Partly allowed

P.K.Rajeevan v. the Chairman and Managing Director

Kerala HC2 Feb 2017WP(C)/20557/2013

Case brief

AI extract

What is this about?

Single judge held that while criminal acquittal does not mandate automatic reinstatement, it must be considered regarding the penalty imposed. Remitted bank to reconsider punishment and grant relief like compassionate allowance or pension.

What did the court decide?

Exhibit P12 order set aside; Directions to respondents to reconsider penalty with reference to acquittal; Grant orders within two months.

P.K.Rajeevan Vs the Chairman and Managing… — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938

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WP(C).No. 20557 of 2013 (T)

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PETITIONER(S):

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P.K.RAJEEVAN

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RADHA VIHAR, CHIRAKKARA P.O., THALASSERY, KANNUR DISTRICT, PIN - 670 104. BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.)

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SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN

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RESPONDENT(S):

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---------------

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1. THE CHAIRMAN AND MANAGING DIRECTOR, INDIAN BANK, 254-260, AVVAI SHANMUGHAM SALAI, ROYAPETTAH, CHENNAI - 600 014.

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2. THE EXECUTIVE DIRECTOR, INDIAN BANK, 254-260, AVVAI SHANMUGHAM SALAI, ROYAPETTAH, CHENNAI - 600 014.

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3. THE GENERAL MANAGER (VIGILANCE & HR), INDIAN BANK, 254-260, AVVAI SHANMUGHAM SALAI, ROYAPETTAH, CHENNAI - 600 014.

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4. THE DEPUTY GENERAL MANAGER, INDIAN BANK, 38/1672, CHITTOOR ROAD, PULLEPADY JN., ERNAKULAM, COCHIN - 682 035.

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BY ADV. SRI.S.EASWARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-01-2017 THE COURT ON 02-02-2017, DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 20557 of 2013 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1. TRUE COPY OF THE ARTICLES OF CHARGE DATED 05.11.2002 ALONG WITH STATEMENT OF IMPUTATIONS ISSUED BY THE DISCIPLINARY AUTHORITY.

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EXHIBIT P2. TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO EXT.P1 CHARGES.

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EXHIBIT P3. TRUE COPY OF THE WRITTEN BRIEF SUBMITTED BY THE DEFENCE ASSISTANT OF THE PETITIONER BEFORE THE INQUIRY OFFICER.

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EXHIBIT P4. TRUE COPY OF THE ORDER DATED 05.05.2005 ISSUED BY THE DISCIPLINARY AUTHORITY.

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EXHIBIT P5. TRUE COPY OF THE APPEAL DATED 06.07.2005 SUBMITTED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY.

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EXHIBIT P6. TRUE COPY OF THE COMMUNICATION DATED 29.07.2006 SENT BY THE AGM(VG) OF THE BANK TO THE PETITIONER.

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EXHIBIT P6(A). TRUE COPY OF THE ORDER DATED 28.07.2007 ISSUED BY THE APPELLATE AUTHORITY.

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EXHIBIT P7. TRUE COPY FO THE REVIEW PETITION DATED 25.09.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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EXHIBIT P8. TRUE COPY OF THE COMMUNICATION DATED 05.04.2007 SENT BY THE CHIEF MANAGER (VG) OF THE BANK TO THE PETITIONER.

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EXHIBIT P8(A). TRUE COPY OF THE ORDER DATED 30.03.2007 ISSUED BY THE EXECUTIVE DIRECTOR, REVIEWING AUTHORITY.

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EXHIBIT P9. TRUE COPY OF THE JUDGMENT DATED 21.11.2011 IN CALENDER CASE NO.20/2003 OF THE COURT OF THE SPECIAL JUDGE (SPE/CBI)-II, ERNAKULAM.

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EXHIBIT P10. TRUE COPY OF THE COMMUNICATION DATED 15.03.2012 SENT BY THE 1ST RESPONDENT TO THE SRI.P.C.CHACKO, CHAIRMAN, COMMITTEE OF PRIVILEGES (LOK SABHA).

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EXHIBIT P11. TRUE COPY OF THE REVIEW PETITION DATED 24.04.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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msv/

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-2-

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-2-

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WP(C).No. 20557 of 2013 (T)

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EXHIBIT P12. TRUE COPY OF THE COMMUNICATION DATED 08.06.2012 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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EXHIBIT P13. TRUE COPY OF THE REPRESENTATION DATED 10.11.2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

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RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

ANU SIVARAMAN, J.

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----------------------------------------------W.P(C).No. 20557 of 2013

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----------------------------------------------Dated this the 2^nd February, 2017

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JUDGMENT

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This writ petition is filed challenging Exhibits P4, P6(a), P8 (a) and P12 issued in the disciplinary proceedings initiated against the petitioner. There is a further prayer to direct the respondents to treat the petitioner as having continued in service upto 31.7.2013 and to grant him all retirement benefits, as if he retired from service on such date.

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The petitioner had joined the service of the respondent Bank as Clerk on 9.4.1979. He was promoted as Officer Scale-I in 1984 and further as Officer Scale-II and then promoted as Branch Manager. He worked as Branch Manager in Chalai Branch from 26.1.2001 to 3.5.2002. He was placed under suspension on allegations of financial misconduct, and disciplinary proceedings were initiated against him. Exhibit P4 order dismissing him from service was issued on 5.5.2005. The petitioner's appeal and revision against Exhibit P4 were dismissed by Exhibit P6(a) order dated 28.7.2006 and Exhibit P8(a) order dated 30.3.2007. The petitioner contends that Exhibit P8(a) order was never served on him and had been returned unclaimed to the respondents.

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WP(C).20557/13 2

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A criminal case had been registered against the petitioner on the very same allegations raised against him in Exhibit P1 charge sheet. By Exhibit P9 judgment dated 21.11.2011, the Special Judge (SPE/CBI), Ernakulam acquitted the petitioner of the charges framed. Thereafter, the petitioner had preferred a review petition before the Bank. However, it is contended in Exhibit P10 that the Bank did not receive the review petition preferred by the petitioner. Thereafter, the petitioner had preferred Exhibit P11 application before the Bank relying on the findings contained in Exhibit P9 judgment and seeking orders reinstating him in service with consequential benefits. By Exhibit P12 order dated 8.6.2012, the request was rejected. A copy of Exhibit P8(a) order passed in the review was sent to the petitioner along with Exhibit P12. It was stated that the acquittal in the criminal case does not have any bearing on the decision reached in the departmental proceedings, since the proceedings stand on a different footing. Exhibit P11 review was, therefore, rejected. The petitioner has again preferred Exhibit P13 representation before the respondents which remained unattended.

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Heard learned counsel for the petitioner and the learned counsel appearing for the respondent Bank.

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WP(C).20557/13

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It is contended by learned counsel for the petitioner that a mere reading of Exhibit P9 order of acquittal would go to show that the petitioner has been honourably acquitted of all the charges levelled against him in the criminal case. It is further contended that charges in the criminal case as well as in the disciplinary proceedings were substantially the same. The learned counsel placed reliance on the concluding part of Exhibit P9 judgment to contend that the acquittal was honourable, which reads as follows:

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“ ......Prosecution evidence is itself sufficiently indicative of the fact that the transactions alleged and proved by the prosecution are merely irregularities committed by A1 in his over enthusiasm motivated by appreciations from higher officials including PW5 and perhaps with the connivance of PW5 himself in building up business of the Chalai branch. A2 did not do anything more than availing facilities granted by A1 in that process. In the circumstances it is sufficiently satisfied that ingredients of none of the offences alleged have been properly proved in this case with the inevitable result of finding both accused not guilty of all the offences alleged against them. I find so.

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137. Point No.8:- In view of my findings recorded above both accused are liable to be acquitted.”

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The learned counsel appearing for the 4^th respondent

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would contend that the writ petition was not maintainable due to delay and laches and no reason had been pleaded in the writ petition to condone the delay in preferring the same. It is

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WP(C).20557/13

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further contended that the disciplinary proceedings against the petitioner had been independently considered on the basis of the charges levelled against him. His defence as well as the evidence adduced by him was also taken into account and an enquiry report was submitted in which the petitioner is found guilty. Final orders dismissing the petitioner from service had been rendered on 5.5.2005 and all the proceedings stood concluded by issuance of the order dismissing his review on 30.3.2007. It is submitted that the acquittal of the petitioner in the criminal proceedings on 21.11.2011 could have no bearing on the disciplinary proceedings, which stood concluded as against the petitioner.

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It is further stated that Exhibit P11 review petition had been rejected by Exhibit P12 order on 8.6.2012 and the petitioner's claim as raised in Exhibits P11 and P13 being for reinstatement on the basis of Exhibit P9 judgment, the issue stands covered against the petitioner, since his dismissal was not based on confirmation in the criminal case. Since the dismissal of an employee was clearly the result of disciplinary action independently taken against him, it is submitted that the employee would have no right whatsoever to claim reinstatement on the basis of his acquittal in the criminal case.

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WP(C).20557/13

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Learned counsel for the petitioner would rely on the decision of the Apex Court in M.Sudakar v. V.Manoharan [(2011)1 SCC 484] to contend that in case of a continuing course of action, the delay of 27 months would not be fatal to an action under Article 226 of the Constitution of India and further that the delay and laches do not bar the jurisdiction of the Court, since it is a matter of discretion and not of jurisdiction. It is contended that where the question of delay is raised and the Court has declined to dismiss the writ petition on the ground of delay and laches, the delay should be deemed to have been condoned. Relying on the decision of the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan [JT 1999 (7) 558], it is contended that the presumption of a communication is rebuttable. Learned counsel for the petitioner would rely on several judgments of the Apex Court to contend that where disciplinary proceedings and criminal prosecution are launched on the same set of facts and the criminal court returns a verdict of acquittal, the said fact of acquittal is to be taken into consideration by the disciplinary authority even in a case where the disciplinary proceedings have concluded. The decisions relied upon by learned counsel for the petitioner in support of this contention are Sudhir Vishnu Panvalkar v.

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Bank of India [(1997) 6 SCC 271], Tank v. State of Gujarat [2006(3) KLT 514 (SC)], State Bank of Hyderabad [(2008)15 SCC 657], Basanti Prasad v. Chairman, Bihar School Examination Board [(2009)6 SCC 791], State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya [(2011)4 SCC 584], Divisional Controller, Karnataka State Road Transport Corporation v. M.G.Vittal Rao [(2012)1 SCC 442], Deputy Inspector General of Police v. S.Samuthiram [(2013)1 SCC 598] and S.Bhaskar Reddy v. Superintendent of Police [(2015)2 SCC 365]. The argument advanced by learned counsel for the petitioner on the strength of the decisions referred to above is to the effect that the effect of the acquittal by the criminal court on charges arising from the same set of facts has to be considered by the competent authority in the organisation of the employer to consider whether the punishment awarded was necessary in the light of the findings of the criminal court. It is submitted that the petitioner having attained the age of superannuation, a case of reinstatement would not arise and the only question which remains now would be as to his eligibility for pensionary benefits. In view of Exhibit P9, the Bank should consider whether the extreme punishment of dismissal was called for in

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WP(C).20557/13 7

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the disciplinary proceedings. The dismissal of Exhibit P12, without even considering this aspect of the matter, it is submitted, was completely unjustified.

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The learned counsel appearing for the respondent Bank relied on the Indian Bank Officer Employees' (Discipline & Appeal) Regulations, 1976 to contend that there was absolutely no provision for reinstatement of an employee, who was dismissed from service taking into account the later acquittal in criminal trial. The decisions of the Apex Court in State Bank of Bikaner and Jaipur's case (supra) and Deputy Inspector General of Police's case (supra) are relied on by the learned counsel appearing for the respondents also. Reliance is placed on State Bank of Bikaner and Jaipur's case (supra) in support of the contention that the findings of the criminal court will have no effect on previously concluded domestic enquiry. However, it is to be noticed that there was a finding in that case that the acquittal was only on the strength of the benefit of doubt. The latter decision is relied on to contend that in the absence of any provision in the service rules for reinstatement, even if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement.

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I have considered the contentions advanced. At the outset, it is clear from the fact that the writ petition had been admitted and entertained and kept pending in the court for nearly four years that the objection raised as to the maintainability of the same on the ground of delay has been virtually found against by this Court. Exhibit P12 order is dated 8.6.2012. By the forwarding of Exhibit P8(a) along with Exhibit P12, the respondents have also accepted the fact that it had not been served on the petitioner. After Exhibit P12, the petitioner has preferred Exhibit P13 before the Chairman and Managing Director of the Bank. Exhibit P13 is dated 10.11.2012. The filing of the writ petition on 4.8.2013, in the facts of the case cannot be said to be so belated as to attract a summary dismissal on the ground of delay. I find that after the question of maintainability was raised, the writ petition was admitted on 2.12.2016 and posted for hearing. The question of maintainability had been taken up as early as in the first statement filed by the respondents on 20.9.2013. It was thereafter that the writ petition was admitted notwithstanding the objection as to the maintainability raised by the respondents. Such admission of the writ petition, according to me, amounted to a condonaton of delay in filing the writ

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petition as has been held by the Apex Court in M.Sudakar's case (supra). In exercise of discretionary jurisdiction by this Court under Article 226 of the Constitution of India, the question would not be as much of a bar of jurisdiction as of that of the discretionary exercise of such jurisdiction by this Court. Where this Court has consistently refused to non suit the petitioner on the ground of delay in approaching this Court, I am of the view that it is not open for this Court so late in the day, to dismiss this writ petition on the strength of the objections raised in that regard.

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On considering the precedents relied on by the learned counsel appearing on either side, I am in complete agreement with the learned counsel appearing for the Bank that there was no automatic right bestowed on the petitioner for a reinstatement in service on the strength of Exhibit P9 judgment of acquittal. While acceding this point to the employer Bank, I am, however, of the view that the contention raised by the learned counsel appearing for the respondents that the acquittal in criminal proceedings would have no bearing whatsoever on the concluded disciplinary proceedings cannot be accepted in toto. It is admitted that the disciplinary proceedings as well as the criminal prosecution was launched

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on the same set of facts. The allegations were substantially the same. As is wont in our country, the criminal judicial system took much longer to return a verdict than the employer, who proceeded to dispose of the disciplinary proceedings at the original, appellate and review levels. In any view of the matter, Exhibit P9 judgment acquitting the petitioner of all charges levelled against him has been issued in November, 2011. The petitioner has produced the said judgment before the respondents and sought reinstatement on the strength of the said acquittal. While it may be true that an order of automatic reinstatement would be impossible in view of the directions contained in the rules governing the matter, I am of the opinion that Exhibit P9 should have been considered by the respondents at least to see as to what would be its impact on the confirmed order of dismissal issued in disciplinary proceedings. The refusal on the part of the respondents to take note of Exhibit P9 in its entirety would, according to me, not be in consonance with the law as laid down by the Apex Court on the subject. While confirming the finding that the petitioner cannot seek reinstatement in service and the wiping of the entire disciplinary proceedings conducted against him on the strength of Exhibit P9, I am of the opinion that the impact of

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the judgment on the order imposing penalty as upheld in appeal and review should have been considered by the respondents.

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In the above view of the matter, Exhibit P12 order is set aside. It is directed that the competent among the respondents shall take up and consider Exhibit P13 request made by the petitioner treating it as a request for reconsideration of the order of penalty imposed on the petitioner and pass final orders on the same specifically referring to the findings as contained in Exhibit P9 judgment. The needful shall be done by the respondents within a period of two months from the date of receipt of a copy of this judgment. The respondents shall consider whether in the light of Exhibit P9 judgment, the petitioner could be either imposed lesser penalty or be paid some compassionate allowance/pension in terms of the regulations.

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The writ petition is disposed of as above.

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ANU SIVARAMAN

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vgs

P.K.Rajeevan v. the Chairman and Managing Director

Case brief

What is this about?

What did the court decide?

P.K.Rajeevan v. the Chairman and Managing Director

Case brief

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