# Anand Ram Nagar v. The Banaras State Bank Limited & Ors

- **Citation:** Special Appeal Defective No. 451 of 2011
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-12
- **Case number:** Special Appeal Defective No. 451 of 2011
- **Bench:** Bala Krishna Narayana, Shamim Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-ram-nagar-v-the-banaras-state-bank-limited-ors-45152
- **Pages:** 7

## Headnote

Vipin Sinha, Ashok Trivedi, S.C.

(A) Simultaneous proceedings - the criminal
court came to the conclusion that the
prosecution has failed to prove that the
alleged incident has taken place and acquitted
the
person
from
such
charges
-
the
departmental proceedings initiated based on
such alleged offence will also come to an end -
finding of the criminal court will override the
findings in departmental enquiry

Special Appeal Allowed. (E-10)

List of cases cited:

## Text

3-5 All. Anand Ram Nagar Vs. The Banaras State Bank Ltd. & Ors.
941
would cease to exist and this would be a
relevant circumstance which must weigh
with the authorities in determining as to
whether
a
case
for
the
grant
of
compassionate appointment has been made
out;

(vi)
Rule
5
mandates
that
ordinarily,
an
application
for
compassionate appointment must be made
within five years of the date of death of the
deceased employee. The power conferred
by the first proviso is a discretion to relax
the period in a case of undue hardship and
for dealing with the case in a just and
equitable manner;

(vii) The burden lies on the
applicant, where there is a delay in making
an application within the period of five
years to establish a case on the basis of
reasons and a justification supported by
documentary and other evidence. It is for
the State Government after considering all
the facts to take an appropriate decision.
The power to relax is in the nature of an
exception and is conditioned by the
existence of objective considerations to the
satisfaction of the government;

(viii) Provisions for the grant of
compassionate
appointment
do
not
constitute a reservation of a post in favour
of a member of the family of the deceased
employee. Hence, there is no general right
which can be asserted to the effect that a
member of the family who was a minor at
the time of death would be entitled to claim
compassionate appointment upon attaining
majority. Where the rules provide for a
period of time within which an application
has to be made, the operation of the rule is
not suspended during the minority of a
member of the family." (emphasis supplied)

20. Thus, the law is settled that object
to grant compassionate appointment is to
allow the family to tide over the immediate
financial penury caused by the death of sole
bread earner. Such appointment is not a
matter of right and is in the nature of
concession, which is to be extended for a
specific purpose only.

21. The fact that members of the family
have survived for the last twenty three years
raises a presumption that the immediate
financial crises caused by the death of earning
member of the family has been tided over.
Lifting of the immediate financial penury
denies the justification for making appointment
on compassionate ground. The financial penury
as existing in the year 1996 can not be said to be
existing now in the year 2020, except its
emotional
aspect.
No
appointment
on
compassionate ground at such belated stage can
be granted nor any direction can be issued to
consider the claim of the petitioner.

22. In view of the above discussion, this
Court is of the opinion that no direction is
required to be passed to the State Government
to consider the claim of the petitioner.

23. In the above conspectus, the petition
fails and is dismissed. There shall be no order as
to costs.
----------

(2020)03-05ILR A941
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHAMIM AHMAD, J.

Special Appeal Defective No. 451 of 2011

Anand Ram Nagar ...Appellant
Versus
The Banaras State Bank Limited & Ors.
 ...Respondents
942 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
V.K. Singh, G.K. Singh, Girish Kumar Gupta

Counsel for the Respondents:
Vipin Sinha, Ashok Trivedi, S.C.

(A) Simultaneous proceedings - the criminal
court came to the conclusion that the
prosecution has failed to prove that the
alleged incident has taken place and acquitted
the
person
from
such
charges
-
the
departmental proceedings initiated based on
such alleged offence will also come to an end -
finding of the criminal court will override the
findings in departmental enquiry

Special Appeal Allowed. (E-10)

List of cases cited:

1. Suresh Pathrella Vs. Oriental Bank of Commerce
AIR 2007 SC 199 (distinguished)

2. D.S. Bishnoi Vs. S.B.I. & ors. 2004 (1) AWC 640
(distinguished)

3. G.M. Tank Vs. St. of Guj. & ors. 2006 SCC (L&S)
1121 (distinguished)

(Delivered by Hon'ble Bala Krishna Narayana
&
Hon'ble Shamim Ahmed, J.)

1. Heard Sri V.K. Singh, Senior
Counsel assisted by Sri Hritudhwaj Pratap
Sahi, learned counsel for the appellant and
Sri Ashok Trivedi, learned counsel for the
respondents.

2. This special appeal has been filed
by the petitioner/appellant against the
judgement and order dated 22.12.2010
passed by learned Single Judge of this
Court in Civil Misc. Writ Petition No. 6889
of 1992 (Anand Ram Nagar Vs. The
Banaras State Bank Limited, Varanasi and
another) by which the aforesaid writ
petition was dismissed in part.

3. Briefly stated the facts of this case
are that while petitioner/appellant Anand
Ram Nagar was working as an Accountant
in the Banaras State Bank Ltd., Varanasi
and when strong room was opened on
24.01.1989,
it
was
found
that
Rs.
1,00,000/- was short which led to filing of
F.I.R. and after obtaining explanation from
the petitioner/appellant, a charge-sheet was
served on him containing charges of
dereliction of duty. The petitioner/appellant
submitted his reply denying the charge.
However, upon due enquiry, he was found
guilty and his services were terminated
vide order dated 30.03.1990. Against the
order dated 30.03.1990, he preferred a
departmental appeal which was dismissed
by order dated 16.07.1990. The application
filed by the petitioner/appellant for review
of the order dated 16.07.1990 was also
rejected by order dated 22.10.1990. The
aforesaid
petition
was
filed
by
the
petitioner challenging the aforesaid order.
At the time of admission, an interim order
was
passed
in
favour
of
the
petitioner/appellant staying the impugned
orders
in
pursuance
of
which
the
petitioner/appellant continued in service
and received salary. In the meantime, the
petitioner/appellant was convicted by the
criminal court vide judgement and order
dated 24.07.1999 and consequently, second
termination order dated 27.07.1999 was
passed on account of his conviction in the
criminal
case.
However,
the
appeal
preferred by the petitioner/appellant against
his conviction was allowed vide order
dated
29.05.2000
and
the
petitioner/appellant was acquitted from all
the charges.

4. Before the writ court, it was urged
by
the
learned
counsel
for
the
petitioner/appellant that once the finding of
the criminal court to the fact that money
3-5 All. Anand Ram Nagar Vs. The Banaras State Bank Ltd. & Ors.
943
was never found short in the strong room of
the bank had attained finality, the very basis
of the departmental proceedings initiated
against the petitioner which culminated into
termination of his services, ceased to exist.
It was also urged by the learned counsel for
the
petitioner/appellant
that
Branch
Manager who was also charge-sheeted in
respect of the same incident, was let off by
award of a minor punishment. It was next
urged that the finding recorded by the
criminal court shall override the finding
recorded in the disciplinary enquiry. Before
the writ court, it was lastly urged that since
the petitioner/appellant had retired, the
extreme punishment of dismissal on the
facts of the case was not warranted at all.

5. Learned Single Judge however,
dismissed the writ petition by the order
impugned in this special appeal.

6. Paragraph Nos. 8 to 14 of the
judgement and order of the learned Single
Judge which are relevant for our purpose are
being reproduced hereinbelow :-

8. The petitioner was the second
senior most officer in the Branch and as the
Branch Manager was busy in other work, he
was deputed for closing strong room on
23.1.1989 and in pursuance thereof, he
allegedly checked the cash book and signed in
lieu thereof showing a closing balance of
Rs.6,64,454.24. However, when the strong room
was opened in the morning of 24.1.1989 for
verification in front of an Inspector of the
Reserved Bank of India, the cash was allegedly
found short by Rs.one lac consisting of 10
packets of Rs.100/- denomination but there was
no tempering of the lock. After seeking his
explanation, it was prima-facie found that the
petitioner had not verified the cash before
closing it and as such the following charge was
framed against him.

"Dereliction of duties which is an act
detrimental to the interest of the bank [clause
3(i)
of
Officers
Employees
Conduct]
Regulations, 1986"

9. However, before the Criminal
Court, the petitioner was charged under section
406 and 409 IPC and convicted for an offence
under section 409 IPC vide order dated
24.7.1999 but the appeal was allowed vide
order dated 29.5.2000. It would be appropriate
to quote section 409 IPC which is as under:-

"Criminal breach of trust by public
servant, or by banker, merchant or agent-
Whoever, being in any manner entrusted with
property, or with any dominion over property in
his capacity of a public servant or in the way of
his business as a banker, merchant, factor,
broker, attorney or agent, commits criminal
breech or trust in respect of that property, shall
be punished with imprisonment for life, or with
imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine.

10.
Apparently,
the
charge
against
the
petitioner
before
the
departmental enquiry and before the
criminal court is entirely different. It is
apparent that before the criminal court the
petitioner was charged for criminal breach
of trust. The nature of evidence to prove the
respective charges is also entirely different.
While proving criminal breach of trust, it is
imperative to prove mensrea to cause loss
to the Bank but in the departmental charge
sheet only factum of negligence in exercise
of his official duties has to be proved. Thus,
assuming, that the criminal court has
acquitted the petitioner with the finding
that there was, in fact, no shortage but if
the petitioner had not followed the standard
operating procedure while verifying the
cash and closing the strong room, he would
still be guilty of dereliction of duty. It is
admitted to the petitioner, during the
departmental enquiry, that he did not
944 INDIAN LAW REPORTS ALLAHABAD SERIES
physically verify the position of the cash
before signing the closing balance in the
strong room, which is the standard normal
procedure. Therefore, it cannot be said that
if the petitioner has been acquitted on
charge under section 409 IPC, he should be
absolved of the charge framed by the Bank.
The finding of the criminal court would not
over ride the findings recorded in the
departmental enquiry. The petitioner has
relied upon a decision of the Apex Court
rendered in the case of G.M. Tank Vs. State
of Guarat and others [2006 SCC (L&S)
1121] to contend that the acquittal in the
criminal
trial
would
render
the
departmental findings unsustainable. No
doubt if the two charges are identical, the
findings of the criminal court would have
predominance
over
those
in
the
departmental proceedings, but that is not
the case here. The facts in Tank's case
(Supra)
are
entirely
different.
The
incumbent in that case was charged for the
offence of acquisition of moveable and
immovable property disproportionate to his
known sources of income. This was the also
the precise charge before the criminal court
under Prevention of Corruption Act,
1947.Therefore, the ratio rendered therein
would not apply to the present case. To the
contrary, it has consistently been held in
several decisions, including in the case of
Suresh Pathrella Vs. Oriental Bank of
Commerce [AIR 2007 SC 199] that
acquittal in a criminal case would be no
bar
for
drawing
up
disciplinary
proceedings against the delinquent officer.
In this case, the allegation against the
incumbent was that he had defrauded the
customer and the Bank of Rs. Ten lacs but
he was acquitted in the criminal case on
the ground that no loss to the Bank had
occurred. Nevertheless, the Supreme court
held that it would be no ground to hold that
he
could
not
be
punished
in
the
departmental enquiry if it is found that he
misconducted himself in not complying with
the normal operating procedure. Therefore,
the argument that merely because the
petitioner has been acquitted in the
criminal charge, the termination order
ought to be set aside, cannot be sustained.

11. So far as the argument that it
was only a minor dereliction coupled with
the fact that the petitioner has already
retired, the penalty of dismissal would be
too harsh when compared with the minor
punishment
awarded
to
the
Branch
Manager. The case of the Branch Manager
is entirely different and it cannot be
compared with that of the petitioner who
was the person responsible for physically
verifying the cash before signing and
closing the books. An Accountant in a Bank
holds a position of trust and even a minor
dereliction or negligence may not only
cause immense harm to the Bank but even
its reputation as being custodian of the
people's wealth. The petitioner being the
officer assigned to close cash and the
strong room, should have first verified the
information contained in the cash book
with actual position of the strong room by
physical verification before signing it. The
Apex Court in the case of Suresh Pathrella
(Supra) itself has held that in the case of
Bank employees, even if no loss is caused
to the Bank, cannot be a ground to take a
lenient
view
for
proved
misconduct
especially when there was no malafide or
violation of principles of natural justice. In
such cases, consistent view of the Apex
Court has been that the courts need not
interfere. A Division bench in the case of
D.S. Bishnoi Vs. State Bank of India and
others [2004 (1) AWC 640] has held that
highest degree of standards or devotion to
duty and integrity are required to be
maintained in order to maintain public
confidence in the case of Banks and the
3-5 All. Anand Ram Nagar Vs. The Banaras State Bank Ltd. & Ors.
945
courts should not interfere in findings of
fact recorded by the Enquiry Officer.
Merely because the petitioner has retired,
the nature of misconduct cannot be watered
down especially when the High Court is not
permitted to re-appreciate the evidence
which has been considered by the Enquiry
Officer.

12. However, since the second
termination order dated 27.7.1999 is based
merely on the conviction of the petitioner which
has been set aside in appeal, the order dated
27.7.1999 is bound to be quashed.

13. For the reasons above, this
petition succeeds partly to the extent as
aforesaid but is rejected for the other reliefs
claimed.

14. In the circumstances of the case,
no order as to cost.

7. It was contended by Sri V.K. Singh,
learned counsel for the petitioner/appellant that
once a criminal court came to the conclusion
that no such incident as alleged in which cash in
the strong room was found short, having taken
place and it being settled down that acquittal in
criminal trial would render departmental
proceeding unsustainable, learned Single Judge
erred in taking a view to the contrary and the
reliance placed by him on Suresh Pathrella Vs.
Oriental Bank of Commerce reported in AIR
2007 SC 199 and D.S. Bishnoi Vs. State Bank
of India and others reported in 2004 (1) AWC
640, is wholly misconceived.

8. Per contra Sri Ashok Trivedi, learned
counsel for the respondents made his
submissions in support of the impugned order.

9. We have heard learned counsel for the
parties and perused the material brought on
record.

10. Record of this special appeal shows
that while the petitioner/appellant was working
as Accountant in the respondent-Bank when
strong room was opened on 24.01.1989, it was
found that Rs. 1,00,000/- was short which led to
filing of a F.I.R. against the petitioner/appellant
as well as the initiation of departmental
proceedings.

11. After the petitioner/appellant was
charge-sheeted, following charge was framed
against the petitioner/appellant :-

"Dereliction of duties which is
an act detrimental to the interest of the
bank [clause 3(i) of Officers Employees
Conduct] Regulations, 1986"

12.

The
petitioner/appellant
submitted his reply in which he stated
that keys of the cash chest continuously
remained with the Branch Manager and
the Chief Cashier and they are the
persons
who
are
responsible
for
checking of the whole amount of cash
and so far as the petitioner/appellant
was concerned, his job was only to
check the day-to-day account upon the
debit and credit scroll.

13. Copy of the charge-sheet was
filed as Annexure No. 3 and his
explanation was filed as Annexure No.
4 to the writ petition.

14. After the completion of enquiry,
the
enquiry
report
dated
25.08.1989
(Annexure No. 12 to the writ petition) was
submitted by the Enquiry Officer in which
he had found that the petitioner/appellant in
dereliction of his duty had not checked the
total amount of cash kept in the safe of the
bank. Thereafter, the petitioner/appellant
was served with a show-cause notice
(Annexure No. 13 to the writ petition)
issued by the respondent no. 4 by which he
proposed to impose major punishment on
946 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner/appellant dismissing him
from services and disqualifying him from
future employment.

15. In response to the show-cause
notice, the petitioner/appellant submitted
his reply on 30.12.1989 (Annexure No. 14
to the writ petition) and appeared before
respondent no. 4. However, respondent no.
4 dismissed the petitioner/appellant from
his services by order dated 30.03.1990
(Annexure No. 15 to the writ petition). The
petitioner/appellant
then
preferred
an
appeal on 16.05.1990 (Annexure No. 16 to
the writ petition) against the order dated
30.03.1990 which was also dismissed by
the respondent no. 3 by order dated
16.07.1990 (Annexure No. 17 to the writ
petition).
Thereafter,
the
petitioner/appellant moved an application
on 13.09.1990 (Annexure No. 18 to the
writ petition) before the respondent no. 2
with a prayer to review the order dated
16.07.1990 which was also rejected by him
by order dated 22.10.1990 (Annexure No.
19 to the writ petition). Thereafter, the
petitioner/appellant made a representation
(Annexure No. 20 to the writ petition)
before the respondent no. 5, Board of
Directors, The Banaras State Bank Limited,
Laxa Road, Varanasi which was also
rejected. During the pendency of the writ
petition filed by the petitioner/appellant
challenging the aforesaid orders, the
petitioner/appellant was convicted by the
criminal court which led into passing of
second termination order dated 27.07.1999
which was based upon his conviction. The
said termination order was also challenged
by the petitioner/appellant by amending the
writ petition. The conviction of the
petitioner/appellant was set-aside by the
appellate court with specific finding that
the prosecution had failed to prove that any
such incident on 24.01.1989, in which upon
opening of the strong room, Rs. 1,00,000/-
was found short, had taken place.

16. Since there is no dispute about the
fact that the aforesaid finding recorded by
the appellate court has attained finality, in
our opinion, keeping in view the principles
propounded by the Apex Court in G.M.
Tank Vs. State of Gujarat and others
[2006 SCC (L&S) 1121], learned Single
Judge should have allowed the writ petition
in toto quashing the impugned order of
dismissal and the appellate order also apart
from quashing the second termination order
on
the
ground
of
acquittal
of
petitioner/appellant in appeal.

17. Learned Single Judge has held
that since the charges in the departmental
proceedings and the criminal prosecution
were identical, the finding recorded by the
criminal court would not prevail over the
finding recorded in the departmental
proceeding.

18. In our opinion, the view taken by
the learned Single Judge is per se
erroneous. The charges framed in the
departmental proceedings as well as in the
criminal court were based upon the same
incident
which
had
taken place
on
24.01.1989. The wordings of the charges
framed in the criminal court and the
departmental proceedings may be different
but unless it was proved that any such
incident as alleged by the bank had taken
place
on
24.01.1989,
the
petitioner/appellant could not be punished
departmentally or convicted. The appellate
court has recorded a categorical finding
that the prosecution had failed to prove that
any such incident as alleged by the bank
had taken place on 24.01.1989 and no such
shortage of cash was ever detected. In view
of the aforesaid findings recorded by the
3-5 All. Sharwan Kumar Vs. State of U.P. & Ors.
947
appellate court which had attained finality,
following the ratio of G.M. Tank (supra),
that the acquittal in the criminal trial would
render
the
departmental
proceedings
unsustainable, we are of the view that the
impugned order can not be sustained. The two
decisions which have been relied upon by the
learned Single Judge namely Suresh Pathrella
(supra) and D.S. Bishnoi (supra) for the
purpose of upholding the validity of the
impugned orders cannot be applied to the facts
and circumstances of the present case. In the
case of Suresh Pathrella (supra), the
delinquent
officer
was
proceeded
departmentally on the allegation that he had
defrauded a customer thereby causing a loss of
Rs. 10,00,000/- to the bank. He was acquitted
by the criminal court with a finding that no loss
to the bank had occurred. There was no
corresponding finding in the aforesaid case that
the prosecution had failed to prove that the
delinquent employee had defrauded the
customer.

19. Once, the criminal court came to the
conclusion that the prosecution had failed to
prove that either any incident, as alleged, had
taken place on 24.01.1989 or any amount was
found short, the very foundation on the basis of
which departmental proceedings were initiated
against the petitioner/appellant in which he was
found guilty of dereliction of duty, disappeared.
If no such incident on the basis of which charge
of dereliction of duty was framed and found
proved against the petitioner/appellant in the
departmental proceedings had taken place on
24.01.1989, the petitioner/appellant cannot be
held guilty of dereliction of duty. Hence, we
have no hesitation in holding that the finding
recorded by the criminal court will override the
finding recorded against the petitioner/appellant
in the departmental enquiry.

20. Similarly, the principles enunciated in
the case of D.S. Bishnoi (supra) that highest
degree of standards or devotion to duty and
integrity are required to be maintained in order
to maintain public confidence in the case of
banks and the courts should not interfere in
findings of fact recorded by the Enquiry Officer.
Merely because the petitioner has retired, the
nature of misconduct cannot be watered down
especially when the High Court is not permitted
to re-appreciate the evidence which has been
considered by the Enquiry Officer, is also not
applicable to the facts and circumstances of the
present case inasmuch as in the present case, the
criminal court has recorded findings which are
wholly irreconcilable with the findings recorded
in the departmental enquiry with regard to the
incident which was the basis of dismissal of the
petitioner/appellant and his conviction by the
trial court.

21. For the aforesaid reasons, this appeal
is allowed and the impugned judgement and
order dated 22.12.2010 passed by learned
Single Judge of this Court in Civil Misc. Writ
Petition No. 6889 of 1992 (Anand Ram Nagar
Vs. The Banaras State Bank Limited, Varanasi
and another) as well as the orders dated
30.03.1990, 16.07.1990 and 22.10.1990 passed
by respondent nos. 4, 3 and 2 respectively, are
hereby set-aside.
----------

(2020)03-05ILR A947
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PARWAR,
J.

Special Appeal Defective No. 586 of 2019

Sharwan Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents