Delay in initiation of the departmental enquiry, cannot be considered to be fatal if it is delayed by pendency of a criminal case

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 16th February 2020 

Dinesh Kumar Bhardwaj v. State Bank of India through regional manager and Ors. (Writ Petition No. 39036 of 2012)

Facts of the Case: 

1. Petitioner was appointed as clerk-cum-cashier in the year 1981 and was posted as such at Chaurasi Ganta Branch of the State Bank of India, Moradabad, in January, 1993. On 12.1.1993, during the cash verification by the Branch Manager of Katghar Branch, a report was submitted with regard to shortage of Rs.1 lakh and odd in the Cash Strong room of Chaurasi Ganta Branch. The written report submitted by the Branch Manager of Katghar Branch is appended with the writ petition. It is contended by the petitioner that strong room of the Branch concerned remains in the joint custody of more than one person. In no circumstance, the petitioner can be said to be sole custodian of the strong room. The verification of cash in the strong room is governed by the provisions of the cash manual framed by the State Bank of India which specify the guidelines pertaining to the custodian of the cash strong room. 
2. On the basis of the report dated 12.1.1993, a show-cause notice dated 22.1.1993 was issued calling upon the petitioner to make good the shortage. The said notice contained a recital that deposit of cash to make good the losses would be without prejudice to the Bank for taking further disciplinary action. Similar notice of the same date was given to the Accountant of the Branch Namely Sri C.P. Singh and he was mentioned as joint custodian along with the petitioner. 
3. First Information Report was lodged on 18.1.1993 at the Police Station Nagfani, District-Moradabad, registered as Case Crime No.14. Of 1993 under Sections 409, 420, 467 and 468 I.P.C. A writ petition challenging the First Information Report was filed by the petitioner wherein a direction was given by this Court to consider the bail application of the petitioner on the same date. Pursuant thereto by means of the order dated 29.10.1993, the petitioner was released on bail. The police investigation in the aforesaid criminal case had been completed and the charge sheet was submitted to the Additional Chief Judicial Magistrate VI, Moradabad before whom the trial is pending.
4. It is contended that no progress was made in the criminal proceedings and no departmental chargesheet was issued against petitioner for about two years. The suspension order dated 16.1.1993 was challenged in the Writ petition no.26078 of 1995 which was disposed of vide judgment and order dated 13.5.1996 after exchange of affidavits between the parties. While quashing the suspension order, it was observed therein that the petitioner shall be reinstated in service on the condition that it will be open to the respondent to take work or not to take work from him. However, respondents shall be liable to pay entire salary of the petitioner, w.e.f the date he was placed under suspension. The said order was challenged by the respondent Bank in Special Appeal No.474 of 1996 wherein the Division Bench had refused to interfere in the directions for reinstatement of petitioner in service but the direction to pay arrears of salary from the date of suspension had been modified to the extent that the petitioner would be entitled to full salary from the date of the judgment of the learned Single Judge i.e. 13.5.1996.
5. A departmental charge sheet dated 28.8.2008 was, thereafter, issued against the petitioner, challenging which a representation dated 6.9.2008 was filed. The enquiry officer was appointed vide order dated 21.1.2010 who had submitted the enquiry report dated 29.11.2010. Against the punishment proposed vide order dated 21.7.2011, a detailed representation dated 12.8.2011 was filed by the petitioner. However, without addressing the contention of the petitioner therein, order dated 7.9.2011 directing for removal of the petitioner from service with superannuation benefits had been passed. Aggrieved the petitioner filed an appeal which was also rejected by the order impugned dated 21.11.2011, hence this writ petition.

Judgment:

1. Learned counsel for the petitioner vehemently submitted that, the gross delay on the part of the respondent bank in initiation of departmental proceeding is unexplained. The Cash box which was material evidence was never placed before the enquiry officer received nor it was examined during the course of enquiry. The enquiry report is, thus, speculative and vague. No reason of implication of the petitioner has been given in the enquiry report when the Accountant, C.P. Singh, another accomplice who was in joint custody of the cash was awarded minor penalty. Non supply of relevant material, relied in the enquiry report caused serious prejudice to the petitioner. The petitioner has, thus, been discriminated in the matter of departmental enquiry conducted with regard to shortage of cash in the strong room.
2. Learned Advocate for the respondent Bank submitted that, the assertion that the shortage was made good by the petitioner under the order of the Branch Manager would not absolve him in the departmental enquiry as absence of financial loss is not a defence. The disciplinary authority has granted due opportunity of hearing to the petitioner and nothing could be placed by the petitioner to demonstrate that any prejudice has been caused to him for non-supply of certain documents.
3. Delay in initiation of the departmental enquiry, the same cannot be said to be fatal for the fact that the departmental enquiry had prolonged due to pendency of the criminal case lodged against the petitioner. However, since the criminal case had prolonged for an indefinite period, the departmental authority proceeded to conduct the regular departmental enquiry so as to decide as to whether the petitioner is entitled to continue in service. The said decision taken by the disciplinary authority with the issuance of chargesheet dated 28.8.2008 had not been challenged by the petitioner at the appropriate stage. The argument to challenge the power of the disciplinary authority to initiate departmental enquiry, thus, cannot be entertained.