caused to him on account of delay. In these circumstances, the contention of the learned Counsel for the respondent that the departmental proceedings were initiated after a lapse of time, with an oblique motive, merits no consideration.
27. On the other hand, the submissions made by the learned senior Counsel merits
acceptance inasmuch mere delay of 1 1/2 years to initiate departmental proceedings due to non-receipt of the records, is not fatal to quash the charge memo. It is settled proposition of law that the departmental proceedings begins by issuing charge memo, which was initiated after the judgment of the criminal Court, referred supra. Further, a perusal of the judgment passed by the CBI Court, it is obvious that the respondent was acquitted on being given benefit of doubt and was not given clean acquittal.
28. For the reasons stated above, we set aside the order passed by the learned single Judge. The writ appeal is allowed. Consequently, the writ petition stands dismissed. However, we direct that disciplinary proceedings initiated pursuant to the charge memo be completed within a period of six months from the date of receipt of a copy of this order.