Bank of
India & ANR. Vs. Bhimsen Gochhayat [2009] INSC 1434 (12 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 798 OF
2008 BANK OF INDIA & ANR. .... APPELLANTS Versus ORDER
1.
This appeal is by the appellant - Bank of India against the
judgment of Division Bench of the High Court whereby the High Court has allowed
the writ petition filed by the respondent herein namely; Bhimsen Gochhayat. The
respondent initially started his career as a sweeper in the Bank of India,
Basta Branch on 22.6.1978 and rose ultimately to the post of daftry. At the
relevant time, the respondent was working in Akhupada Branch of the Bank. While
so working, a report came to be made against him that he had tried to defraud
the bank by attempting to withdraw Rs. 35,000/- allegedly deposited in the name
of one Babaji Nayak. The prosecution for the offences under Sections
419/420/468 IPC came to be launched against him and he was convicted by the
trial court for the offence punishable under Section 468 IPC alone though he
was acquitted of the other offences.
2.
The prosecution case against the respondent was that on 17.8.1982
the Manager of the Bank of India, Balasore Branch received an inter office
memorandum dated 9.8.1982 for Rs. 35,000/- purported to have been sent by the
Bank of India, Lindsay Street Branch, Calcutta requesting him to open a Saving
Bank Account being the housing loan disbursement in the name of 2 Babaji Nayak.
Accordingly, on the same day, a Saving Bank Account No. 2255 for Rs. 35,000/-
was opened in the Bank of India, Balasore Branch in the name of Babaji Nayak.
On the next day i.e. on 18.8.1982, one young man identifying himself to be the
son of Babaji Nayak came to the Bank of India, Balasore Branch with a bank
withdrawal form bearing the signatures of Babaji Nayak. But the bank staff
refused the payment as the signatures of the Babaji Nayak in the record of the
bank and on the withdrawal form differed and requested him to bring Babaji
Nayak who was the account holder. At that time, the present respondent Bhimsen
Gochhayat was also present in the bank premises along with the so called son of
Babaji Nayak.
3.
Again, on 20.3.1982 at about 12 noon, the so-called Babji Nayak
came to the Bank of India, Balasore Branch and presented a blank withdrawal
form to the saving bank ledger keeper and requested him to fill it up for Rs.
30,000/-. He also put his signatures in the withdrawal form. As the signatures
of Babaji Nayak on the withdrawal form did not match with the recorded
signature in the bank, the bank staff questioned him on certain points. From
the answers given by him, the doubt became stronger. So, the then Manager of
the Bank of India, Balasore Branch contacted with the Lindsay Street Branch
over the trunk call regarding the genuineness of the aforesaid account and came
to know that no such transaction has ever taken place. During that period,
Babaji Nayak is said to have fled from the Bank and was located by the staff of
the bank near Nargis Talkies, Balasore. So-called Babaji Nayak told that due to
the influence of the respondent, he came to receive the payment. A police
report, therefore, came to be made.
4.
After a usual investigation, it turned out that the respondent
herein had the 3 hand in the whole affair. The respondent along with two other
co-accused was put for trial and was convicted by the trial court. Since, the
respondent was convicted by the trial court; the bank proceeded to dismiss him
on account of the conviction. The respondent filed an appeal before the learned
Additional Sessions Judge. The appellate court acquitted the respondent of the
charge on the ground that it was not proved that he had committed any forgery
and, thereby, had committed any offence under Section 468 IPC.
5.
The respondent was reinstated after his acquittal by the appellate
court. In the meantime, the bank initiated a departmental inquiry against the
respondent by serving him charge sheet. It in the charge-sheet-cum-suspension
order, it was stated as under:
"While
working as Daftary in Akhupada Branch during the year 1982, you were alleged to
have attempted to commit a fraud at Balasore branch in collusion with outsiders
by signing CAN No. 226007 dated 09.08.1982 for Rs. 35,000/- containing forged
signatures purported to have been signed from Lindsay Street Branch by Shri
R.R. Nabar and R.B. Shah. You had stolen the entire pad of CAN No. 4521
containing CANs bearing No. 226001 to 226050 from the Branch kept the same at
your residence. You had used the broken pieces of Branch Receipt Scroll Rubber
Stamp to affix Lindsay Street Branch on CAN No. 226007 you had filled in the
blank CAN No. 226007 dated 9.8.1982 for Rs. 35,000/- favouring Shri Babaji
Nayak with forged signature of R.R. Nabar and R.B. Shah to defraud Balasore
Branch of the Bank. A sheet of paper containing many forged signatures were
found in your possession. From your residence CAN 226012 bearing Lindsay 4
Street Branch stamp favouring Shri Babaji Nayak purported to have been signed by
the above officials was seized. You had in collusion with the outsiders namely
Shri Maheswar Khillar, who impersonated himself as Babaji Nayak and Shri
Pitambar Gochhayat tried to withdraw a sum of Rs. 30,000/- dishonestly by the
aforesaid instrument dated 9.8.1982. Your handwriting is appearing on the
forged instrument through which you had attempted to commit the fraud of Rs.
35,000/- in collusion with the said outsiders.
2. Your
above acts of stealing Bank's instruments and forging the signatures of the
officers as aforesaid on the said instrument with a view to defrauding the bank
in collusion with the said outsiders being prejudicial to the interest of the
Bank, amount to acts of gross misconduct in terms of clause 19.5(j) of the
First Bipartite settlement dated 19.10.1966.
3. It has
been decided to hold a departmental enquiry in respect of your above misconduct
in terms of clause 19.3(d) of the above settlement. Accordingly, in exercise of
the powers vested in me as Disciplinary Authority by the Chairman and Managing
Director vide his order dated 17.8.1987, I appoint Shri Gyanendra Kumar
Acharya, Bhubaneswar Branch as Enquiry Officer to enquire into the charges
levelled against you and submit his report to me for further action. The
Enquiry Officer hold departmental enquiry against you on the date, time and
place to be notified by him to you.
You are
required to report to the Enquiry Officer on the appointed date, time and place
as will be notified to you by him, failing which please note that the enquiry
will be held ex-parte"
6.
On 11.5.1991, the Disciplinary Authority dismissed the respondent
from the service. His appeal before the Appellate Authority also failed.
Therefore, he proceeded 5 to file the Writ Petition before the High Court of
Orissa.
7.
In the impugned judgment, the Division Bench took the view that
firstly the departmental proceedings were on the same material and identical
and similar set of facts/allegations were also made against the respondent as
those in the criminal prosecution. The Division Bench then relying on the
decisions of this Court in G.M. departmental inquiry could not be proceeded
since on the identical charges, he was acquitted by the competent criminal
court. The other reason which was given by the Division Bench was that it was
only after acquittal of the delinquent by the appellate court that the order
for initiation of the departmental proceedings was passed after about seven
years had elapsed. On that ground also the Division Bench found fault with the
aforementioned enquiry.
8.
We have gone through the judgment very carefully. We have also
gone through the judgments of the criminal courts one convicting the respondent
and the other of appellate court acquitting him. We have compared the
prosecution case with the charge-sheet which we have deliberately quoted above.
We find that the charges alleged in the charge-sheet in the departmental
enquiry are quite different from the one's on which the respondent was tried by
the criminal court. The respondent was tried only on the basis of the
allegations of fraud committed by way of forgery whereas a glance at the
charge-sheet would suggest that the allegation therein 6 was that the
respondent had used the broken pieces of Branch Receipt Scroll Rubber stamp to
affix Lindsay Street Branch on CAN No. 226007. Apart from this, the respondent
had also stolen the entire paid of CAN No. 4521 containing CANs bearing
NO.226001 to 226050 from the Branch and kept the same at his residence. All
these allegations were not there in the criminal proceedings. Therefore, it is
quite apparent that the criminal proceedings and the departmental proceedings
were separate and distinct affairs. The Division Bench has not disclosed
anything in this behalf nor has the Division Bench given any finding in respect
of the available material on the basis of which the Bank wanted to prove
charges. There is no discussion whatsoever in the matter. Further the Division
Bench held that on the question of delay, the Bank could not have proceeded
only after the appeal of the respondent was allowed and he was acquitted.
9.
We are not impressed by this reasoning either. We do not find that
the Bank was late or there was delay in initiating the departmental
proceedings. In this view of the matter, we cannot agree with the impugned
judgment passed by the Division Bench.
10.
Mr. J.R. Dass, learned counsel appearing for the respondent
invited out attention to the ruling of this Court in Prafulla Chandra Mohapatra
(supra). We have gone through the said judgment. Reliance was placed on para 9
of the judgment which reads as under:
"Where
it was stated that the incident relates to May, 1973. The Disciplinary
proceedings were initiated on October 7, 1974 but were not continued presumably
in view of the criminal case started against the appellant and the co-accused
Anil Chandra Patnaik. It is important to note that so far as the appellant is
concerned, he was acquitted by the Sessions Judge himself by order dated May
11, 1979 and an application 7 for leave to appeal filed by the State Government
under Section 378 Cr.P.C. was rejected by the High Court by order dated October
9, 1979.
Therefore,
no action was taken to restart the disciplinary proceedings, on the other hand
the appellant was reinstated in service by order dated April 18, 1980 and the
entire period during which he remained under suspension on dismissal was
ordered to be treated as on duty."
11.
It is on this ground that this Court in that case had found fault
with the delayed initiation of the departmental enquiry.
12.
The factual situation is different in this matter. Here a prompt
action was taken by the bank in dismissing the respondent soon after his
conviction by the trial court. But after he was acquitted by the appellate
court, it was entirely on the different ground that the departmental
proceedings were initiated against him. In this view of the matter, we cannot
affirm the impugned judgment passed by the Division Bench. It is, accordingly,
set-aside. However, Mr. J.R. Dass, learned counsel appearing for the respondent
submits that he had other questions which were not argued as the writ petition
was allowed on these two grounds.
In this
view of the matter, we remand the matter to the Division Bench for deciding it
afresh in accordance with law where the so called other questions not raised
before the High Court in the first round shall be allowed to be raised. There
shall be no interim orders regarding the departmental inquiry or it's outcome.
13.
With these observations, This appeal stands disposed of. No costs.
......................J. [ V.S. SIRPURKAR ]
......................J. [ DEEPAK VERMA ]
NEW DELHI
AUGUST 12, 2009.
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