# Shant Deo Tripathi v. Deputy General Manager/Appellate Authority, State Bank of India, Kanpur & Ors

- **Citation:** (2020) 6 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** WRIT A No. 23578 of 2013
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shant-deo-tripathi-v-deputy-general-manager-appellate-authority-state-bank-of-45825
- **Pages:** 16

## Headnote

Service Law - identical charge being
tried in criminal trial as in disciplinary
proceedings - Indian Evidence Act, 1872:
Section 114 - The Court observed that a
judgment
of
acquittal
does
not
necessarily result in an identical charge
not
being
tried
in
departmental
proceedings. This is because the Courts
have
consistently
recognized
and
emphasized the distinct standard of
proof
which
apply
to
criminal
prosecutions
and
disciplinary
proceedings. In the former, the charge
must be proved beyond all reasonable
doubt, in disciplinary proceedings the
standard
which
applies
is
a
preponderance of probabilities. (Para 19)

The
petitioner
is
alleged
to
have
unauthorizedly
signed
a
Draft
thus
jeopardizing the interest of the Bank and was
tried
at criminal court as well as in
departmental proceeding. The Court noted
that in criminal trial best evidence was never
produced, documentary evidence available
with the respondents in support of the charge
was not introduced, material and crucial
witnesses were never examined and most of
the prosecution witnesses turned hostile. The
judgment of acquittal in that sense cannot be
viewed
as
being
one
exonerating
the
petitioner conclusively. It essentially came to
be handed down on account of failure on the
part of the prosecution to prove the charges
beyond reasonable doubt. This was not a
decision honorably acquitting the petitioner. To
the contrary, in the disciplinary proceedings
which were undertaken the respondents
produced voluminous material in support of
the charge and also examined material
witnesses on whose testimony the charges
were held to be proved. The petitioner not
only chose not to cross-examine those
witnesses, he failed to lead any oral evidence
in support of his innocence.
(Para 24)

Writ Petition Rejected. (E-10)

List of cases cited:-

## Text

_Characters 0–39,966 of 55,205. This is a partial read: ask again with offset=39966 for what follows._

6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 911

30. Therefore, in the light of the
above discussion, it is held that there was
relationship
of
landlord
and
tenant
between the respondent and petitioner and
the release application by the respondent
was maintainable.

31. Accordingly, this Court does not
find any illegality in the orders impugned
in the writ petition. The writ petition lacks
merit and is, accordingly, dismissed with
no order as to costs.
----------
(2020)06ILR A911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE YASHWANT VARMA, J.

WRIT A No. 23578 of 2013

Shant Deo Tripathi ...Petitioner
Versus

Deputy
General
Manager/Appellate
Authority, State Bank of India, Kanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Satish Chaturvedi, S.C.

Service Law - identical charge being
tried in criminal trial as in disciplinary
proceedings - Indian Evidence Act, 1872:
Section 114 - The Court observed that a
judgment
of
acquittal
does
not
necessarily result in an identical charge
not
being
tried
in
departmental
proceedings. This is because the Courts
have
consistently
recognized
and
emphasized the distinct standard of
proof
which
apply
to
criminal
prosecutions
and
disciplinary
proceedings. In the former, the charge
must be proved beyond all reasonable
doubt, in disciplinary proceedings the
standard
which
applies
is
a
preponderance of probabilities. (Para 19)

The
petitioner
is
alleged
to
have
unauthorizedly
signed
a
Draft
thus
jeopardizing the interest of the Bank and was
tried
at criminal court as well as in
departmental proceeding. The Court noted
that in criminal trial best evidence was never
produced, documentary evidence available
with the respondents in support of the charge
was not introduced, material and crucial
witnesses were never examined and most of
the prosecution witnesses turned hostile. The
judgment of acquittal in that sense cannot be
viewed
as
being
one
exonerating
the
petitioner conclusively. It essentially came to
be handed down on account of failure on the
part of the prosecution to prove the charges
beyond reasonable doubt. This was not a
decision honorably acquitting the petitioner. To
the contrary, in the disciplinary proceedings
which were undertaken the respondents
produced voluminous material in support of
the charge and also examined material
witnesses on whose testimony the charges
were held to be proved. The petitioner not
only chose not to cross-examine those
witnesses, he failed to lead any oral evidence
in support of his innocence.
(Para 24)

Writ Petition Rejected. (E-10)

List of cases cited:-

1. G.M. Tank Vs. State of Gujarat (2006) 5
SCC 446 (distinguished)

2. Commissioner of Police, New Delhi and
Anr Vs. Mehar Singh (2013) 7 SCC 685

3. Deputy Inspector General of Police Vs. S.
Samuthiram (2013) 1 SCC 598

4.
Karnataka
Power
Transmission
Corporation
Limited
represented
by
Managing Director (Administration and HR)
Vs. C. Nagaraju and Anr. (2019) 10 SCC 367
(followed)
912 INDIAN LAW REPORTS ALLAHABAD SERIES
4. BHEL Vs. M. Mani (2018) 1 SCC 285

5. South Bengal State Transport Corpn. Vs.
Sapan Kumar Mitra (2006) 2 SCC 584

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Nigamendra Shukla,
learned counsel for the petitioner and Sri
Satish
Chaturvedi,
learned
counsel
appearing for the respondent-Bank.

2. The petitioner assails an order of
dismissal dated 17 September 2012. A
challenge is also laid to the order passed
by the Appellate Authority on 8 January
2013 affirming the decision taken by the
Disciplinary Authority. The petitioner
prays for the setting aside of the aforesaid
orders
and
for
the
grant
of
all
consequential benefits including arrears
of pay from the date of dismissal till he
would have attained the age of retirement
on 31 May 2013. The present petition
represents the second foray of the
petitioner before this Court. Earlier the
respondents had dismissed the petitioner
on 4 December 2000. That order was
challenged by way of Writ-A No. -1019
of 2002. A learned Judge of the Court by
a detailed judgment allowed that writ
petition and quashed the orders of
dismissal and that passed by the Appellate
Authority. The Court left it open for the
respondents to conduct a disciplinary
enquiry afresh commencing from the
stage of oral enquiry and after filing of
documents by the employer. The learned
Judge while allowing the writ petition
noted that out of the 22 charges which
were levelled against the petitioner,
Charges (vii) to (xxii) also formed part of
a criminal prosecution that was launched
against the petitioner and in which he had
been ultimately acquitted. Noticing the
similarity in the charges that formed part
of the departmental enquiry and the
criminal prosecution, the learned Judge
observed thus:

"43. The technical difference in
charge was not relevant but what was
relevant is that the charges are based on
the same set of facts. It has been admitted
by respondents that charges no.7 to 22 are
based on the same facts as were involved
in
criminal
case
pending
against
petitioner. In this case, besides the general
principles of law, as discussed above,
statutory provision binding upon both the
parties also contemplate that departmental
enquiry
shall
stand
deferred
when
criminal proceedings commenced but the
said provision has been given a complete
go by. I am therefore constrained to hold
that continuance to proceed with the
departmental
enquiry
in
respect
to
charges no.7 to 22 in this matter was not
legal and valid and besides the exposition
of
law,
as
laid
down
in
Noida
Entrepreneurs Assn (supra), the same was
in the teeth of para 521 of Shastry Award
and to this extent, it is vitiated in law."

3.

The
learned
Judge
then
proceeding to deal with the validity of the
enquiry which was held rendered the
following observations:

"53. The procedure prescribed
in para 521 contemplates an adequate
opportunity of defence. Here is not a case
where the petitioner had accepted his
guilt, therefore it was incumbent upon
department to prove charges against the
petitioner and only thereafter he could
have been required to place his defence to
disprove the charges. Except of filing
documents before Enquiry Officer, the
Presenting Officer did not take any
further step for proving charges. If the
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 913
charges are such which stood proved from
bare perusal of documents, in such a case
no formal proof or overt act on the part of
the department is necessary since Enquiry
Officer can peruse the documents and
find out whether charges stood proved or
not. In such a case onus would shift upon
delinquent employee to disprove the
charges.
It
is
quite
plausible
and
permissible but the question would be
whether it is so in the case in hand. Let us
examine the manner in which the Enquiry
Officer had discussed the documents."

4. Insofar as Charge No. I (iv) is
concerned, the Court held thus:

"58. In respect to charge no. 4
again Enquiry Officer held that to
petitioner's defence "Presenting Officer
did not offer any comment." "The
petitioner
alone
cannot
be
held
responsible for such act." Yet he has
held the entire charge proved which is
beyond
comprehension.
Once
no
evidence is found that there was no
other officer available in the Branch to
sign the draft and therefore under
instructions
of
Branch
Manager,
petitioner signed the draft, unless the
Bank could have shown that Bank
Manager
himself
acted
illegally,
compliance
of
his
direction
by
petitioner
cannot
constitute
a
misconduct on his part. Therefore, it is
also difficult to hold charge no. 4
proved."

5. It was ultimately observed by the
learned Judge that the enquiry had not
been conducted fairly and in a manner
consistent with the principles of nature
justice. The aforesaid conclusions stand
recorded in paragraphs 65-66 which are
extracted herein below:

"65. No person from the Bank
appeared and could show that signatures
of petitioner on various documents were
unauthorised since he was not permitted
to do so. With respect to charges no. 7 to
22, on the basis of mere language of the
charges contained in the charge sheet,
Enquiry Officer held the same proved,
since petitioner did not/could not adduce
any defence for the reason that the same
may cause prejudice to him in criminal
proceedings pending against the charges
involving same set of facts at that time.

66.
In
totality
of
the
circumstances, I am clearly of the opinion
that departmental enquiry, in the case in
hand, has not been conducted fairly,
impartially and in a manner consistent
with the Principles of natural justice and
also the procedure prescribed in para 521
of Shastry Award."

6. The respondent Bank assailed the
decision of the learned Judge by way of
Special Appeal No. 58 of 20122. The
Division Bench however recorded the
statement of the respondents that they
were ready to reinstate the petitioner and
to hold a fresh enquiry. In light of the
statement so made the appeal was
disposed of on 21 March 2012 in the
following terms:

"Having
considered
the
submissions advanced and in view of the
statement given by the learned counsel for
the parties the appeal stands disposed of
with the observations that the appellant
Bank would abide by the directions
contained in the judgment of the learned
Single Judge except to the extent that the
direction for payment of the arrears of
subsistence allowance for the period from
the date of termination till reinstatement
would remain stayed in the meanwhile
914 INDIAN LAW REPORTS ALLAHABAD SERIES
and would abide by the final decision that
may now be taken by the Disciplinary
Authority after fresh inquiry."

7. Consequent to the liberty so
granted, the respondents proceeded to
conduct the departmental enquiry afresh.
Upon conclusion of that enquiry, the
Enquiry Officer in terms of his report of
27 August 2012 concluded that Charges
No. I (i) to Charges No. I (iii), Charge
No. I (v), Charge No. I (vi) and Charge
No. II did not stand proved. He however
recorded that Charge No. I-(iv) and
Charge No. I (vii)-(xxii) stood proved.
The Disciplinary Authority upon due
consideration of that report and taking
into consideration the gravity of the
charges which stood levelled reiterated
the original decision of the Bank and
inflicted upon the petitioner the penalty of
dismissal. It was further observed that the
period of suspension will be treated as
such and that no further salary or
allowance would be payable other than
the subsistence allowance already paid to
the
petitioner.
That
order
of
the
Disciplinary Authority was affirmed in
appeal where after the present writ
petition came to be preferred.

8. The order of dismissal insofar as
Charges
I
(vii)-(xxii)
are
assailed
principally on the basis of the judgment
of acquittal which was rendered by the
Criminal Court on 24 September 2002.
According to the learned counsel since
those charges were identical to those
which formed part of the criminal
prosecution, once the petitioner had been
acquitted it was not open to the
respondent Bank to inflict the punishment
of dismissal. Insofar as Charge No. I (iv)
is concerned, learned counsel submits that
in light of the findings which were
returned inter partes by the learned Judge
on the earlier writ petition it was
impermissible for the Enquiry Officer to
have held the petitioner guilty of that
charge. Learned counsel submits that in
light of the categorical findings returned
in the earlier decision that the petitioner
alone could not be held responsible for
the act, that charge could not have been
held to be established against the
petitioner. In view thereof, it was
submitted that both the Disciplinary as
well
Appellate
Authority
clearly
committed a manifest illegality in holding
the petitioner guilty of the misconduct
alleged and forming part of Charge I (iv).
Insofar as the findings returned in respect
of Charges I (vii)-(xxii) are concerned,
they are assailed on the principles
elucidated by the Supreme Court in G.M.
Tank Vs. State of Gujarat. Learned
counsel contends that once the charges in
the
criminal
prosecution
and
the
disciplinary enquiry are found to be
identical, an acquittal in the criminal trial
clearly denudes the respondents from the
right to inflict the punishment of
dismissal in respect thereof. Reliance was
placed on the following principles that
were laid down in G.M. Tank:

"30. The judgments relied on by
the learned counsel appearing for the
respondents are distinguishable on facts
and on law. In this case, the departmental
proceedings and the criminal case are
based on identical and similar set of facts
and the charge in 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
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 915
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 one and the same. In the present case,
criminal and departmental proceedings
have already noticed or granted on the
same set of facts namely, raid conducted
at the appellant's residence, recovery of
articles therefrom. The Investigating
Officer, Mr. V.B. Raval and other
departmental witnesses were the only
witnesses examined by the Enquiry
Officer who by relying upon their
statement came to the conclusion that the
charges were established against the
appellant. The same witnesses were
examined in the criminal case and the
criminal court on the examination came to
the conclusion that the prosecution has
not proved the guilt alleged against the
appellant beyond any reasonable doubt
and acquitted the appellant by its judicial
pronouncement with the finding that the
charge has not been proved. It is also to
be noticed the judicial pronouncement
was made after a regular trial and on hot
contest. Under these circumstances, it
would be unjust and unfair and rather
oppressive to allow the findings recorded
in the departmental proceedings to stand.

31. In our opinion, such facts
and evidence in the department as well as
criminal proceedings were the same
without there being any iota of
difference, the appellant should succeed.
The distinction which is usually proved
between the departmental and criminal
proceedings on the basis of the approach
and burden of proof would not be
applicable in the instant case. Though
finding recorded in the domestic enquiry
was found to be valid by the Courts
below, when there was an honourable
acquittal of the employee during the
pendency of the proceedings challenging
the dismissal, the same requires to be
taken note of and the decision in Paul
Anthony case [(1999) 3 SCC 679 : 1999
SCC (L&S) 810] will apply. We,
therefore, hold that the appeal filed by the
appellant deserves to be allowed."

9. Refuting those submissions Sri
Satish
Chaturvedi,
learned
counsel
appearing for the respondent Bank, would
contend that acquittal in the criminal case
cannot ipso facto lead to the employer
being deprived of the right to try those
charges
in
a
disciplinary
enquiry.
According to Sri Chaturvedi since the
standard of proof in both proceedings is
different and in a departmental enquiry
the respondents are not obliged to prove
the charges beyond reasonable doubt, a
judgment of acquittal cannot in all
circumstances be held to have concluded
the issue nor can it be recognized as
divesting the employer of the right to try
those charges independently. Sri Satish
Chaturvedi, learned counsel then took the
Court through the judgment handed down
by the criminal court in some detail to
establish that the same cannot to be
appreciated without bearing in mind the
backdrop in which it came to be rendered.
It was highlighted that most of the
account holders who were complainants
and produced as prosecution witnesses
had turned hostile during the course of
trial, the prosecution there had failed to
produce
the
relevant
documents
in
support of the charge and also failed to
produce the Cashier and other relevant
witnesses. According to Sri Chaturvedi,
the criminal court acquitted the petitioner
since the prosecution had failed to
establish the charges beyond reasonable
doubt and consequently it cannot be
916 INDIAN LAW REPORTS ALLAHABAD SERIES
viewed as a judgment exonerating or
acquitting the petitioner on merits. Taking
the Court through the enquiry report it
was highlighted that to the contrary in the
enquiry proceedings the respondent Bank
had produced the Cashier and other
crucial witnesses to prove the charges that
were levelled against the petitioner.
Viewed in that light Sri Chaturvedi
submitted that the impugned order clearly
did not merit any interference. Sri
Chaturvedi further submitted that the
petitioner was an employee of a financial
institution against whom serious charges
of financial misconduct and failure to
abide by the policies and procedures
formulated by the Bank was laid. Sri
Chaturvedi submitted that the conduct of
an employee in a financial institution is
liable to be tested against strict standards
of conduct and the imperative need of
such employees being held liable to
adhere
to
codified
practices
and
procedures formulated. Viewed on the
strength of those standards, it was
submitted that the orders impugned did
not merit interference by this Court.

10. Seeking to distinguish the
principles laid down in G.M. Tank, Sri
Chaturvedi placed reliance upon the
following decisions. He drew the attention
of the Court firstly to the judgment rendered
in Commissioner Of Police, New Delhi
and Another Vs. Mehar Singh to submit
that a judgment of acquittal which comes to
be rendered in the backdrop of witnesses
turning hostile cannot be accepted as an
acquittal on merits and consequently
departmental proceedings can be justifiably
taken even though the employee or officer
may have been acquitted. Sri Chaturvedi
placed reliance upon paragraphs 24, 25, 26
of the decision rendered in Mehar Singh
which read thus:

"24. We find no substance in the
contention
that
by
cancelling
the
respondents' candidature, the Screening
Committee has overreached the judgments
of the criminal court. We are aware that the
question of co-relation between a criminal
case and a departmental inquiry does not
directly arise here, but, support can be
drawn from the principles laid down by this
Court in connection with it because the
issue involved is somewhat identical,
namely, whether to allow a person with
doubtful
integrity
to
work
in
the
department. While the standard of proof in
a criminal case is the proof beyond all
reasonable
doubt,
the
proof
in
a
departmental proceeding is preponderance
of probabilities. Quite often criminal cases
end in acquittal because witnesses turn
hostile. Such acquittals are not acquittals on
merit. An acquittal based on benefit of
doubt would not stand on a par with a clean
acquittal on merit after a full-fledged trial,
where there is no indication of the witnesses
being won over. In R.P. Kapur v. Union of
India [AIR 1964 SC 787] this Court has
taken a view that departmental proceedings
can proceed even though a person is
acquitted when the acquittal is other than
honourable.

25. The expression "honourable
acquittal" was considered by this Court in
S. Samuthiram. In that case this Court
was concerned with a situation where
disciplinary proceedings were initiated
against a police officer. Criminal case
was pending against him under Section
509 IPC and under Section 4 of the EveTeasing Act. He was acquitted in that
case because of the non-examination of
key witnesses. There was a serious flaw
in the conduct of the criminal case. Two
material
witnesses
turned
hostile.
Referring to the judgment of this Court in
RBI v. Bhopal Singh Panchal [(1994) 1
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 917
SCC 541], where in somewhat similar
fact situation, this Court upheld a bank's
action
of
refusing
to
reinstate
an
employee in service on the ground that in
the criminal case he was acquitted by
giving
him benefit
of
doubt
and,
therefore, it was not an honourable
acquittal, this Court held that the High
Court was not justified in setting aside the
punishment imposed in the departmental
proceedings. This Court observed that the
expressions
"honourable
acquittal",
"acquitted
of
blame"
and
"fully
exonerated" are unknown to the Criminal
Procedure Code or the Penal Code. They
are coined by judicial pronouncements. It
is difficult to define what is meant by the
expression "honourably acquitted". This
Court expressed that when the accused is
acquitted after full consideration of the
prosecution case and the prosecution
miserably fails to prove the charges
leveled against the accused, it can
possibly be said that the accused was
honourably acquitted.

26. In light of above, we are of
the opinion that since the purpose of the
departmental proceedings is to keep
persons, who are guilty of serious
misconduct or dereliction of duty or who
are guilty of grave cases of moral
turpitude, out of the department, if found
necessary, because they pollute the
department, surely the above principles
will apply with more vigour at the point
of entry of a person in the police
department i.e. at the time of recruitment.
If it is found by the Screening Committee
that the person against whom a serious
case
involving
moral
turpitude
is
registered is discharged on technical
grounds or is acquitted of the same charge
but the acquittal is not honourable, the
Screening Committee would be entitled to
cancel his candidature. Stricter norms
need to be applied while appointing
persons in a disciplinary force because
public interest is involved in it."

11. Reliance was then placed upon
another decision of the Supreme Court in
Deputy Inspector General of Police Vs.
S. Samuthiram and more particularly
paragraphs 23 to 26 thereof, which are
extracted hereunder:

"23. We are of the view that the
mere acquittal of an employee by a
criminal court has no impact on the
disciplinary proceedings initiated by the
Department. The respondent, it may be
noted, is a member of a disciplined force
and
non-examination
of
two
key
witnesses before the criminal court that is
Adiyodi and Peter, in our view, was a
serious flaw in the conduct of the criminal
case by the Prosecution. Considering the
facts and circumstances of the case, the
possibility of winning over PWs 1 and 2
in the criminal case cannot be ruled out.
We fail to see, why the Prosecution had
not examined Head Constables Adiyodi
(No. 1368) and Peter (No. 1079) of
Tenkasi Police Station. It was these two
Head Constables who took the respondent
from the scene of occurrence along with
PWs 1 and 2, husband and wife, to
Tenkasi Police Station and it is in their
presence
that
the
complaint
was
registered. In fact, the criminal court has
also opined that the signature of PW 1
(complainant husband) is found in Ext.P1 complaint. Further, the Doctor PW8 has
also clearly stated before the enquiry
officer that the respondent was under the
influence of liquor and that he had
refused to undergo blood and urine tests.
That being the factual situation, we are of
the view that the respondent was not
honourably acquitted by the criminal
918 INDIAN LAW REPORTS ALLAHABAD SERIES
court, but only due to the fact that PW 1
and PW 2 turned hostile and other
prosecution witnesses were not examined.

Honourable Acquittal

24.
The
meaning
of
the
expression "honourable acquittal" came
up for consideration before this Court in
RBI v. Bhopal Singh Panchal (1994) 1
SCC 541. In that case, this Court has
considered the impact of Regulation
46(4) dealing with honourable acquittal
by a criminal court on the disciplinary
proceedings. In that context, this Court
held that the mere acquittal does not
entitle an employee to reinstatement in
service, the acquittal, it was held, has to
be
honourable.
The
expressions
"honourable acquittal", "acquitted of
blame", "fully exonerated" are unknown
to the
Code of
Criminal
Procedure
or the Penal Code, which are coined by
judicial pronouncements. It is difficult
to define precisely what is meant by the
expression
"honourably
acquitted".
When the accused is acquitted after full
consideration of prosecution evidence
and that the prosecution had miserably
failed to prove the charges levelled
against the accused, it can possibly be
said that the accused was honourably
acquitted.

25. In R.P. Kapoor v. Union of
India, AIR 1964 SC 787, it was held that
even in the case of acquittal, departmental
proceedings may follow where the
acquittal is other than honourable. In
State of Assam and another v. Raghava
Rajgopalachari [1972 SLR 44 (SC)], this
Court quoted with approval the views
expressed by Lord Williams, J. in Robert
Stuart Wauchope v. Emperor ILR (1934)
61 Cal 168 which is as follows:

"8...The expression "honourably
acquitted" is one which is unknown to
courts of justice. Apparently it is a form
of order used in courts martial and other
extra judicial tribunals. We said in our
judgment
that
we
accepted
the
explanation
given by
the
appellant
believed it to be true and considered that
it ought to have been accepted by the
government
authorities
and
by
the
Magistrate. Further, we decided that the
appellant had not misappropriated the
monies referred to in the charge. It is thus
clear that the effect of our judgment was
that the appellant was acquitted as fully
and completely as it was possible for him
to be acquitted. Presumably, this is
equivalent to what government authorities
term "honourably acquitted"."

26.
As
we
have
already
indicated, in the absence of any provision
in the service rule for reinstatement, if an
employee is honourably acquitted by a
criminal court, no right is conferred on
the employee to claim any benefit
including reinstatement. Reason is that
the standard of proof required for holding
a person guilty by a criminal court and the
enquiry conducted by way of disciplinary
proceeding is entirely different. In a
criminal case, the onus of establishing the
guilt of the accused is on the prosecution
and if it fails to establish the guilt beyond
reasonable doubt, the accused is assumed
to be innocent. It is settled law that the
strict burden of proof required to establish
guilt in a criminal court is not required in
a
disciplinary
proceedings
and
preponderance
of
probabilities
is
sufficient. There may be cases where a
person is acquitted for technical reasons
or the prosecution giving up other
witnesses since few of the other witnesses
turned hostile, etc. In the case on hand the
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 919
prosecution did not take steps to examine
many of the crucial witnesses on the
ground that the complainant and his wife
turned hostile. The court, therefore,
acquitted the accused giving the benefit of
doubt. We are not prepared to say that in
the instant case, the respondent was
honourably acquitted by the criminal
court and even if it is so, he is not entitled
to claim reinstatement since the Tamil
Nadu Service Rules do not provide so."

12. Sri Chaturvedi then placed
reliance on a recent decision of the
Supreme Court in Karnataka Power
Transmission
Corporation
Limited
represented by Managing Director
(Administration
And
HR
Vs.
C.
Nagaraju And Another6 where the
principles laid down in G.M. Tank were
noted and explained. It is these rival
submissions that consequently fall for
consideration.

13. Before dealing with the
charges which also formed part of the
criminal trial, it would be apposite to
deal with Charge I (iv). That charge
alleged
that
the
petitioner
had
unauthorizedly signed a Draft for
Rs.85,069/-
thus
jeopardizing
the
interest of the Bank. The case set up
against the petitioner was that since he
was a member of the award staff he was
not authorized to sign that draft. The
petitioner in his defense had asserted
that the draft was signed on the verbal
instructions of the Branch Manager and
since no other officer was present in the
Branch on that date. The Enquiry
Officer has held that charge proved by
simply holding that since the petitioner
had admittedly signed the Draft and had
duly accepted having performed that
act, the charge must be held to be
proved. It becomes pertinent to recollect
that dealing with that charge the learned
Judge while allowing the earlier writ
petition had unequivocally observed
that once it was found that there was no
other officer available in the Branch to
sign the draft and that the same came to
be done upon the verbal instructions of
the Branch Manager, the petitioner
could not have been held guilty. It was
further observed that the mere act of the
petitioner complying with the directive
of
the
Branch
Manager
cannot
constitute
misconduct.
It
becomes
relevant to note that upon remit the
respondents neither assert nor did they
lead any evidence to establish that the
defense proffered by the petitioner was
incorrect. The respondents did not lead
any evidence that may have dislodged
the
explanation
tendered
by
the
petitioner namely that he had signed the
draft on the verbal instructions of the
Branch Manager and since no other
officer was present in the Branch on
that date. It was open to the respondents
to produce the Branch Manager or other
witnesses
to
establish
that
the
explanation submitted was factually
incorrect. However they chose not to do
so. In that view of the matter as well as
in light of the findings recorded in the
earlier round of litigation in respect of
this particular charge, this Court finds
itself unable to countenance the finding
of guilt as returned in this respect.

14. However, notwithstanding the
conclusion recorded above, that still
leaves the Court to consider the validity
of the findings which were returned in
respect of Charges I (vii)-(xxii). As was
noted earlier, the findings of guilt
returned in respect of these charges are
assailed solely on the basis of the findings
920 INDIAN LAW REPORTS ALLAHABAD SERIES
returned by the criminal court. Dealing
with this aspect, the Enquiry Officer
observed as follows:

a) During enquiry proceeding
dated 20.07.2012 the EPA had given a
letter dated 20.07.2012 indexed as D.Ex-2
demanding that PO should call upon all
the complainants, on the basis of whose
complaint the charge No.7 to 22 are
framed, for cross examination. The PO
advised during the same day enquiry
proceedings (page no.4) that since the
complainants are from general public and
beyond control of the Bank, they can not
be produced as witness, however, Shri
S.K.
Tripathi,
Accountant
Bidhuna
branch,
who
is
custodian
of
the
documents, is available who can be cross
examined by the EPA but the EPA not
demanded for his (the Accountant's) cross
examination during enquiry proceedings
on date as well as on later dates of the
proceedings. I observed that contention of
the PO is justified as the complainants are
from public, the Banks has no right over
them to call upon for cross examination.
Moreover the custodian of the documents
was present for cross examination but the
EPA had not shown any interest to crossexamine him during enquiry proceedings.
Further, at any point of time during entire
enquiry proceedings the EPA had not
stated that he wants to produce any
defence witness despite PO's consent in
this
regard
shown
during
enquiry
proceedings
dated
20.07.2012
(page
No.4). I, therefore, find that statement
written in defence brief of the EPA that
he was not given time to produce the
complainants as defence witness, is
incorrect.

b) I find that the PO stated
during
enquiry
proceedings
dated
20.07.2012 (page No.4) that the EPA can
cross-examine the custodian of the
documents Shri S.K. Tripathi, Accountant
Bidhuna Branch but the EPA neither on
that day nor during any point of time of
entire enquiry proceedings has demanded
to cross examine Shri Tripathi, therefore,
his contention that the Branch accountant
was not produced for cross examination is
not tenable.

c) I find that the standard of
proof in departmental proceedings is that
of "preponderance of probabilities" and
not of "proof beyond reasonable doubt".
Therefore, opinion of hand writing expert
not necessarily required to be taken, as
EPA's handwriting / signature / initials
available
on
P.Exs.
are
apparently
matching with those on Bank's records."

15. In order to test the veracity of
the submission addressed on the strength
of the judgment handed down by the
criminal court it becomes necessary to
analyse that decision in some detail. On a
careful consideration of the judgment
rendered by the criminal court, the Court
notes that apart from one complainant
Rajjak (P.W.-1) all the other account
holders who are alleged to have made
complaints against the petitioner had
turned hostile. The prosecution did not
produce the Cashier and other crucial
witnesses. Only a Clerk (P.W.-2) was
produced. The documents on the basis of
which the charges could have been
established were also not proved. Dealing
with the evidence of P.W.-8, it was noted
that his statement had also not established
the
charges
levelled
clearly
and
completely. The criminal court then noted
the contention addressed at the behest of
the petitioner accused in view of Section
114 of the Evidence Act on the basis of
which
it
was
contended
that
the
prosecution had failed to prove the
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 921
charges on the basis of the best evidence
which was available. It was in the
aforesaid backdrop that a judgment of
acquittal came to be entered.

16. On the contrary in the
disciplinary proceedings, the Enquiry
Officer noted that the charges were
established
on
the
strength
of
documentary
evidence
which
was
introduced and the oral statements of
witnesses
including
the
Branch
Accountant. It has also come to be
recorded
that
despite
adequate
opportunity being available for the
petitioner to cross-examine the Branch
Accountant, he chose not to do so. The
Branch Accountant crucially was the
custodian of the record. The charges were
also
established
on
the
basis
of
voluminous internal records which do not
appear to have been exhibited or
introduced during the criminal trial. It is
in the aforesaid backdrop that the impact
of the judgment of acquittal is liable to be
evaluated.

17. In BHEL Vs. M. Mani7 the
Supreme Court dealing with an identical
question held as follows:

"22. This Court has consistently
held that in a case where the enquiry has
been held independently of the criminal
proceedings, acquittal in criminal court is
of no avail. It is held that even if a person
stood acquitted by the criminal court,
domestic enquiry can still be held - the
reason being that the standard of proof
required in a domestic enquiry and that in
criminal case are altogether different. In a
criminal case, standard of proof required
is beyond reasonable doubt while in a
domestic enquiry, it is the preponderance
of
probabilities.
(See
Divisional
Controller,
Karnataka
State
Road
Transport Corporation vs. M.G. Vittal
Rao-(2012) 1 SCC 442)

23. In the light of this settled
legal position, the Labour Court was not
right in holding that the departmental
enquiry should have been stayed by the
appellant awaiting the decision of the
criminal court and that it is rendered
illegal consequent upon passing of the
acquittal order by the criminal court. This
finding of the Labour Court is, therefore,
also not legally sustainable."

18.

In
South
Bengal
State
Transport Corpn. Vs. Sapan Kumar
Mitra8, the Supreme Court reiterated the
legal position that it would be open to an
employer
to
remove
a
delinquent
employee notwithstanding his acquittal in
a criminal case. The Court deems it
apposite to extract paragraphs 9 and 10 of
that decision which read thus:

"9. We have heard the learned
counsel for the parties and also examined
the relevant records of this case. Although
the Division Bench had not categorically
said that the departmental proceeding
could not be continued and punishment
could not be imposed on the delinquent
employee when the criminal case ended
in acquittal, even then the learned counsel
for the respondents sought to argue this
ground before us. In our view, this ground
is no longer res-integra. In Nelson Motis
v. Union of India and Ors., [(1992) 4 SCC
711] a three-Judge Bench of this Court
observed at paragraph 5, as follows:

"5. So far the first point is
concerned,
namely,
whether
the
disciplinary proceedings could have been
continued in the face of the acquittal of
the appellant in the criminal case, the plea
has no substance whatsoever and does not
922 INDIAN LAW REPORTS ALLAHABAD SERIES
merit a detailed consideration. The nature
and scope of a criminal case are very
different from those of a departmental
disciplinary proceeding and an order of
acquittal therefore, cannot conclude the
departmental proceeding. Besides, the
Tribunal has pointed out that the acts
which led to the initiation of the
departmental
disciplinary
proceeding
were not exactly the same which were the
subject-matter of the criminal case."

(Emphasis supplied)

10.
Similarly
in
Senior
Superintendent of Post Offices, v. A.
Gopalan, [(1997) 11 SCC 239] the view
expressed in Nelason Motis v. Union of
India was fully endorsed by this Court
and similarly it was held that nature and
scope of proof in a criminal case is very
different from that of a departmental
disciplinary proceeding and the order of
acquittal in the former, cannot conclude
departmental proceedings. This Court has
further held that in a criminal case charge
has to be proved by proof beyond
reasonable doubt while in departmental
proceeding the standard of proof for
proving the charge is mere preponderance
of probabilities. Such being the position
of law now settled by various decisions of
this Court, two of which have already
been referred to earlier, we need not deal
in detail with the question whether
acquittal in a criminal case will lead to
holding that the departmental proceedings
should also be discontinued. That being
the position, an order of removal from
service emanating from a departmental
proceeding can very well be passed even
after acquittal of the delinquent employee
in a criminal case. In any case, the learned
Single Judge as well as the Division
Bench did not base their decisions relying
on the proposition that after acquittal in
the
criminal
case,
departmental
proceedings could not be continued and
order of removal could not be passed."

19.