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2008 (4) TMI 767 - SUPREME COURT

2008 (4) TMI 767 - SUPREME COURT - 2008 (15) SCC 657 - Appeal (civil) 2961-2962 of 2008 CIVIL APPEAL NOS. 2961-2962 OF 2008 (Arising out of SLP (C) Nos. 14356-14357 of 2007) - Dated:- 24-4-2008 - S.B. Sinha & D.K. Jain, JJ. JUDGMENT S.B. Sinha, J. 1. Leave granted. 2. Appellant is aggrieved by and dissatisfied with a judgment and order dated 4.6.2007 passed by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No. 627/628 of 2005 whereby and whereunder it refused to interfere w .....

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hmi, 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. Ho .....

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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. 8. Respondent, however, was convicted under Section 477(A) of the Indian Penal Code as also under Section 5(1)(d) and 5(2) of the Prevention of Corruption Act. He preferred an appeal thereagainst before the High Court. A Writ Petition was also filed questioning the said order of dismissal. 9. By an order d .....

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nal Appeal filed by the appellant came up for consideration before a learned Single Judge of the High Court and by a judgment and order dated 3.10.2001, it was held: "... In such a case, it is difficult to believe that the appellant had any intention to benefit himself or other persons. It has to be noted that the above reasoning of the trial court is most perverse and without any material. In my considered view the trial court had jumped to the conclusion without any basis." 13. As re .....

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itially and as such a conspiracy has culminated into various offences attributable to all the accused and in particular of the offence under Section 477-A against the appellant. Therefore, in view of the above observation made by the Apex Court and in view of peculiar facts and circumstances, in the instant case, it is unsafe to draw any adverse inference against the appellant that he committed the offence under Section 477-A I.P.C., inasmuch as the essential ingredients viz., 'willfulness&# .....

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h 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 charg .....

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uot; .The said orders can in no way be considered to be a reason as such for a de novo consideration on the aspect of punishment and it is also to be noticed that reconsideration is only in respect of punishment and that too based on the earlier recommendations made in appeal. Therefore, necessarily it follows that the order of dismissal as was imposed earlier on 23.07.1994 could not possibly be repeated or restated much less reimposed. Necessarily it has to be any other punishment other than th .....

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ount totality of the circumstances vis-vis the allegations as made against him and also the clear acquittal of the petitioner on criminal side though it may not be binding, necessarily the respondents had to follow the earlier orders of this Court, since the same are not kept in view and the impugned orders are not in terms of the said order. Hence, the matter requires to be reconsidered afresh by the authorities. In the circumstances, it has to be held that the impugned orders of the respondent .....

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er giving notice and opportunity to the petitioner. The respondents are also directed to pay subsistence allowance and all such other allowances to which the petitioner is entitled during the 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), .....

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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 1996, the only appropriate course would be to direct the appellants to again consider the respondent&# .....

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enior counsel appearing on behalf of the appellant would submit that the High Court committed a serious error in passing the impugned judgment insofar as it failed to take into consideration:- (i) That the criminal court merely granted the benefit of doubt in favour of the respondent; and (ii) Even an order of acquittal may not be a bar for passing an order of dismissal from service particularly keeping in view the fact that a bank employee is required to maintain strict integrity. 17. Mr. P. Ka .....

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y benefit. Even the charges of misappropriation, it was urged, have not been proved against him. 18. There cannot be any doubt whatsoever that the jurisdiction of superior courts in interfering with a finding of fact arrived at by the Enquiry Officer is limited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands ac .....

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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 e .....

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h Court in its judgment categorically opined that he merely had committed some inadvertent mistakes. He did not have any intention to commit any misconduct. The purported misconduct on his part was neither willful nor there existed any fraudulent intention on his part to falsify the account. The High Court opined that the prosecution had failed to bring home the guilt of the accused beyond all reasonable doubts for the offences punishable under the provisions under the Indian Penal Code. The jud .....

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the High Court in the said criminal appeal but also the other circumstances, brought on record, directed fresh consideration and disposal of the matter in accordance with the law upon giving an opportunity of hearing to the respondent. The Division Bench of the High Court, in the first round of litigation, noticed that the entire record had been perused by the learned Single Judge. It was found that the original authority had imposed a punishment of only stoppage of one increment with cumulativ .....

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disagreed with the conclusion of imposition of stoppage of one increment. Even then it observed that in the facts and circumstances of this case the issue relating to dismissal of respondent needs reconsideration. It was directed: "While doing so, the concerned authority shall keep in view the following factors: (i) Both the disciplinary authority of 1996 found the respondent not guilty of charges of misappropriation, deriving the personal benefit for himself and causing loss to the bank. ( .....

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(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. .....

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ll settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed." This court therein considered the nature of the confessions made by the delinquent officer and the implication thereof having regard to Sections 25 and 26 of the Evidence Act to hold that the Tribunal was not cor .....

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a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are .....

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ed 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 .....

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valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case1 will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed." Each case, therefore, must be determined on its own facts. 28. However, we may notice that this Court, in State Bank of India and Others v. T.J. Paul [(1999) 4 SCC 759], not .....

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r removal. Only a minor penalty could be imposed . As per the enquiry officer's report there was no actual loss caused by reason of any act of the employee wilfully done. There was no evidence of financial loss adduced before the enquiry officer. The finding that the respondent jeopardised the Bank's interest was based on no evidence. Penalty must have been only for minor misconduct. The SBI Rules were not applicable since the misconduct alleged related to the period of service in Bank o .....

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linquent officer. While holding that the same would constitute major misconduct referring to the case of Union of India v. G. Ganayutham [(1997) 7 SCC 463], it was opined: "19 In our view, this decision is not applicable to the facts of the case. Here the Court is not interfering with the punishment awarded by the employer on the ground that in the opinion of the Court the punishment awarded is disproportionate to the gravity of the misconduct. Here, the gradation of the punishments has bee .....

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