TMI Blog2016 (9) TMI 1630X X X X Extracts X X X X X X X X Extracts X X X X ..... ltaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common. Indisputably, the alleged misconduct has been committed as far back as May 2006. The FIR was registered on 5th December, 2006 and the charge-sheet was filed in the said criminal case on 6th February, 2007. The contents of the charge-sheet are indicative of involvement of the Respondent in the alleged offence. Resultantly, the criminal Court has framed charges against the Respondent as far back as 12th June, 2007. The trial of that case, however, has not made any effective progress. Only 3 witnesses have been examined by the prosecution, out of 18 witnesses cited in the charge-sheet filed before the criminal Court. Indeed, listing of criminal case on 133 different dates after framing of charges is not solely attributable to the Respondent. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that at least 26 adjournments are directly attributable to the accused in the criminal case. That is not an insignificant fact. Whether Clause 4 of the Settlement would denude the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho was an employee of Bhilai Steel Plant). The Respondent herself introduced Laxman Parsad Ratre to open an account in the Appellant Bank. On 7th November 2006, the Respondent was placed under suspension for indulging in gross irregularities and misconduct including of misplacing the clearing instruments relating to various customers. The Respondent vide letter dated 8th November 2006, not only admitted her misdeeds but assured the Chief Manager of returning the amount commensurate to the financial loss caused to the Bank because of her lapses at the earliest, failing which suitable action can proceed against her. The said communication reads thus: To, Chief Manager State Bank of India Main Branch, Durg (Ch. G.) Sir, Context: Your memo number-Serial number/branch/2006-07/196 dated 30.10.2006. In context of your aforesaid memo I am sorry for the wrong ways adopted by me. I admit that I have done a wrong deed and I am suffering from the feeling of guilt. 1. Whatever amount comes in this context that I will try to pay as early as possible after obtaining the amount from the known sources. At present I am able to arrange Rs. 60,000/- and I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispatched those cheques to State Bank of India, Malviya Nagar Branch even though Laxman Parsad Ratre did not have account in that Branch. The cheques were returned by that Branch. The Respondent intentionally did not immediately return those cheques to U.T.I. Branch at Bhilai. Resultantly, U.T.I. Branch at Bhilai as per the settled practice assumed that the cheques have been cleared and released the payment to Tanishk Securities, by endorsing payment in the name of State Bank of India. Thereby causing a loss of Rs. 13 lakhs to State Bank of India. That was revealed only on 28.10.2006 during reconciliation of accounts of the two Banks. Further, the Respondent herself had introduced Laxman Parsad Ratre for opening an account in the Appellant-Bank. She has admitted her lapse in the communication sent by her to the Chief Manager of the Appellant-Bank dated 8th November, 2006. In a written admission given on 6th November, 2006 Laxman Parsad Ratre mentioned that he was involved in a criminal activity in connivance with the Respondent. The FIR has been registered for offence of possible loss of Rs. 29,53,262/-. 4. After registration of the FIR, the local police proceeded with the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rg Branch, it was not responded by Durg Branch. v. You had attached with Tanishk Securities commodity trading and you by misusing the amount of Chhattisgarh State Electricity division got deposit in the account of Shri Lachhman Parsad Ratre. You have removed the original slip of deposit of the account of Chhattisgarh State Electricity division and in place of it install the slip of Shri Rate saving bank account therefore the dealing and clearing of the saving bank account which has committed by you, the complete detail is clear and enclosed in Annexure-2. vi. Therefore you with the intention of cheating you have divert the total amount of Rs. 48,0000 of 16 challan of State Govt. on 4.5.2006 (Annexure 2(11)). vii. The Head Branch Bhilai through clearing house has closed to submit due cheque in Durg Branch, there after the cheque of various bank situated at Bhilai which has deposited in Durg Branch should presented for collection, you changing the deposit slip of Chhattisgarh State Electricity Division current account preparing the deposit slip of Lachhman Ratre has changed. Therefore the FDR of current of Chhattisgarh State Electricity division has misused (Annexure 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Respondent on 23rd October 2008, which fact was notified to the Respondent on 31st October 2008, by the Appellant No. 3 calling upon her to attend the same. The Respondent did not cooperate and instead protested the initiation of such disciplinary proceedings against her. She was then advised to file a writ petition bearing Writ Petition No. 4629/2009 before the High Court of Chhattisgarh at Bilaspur. The learned Single Judge found merits in the stand taken by the Respondent-that the facts involved in the criminal case registered against the Respondent and initiation of disciplinary proceedings, was based on the same facts. The learned Single Judge also adverted to Clause 4 of the Memorandum of Settlement dated 10th April, 2002 which grants protection to the employees of the Appellant-Bank from facing departmental proceedings until the completion of the trial of the criminal case. On that reasoning, the learned Single Judge allowed the Writ Petition and directed the Appellants to forbear from proceeding with the disciplinary proceedings until completion of the trial. This decision was challenged by the Appellants by way of Writ Appeal No. 80/2010 before the Division Bench. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has proceeded before the Sessions Court on 133 dates. In paragraph 9 to 11 of the affidavit, the break up has been given as under: 9. It is further respectfully submitted that the perusal of Court proceedings of 133 dates reveal that the delay in completion of trial was due to multiple reasons. It is submitted that on some dates, the case was adjourned due to absence of accused persons. On some dates, the case was adjourned as the prosecutor was absent. The case was also adjourned due to non-availability of files as it was sent to the Sessions Court for deciding the Bail Application Under Section 439 Code of Criminal Procedure. The case was also adjourned on the application made by the accused persons to make available some documents. The case was also adjourned due to Ld. Presiding Officer on leave, the transfer of Presiding Officer, the change of Court. The case was also adjourned due to strike by the Lawyers or due to Court holiday. In the gist of dates on which the case was listed before the Ld. Trial Court, are as follows: 10. It is further submitted that the perusal of the Court proceedings reveal the dates on which, the prosecution witness were present and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the charge framed against the Respondent in the criminal case and the charge-sheet issued by the disciplinary authority against the Respondent is based on the same set of facts. The defence of the Respondent in disciplinary proceedings may cause serious prejudice to the Respondent in the criminal case. According to the Respondent, in view of the complexity of the facts and the evidence necessary to substantiate the same, it is advisable and essential to protect the Respondent from being exposed to disclosure of her defence which may be identical to one to be taken in the criminal case or for that matter compel her to depose against herself on those facts. 8. We have heard the learned Counsel for the parties at some length. The only question that arises for consideration, is no more res-integra. It is well-settled that there is no legal bar to the conduct of the disciplinary proceedings and criminal trial simultaneously. However, no straightjacket formula can be spelt out and the Court has to keep in mind the broad approach to be adopted in such matters on case to case basis. The contour of the approach to be adopted by the Court has been delineated in series of decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongoing disciplinary proceedings on the other. An early conclusion of the disciplinary proceedings has itself been seen by this Court to be in the interest of the employees. (Emphasis supplied) 10. The Court then went on to examine the facts of that case and observed in para 18 as follows: 18. ..........The charge-sheet, it is evident from the record, was filed on 20.8.2011. The Charges were framed on 20-12-2011. The trial Court has ever since then examined only three witnesses so far out of a total of 23 witnesses cited in the charge-sheet. Going by the pace at which the trial Court is examining the witnesses, it would take another five years before the trial may be concluded. The High Court has in the judgment under appeal given five months to the trial Court to conclude the trial. More than fifteen months has rolled by ever since that order, without the trial going anywhere near completion. The disciplinary proceedings cannot remain stayed for an indefinitely long period. Such inordinate delay is neither in the interest of the Appellant Company nor the Respondents who are under suspension and surviving on subsistence allowance......... (Emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , listing of criminal case on 133 different dates after framing of charges is not solely attributable to the Respondent. From the information made available by the Additional Superintendent of Police on affidavit, it does indicate that at least 26 adjournments are directly attributable to the accused in the criminal case. That is not an insignificant fact. This is inspite of the direction given by the Division Bench on 28th June, 2010, to the concerned criminal Court to proceed with the trial on day-to-day basis. The progress of the criminal case since then, by no means, can be said to be satisfactory. The fact that the prosecution has named 18 witnesses does not mean that all the witnesses are material witness for substantiating the factum of involvement of the Respondent in introducing the co-accused for opening a new bank account, to misplace the clearing instruments relating to various customers or for the payment released to the undeserving customer causing huge financial loss to the bank. The charge in the criminal case is for offences Under Section 409, 34 of Indian Penal Code, one of criminal breach of trust by a public servant. 12. In the peculiar facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge, the Division Bench nor before us any argument has been canvassed on the factum of whether the Respondent can be treated as a workman within the meaning of the Industrial Disputes Act, 1947. Both sides, however, have relied on the said Clause and invited us to spell out its purport. 15. On the plain language of Clause 4, in our opinion, it is not a stipulation to prohibit the institution and continuation of disciplinary proceedings, much less indefinitely merely because of the pendency of criminal case against the delinquent employee. On the other hand, it is an enabling provision permitting the institution or continuation of disciplinary proceedings, if the employee is not put on trial by the prosecution within one year from the commission of the offence or the prosecution fails to proceed against him for want of any material. 16. As can be culled out from the last sentence of Clause 4, which applies to a case where the criminal case has in fact proceeded, as in this case, for trial. The term completion of the trial thereat, must be construed as completion of the trial within a reasonable time frame. This Clause cannot come to the aid of the delinquent empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the Respondent of staying the ongoing disciplinary proceedings until the closure of recording of evidence of prosecution witnesses cited in the criminal trial, as directed by the Division Bench of the High Court and do not consider it fit to vacate that arrangement straightway. Instead, in our opinion, interests of justice would be sufficiently served by directing the criminal case pending against the Respondent to be decided expeditiously but not later than one year from the date of this order. The Trial Court shall take effective steps to ensure that the witnesses are served, appear and are examined on day-to-day basis. In case any adjournment becomes inevitable, it should not be for more than a fortnight when necessary. 22. We also direct that the Respondent shall extend full cooperation to the Trial Court for an early disposal of the trial, which includes cooperation by the Advocate appointed by her. 23. If the trial is not completed within one year from the date of this order, despite the steps which the Trial Court has been directed to take the disciplinary proceedings against the Respondent shall be resumed by the enquiry officer concerned. The protection gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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