# Basistha Muni Mishra v. Union of India & Ors

- **Citation:** (2023) 6 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** Writ-C No. 57858 of 2016
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basistha-muni-mishra-v-union-of-india-ors-50315
- **Pages:** 16

## Headnote

Service Law-There is no dispute about the
proposition to the effect that criminal trial
and the departmental proceedings against
a
delinquent
employee
can
run
simultaneously, however in case charges
under consideration of a court exercising
criminal jurisdiction and the charges on
which departmental proceedings against a
delinquent
employee
are
held,
are
identical, the effect of honorable acquittal
of the delinquent employee would be a
relevant factor and cannot be ignoredOnce service rules specifically take care of
commencement, pendency, culmination
and the conclusion of the departmental
proceedings
vis-a-vis
criminal
prosecution, the general principle that
criminal
trial
and
departmental
proceedings
can
run
simultaneously
cannot be strictly applied atleast against
the petitioner, otherwise it would be a
case where the general conceptions would
override specific service rules which is not
permissible-Petitioner entitled to entire
arrears
of
salary
and
consequential
benefits. (Para 45, 47, 48 & 51)

Partly allowed. (E-15)

List of Cases cases;

## Text

_Characters 0–39,856 of 54,492. This is a partial read: ask again with offset=39856 for what follows._

6 All. Basistha Muni Mishra Vs. Union of India & Ors.
509
any good ground to exercise the power of
review conferred upon us, in the facts and
circumstances of the instant case. The
judgment and order of this Court under
review having attained finality between the
parties, in case of any mistake on the part
of the Court in ignoring the pleadings on
record
and
arriving
at
a
different
conclusion
by
considering
the
other
material on record, only remedy before the
review applicant was to approach the Apex
Court placing the alleged wrong in the
judgment under review.

In view of the above, the review
applications are dismissed being beyond
the scope of review under Order 47 Rule 1
readwith Section 114 of the Code of Civil
Procedure.
----------
(2023) 6 ILRA 509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 57858 of 2016

Basistha Muni Mishra ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
A.S.G.I., Sri S.K. Kakkar, Sri S.K. Shukla,
Sri Satish Chaturvedi, Sri Satish Kishore
Kakkar, Sri Sunit Kakkar

Service Law-There is no dispute about the
proposition to the effect that criminal trial
and the departmental proceedings against
a
delinquent
employee
can
run
simultaneously, however in case charges
under consideration of a court exercising
criminal jurisdiction and the charges on
which departmental proceedings against a
delinquent
employee
are
held,
are
identical, the effect of honorable acquittal
of the delinquent employee would be a
relevant factor and cannot be ignoredOnce service rules specifically take care of
commencement, pendency, culmination
and the conclusion of the departmental
proceedings
vis-a-vis
criminal
prosecution, the general principle that
criminal
trial
and
departmental
proceedings
can
run
simultaneously
cannot be strictly applied atleast against
the petitioner, otherwise it would be a
case where the general conceptions would
override specific service rules which is not
permissible-Petitioner entitled to entire
arrears
of
salary
and
consequential
benefits. (Para 45, 47, 48 & 51)

Partly allowed. (E-15)

List of Cases cases;

1. H.P. Electricity Board Vs Mahesh Dayyia:
2017 (2) ESC 289

2. 2002 SCC Online Cal 25 (Lakshman Kumar
Mondal Vs UCO Bank & ors., 24.01.2002;

3. 2006 (5) SCC 446 (G.M. Tank Vs St. of Gujrat
& ors.)

4. 2019 SCC Online All 5794 (Anand Ram Nagar
Vs Banaras St. Bank Ltd. & ors.)

5. (2017) 1 SCC 768 (Himachal Pradesh St.
Electricity Board Ltd. Vs Mahesh Dahiya)

6. Union of India & ors. Vs Dalbir Singh: (2021)
11 SCC 321

7. St. of Karn. & anr.Vs Umesh: (2022) 6 SCC
563

8. St. Bank of India & ors. Vs R.B. Sharma:
(2004) 7 SCC 27

9. Management of Bharat Heavy Electricals
Limited Vs M. Mani: (2018) 1 SCC 285
510 INDIAN LAW REPORTS ALLAHABAD SERIES
10. West Bokaro Colliery (TISCO Ltd.) Vs Ram
Pravesh Singh: (2008) 3 SCC 729

11.
Deputy
General
Manager
(Appellate
Authority) & ors. Vs Ajai Kumar Srivastava:
(2021) 2 SCC 612

12. Gopal Narain Shukla Vs AGM SBI (Writ
Petition
No.7737
of
2005)
decided
on
24.02.2020

13. Priti Chauhan Vs St. of U.P. & ors.: 2008 (9)
ADJ 388

14. Mayank Agarwal Vs Bareilly Kshestriya
Gramin Bank & ors.: 2013 (3) ADJ 143 (DB)

15. ECIL v. B. Karunakars: (1993) 4 SCC 727

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. This writ petition has been filed
challenging the award dated 19.07.2016
passed by Industrial Tribunal-cum-Labour
Court, Kanpur in Industrial Dispute No.49
of 2006, between Bashishtha Muni Mishra
and the Deputy General Manager, State
Bank of India. Further orders under
challenge
are
dated
26.10.2004
and
19.01.2005 respectively passed by the
Assistant General Manager and Deputy
General Manager. By the said orders, the
petitioner was respectively dismissed from
service and his departmental appeal was
dismissed. Further prayer has been made to
issue a direction for reinstatement of the
petitioner in service with all consequential
benefits including arrears of salary from the
date of order of suspension.

2. The facts as culled out from the
writ petition are that the petitioner was
appointed as a Messenger-cum-Water Boy
in the respondent bank on 17.02.1979 and
was later on promoted as Daftary. Lastly,
he was posted at Johnstonganj Branch,
Allahabad. It is pleaded that services of the
petitioner were governed by Memorandum
of Settlement dated 19.10.1966 containing
the provisions of disciplinary action and
procedure therefor. On 12.03.1999, a new
Saving Bank Account No.01190022061
was allowed to be opened in the branch
concerned in the name of one Smt. Prema
Devi by accepting the reference of one
Smt. Maina Devi, the depositor of Saving
Bank Account No.58901. The account was
opened after completion of necessary
formalities and due verification by the bank
authorities. On 13.03.1999, Smt. Prema
Devi, the depositor of newly opened
Account No.01190022061, deposited a
cheque dated 16.07.1999 of Rs.67,050/-
issued by the Life Insurance Corporation of
India in her favour which was collected by
the bank through legal officer clearing and
crediting the same in the account against
which a withdrawal of Rs.65,000/- was
done by Smt. Prema Devi on 18.08.1999
which was allowed by the concerned
official of the bank. Later on, it stood
revealed that cheque in question belonged
to some other Prema Devi and Smt. Prema
Devi
whose
Saving
Account
No.
01190022061 was allowed to be opened
was not a genuine lady and her incorrect
particulars were given. Concerning the said
issue, the Branch Manager of Life
Insurance Corporation of India, City
Branch, Allahabad informed the Police
Station, Kotwali, Allahabad and pursuant
thereto, a first information report was
registered as Case Crime No.394 of 1999,
under
Section
419/420
IPC.
After
completion of investigation, a charge sheet
was submitted by the investigating agency
before the court on the basis whereof,
Criminal Case No.1744 of 2000 was
registered against the petitioner and one
Rajendra Kumar Dwivedi, within a period
of less than six months from the date of
registration of first information report. It is
further pleaded that the petitioner was
6 All. Basistha Muni Mishra Vs. Union of India & Ors.
511
arrested by the police on 15.02.2000 but
was subsequently bailed out. He was
suspended by the bank and, ultimately,
acquitted by the Chief Judicial Magistrate,
Allahabad under the judgment and order
dated 15.10.2009 which has attained
finality.

3. In so far as the departmental
proceedings are concerned, it is pleaded
that the departmental charge sheet was
issued to the petitioner on 18.02.2002, the
inquiry was cursorily concluded in terms of
an inquiry report dated 26.09.2002 in
which charges no. 1 and 3 were found to be
proved and charge no.2 as partly proved. It
is further pleaded that based upon the
inquiry report, the Disciplinary Authority
took a provisional decision of dismissal of
the
petitioner
on
22.09.2004
under
paragraph 6(a) of the Memorandum of
Settlement dated 10.04.2002 and called
upon the petitioner to show cause against
the said penalty. Further pleading is to the
effect that prior to issuance of provisional
order dated 22.09.2004, no copy of the
inquiry report was supplied to the petitioner
nor was he provided any opportunity to
object the same.

4. It is further pleaded that the
petitioner was dismissed from service
under the impugned order dated 26.10.2004
against which he preferred an appeal before
the appellate court which was also
dismissed on 19.01.2005, whereafter the
petitioner agitated a dispute under the
provisions of Industrial Disputes Act and,
ultimately, the matter was referred to the
Central Government, Industrial Tribunalcum-Labour Court, Kanpur, under Section
10(2-A) (i) (d) of the Act, 1947 for
adjudication of the dispute as to whether
the termination of the petitioner from
service on 22.09.2004 was just and
according to law and if not, as to what
relief the petitioner was entitled to. It is
pleaded
that
during
the
course
of
proceedings before the Tribunal, written
arguments dated 25.03.2010 were filed on
behalf of the petitioner annexing therewith
certain authorities as well as the judgment
of acquittal passed by the court concerned
in the criminal case. It is further pleaded
that the Tribunal has, by the impugned
award dated 19.07.2016, answered the
reference against the petitioner holding that
he is not entitled to any relief.

5. The award has been challenged on
various grounds which shall be dealt with
while dealing with rival contentions after
the pleadings exchanged between the
parties are referred to.

6. A counter affidavit has been filed
on behalf of respondents no.4 to 6 taking a
standing that the services of the petitioner
were terminated as per the circular dated
26.10.2004 and no bipartite settlement
would come in the way of disciplinary
action. It has further been pleaded that in
case criminal trial does not end within one
year of its commencement and charge sheet
against an employee is pending, concurrent
departmental inquiry can be revived and
brought to a conclusion. It is further
submitted that the inquiry was conducted
under the order dated 26.11.2001 passed by
this Court and that on merits, the
punishment was perfectly justified and,
therefore, none of the orders impugned
should be interfered with.

7. The petitioner has filed a rejoinder
affidavit reiterating the stand taken in the
writ petition and reliance has been placed
on a judgment of the Supreme Court in the
case of H.P. Electricity Board Vs. Mahesh
Dayyia: 2017 (2) ESC 289 in support of
512 INDIAN LAW REPORTS ALLAHABAD SERIES
the contention that after receipt of the
inquiry report, its copy must have been
made available to the delinquent employee
and it is only after receiving objections
from the employee concerned, mind could
have been applied by the Disciplinary
Authority, however, in the present case, the
said procedure has not been followed.

8. I have heard Sri Ashok Khare,
learned Senior Advocate assisted by Sri
Siddharth Khare, learned counsel for the
petitioner, Sri Arvind Kumar Goswami,
learned counsel for respondent No. 1,
Union of India, learned Standing Counsel
for respondent Nos 2 and 3 and Sri S.K.
Kakkar along with Sri Sumit Kakkar,
learned counsel representing the respondent
Nos. 4 to 6.

9. Sri Ashok Khare, learned Senior
Counsel has argued that the services of the
petitioner were governed by Bipartite
Settlement dated 19.10.1966. He has
referred to Chapter XIX of the said
Settlement by placing much emphasis on
Clauses 19.3 and 19.4 of the same which
are quoted herein below:-

"19.3 (a) When in the opinion of
the
management
an
employee
has
committed an offence, unless he be
otherwise prosecuted, the bank may take
steps to prosecute him or get him
prosecuted and in such a case he may also
be suspended.

(b) If he be convicted, he may be
dismissed with effect form the date of his
conviction or be given any lesser form of
punishment as mentioned in Clause 19.6
below.

(c) If he be acquitted, it shall be
open to the management to proceed against
him under the provisions set out below is
Clauses 19.11 and 19.12 infra relating to
discharges,. However, in the event of the
management deciding after enquiry not to
continue him in service, he shall be liable
only for termination of service with three
months' pay and allowances in lieu of
notice. And he shall be deemed to have
been on duty during the period of
suspension provided that if he be acquitted
by being given the benefit of doubt he may
be paid such portion of such pay and
allowances as the management may deem
proper, and the period of his absence shall
not be treated as a period spent on duty
unless the management so direct.

(d) If he prefers an appeal
revision application against his conviction
and is acquitted, in case he had already
been dealt with as above and he applies to
the management for reconsideration of his
case, the management shall review his case
and may either reinstate him or proceed
against him under the provisions set below
in Clauses 19.11 and 19.12 infra relating to
discharge, and the provision set out above
as to pay, allowances and the period of
suspension will apply, the period up-todate for which full pay and allowances
have not been drawn being treated as one
of suspension. In the event of the
management deciding, after enquiry not to
continue him in service, the employee shall
be liable only for termination with three
months' pay and allowances in lieu of
notice, as directed above.

19.4 If after steps have been
taken to prosecute an employee or to get
him prosecuted, for an offence, he is not
put on trial within a year of the commission
of the offence, the management may then
deal with him as if he had committed an act
of "gross misconduct" or of "minor
misconduct", as defined below; provided
that if the authority which was to start
prosecution proceedings re3fuses to do so
or come to the conclusion that there is no
6 All. Basistha Muni Mishra Vs. Union of India & Ors.
513
case for prosecution it shall be open to the
management
to
proceed
against
the
employee under the provisions set out
below in Clauses 19.11 and 19.12 infra
relating to discharge, but he shall be
deemed to have been on duty during the
period of suspension, if any, and shall be
entitled to the full wages and allowances
and to all other privileges for such period.

In the event of the management
deciding, after enquiry, not to continue him
in service, he shall be liable only for
termination with three months' pay and
allowances in lieu of notice as provided in
Clause 19.3 supraf within the pendency of
the proceedings thus instituted he is put on
trial such proceedings shall be stayed
pending the completion of the trial, after
which the provisions mentioned in Clause
19.3 above shall apply."

10. Based upon the aforesaid clauses,
the contention of Sri Khare is that since a
first information report was lodged against
the petitioner in the year 1999 and a charge
sheet pursuant to the FIR was submitted by
the investigating agency within a period of
six months from the date of registration of
FIR, the departmental proceedings were
liable to be stayed. Sri Khare submits that
the departmental charge sheet was filed on
18.02.2002 and since the criminal trial was
pending on the date of initiation of
departmental proceedings, the same should
have been stayed awaiting the decision of
the court exercising criminal jurisdiction.
Sri Khare further submits that as per Clause
19.3(a) when in the opinion of the
management an employee has committed
an offence, unless he be otherwise
prosecuted, the petitioner may take steps to
prosecute him and as per the clause (c), if
the employee is acquitted, it shall be open
to the management to proceed against him
under the provisions set out in Clauses
19.11 and 19.12 which deal with taking of
disciplinary action. Sri Khare further
submits that as per clause 19.4, if after
steps have been taken to prosecute the
employee or to get him prosecuted, for an
offence, he is not put on trial within a year
from the commission of offence, the
management may then deal with him as if
he had committed an act of "gross
misconduct" or of "minor misconduct"
provided that if the authority which was to
start prosecution proceedings refuses to do
so or comes to the conclusion that there is
no case for prosecution, it shall be open for
the management to proceed against the
employee under the provisions contained in
Clauses 19.11 and 19.12.

11. Sri Khare has further argued that
in the event of the management deciding
after inquiry not to continue the employee
in service, he shall be liable to only for
termination with three months' pay and
allowances in lieu of notice as per Clause
19.3 and if during pendency of the
proceedings thus instituted, he is put on
trial, such proceedings shall be stayed
pending completion of the trial whereafter
the provisions mentioned in clause 19.03
shall apply.

12. Sri Khare has vehemently argued
that the prohibition under clause 19.4/
clause 4 is couched in a negative language
that if after steps have been taken to
prosecute an employee, he is not put on
trial within a year of the commission of
offence, then the management may deal
with him as if he had committed an act of
gross misconduct. The clear intent of the
said negative prohibition is that in case
steps have been taken for criminal
prosecution for an employee, then the
management is obliged to await for a
period of one year before commencing
514 INDIAN LAW REPORTS ALLAHABAD SERIES
disciplinary proceedings. In case the trial
commences within this period of one year,
then the management is obliged to await
the conclusion of the criminal trial. Even in
case the disciplinary proceedings are
commenced
on
account
of
noncommencement of criminal trial within the
period of one year from the date of the
commission of offence, even then, in case
the criminal trial commences thereafter
during the pendency of the disciplinary
proceedings, disciplinary proceedings have
to await till the conclusion of the criminal
trial.

13. Sri Khare has further argued that
the charge levelled against the petitioner in
the departmental enquiry was the same as
was the subject matter of the FIR/ criminal
trial. In the said criminal proceedings, the
petitioner stood acquitted by judgment
dated 15.10.2009 (Annexure No.5, page 60
to the writ petition). A perusal of the
aforesaid judgment would demonstrate that
such acquittal was a honorable acquittal on
the ground that there did not exist any
evidence in support of the charge levelled
against the petitioner. On account of such
acquittal, the Labour Court while passing
the award dated 19.07.2016 clearly erred in
upholding the dismissal from service.

14. On merits of the termination
order, Sri Khare has referred to the order
dated 22.09.2004 passed by the Assistant
General Manager, i.e. the Disciplinary
Authority, pursuant to the inquiry report
and submission is that the Disciplinary
Authority had already made its mind to
dismiss the petitioner from service without
even complying with the mandatory
provisions of law to the effect that
whenever an inquiry report is submitted by
the inquiry officer, first of all the stand of
the employee has to be called for and it is
only after considering the same, final
opinion can be formed after applying mind.
Sri Khare has referred to paragraph 3 of the
order dated 22.09.2004, which reads as
follows:-

"3. I have gone through the facts
and circumstances of the case in its
entirety.
After
applying
my
mind
independently. I am of the view that ends of
justice would be met if Shri Bashista Muni
Mishra, Duftari (under suspension), be
dismissed from the bank's service without
notice
in
terms
of
para
6(a)
of
Memorandum
of
Settlement
dated
10.04.2002 entered between Bank and All
India SBI Staff Federation. I also order
that the period spent by Sri Mishra as
suspended will be treated as such and no
salary
and
allowances
except
the
subsistence allowance already paid, will be
payable to him. I order accordingly."

15. Sri Khare submits that the enquiry
report submitted by the enquiry officer was
not immediately supplied to the petitioner
for filing objection. Instead, the Assistant
General Manager/ Disciplinary Authority
proceeded to record findings of guilt and
also decided the punishment to be imposed
upon the petitioner. It was along with the
provisional order dated 22.09.2004 that a
copy of the enquiry report was supplied to
the petitioner. The procedure so adopted
does not comply with the requirement of
law. The guilt of the petitioner as indicated
in the enquiry report was accepted by the
disciplinary authority without supplying the
copy of the enquiry report to the petitioner
and without affording an opportunity to
him to object against the same.

16. In support of his contention, Sri
Khare has placed reliance upon the
following authorities:-
6 All. Basistha Muni Mishra Vs. Union of India & Ors.
515

(i) 2002 SCC Online Cal 25
(Lakshman Kumar Mondal Vs. UCO
Bank and others), 24.01.2002;

(ii) 2006 (5) SCC 446 (G.M.
Tank Vs. State of Gujrat and others);

(iii) 2019 SCC Online All. 4460
(Sanjay Kishore Vs. State of U.P. and
others; and

(iv) 2019 SCC Online All 5794
(Anand Ram Nagar Vs. Banaras State
Bank Limited and others);

(v) (2017) 1 SCC 768 (Himachal
Pradesh State Electricity Board Ltd. Vs.
Mahesh Dahiya).

17. On the contrary, Sri S.K. Kakkar
along with Sri Sumit Kakkar, learned
counsel for the respondent-bank have
vehemently opposed the writ petition and it
has been argued that the contention of the
petitioner that services were governed by
Memorandum
of
Settlement
dated
19.10.1966 is incorrect as the proceedings
were held and action was taken against the
petitioner in terms of Memorandum of
Settlement dated 10.04.2002, a copy
whereof has been filed as Annexure No.2
to the writ petition. Sri Kakkar has further
argued that the bank did not proceed with
criminal prosecution, rather the FIR was
lodged by the Branch Manager of Life
Insurance
Corporation
of
India
and,
therefore, the argument advanced with
reference to the criminal trial and its effect,
has no force. Sri Kakkar has further argued
that in so far as the continuance of
departmental proceedings is concerned, the
same were conducted and completed in
furtherance of the order dated 26.11.2001
passed by the High Court and, therefore,
the submission of the petitioner that the
departmental proceedings could not be held
or were liable to be stayed would be
contrary to the order passed by the High
Court and the Department could not have
committed the contempt of the same.

18. On merits of the impugned
termination order as well as departmental
proceedings, Sri Kakkar has submitted that
the order dated 22.09.2004 passed by the
Disciplinary Authority was only a tentative
order which is apparent from paragraph
no.4 of the same, which reads as under:-

"4. However, before taking a
final decision in the matter, I give him an
opportunity to make submissions, if any,
against above order within 07 days of its
receipt, failing which it would be deemed
that he has nothing to submit in this regard
and final order will be passed without any
further reference to him.

19. Sri Kakkar, therefore, submits that
the petitioner was provided full opportunity
to make his submission prior to taking final
decision in the matter by the Disciplinary
Authority. He has also referred to the final
order dated 26.10.2004 with reference to
paragraph no.5 of the same where words
"I, therefore, confirm my tentative order
dated 22.09.2004" have been used. He
submits that the charges were proved
against the petitioner by recording pure
findings of fact which cannot be and should
not be disturbed in writ jurisdiction.

20. Sri Kakkar has also argued that
the
departmental
proceedings,
even
otherwise, cannot be stayed on account of
pendency of the criminal trial and both the
said proceedings can run simultaneously.
He has also placed reliance on following
authorities in support of his submissions:-

(i) Union of India and others Vs.
Dalbir Singh: (2021) 11 SCC 321;
516 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) State of Karnataka and
another Vs. Umesh: (2022) 6 SCC 563;

(iii) State Bank of India and
others Vs. R.B. Sharma: (2004) 7 SCC 27;

(iv) Management of Bharat
Heavy Electricals Limited Vs. M. Mani:
(2018) 1 SCC 285;

(v)
West
Bokaro
Colliery
(TISCO Ltd.) Vs. Ram Pravesh Singh:
(2008) 3 SCC 729;

(vi) Deputy General Manager
(Appellate Authority) and others Vs. Ajai
Kumar Srivastava: (2021) 2 SCC 612;

(vii) Gopal Narain Shukla Vs.
AGM SBI (Writ Petition No.7737 of 2005)
decided on 24.02.2020;

(viii) Priti Chauhan Vs. State of
U.P. and others: 2008 (9) ADJ 388;

(ix)
Mayank
Agarwal
Vs.
Bareilly Kshestriya Gramin Bank and
others: 2013 (3) ADJ 143 (DB).

21. Sri Kakkar has also argued that
the Tribunal has recorded a finding in
paragraph no.13 of the order impugned that
it had framed a preliminary issue on
07.02.2013 to the effect whether the domestic
inquiry conducted by the management was
just and fair. By order dated 12.08.2015, the
Tribunal held that the inquiry conducted by
the bank is just and fair and on the same day,
authorized representative for the worker
moved an application stating that he had no
issue with regard to inquiry upto the extent of
procedure but the finding of inquiry officer is
not tenable in the eyes of law. Therefore, Sri
Kakkar has submitted that from the aforesaid
finding it is clear that the worker had
admitted fairness of the inquiry procedure
adopted in the domestic inquiry and has only
challenged the findings of the inquiry officer.

22. In this regard, Sri Khare has
referred to the order dated 12.08.2015
which has been considered by the Tribunal
in the order impugned and has submitted
that
merely
because
the
authorized
representative, by means of an application
dated
12.08.2015
submitted
that
the
employee had no issue in regard to the
inquiry upto the extent of procedure, the
same would not clothe the authorities to act
contrary to the established procedure,
particularly, when the entire departmental
proceedings were co-related to the same
charges on which criminal trial was being
held and, therefore, any application or
statement or argument made on behalf of
the authorized representative could not be
treated as fatal to the case of the petitioner.

23. I have heard the learned counsel
for the parties and perused the record.

24. There is no dispute about the fact
that Branch Manager of Life Insurance
Corporation of India lodged a first
information report on 10.12.1999 and the
petitioner was charge sheeted in the
criminal proceedings. The submission of
Sri Kakkar to the effect that since the FIR
was not lodged by the bank and therefore
the case would not fall under Clause 19.3
or 19.4 has been replied to by Sri Khare by
referring to language used in Clause 19.3(a)
of the Memorandum of Settlement of 1966
which uses the words "unless he be
otherwise prosecuted" and, therefore, Sri
Khare submits that it is immaterial as to
who had lodged the first information report,
rather what is important is as to whether the
prosecution launched against a delinquent
employee would have material bearing on
the departmental proceedings as per the
various
clauses
of
Settlement
which
contains a provision for departmental
proceedings pending criminal trial.

25. In the present case, I find that
when the punishment order was passed in
6 All. Basistha Muni Mishra Vs. Union of India & Ors.
517
the year 2004, the criminal trial against the
petitioner was pending. However, when the
matter was decided by the Tribunal in the
year 2016 under the order impugned, the
petitioner had already been acquitted under
the judgment dated 15.10.2009. Sri Khare
has
vehemently
argued
that
written
submissions were filed by the petitioner on
25.03.2010 which contained reference of
the said acquittal and copy of the judgment
dated 15.10.2009 was annexed along with
the written submissions, however there is
absolutely no consideration of the same in
the order of the Tribunal.

26. As regards the contention of Sri
Kakkar that the services were not governed
by the Memorandum of Settlement of 1966
but by a subsequent Memorandum of
Settlement dated 10.04.2002, Sri Khare
submits that Clauses 19.3 and 19.4 are
parimateria with the terms of the settlement
contained in the subsequent Memorandum
dated 10.04.2002. For a ready reference,
the provisions relating to disciplinary
action and procedure therefor, as contained
in Memorandum of Settlement dated
10.04.2002, are reproduced herein below:-

Disciplinary
Action
and
Procedure therefor

1.
A
person
against
whom
disciplinary action is proposed or likely to
be taken shall in the first instance, be
informed of the particulars of the charge
against him and he shall have a proper
opportunity to give his explanation as to
such particulars. Final-orders shall be
passed after due consideration of all the
relevant facts and circumstances. With this
object in view, the following shall apply.

2. By the expression "offence"
shall be meant any offence involving moral
turpitude for which an employee is liable to
conviction
and
sentence
under
any
provision of Law.

3. (a) When in the opinion of the
management an employee has committed
an offence, unless he be otherwise
prosecuted, the bank may take steps to
prosecute him or get him prosecuted and in
such a case he may also be suspended.

(b) If he be convicted, he may be
dismissed with effect from the date of his
conviction. He be given any lesser form of
punishment as mentioned in Clause 6
below.

(c) If he be acquitted, it shall be
open to the management to proceed against
him under the provisions set out below in
Clauses 11 and 12 infra relating to
discharges. However, in the event of the
management deciding after enquiry not to
continue him in service, he shall be liable
only for termination of service with three
months pay and allowances in lieu of
notice. And he shall be deemed to have
been on duty during the period of
suspension, if any, and shall be entitled to
the full pay and allowances minus such
subsistence allowance as he has drawn and
to all other privileges for the period of
suspension provided that if he be acquitted
by being given the benefit of doubt he may
be paid such portion of such and
allowances as the management may deem
proper, pay and the period of his absence
shall not be treated as a period spent on
duty unless the management so directs.

(d) If he prefers an appeal or
revision application against his conviction
and is acquitted, in case he had already
been dealt with as above and he applies to
the management for reconsideration of his
case. the management shall review his case
and may either reinstate him or proceed
against against him under the provisions
set out below in Clauses 11 and 12 infra
relating to discharge, and the provision set
518 INDIAN LAW REPORTS ALLAHABAD SERIES
out above as to pay, allowances and the
period of suspension will apply, the period
up-to-date
for
which
full
pay
and
allowances have not been drawn being
treated as one of suspension. In the event of
the management deciding, after enquiry not
to continue him in service, the employee
shall be liable only for termination with
three months pay and allowance in lieu of
notice, as directed above.

4. If after steps have been taken
to prosecute an employee or to get him
prosecuted, for an offence, he is not put on
trial within a year of the commission of the
offence, the management may then deal
with him as if he had committed an act of
"gross
misconduct
or
of
minor
misconduct", as defined below: provided
that if the authority which was to start
prosecution proceedings refuses to do so or
comes to the conclusion that there is no
case for prosecution it shall be open to the
management
to
proceed
against
the
employee under the provisions set out
below in Clauses 11 and 12 infra relating
to discharge, but he shall be deemed to
have been on duty during the period of
suspension, if any, and shall be entitled to
the full wages and allowances and to all
other privileges for such period. In the
event of the management deciding, after
enquiry, not to continue him in service, he
shall be liable only for termination with
three months pay and allowances in lieu of
notice as provided in Clause 3 above. If
within the pendency of the proceedings thus
instituted
he
is
put
on
trial
such
proceedings shall be stayed pending the
completion of the trial, after which the
provisions mentioned in Clause 3 above
shall apply."

27. I have perused the order of the
Tribunal and I find that concluding
paragraphs 28, 29, 30, 31, 32, 33, 34 and 35
of the same discuss only one aspect of the
matter that is the date of termination order
has been shown as 22.09.2004 in the order
of reference whereas the petitioner was
dismissed from services by order dated
26.10.2004 which has not been challenged
by the petitioner and, therefore, the
reference appears to be contrary to the
factual position. On this score, it was held
by the Tribunal that the petitioner is not
entitled for any relief.

28. Though the aforesaid observations
are quite surprising in nature considering
the fact that there might be some
discrepancy
regarding
the
date
of
termination
order
i.e.
22.09.2004
or
26.10.2004, once the entire matter had
travelled right from first stage till the last
stage, the Tribunal should not have
indulged into finding out discrepancy in the
date of termination order and making it a
ground for denying relief to the petitioner.
Therefore,
the
observations
made
in
paragraphs 28 to 35 of the Tribunal's order,
being hopelessly contrary to the real
controversy involved in the matter, are
clearly unsustainable and are denounced as
such.

29. In so far as the merit part is
concerned, I do not find any discussion in
the order of the Tribunal regarding the
effect of provisions of Clauses 19.3 and
19.4 of the Memorandum of Settlement
dated 19.10.1966 or even identical terms
contained in the subsequent Memorandum
dated 10.04.2002. The Tribunal has not at
all discussed as to when the criminal trial
commenced and what would be its effect
on the departmental proceedings. In so far
as the order dated 08.11.2001 passed in
Writ Petition No.33817 of
2001 is
concerned, although the said order has not
been placed by any of the parties to this
6 All. Basistha Muni Mishra Vs. Union of India & Ors.
519
petition for perusal of the Court, I find that
the said writ petition was filed in the year
2001 and was disposed of then and there
and at that time even the charge sheet
concerning the departmental proceedings
was not served upon the petitioner and in
the said background, a general direction
might have been issued for conducting
inquiry. Even if the High Court permitted
holding of inquiry at the stage when the
petitioner was under suspension, the same,
in the opinion of the Court, would not
nullify the effect of specific terms and
Clauses of the Memorandum of Settlement
of 1966 and/or 2004 inasmuch as the
validity of the inquiry proceedings has to
be examined in the light of specific
stipulations
contained
in
the
said
Settlements.

30. The Tribunal has not even
considered the effect of honorable acquittal
of the petitioner from the identical criminal
charges. The judgment is completely silent
about the same. This is an apparent
perversity on the part of the Tribunal
inasmuch filing of the written submissions
on 25.03.2010 has not been disputed by the
respondents in the counter affidavit and
only this much has been stated in paragraph
no.27 of the counter affidavit that written
argument (wrongly mentioned as written
statement) was filed on wrong and
incorrect facts.

31. Now coming the authorities relied
upon by the learned counsel for the
petitioner, this Court in Lakshman Kumar
Mondal (supra) has dealt with the
aforesaid Clause 19.4 of the Bipartite
Settlement and held that the object of such
clause is aimed at ensuring a fair trial and
save double jeopardize. It has, in fact,
aimed at protecting interest of delinquent,
in
consonance
with
the
principle
culminated in Capt. M. Paul Anthony Vs.
Bharat Gold Mines Limited: AIR 1999
SC 1416. The Supreme Court in the case of
G.M. Tank (supra), in paragraph nos. 22,
23 and 24, has held as under:-

22. In Capt. M. Paul Anthony v.
Bharat Gold Mines Ltd. the question before
this Court was as to whether the
departmental
proceedings
and
the
proceedings in a criminal case launched on
the basis of the same set of facts can be
continued simultaneously. In para 34, this
Court held as under: (SCC p. 695)

"34. There is yet another reason
for discarding the whole of the case of the
respondents. As pointed out earlier, the
criminal case as also the departmental
proceedings were based on identical set of
facts, namely, 'the raid conducted at the
appellant's residence and recovery of
incriminating
articles
therefrom'.
The
findings recorded by the enquiry officer, a
copy of which has been placed before us,
indicate that the charges framed against
the appellant were sought to be proved by
police officers and panch witnesses, who
had raided the house of the appellant and
had effected recovery. They were the only
witnesses examined by the enquiry officer
and the enquiry officer, relying upon their
statements, came to the conclusion that the
charges were established against the
appellant.
The
same
witnesses
were
examined in the criminal case but the
Court, on a consideration of the entire
evidence, came to the conclusion that no
search was conducted nor was any
recovery made from the residence of the
appellant.
The
whole
case
of
the
prosecution was thrown out and the
appellant was acquitted. In this situation,
therefore, where the appellant is acquitted
by a judicial pronouncement with the
finding that the 'raid and recovery' at the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
residence of the appellant were not proved,
it would be unjust, unfair and rather
oppressive to allow the findings recorded
at the ex parte departmental proceedings to
stand."

23. In R.P. Kapur v. Union of
India and another: AIR 1964 SC 787 (V 51
C 101) a Constitution Bench of Supreme
Court observed:

"If the trial of the criminal charge
results
in
conviction,
disciplinary
proceedings are bound to follow against
the public servant so convicted. Even in
case of acquittal proceedings may follow,
where
the
acquittal
is
other
than
honourable." (emphasis supplied)

24. In Corporation of the City of
Nagpur, Civil Lines, Nagpur and another v.
Ramchandras and others: (1981) 2 SCC
714 the same question arose before the
Apex Court and in para 6 it was held as
under:

"6. The other question that
remains is if the respondents are acquitted
in the criminal case whether or not the
departmental inquiry pending against the
respondents would have to continue. This is
a matter which is to be decided by the
department after considering the nature of
the findings given by the criminal court.
Normally where the accused is acquitted
honourably and completely exonerated of
the charges it would not be expedient to
continue a departmental inquiry on the
very same charges or grounds or evidence,
but the fact remains, however, that merely
because the accused is acquitted, the power
of the authority concerned to continue the
departmental inquiry is not taken away nor
is its direction [discretion] in any way
fettered." (emphasis supplied)

32. Similar view has been reiterated
in Sanjay Kishore (supra) and Anand
Ram Nagar (supra).

33.

Regarding
non
grant
of
opportunity to the delinquent employee to
reply against the inquiry report, reliance
has been placed upon the judgment in the
case
of
Himachal
Pradesh
State
Electricity Board Ltd. (supra) where the
Apex Court held that before making up
mind to punish the delinquent employee on
the basis of inquiry report, a copy of the
same must be served upon him so as to
enable him to submit a reply and it is only
after consideration of reply that final order
inflicting punishment can be passed.

34. The Constitution Bench in ECIL
v. B. Karunakars: (1993) 4 SCC 727,
after elaborately considering the principles
of natural justice in the context of the
disciplinary
inquiry
laid
down
the
following in paras 29, 30(iv) and (v):

"29.