MAHADEO MAHTO, SON OF LATE NAND LAL MAHTO Vs. THE CHIEF REGIONAL MANAGER, BANK OF INDIA, REGIONAL OFFICE, PANKAJ MARKET, SARAIYA GANJ, MUZAFFARPUR

JUDGEMENT

(1.) Seeking exception to an order passed by the writ court on 30th of August, 2012 in CWJC No. 12615/2004, this Letters Patent Appeal has been filed. The facts in nutshell goes to show that the appellant herein was working as a Daftari in the Darbhanga Branch of Bank of India, and on the basis of a complaint submitted on 06.01.1997, by the then Branch Manager, a case bearing Laheriasarai P.S. Case No. 7/1997 was registered for the offences under Section 420, 467, 468/84, 120B, 419, 471, 475 and 379 of the Indian Penal Code with regard to allegation of fabrication and forging of a demand draft to the tune of Rs. 2 Lakhs. While investigating the F.I.R. the co-accused disclosed the name of the petitioner, and therefore, he was also arrested on 06.01.1997, subsequently released on bail on 03.03.1997, and put to trial in Trial No. 592/2001 by the Sub-divisional Magistrate, Darbhanga and the Sub-divisional Magistrate, Darbhanga vide judgment dated 25.06.2001 held the petitioner guilty of the offence and sentenced him to three years rigorous imprisonment. However, on a criminal appeal being filed being appeal No. 42/2001 the learned Sessions Judge, Darbhanga vide judgment dated 08.07.2003 set aside the conviction and acquitted the petitioner of all the charges. Petitioner, who was under suspension, the same was revoked, he was taken back on duty and after his acquittal disciplinary proceeding was initiated against him. A charge sheet was issued and finally by the impugned order passed on 10.10.2001, Annexure-5 to the writ petition, he was dismissed from service. His removal dated 10.10.2001 was ordered in view of the conviction passed by the trial court. Subsequently, after he was acquitted by the Sessions Judge on 08.07.2001, he filed an application requesting the disciplinary authority to recall the order of termination and the Chief Manager of the respondent Bank, vide order dated 15.12.2003, cancelled the order of termination dated 10.10.2001. The petitioner was put back under suspension and in accordance with clause 11 and 12 of the bipartite agreement dated 10.04.2002. The disciplinary proceeding was initiated against him by order dated 15.12.2003, (Annexure -9), enquiry was ordered and after issuance of a charge memo enquiry officer submitted his enquiry report on 17.02.2004.

(2.) A show cause notice was issued to him on 05.03.2004, and thereafter, by the impugned order dated 23.03.2004 (Annexure- 14), he was terminated from service. The said order was challenged by the petitioner by filing an appeal, and after the appeal was dismissed on 27.05.2005, the petitioner challenged the same before the writ court. Before the writ court two fold submissions were made, one, that in view of the acquittal of the petitioner in the criminal case initiation of departmental enquiry against him was unsustainable, and, second was that even if under the bipartite agreement, conduct of a departmental enquiry after the acquittal is permissible, the entire enquiry proceedings and findings recorded in the enquiry which is based on the evidence in the criminal case is unsustainable, and therefore, the finding of the enquiry officer was also challenged. In support thereof various judgments including a judgment of Hon'ble Supreme Court in the case of Capt. M. Paul Anthony v. Bharat Gold Mines Limited reported in AIR 1999 SC 1416 was brought to the notice of the writ court.

(3.) The Bank refuted the aforesaid contention relied upon Rule 19.3C of the Bank Employees Service Rules and Disciplinary proceedings, and argued that the Bank has a right to proceed with the departmental enquiry even after acquittal in the criminal case as the same is permitted bipartite settlement and the Shastri award, and therefore, the principle of double jeopardy is proceeding with the departmental enquiry after acquittal in a criminal case will not apply. The learned Writ court rejected the contention of the petitioner that departmental enquiry, after acquittal in criminal case, is not permissible, held that the same is permissible it does not amount to double jeopardy, provisions of Article-15 of the Constitution are not violated and dismissed the writ petition. However, while doing so, the learned writ court did not go through the merits of the departmental enquiry conducted and the challenge made by the petitioner to the procedure followed in the departmental enquiry and the finding recorded by the enquiry officer. The learned writ court did not evaluate the finding recorded by the enquiry officer and did not consider as to whether a misconduct, as alleged, is made out and whether the employee could be dismissed from service based on report submitted in the departmental enquiry.