R N PRASAD Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) THE petitioner herein, a Special Cadre Assistant in the respondent/Indian Overseas Bank of its Bokara Steel City Branch, challenges the charge memo/show case notice, dated 17.07.2000, issued by the Bank requiring the petitioner to show cause in writing as to why disciplinary action should not be taken against him on the allegation of criminal conspiracy and fraudulent act by the petitioner against the Bank in issuing antedated pay orders from the accounts of the private persons and enabling them to obtain delivery of coal from Bharat Coking Coal Limited (BCCL), Dhanbad, on priority basis; and also the subsequent Communication of the Bank, dated 10.10.2002 (received by the petitioner on 17.10.2002), calling upon the petitioner to attend the departmental enquiry proceedings by informing him that there is no bar for the Bank to continue the departmental enquiry against the petitioner as the criminal case launched against him and other co-delinquents before the CBI Court at Dhanbad has not yet reached the trial stage.

(2.) FOR better appreciation, it would be of much relevance to refer to the factual backdrop in which the impugned proceedings emanated from the respondent-Bank as against the petitioner/delinquent employee and other co-delinquents. On 27.07.1994, the Central Bureau of Investigation (CBI) registered an FIR on the basis of a complaint lodged by the respondent/Bank to the effect that, during the year 1991-92, the petitioner and co-delinquents/other employees of the Bank at Dhanbad Branch, entered into a criminal conspiracy and, in furtherance of the same, by abusing their respective official positions, they issued 49 Nos. of ante-dated Pay Orders/Bankers Cheque worth Rs.2,06,44,853/- in favour of BCCL on the application of private parties in order to facilitate advance booking of coal at Sales and Marketing Division of Dhanbad; thereby, the delinquent employees had allowed persons known to them to obtain pay orders previous to the date of application and remittance of cash and enabled them to dishonestly utilise the pay orders for purchase of coal from BCCL after expiry of dates of offer. The CBI conducted investigation and ultimately filed a charge sheet on 31.05.2000 to the effect that ante-dated pay orders were fraudulently and dishonestly issued in fictitious names and addresses by the delinquent employees of the Bank to unduly favour some private individuals with a specific conclusion that, had the pay orders not been ante dated, the coal could not have been released to the accused persons in the name of private parties, thereby offences u/s.120-B, 420, 467, 468, 471 & 477A of IPC and Section 13(2) read with 13 (1)(d) of the Prevention of Corruption Act, 1988 are attracted. Since the accused persons including the petitioner were not put on trial for a long time, the respondent/Bank thought it fit to proceed against them by initiating departmental proceedings. Consequently, the petitioner herein was issued with the impugned show cause notice/charge sheet in DO:DGM(JKG):2000, dated 17.07.2000, stating that he had caused damage to the property of the Bank and its customers and thereby committed gross misconduct within the meaning of para 17.5 (d) of the Bipartite Settlement, dated 14.12.1966, entered between the Bank and its workmen as amended upto date, and was called upon to show cause within 10 days from the date of receipt of the charge memo as to why disciplinary action should not be taken against him on the charges contained therein. After receiving the charge memo, dated 17.07.2000, the petitioner sent a protest letter dated 22.06.2002, requesting the Enquiry Officer to stay the domestic enquiry proceedings as the criminal case that has been filed by the CBI is pending before the CBI Court, Dhanbad, on the same set of charges and further, the Court has taken cognizance and persons also started appearing before Court, therefore, in terms of what is provided under the Bipartite Settlement, it may not be proper to simultaneously conduct the disciplinary proceedings. On the plea being rejected by the Enquiry Officer, the petitioner's defence representative sent a written letter, dated 12.08.2002, to the 2nd respondent/Disciplinary Authority for postponement of the disciplinary proceedings till the disposal of the criminal case and, for which, the 2nd respondent, by the impugned communication, dated 10.10.2002 (Received by the petitioner on 17.10.2002), replied that the prosecution evidence in the criminal case has not commenced and the case has also not reached the trial stage and therefore, there is no bar in continuing the departmental enquiry and so replying, informed the petitioner to attend the enquiry proceedings. By letter, dated 24.10.2002, the petitioner addressed the the Bank stating that his case before the criminal court would be prejudiced if his defence is disclosed at the domestic proceedings and requested not to continue with the disciplinary proceedings until the criminal case is over, however, by letter dated 26.10.2002, the Disciplinary Authority declined to accept such request. Consequently, the Enquiry Officer posted the enquiry proceedings to 31.10.2002 for recording petitioner's side evidence and submission of documents in defence. The petitioner's defence representative requested the Enquiry Officer to arrange for production of CBI Inspector/MW1 for additional cross examination in the circumstances stated in the letter dated 24.10.2002, addressed to the 2nd respondent, subject to his submissions to the 2nd respondent not to continue with the disciplinary proceedings until the proceedings before the Criminal Court are over, and such request was rejected by the 3rd respondent vide letter dated 26.10.2002. The petitioner filed a writ petition before the High Court of Jharkand at Ranchi in W.P. (S) No.4229 of 2002 questioning the oral refusal of his request by the Disciplinary Authority. Ultimately, the writ petition came to be withdrawn on 03.10.2002 as it was filed without any written impugned order. Subsequently, the petitioner has come up with the present writ petition challenging the charge sheet/show cause notice, dated 17.07.2000, issued by the 2nd respondent for initiation of the departmental proceedings and the subsequent communication dated 10.10.2002 (received by the petitioner on 17.10.2002), informing the petitioner to participate in the domestic enquiry proceedings.

(3.) I have given my thoughtful consideration to the rival submissions advanced on either side. The core issues need to be answered are:- (a) In the light of the bipartite settlement, in particular clause 17.4 thereof, whether the act of the Bank is justified in initiating the disciplinary proceedings even during pendency of criminal proceedings before the CBI Court, Dhanbad" (b) Whether pendency of the criminal proceedings would serve as an embargo in going ahead with the departmental proceedings even while the delinquent is not put on trial and incidentally, continuance of the departmental proceedings would affect the defence of the petitioner in the criminal trial" (c) whether appearance of the Disciplinary Authority, who initiated departmental proceedings against the petitioner, as a witness before the criminal court would lead to an inference that he assumed the role of a witness in the departmental proceedings and thereby, the entire departmental proceedings against the petitioner are vitiated" (d) After withdrawing similar petition before the Jharkand High Court, whether the petitioner is right in approaching this court in challenging show cause notice/communication to attend for the enquiry, when there is no adverse order arising there-from so as to suggest any cause of action to sustain the prayer"