IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.5754 of 2009 G.Ravi .. Petitioner Vs. 1.The Joint Registrar, Cooperative, Office of the Joint Registrar, Vellore Division. 2.The Special Officer, Virinjipuram Primary Agricultural Cooperative, Virinjipuram, Vellore District, Vellore. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in A.TI.Mu.Ka.12024 of 2008 dated 13.01.2009 on the file of the first respondent, thereby confirming the dismissal of the petitioner as ordered by the second respondent herein in C.2488 dated 10.8.2007 from the service of the Virinjipuram Primary Agricultural Cooperative Bank and to quash the same as illegal and direct the respondents to reinstate the petitioner in service with attendant benefits. For Petitioner : Mr.S.Rameshkumar For Respondents : Mr.N.Senthilkumar, AGP - - - - ORDER
The petitioner after his amended prayer, dated 16.11.2009 (ordered in M.P.No.1 of 2009), is challenging the order, dated 13.1.2009 passed by the first respondent confirming the order of dismissal of the petitioner as ordered by the second respondent, dated 10.8.2007 from the service of the Virinjipuram Primary Agricultural Cooperative Bank. After setting aside the same, he seeks for a direction to the respondents to reinstate him with all consequential benefits.
2.By the impugned order, dated 10.8.2007, the petitioner was dismissed from service. The charge against the petitioner was that while he was working as an Assistant Secretary, was tried for a criminal offence along with two other employees in Crime No.3 of 2003. The learned Judicial Magistrate, Vellore by a judgment dated 8.4.2004 convicted the petitioner for one year imprisonment together with fine of Rs.7500/-. The petitioner who was arraigned as an accused No.3, was found guilty of offences under Sections 409, 418 read with Section 120B and 477A IPC on seven counts. The petitioner preferred a criminal appeal before the Sessions Court, Vellore. But the Sessions Court confirmed the conviction. The petitioner preferred a criminal revision case in Crl. Revision No.385 of 2005 along with two other employees and was released on bail. The petitioner was placed under suspension by an order dated 5.9.2005. Subsequently, a charge memo, dated 21.11.2005 was given to the petitioner. The petitioner gave his explanation on 31.11.2005. An enquiry was conducted against the petitioner. The Enquiry officer gave a report, dated 15.11.2006. On the basis of the enquiry report, the petitioner’s explanation was directed to be submitted by a memo, dated 18.11.2006. The petitioner gave his explanation, dated 27.11.2006. Subsequently, by a resolution, dated 10.8.2007, the petitioner was directed to be dismissed. Accordingly, he was dismissed.
3.The charges levelled against the petitioner were very serious. They were based upon the evidence produced before the enquiry. Though the petitioner submitted that while granting 7 jewel loans, the petitioner had collected enough details and it is only because of wrong certificate given by the jewel appraiser, loans were advanced and that the jewel appraiser has owned up the entire responsibility and that through his brother’s son, the entire loan amounts were collected and there was no loss to the bank. Therefore, in future, he will behave in such a way that there will not be any disrepute to the bank. But, however, the second respondent did not agree to the submission made by the petitioner and held that only because of the grant of jewel loans to persons who are strangers who have pledged duplicate jewels, it created disrepute to the bank. Therefore, the petitioner having failed to know the bonafide of such persons, was responsible for the same. While dismissing the petitioner, the fact that his conviction by the criminal court and subsequently confirmed by the Sessions Court was also taken into account. At the time when the order came to be passed, the judgment of this court in the criminal revision was not pronounced. However, on 14.7.2008, this court allowed the Crl.R.C. filed by the petitioner and acquitted him of all the charges. The conviction and sentence imposed on him were set aside.
4.Thereafter, the petitioner sent a letter, dated 18.8.2008 to the respondent. The petitioner was informed by a letter dated 22.11.2008 of the second respondent that subsequent acquittal by the criminal court has no relevance and the petitioner was dismissed on the basis of the domestic enquiry proceedings. The petitioner preferred a revision under Section 153 before the revisional authority, dated 18.12.2008. By an order, dated 13.1.2009, the revision was refused to entertain on the ground that the petitioner did not prefer the revision within 90 days.
5.In the counter affidavit by the second respondent, it was once again reiterated that the disciplinary proceedings were initiated independent to the criminal proceedings and that it has no relevance to the subsequent acquittal by the petitioner. Out of three charges levelled against the petitioner, the enquiry officer found two charges proved, which were agreed by the management and dismissal order came to be passed. The original revision was filed by the petitioner with 493 days’ delay and there is no provision to condone the delay. No writ petition will lie against the order passed by the second respondent society, in the light of the larger bench judgment of this court in K.Marappan Vs. The Deputy Registrar of Co-operative Societies, Namakkal Circle, Namakkal-636 001 and another reported in 2006 (4) CTC 689. The petitioner preferred a revision, which was also rejected as time barred.
6.The learned counsel for the petitioner contended that there is no jurisdiction to conduct the enquiry especially when he was acquitted by the criminal court. For this purpose, he placed reliance upon the judgment of the Supreme Court in G.M. Tank v. State of Gujarat and others reported in (2006) 5 SCC 446. In that case, the Supreme Court followed the earlier decision of the Supreme Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and others reported in 2005 (7) SCC 764 and Depot Manager, A.P. State Road Transport Corporation Vs. Mohd. Yousuf Miya and others reported in 1997 (2) SCC 699.
7.But the facts situation found in that cases were that the criminal case and the departmental proceedings were based on identical set of facts and same witnesses were examined both in the criminal case and in the departmental enquiry. Therefore, the findings rendered in the department enquiry were set aside. It is necessary to refer to paragraph 30 of the G.M.Tank case which is as follows:
30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellants residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.
8.The learned counsel also placed reliance upon the subsequent judgment of the Supreme Court in State Bank of Hyderabad v. P. Kata Rao reported in (2008) 15 SCC 657, wherein G.M.Tank was referred to and explained. The Supreme Court after referring to all the previous cases, in paragraphs 18 and 20 held as follows:
18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the enquiry officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith.
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20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.1 however, remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case.
9.Though the learned counsel for the petitioner referred to the decision of this court in W.P.No.11278 of 2009 in A.S.Mohammed Mushtaq Vs. The Registrar of Cooperative Societies, Kilpuak, Chennai and others, wherein by an order, dated 24.6.2009, this court directed the society to take note of the acquittal in the criminal case and to pass an appropriate order, in the present case, the petitioner seeks for setting aside his original dismissal order. Therefore, this court is not inclined to give the same order as the petitioner wanted merits of the original order to be gone into.
10.This court is not convinced that merely because of acquittal of the petitioner, the disciplinary action taken during the interregnum period is invalid. Though the petitioner pleaded that there is no pecuniary loss, yet it was proved that the jewel loan was given to fictitious persons based on furious and fake jewelry. The second respondent society found him guilty of negligence and perverting the procedure in granting jewel loans.
11.In this context, it is necessary to refer to the judgment of the Supreme Court in State Bank of India v. S.N. Goyal reported in (2008) 8 SCC 92. In paragraphs 23 and 41, the Supreme Court held as follows:
23. Where the enquiry was found to be fair and proper and the finding of guilt in the enquiry in respect of a serious charge was found to be valid, in the absence of any other valid ground of challenge, the courts below ought to have held that the penalty of removal from service did not warrant any interference and dismissed the suit. Be that as it may. We will now consider the matter on merits on the assumption that the averments in the plaint were sufficient to enable the court to consider this issue.
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41. At the relevant point of time the respondent was functioning as a Branch Manager. A bank survives on the trust of its clientele and constituents. The position of the Manager of a bank is a matter of great trust. The employees of the bank in particular the Manager are expected to act with absolute integrity and honesty in handling the funds of the customers/borrowers of the bank. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct, inviting severe punishment. When a borrower makes any payment towards a loan, the Manager of the bank receiving such amount is required to credit it immediately to the borrowers account. If the matter is to be viewed lightly or leniently it will encourage other bank employees to indulge in such activities thereby undermining the entire banking system. The request for reducing the punishment is misconceived and rejected.
12.In the light of the above, this court is not inclined to interfere with the impugned order of dismissal. Hence the writ petition will stand dismissed. No costs.
vvk
To
1.The Joint Registrar,
Cooperative,
Office of the Joint Registrar,
Vellore Division.
2.The Special Officer,
Virinjipuram Primary Agricultural Cooperative,
Virinjipuram,
Vellore District,
Vellore
