IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 1503 of 1998(D)
1. K.P.RAJU
... Petitioner
Vs
1. M/S.PUNJAB & SIND BANK
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.P.C.HARIDAS
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :01/06/2010
O R D E R
P.N.RAVINDRAN, J.
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O.P.No.1503 of 1998
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Dated this the 1st day of June, 2010
JUDGMENT
The petitioner entered service as Officer in the first respondent
bank on 10-7-1994. While the petitioner was in service as Manager in
the Trivandrum branch of the first respondent bank, disciplinary action
was initiated against him by serving Ext.R1(a) memo of charges and
statement of allegations of misconduct. The sum and substance of the
allegations against the petitioner was that there were serious lapse
and irregularities on his part in the matter of providing accommodation
to one of the bank’s customers and its associates. The petitioner did
not submit a written statement of defence in reply to the charges
levelled against him. An enquiry was conducted in which he took part
and before the Enquiry Officer also he admitted having committed the
various acts of misconduct alleged against him, but raised the plea
that he has not committed any criminal offence by such activity. The
Enquiry Officer found the petitioner guilty of the charges levelled
against him. Based on the findings of the Enquiry Officer, by Ext.P2
order dated 24-6-1995 the Deputy General Manager in the Zonal Head
Office removed the petitioner from service. The petitioner thereupon
filed an appeal before the General Manager which was rejected by
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Ext.P5 order dated 21-9-1995. He thereafter moved the Chairman
and Managing Director of the bank by Ext.P6. The said representation
was rejected by Ext.P7 order dated 25-11-1995. Exts.P2, P5 and P7
are under challenge in this writ petition.
2. Simultaneous with the disciplinary action a criminal case was
also registered against the petitioner and the customer of the bank.
The case was investigated by the Central Bureau of Investigation
which filed final report in the Court of the Special Judge (SPE/CBI) II,
Ernakulam. Based on the final report the petitioner was prosecuted in
C.C.No.47 of 1998. It was while the said criminal case was pending
that the petitioner was removed from service and the order removing
him from service was upheld by the appellate authorities. Long
afterwards, by Ext.P10 judgment delivered on 20-6-2007 the Court of
the Special Judge (SPE/CBI) II, Ernakulam aquitted the petitioner and
the other accused holding that the prosecution has failed to prove the
allegations against them. The court below also held that the accused
are entitled to be extended the benefit of doubt. Relying on Ext.P10,
Sri.S.P.Aravindakshan Pillai, learned counsel appearing for the
petitioner contended that in view of the finding of the competent
criminal court on the various items of charges which formed the basis
of the petitioner’s removal from service, the orders impugned in this
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writ petition are liable to be set aside. The learned counsel relied on
the decision of the Supreme Court in Tank v. State of Gujarat, 2006
(3) KLT 514 (SC) in support of the said contention.
3. Per contra, the learned counsel appearing for the respondents
submitted with reference to Ext.R1(b) proceedings of the Enquiry
Officer that the petitioner had not filed a written statement of defence
denying the allegations levelled against him and that before the
Enquiry Officer he had admitted all the allegations in the statement of
allegations with the rider that even if the said allegations are proved
they will not establish the criminal charges under Sections 120-B, 420,
468, 471, and 477-A IPC and 13(2) read with 13(11)(d) of the
Prevention of Corruption Act, 1988. The learned counsel submitted
that the degree of proof required in a criminal case is proof beyond
doubt while in a disciplinary action the strict rules of evidence do not
apply and that based on the probabilities and the materials available in
the enquiry a finding of guilt can be arrived at. The learned counsel
also submitted that the Apex Court has in a later decision in
Managing Director, State Bank of Hyderabad v. P.Kata Rao, AIR
2008 SC 2146, after referring to the decision of the Apex Court in
G.M.Tank v. State of Gujarat and others (2006) 5 SCC 446, held
that each case must be determined on its own facts and that as the
O.P.No.1503 of 1998
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petitioner had admitted having committed the alleged acts of
misconduct, no further proof in that regard was necessary and
therefore, the disciplinary authority was right in finding him guilty of
the charges and terminating his service. The learned counsel also
submitted that the said principle could not have been applied to the
criminal case where the burden was on the prosecution to prove the
charges beyond doubt and that the mere fact that the prosecution had
failed to prove the criminal charges cannot vitiate the findings of the
Enquiry Officer.
4. I have considered the rival submissions made at the Bar by
the learned counsel on either side. It is evident from the materials on
record that the petitioner had admitted the various charges levelled
against him in Ext.R1(a) memo of charges and the statement of
allegations of misconduct. He in fact conceded before the Enquiry
Officer that he had committed the acts complained of subject to the
rider that such acts do not constitute the commission of any criminal
offence. In view of the admission made by the petitioner the Enquiry
Officer found him guilty. The management accepted the finding of the
Enquiry Officer and removed him from service. The said finding was
upheld by the higher authorities. Therefore, the mere fact that he was
acquitted in the criminal case which arose out of the same transaction
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cannot be relied on to hold that the enquiry against the petitioner is in
any way vitiated. As noticed by the Apex Court in Managing
Director, State Bank of Hyderabad v. P.Kata Rao (supra) the
degree of proof required in a departmental proceeding and in a
criminal proceeding is different. In the instant case it was because of
the admission of guilt by the petitioner that he was found guilty in the
disciplinary enquiry. He was however, acquitted in the criminal case
for the reason that the prosecution failed to prove the charge levelled
against him. In such circumstances I am of the considered opinion
that the petitioner cannot take advantage of the acquittal in the
criminal case to contend that the order removing him from service is
liable to be set aside.
5. I do however note that even after detailed investigation by
the Central Bureau of Investigation, the charge against the petitioner
that he had committed the offences punishable under Sections 120-B,
420, 468, 471, and 477-A IPC and 13(2) read with 13(11)(d) of the
Prevention of Corruption Act, 1988 could not be proved. The court
below has in Ext.P10 judgment categorically found that there was no
criminal conspiracy between the accused and that the prosecution has
failed to prove cheating and falsification of accounts. The court below
has also found that the banking transactions to which the petitioner
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was a party were not dishonest transactions with fraudulent intentions.
In such circumstances, having regard to the observations in Ext.P10
judgment, I am of the opinion that the respondents should consider
whether the decision removing the petitioner from service should be
reconsidered.
I accordingly dispose of the writ petition with the observation
that in the event of the petitioner filing an appropriate representation
before the Chairman and Managing Director of the first respondent
bank enclosing a copy of Ext.P10 judgment, the Chairman and
Managing of the first respondent bank shall consider the same, if
necessary, by placing it before the Board and take an appropriate
decision in the matter expeditiously and in any event within three
months from the date of receipt of such a representation.
P.N.RAVINDRAN,
Judge.
ahg.
P.N.RAVINDRAN, J.
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O.P.No.1503 of 1998
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JUDGMENT
1st June, 2010