TMI Blog2008 (4) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... his wife, from out of proceeds of loan amounts released to two DIR and one cash credit borrowers. Thus he facilitated his wife to get undue pecuniary benefit by permitting unauthorized adjustments which were done with his prior knowledge. Charge No. 15: He sanctioned and released loans to his close relatives in contravention of H.O. Cir. No. ADV/98 of 1976 dated the 2nd December, 1976. 4. He was also proceeded against in a criminal case. He was acquitted of the criminal charges. 5. However, the departmental proceedings continued during pendency of the criminal proceedings as prayer for stay thereof was not acceded to. The Enquiry Officer found that all the charges apart from charge Nos. 1(a), 2(b), 3 were proved. 6. The Appointing Authority passed an order of dismissal. An appeal preferred thereagainst by the respondent was dismissed. 7. By an order dated 29.12.1995, the appellant was acquitted of the charges framed against him in the criminal proceeding under Sections 120B, 420 and 468 of the Indian Penal Code. He was also acquitted of the charges for alleged commission of offences under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the prosecution against the appellant. Admittedly the case of the appellant as stated in his examination under Section 313 Cr.P.C., that it was only a mistake committed inadvertently and from the above facts and circumstances and the evidence on record, the only inference that can be drawn is that the accused, no doubt, might have made some wrong entries, but the same cannot be termed as acts of willfulness and with fraudulent intention to falsify the accounts. Hence the appellant is entitled for an acquittal for the offence under Section 477-A I.P.C. The judgment of conviction and sentence under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act was also set aside by the High Court opining that the prosecution had failed to prove the guilt of the accused beyond all reasonable doubts, holding: ... In other words when the appellant was acquitted of all the charges including the charge under Section 477-A, I.P.C. by this Court, it cannot be said that he committed the offence under the provisions of Prevention of Corruption Act. 14. The Writ Petition filed by the appellant against the order of dismissal passed against him came up for consideration before a learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of his suspension from 01.08.1994 to 02.07.1999. No costs. 15. An intra-court appeal was preferred thereagainst. The Division Bench, in its impugned judgment dated 4.06.2007, opined: In the present case, we find that the enquiry officer had exonerated the respondent of charges 1(a), 2(b), 3 and 5, which pertain to misappropriation and deriving of pecuniary benefits by him. A perusal of the judgment dated 03.10.2001 passed by the learned Single Judge in Criminal Appeal No. 12 of 1996 makes it clear that the respondent was honourably acquitted with an unequivocal finding that there was neither any loss to the bank nor any pecuniary benefit was taken by the respondent. Thus, on the crucial issue whether the respondent is guilty of financial misfeasance and malfeasance, there is no conflict between the findings of the enquiry officer and the Court, which disposed of the criminal appeal. Since the learned Single Judge, who decided Writ Petition No. 16833 of 1994 and the appointing authority, which reconsidered the matter in the light of the direction given by this Court, did not have the benefit of considering the judgment of acquittal rendered in Criminal Appeal No. 12 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt from time to time. The approach that the court's jurisdiction is unlimited although had not found favour with some Benches, the applicability of the doctrine of proportionality, however, had not been deviated from. 20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another [(1999) 3 SCC 679], however, remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case. 21. The case at hand is an exceptional one. Respondent was a responsible officer. He was holding a position of trust and confidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, of course, to the exception that charges Nos. 11 and 15 stricto sensu were not the subject matter of criminal proceedings, as integrity and diligence, however, were not in question. Before us also it has not been contended that he had made any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 found the respondent not guilty of charges of misappropriation, deriving the personal benefit for himself and causing loss to the bank. (ii) The effect of the Judgment of this Court in Criminal Appeal No. 12 of 1996 in the light of the decision of the Supreme Court in M. Paul Anthony's case (supra) and G.M. Tank's case (supra). (iii) Modified punishment of withholding of increment without cumulative effect imposed on the respondent is a minor penalty unlike the punishment of withholding of increment with cumulative effect, which was held to be a major penalty by the Supreme Court in Kulwant Singh Gill's case (supra). (iv) While considering the proportionality of the punishment, distinction lies between the procedural irregularities constituting misconduct from the acts of misappropriation of finances, causing loss to the institution, etc. 26. We do not see any reason keeping in view the peculiar facts and circumstances of the case to disagree with the said findings, although we would like to reiterate the principles of law to which we have referred to hereinbefore. 27. We may, however, notice that Mr. Sorabjee has strongly relied upon a decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and the Court is merely insisting that the authority is confined to the limits of its discretion as restricted by the rules. Inasmuch as the rules of Bank of Cochin have enumerated and listed out the punishments for major misconduct , we are of the view that the punishment of removal could not have been imposed by the appellate authority and all that was permissible for the Bank was to confine itself to one or the other punishment for major misconduct enumerated in para 22(v) of the rules, other than dismissal without notice. This conclusion of ours also requires the setting aside of the punishment of removal that was awarded by the appellate authority. Now the other punishments enumerated under para 22(v) are warning or censure or adverse remark being entered, or fine, or stoppage of increments/reduction of basic pay or to condone the misconduct and merely discharge from service . The setting aside of the removal by the High Court and the relief of consequential benefits is thus sustained. The matter has, therefore, to go back to the appellate authority for considering imposition of one or the other punishment in para 22(v) other than dismissal without notice. 29. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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