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Saturday, September 17, 2016

whether the High Court was justified in directing stay of the disciplinary proceedings initiated by the appellant-Bank against the respondent until the closure of recording of prosecution evidence in the criminal case instituted against the respondent, based on the same facts? = Clause 4 of the Settlement= On the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material. Pendency of criminal trial for around 10 years, by no means, can be said to be a reasonable time frame to withhold the disciplinary proceedings. We are fortified in taking this view on the principle underlying the former part of the same clause, which envisages that if the Authority which has to start the prosecution refuses (read fails) to do so within one year from the commission of the offence, the departmental action can proceed under the provisions as set out in Clauses 11 and 12 of the Settlement.Accordingly, we exercise discretion in favour of the respondent of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against the respondent to be decided expeditiously but not later than one year from the date of this order. The Trial Court shall take effective steps to ensure that the witnesses are served, appear and are examined on day-to-day basis. In case any adjournment becomes inevitable, it should not be for more than a fortnight when necessary. If the trial is not completed within one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings against the respondent shall be resumed by the enquiry officer concerned. The protection given to the respondent of keeping the disciplinary proceedings in abeyance shall then stand vacated forthwith upon expiring of the period of one year from the date of this order.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4715 of 2011

State Bank of India & Ors.                         …..Appellants



                             Vs.

 Neelam Nag                                        ……Respondent

                               J U D G M E N T



A.M.KHANWILKAR, J.



      The short question involved in this appeal is: whether the High  Court
was justified in directing stay of the  disciplinary  proceedings  initiated
by the appellant-Bank against the respondent until the closure of  recording
of  prosecution  evidence  in  the  criminal  case  instituted  against  the
respondent, based on the same facts?

2.    The respondent was appointed in the clerical cadre of  the  appellant-
Bank.  At the relevant time, she was working  as  an  Assistant  (Clearing).
Allegedly, some time on 29th  May  2006,  the  respondent  by  her  acts  of
commission and  omission  caused  loss  to  the  Bank  in  the  sum  of  Rs.
44,40,819/- by granting credit to  one  Laxman  Parsad  Ratre  (who  was  an
employee of Bhilai Steel Plant). The respondent  herself  introduced  Laxman
Parsad Ratre to open an account in the  appellant  Bank.   On  7th  November
2006, the respondent was placed under  suspension  for  indulging  in  gross
irregularities  and  misconduct  including  of   misplacing   the   clearing
instruments relating to various customers. The respondent vide letter  dated
8th November 2006, not only admitted her  misdeeds  but  assured  the  Chief
Manager of returning the amount commensurate to the  financial  loss  caused
to the Bank because of her lapses at the earliest,  failing  which  suitable
action can proceed against her. The said communication reads thus:

“To,
Chief Manager
State Bank of India
Main Branch, Durg (Ch.G.)

Sir,

Context :-  Your memo number – Serial number/branch/2006 – 07/196
dated 30.10.2006.

In context of your aforesaid memo I am sorry for the wrong ways  adopted  by
me.  I admit that I have done a wrong deed  and  I  am  suffering  from  the
feeling of guilt.

Whatever amount comes in this context that I will try to  pay  as  early  as
possible after obtaining the amount from the known sources.   At  present  I
am able to arrange Rs. 60,000/- and I am depositing the same.

By mortgaging the family movable and  immovable  property,  arrangement  for
obtaining the amount, thought and efforts  are  continued  for  making  such
arrangement as early as possible.  Because this works take  time,  I  should
be given proper time to go further in effort  and  to  finish  the  work  of
mortgage.



Our relatives staying nearby and far away and in other states, with them  my
contact is continued and arrangement for  the  amount  is  continued.   This
work is also taking time.  Therefore to continue my effort  proper  time  to
be given to me.



Amount of my C.P.F and salary is to be used for compensating this amount.  I
will keep on informing you regarding my every effort and  will  deposit  the
money received in bank account.



I have done this work in mental stress and due to pressure of situation  for
which my heart is feeling sorry that I have used all wrong ways  and  means.
I have two  small  children,  wife  and  old  and  ill  mother  and  father,
considering all this give me an opportunity to deposit the  amount  received
from my aforesaid efforts for which I will be grateful to you for  my  whole
life.  I have not taken such a wrong step  in  fourteen  years  of  my  bank
service but this step I have taken due to mental stress and  situation.   By
giving me apology, proper time to accomplish my efforts.

I assure you that I will not commit this kind of mistake in future.



If I  fail  in  the  above  efforts,  you  are  independent  for  initiating
proceedings on me.

Thanking you
Dated :- 8.11.06



                                                                        Sd/-

                                                                (Neelam Nag)

                                                          Senior Assistant “





3.     Nevertheless,  a  FIR  was  lodged  in  connection  with   the   said
irregularities  and  misdeeds  committed  by  the  respondent  bearing   FIR
No.1043/2006, for offences punishable under Sections 409, 34 of the  IPC  by
appellant-Bank. Laxman Parsad Ratre has also been named  as  an  accused  in
the said FIR. It is alleged in the FIR that  Laxman  Parsad  Ratre  who  had
account in State Bank of India issued  two  cheques  in  favour  of  Tanishk
Securities both valued Rs.6,50,000/-, knowing that he did not  have  balance
in his account. Those cheques were deposited by Tanishk Securities in  their
U.T.I. Branch Bhilai for clearance. U.T.I. Branch dispatched  those  cheques
to State Bank of India at Durg, Bhilai. The respondent was  posted  in  that
Branch  at  the  relevant  time,  who  in  connivance  with  the  co-accused
dispatched those cheques to State Bank of India, Malviya Nagar  Branch  even
though Laxman Parsad Ratre did not have account in that Branch. The  cheques
were  returned  by  that  Branch.  The  respondent  intentionally  did   not
immediately return those cheques to U.T.I. Branch  at  Bhilai.  Resultantly,
U.T.I. Branch at Bhilai  as  per  the  settled  practice  assumed  that  the
cheques have been cleared and released the payment  to  Tanishk  Securities,
by endorsing payment in the name of State Bank of India. Thereby  causing  a
loss of Rs. 13 lakhs to State Bank of  India.  That  was  revealed  only  on
28.10.2006 during reconciliation of accounts of the two Banks. Further,  the
respondent herself  had  introduced  Laxman  Parsad  Ratre  for  opening  an
account  in  the  appellant-Bank.  She  has  admitted  her  lapse   in   the
communication sent by her to the Chief Manager of the  appellant-Bank  dated
8th November, 2006.  In a written admission  given  on  6th  November,  2006
Laxman Parsad Ratre mentioned that he was involved in  a  criminal  activity
in connivance with the respondent. The FIR has been registered  for  offence
of possible loss of Rs. 29,53,262/-.

4.    After registration of the FIR, the local  police  proceeded  with  the
investigation and filed charge-sheet No. 63/2007, under Section 173  of  the
Criminal Procedure Code, on  6th  February,  2007,  before  the  Magistrate.
Criminal Complaint No. 1043/2006  was  registered  for  offences  punishable
under Sections 409, 34 of IPC. The competent Court then proceeded  to  frame
charges against the respondent on 12th June 2007. Thereafter, on 7th  April,
2008, the appellants, through appellant No.2, called upon the respondent  to
offer  an  explanation  about  the  alleged  irregularities   and   misdeeds
committed by her. The respondent vide communication dated 15th  April,  2008
simply denied all  the  allegations.  The  Competent  Authority,  therefore,
decided to initiate departmental enquiry against the respondent, for  which,
charge-sheet dated 19th September, 2008 was issued to the respondent,  which
reads thus:

“Shri Neelam Nag,
Senior Assistant
(Suspended)
Indian State bank
Bhilai Steel Plant Area Branch
Bhilai
Sr. No. Ankara/Area 3/ Anushansha / 820 19th Sep, 2008


                                Charge sheet

I in the capacity of disciplinary authority charge  following  charges  upon
you

You have committed following mistake during working in Durg Branch.

You have given identification to  Lachhman  Parsad  Ratre  for  opening  the
account thereafter through this account through  accounts  you  have  manage
the operation of the Fund of other administrative accounts.

Through saving account no. 01119-0021348 two cheques bearing no. 463553  and
4635554 which is amounting to Rs.  6,50,00.00  each  in  favour  of  Tanishk
Securities on 29.5.2006 which was due Durg Branch.  Which was  submitted  by
U.T.I. Bank for adjustment, due to not insufficient amount  in  Durg  Branch
instead of returning to Bhilai Branch intentionally for making  the  balance
of adjustment has transfer to Malviya Nagar Durg Branch with responding.

Two cheque bearing no. 4635553 and 463554 each amounting  to  Rs.  65,0000/-
which were due to Durg Branch, Malviya Nagar Branch had returned  with  T.R.
on 31.5.2006, which should  have  return  by  you  to  Head  Branch  Bililai
without any proceeding, but you intentionally keep it with you.

The above incident detail (information come in  light)  on  28.10.2006  held
branch clearing of the general account in clearing it  make  clear  that  in
Udhavi schedule 07 Rupees 13,00,000 entries which was originate  by  Malviya
Nagar Durg Branch, it was not responded by Durg Branch.

You had attached with  Tanishk  Securities  commodity  trading  and  you  by
misusing the amount of Chattisgarh State Electricity  division  got  deposit
in the account of Shri Lachhman Parsad Ratre. You have removed the  original
slip of deposit of the account of  chattisgarh  State  Electricity  division
and in place of it install  the  slip  of  Shri  Rate  saving  bank  account
therefore the dealing and clearing of the  saving  bank  account  which  has
committed by you, the complete detail is clear and enclosed  in  Annexure  –
2.

Therefore you with the intention of  cheating  you  have  divert  the  total
amount of Rs. 48,0000 of 16 challan of State  Govt.  on  4.5.2006  (Annexure
2(11)).

The Head Branch Bhilai through clearing  house  has  closed  to  submit  due
cheque in Durg Branch, there after the cheque of various  bank  situated  at
Bhilai which has deposited in Durg Branch should presented  for  collection,
you changing the deposit slip  of  Chattisgarh  State  Electricity  Division
current account preparing the deposit slip of Lachhman  Ratre  has  changed.
Therefore the FDR of current of Chattisgarh State Electricity  division  has
misused (Annexure 2 (12)).

On 9th August, 2006 Chattisgarh State Electricity  divisions  has  deposited
two cheque total amounting to Rs. 125916/- of other  banks  for  deposit  in
their current account you by changing the slip.  Due  to  reference  on  the
same day cheque no. 463549 amounting to Rs. 125916  I.D.B.I.  Branch  Bhilai
has submitted these cheque in Durg Branch  which  was  in  the  saving  bank
account of Shri Ratre, due to not having insufficient fund  in  the  account
of Shri Ratre  returned  but  the  above  cheque  through  clearing  by  not
returning but by you in the deposit of clearing  scroll  and  transfer  both
side with cunning make balance.  Therefore you by not returning  the  cheque
intentionally with cheating has  tampered  the  current  account  cheque  of
Chattisgarh State Electricity division.

Therefore with well plan manner the amounting to Rs. 4440891 has deposit  in
the fake of account of Shri Rate and misuse the  above  amount  and  fix  in
commodity market.  It clear detail is enclosed in Annexure 1 &  2  in  which
the current account  of  Chattisgarh  State  Electricity  division  and  the
amount of Govt. challan with cheating deposit in the account of  Shri  Ratre
and misuse by you.   Therefore  the  current  amount  of  Chattisgarh  State
Electricity Division amounting to Rs. 1653262 which has  not  cleared  until
now, in the same manner branch clearing general  account  amounting  to  Rs.
1300000 which is  still  unclear  pending  in  Malviya  Nagar  Durg  Branch.
Therefore a huge amount loss  has  suffered  by  bank,  for  which  you  are
completely liable.  Your above conduct against the bank interest and  second
party compromise dt. 6.8.2002 para Sardi/P&HRD/57 page 7  para  5(a)  and  J
comes under gross misconduct and punishable.
(2)   In this regard you are hereby  directed  in  regard  to  charge  sheet
submit your written reply within 7 days of the receipt of  this  letter,  in
case during this period you did not give your  reply  then  I  should  admit
that in regard to this letter you did not want to say nothing  and  in  this
regard bank shall fee to take action.
3)    In the second copy of this letter by  making  complete  signature  and
date given the acknowledgement.


Sd/-
Disciplinary Officer and
Assistant Chief Managing Director Administration)

Sd/-
Enclosure : above.
57/dpc/staff


                                                        Signature 20.9.2008”

5.    The appellant No.2 then instituted  disciplinary  proceedings  against
the respondent on  23rd  October  2008,  which  fact  was  notified  to  the
respondent on 31st October 2008, by the appellant No. 3 calling upon her  to
attend the same. The respondent did not cooperate and instead protested  the
initiation of such  disciplinary  proceedings  against  her.  She  was  then
advised to file a writ petition bearing Writ  Petition  No.4629/2009  before
the High Court of Chhatisgarh at Bilaspur. The learned  Single  Judge  found
merits in the stand taken by the respondent - that  the  facts  involved  in
the criminal case  registered  against  the  respondent  and  initiation  of
disciplinary proceedings, was based on the same facts.  The  learned  Single
Judge also adverted to Clause 4 of the Memorandum of Settlement  dated  10th
April, 2002 which grants protection to the employees of  the  appellant-Bank
from facing departmental proceedings until the completion of  the  trial  of
the criminal case.  On that reasoning, the learned Single Judge allowed  the
Writ Petition and directed the appellants to forbear  from  proceeding  with
the disciplinary proceedings until completion of the  trial.  This  decision
was challenged by the appellants by way of  Writ  Appeal  No.80/2010  before
the Division Bench. The Division  Bench  affirmed  the  view  taken  by  the
learned Single Judge and negatived the stand taken by the appellant  in  her
favour. The Division Bench held that the respondent may suffer  disadvantage
and  prejudice  if  she  was  compelled  to  disclose  her  defence  in  the
departmental proceedings, which is likely to be used in  the  criminal  case
pending against her. The Division Bench,  however,  modified  the  operative
order passed by the learned Single Judge by passing following directions:

“Therefore, we dispose of this appeal by upholding the order of the  learned
Single Judge with the following directions:

The A.C.J.M. Durg is directed to conclude the trial which is  pending  since
2006 on day to day basis, in which we have been informed  that  one  witness
has already been examined,

The writ appellants would be free to proceed  further  in  the  disciplinary
proceedings as soon as the case from the prosecution side is closed.”



                                                         (emphasis supplied)

6.    The appellants relying on a recent decision of this Court in the  case
of Stanzen Toyotetsu India Private Limited vs. Girish V. &  Ors.[1]  contend
that the  departmental  proceedings  cannot  be  suspended  indefinitely  or
delayed unduly. It is contended that inspite of the direction given  by  the
Division Bench to the concerned criminal Court to take up the  case  pending
since 2006 on day-to- day basis, the trial  is  still  pending  and  only  3
witnesses out of total 18 prosecution witnesses cited  in  the  charge-sheet
have been examined. There is no hope of an early  completion  of  the  trial
nor of completion of prosecution evidence. The delay is attributable to  the
accused in the said criminal case, including the respondent herein.  In  the
backdrop of this grievance vide order dated 1st  July  2016,  the  State  of
Chhattisgarh was directed by this Court to file a  status  report  regarding
the criminal proceedings launched against the respondent, giving details  of
the total number of prosecution witnesses cited in the charge-sheet;  number
of witnesses examined so far; and the cause for delay in the  completion  of
trial. The State of Chhattisgarh has filed an affidavit  of  the  Additional
Superintendent of Police dated 1st August 2016. From this affidavit,  it  is
noticed that the criminal trial No.1043/2006 before  framing  of  charge  on
12th June 2007, was listed on 13 dates. After framing of charge, the  matter
has proceeded before the Sessions Court on 133 dates. In paragraph 9  to  11
of the affidavit, the break up has been given as under:

      “9. It is further respectfully submitted that  the  perusal  of  Court
proceedings of 133 dates reveal that the delay in completion  of  trial  was
due to multiple reasons.  It is submitted that on some dates, the  case  was
adjourned due to absence of accused persons. On some  dates,  the  case  was
adjourned as the prosecutor was absent.  The case was also adjourned due  to
non-availability of files as it was sent to the Sessions Court for  deciding
the Bail Application u/s 439 CrPC.  The  case  was  also  adjourned  on  the
application made by the accused persons to make  available  some  documents.
The case was also adjourned due to  Ld.  Presiding  Officer  on  leave,  the
transfer of Presiding Officer, the change  of  Court.   The  case  was  also
adjourned due to strike by the Lawyers or due  to  Court  holiday.   In  the
gist of dates on which the case was listed before the Ld.  Trial Court,  are
as follows:

|S.No. |Particulars (Reason for Delay)          |Dates   |
|1.    |Accused Laxman Ratre not present        |06      |
|2.    |Accused Neelam Nag not present          |14      |
|3.    |Prosecution witnesses not present       |10      |
|4.    |Accused persons not present             |05      |
|5.    |ADPO not present                        |23      |
|6.    |Documents                               |07      |
|7.    |Arguments                               |05      |
|8.    |Application for bail                    |07      |
|9.    |Receiving of demand letter              |06      |
|10.   |Case Diary sent to the Magistrate       |05      |
|11.   |Receiving of Diary                      |04      |
|12.   |Court holiday                           |03      |
|13.   |Strike of Advocates                     |02      |
|14.   |Service of copy of the case             |01      |
|15.   |Change of charges                       |01      |
|16.   |Time sought by the Advocates of accused |01      |
|      |persons                                 |        |
|17.   |Presiding Officer on leave              |05      |
|18.   |Transfer of Presiding Officer           |03      |
|19.   |Reply                                   |04      |
|20.   |Keeping current status                  |04      |
|21.   |Evidence                                |10      |
|22.   |Case sent to copying department         |03      |
|23.   |Issuance of instruction regarding case  |01      |
|      |hand-over                               |        |
|24.   |Receiving of case on transfer           |01      |
|25.   |Framing of charges                      |01      |
|26.   |Order                                   |01      |
|      |                                        |133 DAYS|
|      |TOTAL=                                  |        |

10.   It is further submitted that the  perusal  of  the  Court  proceedings
reveal the dates on which, the prosecution  witness  were  present  and  the
outcome on that date :

30.06.2007  Prosecution witnesses Joy C. Aryakara and Pushpkala  present  in
Court, however, since the matter was fixed for 02.07.2007, they  were  asked
to come again on that date.

02.07.2007  The above 2 prosecution witnesses were  present,  however,  they
could not  examined  due  to  non-availability  of  case  diary  and  seized
documents.

18.07.2008  prosecution witness Pushpkala  present  in  Court  however,  she
could not be examined since the Ld. Presiding Officer was on leave.

09.03.2009  Prosecution witness Pushpkala  present  in  Court  however,  she
could not be examined.
08.10.2010  Prosecution witnesses Joy C. Aryakara and Ms. Pushpkala  present
in Court, however, they could not be examined since co-accused Laxman  Ratre
was not present nor any advocate appeared on his behalf.

22.07.2011  Prosecution witness Pushpkala was examined  Prosecution  witness
Joy C. Aryakara also present in Court however, the defence refused to cross-
examine on the ground of non-availability of certain bank  documents.   This
prosecution witness was therefore could not be cross-examined.

15.09.2011  prosecution witness K.G. Goswami present in Court  however,  the
examination could not take place due to  absence  of  accused  /  respondent
No.1 Neelam Nag.

24.09.2011  Prosecution witnesses KG. Goswami and N. Chandrashekhar  present
in Court. The co-accused Laxman Ratre is absent.  Witness N.  Chandrashekhar
could not be examined due to non-availability of some documents.

04.11.2011  Witness N. Chandrashekhar present.  The  examination  could  not
take place due to non-availability of certain documents.

01.09.2012    Prosecution  witness  A.S.  Jitendra  present  in  Court.  The
accused / Respondent No.1 Neelam Nag was absent, however, at the request  of
his Counsel, the examination of prosecution witness  was deferred.

03.09.2015  Prosecution witness Ramesh Kumar present in Court.  The  accused
Neelam Nag was absent.  Examination of witness did not take place.

02.11.2015  Prosecution witness Ramesh Kumar  Present.  The  accused  Neelam
Nag was absent.  Examination of witness did not take place.

11.   It is submitted that 3 prosecution witnesses have been examined.   The
delay in completion of trial is  due  to  reasons  mentioned  in  the  above
paras.”


Relying on these facts, the appellants contend that  no  further  indulgence
can be shown to the respondent and the protection given  to  the  respondent
by the High Court should be vacated keeping in mind the  exposition  in  the
above  mentioned  reported  decision.  As  regards  the  argument   of   the
respondent that the disciplinary proceedings must be suspended  in  view  of
Clause 4 of the Memorandum of Settlement dated 10th April 2002,  arrived  at
by the Management of 52 ‘A’ Class Banks as represented by the Indian  Banks’
Association and their workmen under Section 2(p) and Section  18(1)  of  the
Industrial Disputes Act, that cannot be considered as a  legal  bar  atleast
in the fact situation of the present case. The interpretation  of  Clause  4
of the said settlement, as put forth by the  appellant,  would  further  the
cause of justice and in particular larger public interest,  considering  the
fact that the misconduct is  in  relation  to  embezzlement  of  substantial
amount by an  employee  of  the  public  sector  bank  -  which  has  caused
financial  loss  not  only  to  the  bank  but  resultantly  to  the  public
exchequer. It is in the interest  of  all  concerned  that  the  action,  as
permissible in law, must be taken  forward  in  connection  with  the  gross
misconduct and the provision in the Memorandum of Settlement such as  Clause
4 cannot be treated as an impediment thereto. Any  other  interpretation  of
Clause 4  of  the  Settlement  would  be  against  public  policy  and  also
encouraging unscrupulous employees of the bank  to  stall  the  disciplinary
proceedings by taking advantage of the pending criminal case,  which  is  an
independent action in law. The respondent being named as an accused  in  the
criminal case;  and  also  responsible  for  prolonging  the  trial  of  the
criminal case, cannot be permitted to take advantage of her own wrong.

7.    The respondent, on the other hand, supported the  view  taken  by  the
High Court and contends that, in view of  Clause  4  of  the  Memorandum  of
Settlement and the settled  legal  position,  the  disciplinary  proceedings
must be put on hold atleast until the recording and closure of  evidence  of
prosecution witnesses in the criminal case,  as  directed  by  the  Division
Bench. That is essential because the charge framed  against  the  respondent
in the criminal  case  and  the  charge-sheet  issued  by  the  disciplinary
authority against the respondent is based on the  same  set  of  facts.  The
defence of the respondent in  disciplinary  proceedings  may  cause  serious
prejudice to  the  respondent  in  the  criminal  case.   According  to  the
respondent, in view  of  the  complexity  of  the  facts  and  the  evidence
necessary to substantiate  the  same,  it  is  advisable  and  essential  to
protect the respondent from being  exposed  to  disclosure  of  her  defence
which may be identical to one to be taken in the criminal case or  for  that
matter compel her to depose against herself on those facts.

8.    We have heard the learned counsel for the parties at some length.  The
only question that arises for consideration, is no more res-integra.  It  is
well-settled that there is no legal bar to the conduct of  the  disciplinary
proceedings and criminal trial simultaneously.  However,  no  straightjacket
formula can be spelt out and the  Court  has  to  keep  in  mind  the  broad
approach to be adopted in such matters on case to case basis.   The  contour
of the approach to be adopted by the Court has been delineated in series  of
decisions.  This Court in Karnataka SRTC vs. M.G.Vittal  Rao[2]  has  summed
up the same in the following words:

“(i)     There  is  no  legal  bar  for  both  the  proceedings  to  go   on
simultaneously.

(ii)  The only valid ground for claiming that the  disciplinary  proceedings
may be stated would be to ensure that the defence of  the  employee  in  the
criminal case may  not  be  prejudiced.  But  even  such  grounds  would  be
available only in cases involving complex questions of facts or law.

(iii)     Such defence ought not to be permitted to unnecessarily delay  the
departmental proceedings. The interest of the delinquent officer as well  as
the employer clearly  lies  in  a  prompt  conclusion  of  the  disciplinary
proceedings.

(iv)    Departmental proceedings can go on simultaneously  to  the  criminal
trial, except where both the proceedings are based on the same set of  facts
and the evidence in both the proceedings is common.”


(emphasis supplied)



9.    The recent decision relied by the appellant in  the  case  of  Stanzen
(supra), has adverted to the relevant decisions[3]  including  the  case  of
M.G.Vittal Rao (supra).  After adverting to those  decisions,  in  paragraph
16, this Court opined as under:

“16. Suffice it to say that while there is no legal bar to  the  holding  of
the disciplinary proceedings and the criminal trial simultaneously, stay  of
disciplinary proceedings may be an  advisable  course  in  cases  where  the
criminal charge against  the  employee  is  grave  and  continuance  of  the
disciplinary proceedings is likely to prejudice  their  defence  before  the
criminal Court.  Gravity of the charge is, however, not by itself enough  to
determine the question unless the charge involves  complicated  question  of
law and fact.  The Court examining the question must also keep in mind  that
criminal trials get prolonged indefinitely especially where  the  number  of
accused arraigned for trial is large as is the case at hand and so  are  the
number of witnesses cited by the prosecution.  The Court, therefore, has  to
draw a balance between the need for a fair trial to the accused on  the  one
hand and the competing demand for an expeditious conclusion of  the  ongoing
disciplinary  proceedings  on  the  other.   An  early  conclusion  of   the
disciplinary proceedings has itself been seen by this Court  to  be  in  the
interest of the employees.”

                                                                   (emphasis
supplied)

10.   The Court then went on to examine the facts of that case and  observed
in para 18 as follows:



“18.   ……….The charge-sheet, it is evident from the  record,  was  filed  on
20.8.2011.  The Charges were framed on  20-12-2011.   The  trial  Court  has
ever since then examined only three witnesses so far out of a  total  of  23
witnesses cited in the charge-sheet. Going by the pace at  which  the  trial
Court is examining the witnesses, it would take another  five  years  before
the trial may be concluded.  The  High  Court  has  in  the  judgment  under
appeal given five months to the trial Court to  conclude  the  trial.   More
than fifteen months has rolled by ever since that order, without  the  trial
going anywhere near completion.  The disciplinary proceedings cannot  remain
stayed for an indefinitely long period.  Such inordinate  delay  is  neither
in the interest of the appellant Company nor the respondents who  are  under
suspension and surviving on subsistence allowance………”

                                                         (emphasis supplied)



In paragraph 19, the Court proceeded to conclude thus:

“19.  In  the  circumstances  and  taking  into  consideration  all  aspects
mentioned above as also keeping in view the fact that all the  three  Courts
below have exercised their discretion  in  favour  of  staying  the  ongoing
disciplinary proceedings, we do not consider  it  fit  to  vacate  the  said
order  straightaway.  Interests  of  justice  would,  in  our  opinion,   be
sufficiently served if  we  direct  the  Court  dealing  with  the  criminal
charges  against  the   respondents   to   conclude   the   proceedings   as
expeditiously as possible but in any case within a period of one  year  from
the date of this order. We hope and trust that the  trial  Court  will  take
effective steps to ensure that the witnesses  are  served,  appear  and  are
examined.  The Court may for that purpose adjourn the case for no more  than
a fortnight every time an adjournment is  necessary.   We  also  expect  the
accused in the criminal case to cooperate with the trial Court for an  early
completion of the proceedings.  We say so because experience has shown  that
the trials often linger on for a long time on  account  of  non-availability
of the defence lawyers to cross-examine  the  witnesses  or  on  account  of
adjournments sought by them on the  flimsiest  of  the  grounds.   All  that
needs to be avoided.  In case, however, the trial is  not  completed  within
the period of one year from the date of this order, despite the steps  which
the trial Court has been  directed  to  take  the  disciplinary  proceedings
initiated against the respondents shall be  resumed  and  concluded  by  the
inquiry officer concerned.  The impugned orders shall  in  that  case  stand
vacated upon expiry of the period of one year from the date of the order.”



11.   Reverting to the facts of the present case, indisputably, the  alleged
misconduct has been  committed  as  far  back  as  May  2006.  The  FIR  was
registered on 5th December, 2006 and the charge-sheet was filed in the  said
criminal case on 6th February, 2007.  The contents of the  charge-sheet  are
indicative  of  involvement  of  the  respondent  in  the  alleged  offence.
Resultantly, the criminal Court has framed charges  against  the  respondent
as far back as 12th June, 2007. The trial of that  case,  however,  has  not
made any effective progress. Only 3 witnesses  have  been  examined  by  the
prosecution, out of 18 witnesses cited in the charge-sheet filed before  the
criminal Court. Indeed, listing of criminal  case  on  133  different  dates
after framing of charges is not solely attributable to the respondent.  From
the information made available by the Additional  Superintendent  of  Police
on affidavit, it does indicate that atleast  26  adjournments  are  directly
attributable  to  the  accused  in  the  criminal  case.  That  is  not   an
insignificant fact. This is inspite of the direction given by  the  Division
Bench on 28th June, 2010, to the concerned criminal Court  to  proceed  with
the trial on day-to-day basis. The  progress  of  the  criminal  case  since
then, by no means, can be  said  to  be  satisfactory.  The  fact  that  the
prosecution has named 18 witnesses does not mean that all the witnesses  are
material witness  for  substantiating  the  factum  of  involvement  of  the
respondent in introducing the co-accused for opening a new bank account,  to
misplace the clearing instruments relating to various customers or  for  the
payment released to the undeserving customer causing huge financial loss  to
the bank. The charge in the criminal case  is  for  offences  under  Section
409, 34 of IPC, one of criminal breach of trust by a public servant.

12.   In the peculiar facts of the present case,  therefore,  we  accede  to
the contention of the appellants that the  pendency  of  the  criminal  case
against the respondent cannot be the sole basis to suspend the  disciplinary
proceedings initiated against the respondent for an indefinite  period;  and
in larger public  interest,  the  order  as  passed  in  Stanzen’s  case  be
followed even in the fact situation of the  present  case,  to  balance  the
equities.

13.    The next question is:  whether  Clause  4  of  the  Settlement  would
denude the appellants from  continuing  with  the  disciplinary  proceedings
pending against the respondent. Clause 4 of the Settlement reads thus:

“4. If after steps have been taken to prosecute an employee or  to  get  him
prosecuted, for an offence, he is not put on trial  within  a  year  of  the
commission of the offence, the management may then deal with him  as  if  he
had committed an act of “gross misconduct”  or  of  “minor  misconduct”,  as
defined  below;  provided  that  if  the  authority  which  was   to   start
prosecution proceedings refuses to do so or comes  to  the  conclusion  that
there is no case for prosecution it shall  be  open  to  the  management  to
proceed against the employee under the provisions set out below  in  Clauses
11 and 12 infra relating to discharge, but he shall out below in Clauses  11
and 12 infra relating to discharge, but he shall be deemed to have  been  on
duty during the period of suspension, if any, and shall be entitled  to  the
full wages and allowances and to all other privileges for such  period.   In
the event of the management deciding, after enquiry, not to continue him  in
service, he shall be liable only for termination with three months’ pay  and
allowances in lieu of notice as provided in Clause 3 above.  If  within  the
pendency  of  the  proceedings  thus  instituted  is  put  on   trial   such
proceedings shall be stayed pending  the  completion  of  the  trial,  after
which the provisions mentioned in Clause 3 above shall apply.”

(emphasis supplied)

14.   Ordinarily, the scope of Clause 4  of  the  Memorandum  of  Settlement
pressed into service would be a matter  of  an  Industrial  Dispute,  to  be
adjudicated by the competent Forum, if the respondent can  be  termed  as  a
workman. The respondent herein was appointed in  a  clerical  cadre  of  the
appellant-bank; but when the alleged misconduct was committed  on  29th  May
2006, she was working as Assistant (Clearing). Neither  before  the  learned
Single Judge, the Division  Bench  nor  before  us  any  argument  has  been
canvassed on the factum of whether  the  respondent  can  be  treated  as  a
workman within the meaning  of  the  Industrial  Disputes  Act,  1947.  Both
sides, however, have relied on the said Clause and invited us to  spell  out
its purport.

15.   On the plain language of Clause  4,  in  our  opinion,  it  is  not  a
stipulation to prohibit the institution  and  continuation  of  disciplinary
proceedings, much less  indefinitely  merely  because  of  the  pendency  of
criminal case against the delinquent employee.  On the other hand, it is  an
enabling  provision  permitting   the   institution   or   continuation   of
disciplinary proceedings, if the  employee  is  not  put  on  trial  by  the
prosecution within one year from  the  commission  of  the  offence  or  the
prosecution fails to proceed against him for want of any material.

16.   As can be culled out  from  the  last  sentence  of  Clause  4,  which
applies to a case where the criminal case has in fact proceeded, as in  this
case, for trial.  The term  “completion  of  the  trial”  thereat,  must  be
construed as completion of the trial within a reasonable  time  frame.  This
clause cannot come to the aid of the delinquent  employee  -  who  has  been
named as an accused in a criminal case and more so is party to  prolongation
of the trial.

17.   Notably, in the present case inspite of a peremptory direction of  the
Division Bench given on 28th June 2010 to the concerned  criminal  Court  to
proceed with the trial on day-to-day basis, as  noted  above,  no  effective
progress has been made in that trial (except recording of evidence of  three
prosecution witnesses out of eighteen witnesses) so far.  In  the  last  six
years, evidence of  only  two  additional  prosecution  witnesses  has  been
recorded. The respondent has not pointed out any material on record to  even
remotely suggest that she had tried her best to dissuade the criminal  Court
from adjourning the trial, in breach of  direction  given  by  the  Division
Bench of the High Court to proceed on day-to- day basis and to conclude  the
trial within one year from 28th June, 2010.  Pendency of criminal trial  for
around 10 years, by no means, can be said to be a reasonable time  frame  to
withhold the disciplinary proceedings.  We  are  fortified  in  taking  this
view on the principle underlying the former part of the same  clause,  which
envisages that if the Authority which has to start the  prosecution  refuses
(read fails) to do so within one year from the commission  of  the  offence,
the departmental action can proceed under  the  provisions  as  set  out  in
Clauses 11 and 12 of the Settlement.

18.   In the fact situation of the present case, it is possible to take  the
view that the first part of Clause is attracted.  In  that,  respondent  has
been put on trial in connection with the  alleged  offence,  by  framing  of
charges on 12th June 2007.  That  has  happened  after  one  year  from  the
commission of the offence.

19.    Be  that  as  it  may,   the  remedy  of  writ  being  an   equitable
jurisdiction and keeping in mind the larger  public  interests  (atleast  in
cases of involvement of the employees of the Public Sector Banks in  offence
of breach of trust and embezzlement), the  arrangement  predicated   in  the
case  of  Stanzen  (supra)  would  meet  the  ends  of  justice.   For,  the
disciplinary proceedings instituted against the respondent cannot brook  any
further delay which is already pending for more than 10 years.

20.   We make it clear that we may not be understood to have  expressed  any
final view on the scope of Clause 4 of the Settlement.

21.   Accordingly, we exercise discretion in favour  of  the  respondent  of
staying  the   ongoing  disciplinary  proceedings  until  the   closure   of
recording of evidence  of   prosecution  witnesses  cited  in  the  criminal
trial, as directed by the Division Bench  of  the  High  Court  and  do  not
consider it fit to vacate that arrangement straightway.    Instead,  in  our
opinion, interests of justice would be sufficiently served by directing  the
criminal case pending against the respondent  to  be  decided  expeditiously
but not later than one year from the date of this  order.  The  Trial  Court
shall take effective steps to ensure that the witnesses are  served,  appear
and are examined on day-to-day  basis.   In  case  any  adjournment  becomes
inevitable, it should not be for more than a fortnight when necessary.

22.   We also direct that the respondent shall extend  full  cooperation  to
the Trial  Court  for  an  early  disposal  of  the  trial,  which  includes
cooperation by the Advocate appointed by her.

23.   If the trial is not completed within one year from the  date  of  this
order, despite the steps which the Trial Court has  been  directed  to  take
the disciplinary proceedings against the respondent shall be resumed by  the
enquiry officer  concerned.  The  protection  given  to  the  respondent  of
keeping the disciplinary proceedings in abeyance shall  then  stand  vacated
forthwith upon expiring of the period of one year  from  the  date  of  this
order.

24.   In the result, we partly allow this appeal  to  the  extent  indicated
above. The parties are left to bear their own costs.

25.   A copy of this order be forwarded to the concerned Sessions Court  for
information and necessary action for ensuring compliance of the direction.



                                             …………………………..CJI
                                             (T.S.Thakur)


                                                              …………………………….J.
                                             (A.M.Khanwilkar)

New Delhi,
16th                             September,                             2016

-----------------------
[1]

      [2]  (2014) 3 SCC 636
[3]   [4]  (2012) 1 SCC 442
[5]   [6]    (2005) 10 SCC 471 Hindustan Petroleum Corpn. Ltd. V. Sarvesh
Berry
           (1999) 3 SCC 679 Capt. M. Paul Antony v. Bharat Gold Mines Ltd.
           (1997) 2 SCC 699 A.P. SRTC v. Mohd. Yousuf Miya
           (1996) 6 SCC 417 State of Rajasthan v. B.K. Meena



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