P. Raman v. The Chairman, Kerala Gramin Bank, Head Office; Branch Manager, Kerala Gramin Bank, Omassery Branch

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939** ## **WP(C).No. 7818 of 2015 (B)** ## **PETITIONER** **P.RAMAN,** **S/O. LATE CHOOLAN, PANIKKARATHODY HOUSE, KUTTIKKATTOOR POST, NOW RESIDING AT ALUNGAL HOUSE, CHEKKODE POST, VAVOOR, VAZHAKKAD, KOZHIKODE DISTRICT-673 640.** **BY ADVS.SRI.K.SANEESH KUMAR SMT.V.B.SANTHINI** ## **RESPONDENTS** **1. THE CHAIRMAN,** - **KERALA GRAMIN BANK, HEAD OFFICE, MALAPPURAM DISTRICT-676 505.** **2. THE BRANCH MANAGER, KERALA GRAMIN BANK, OMASSERY BRANCH, KOZHIKODE-673 035.** **BY ADVS: SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Hr.........** ## **WP(C).No. 7818 of 2015 (B)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF THE REPORT OF THE INQUIRING AUTHORITY OF SOUTH MALABAR GRAMIN BANK DATED 25.1.2006.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE DISMISSAL ORDER PASSED BY THE CHAIRMAN, DISCIPLINARY AUTHORITY OF SOUTH MALABAR GRAMIN BANK DATED 4.5.2006.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT BY THE JUDICIAL FIRST CLASS MAGISTRAT-I COURT, THAMARASSERY IN CC 214/2009 DATED 31.12.2013.** **EXHIBIT P4 A TRUE COPY OF THE APPEAL FILED BY PETITIONER DATED 22-06-2006 BEFORE THE DIRECTORS OF THE ERSTWHILE MALABAR GRAMIN BANK.** **EXHIBIT P5 A TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT BANK DATED 14-10-2006.** **EXHIBIT P6 A TRUE PHOTOCOPY OF THE JUDGMENT PASSED IN THE WIRT PETITION(C) 12085/2015 DATED 27-09-2010.** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE PROCEEDINGS DATED 04-03-2005 ISSUED BY THE CHAIRMAN, KERALA GRAMIN BANK.** **EXHIBIT R1(B) TRUE COPY OF THE INVESTIGATION REPORT DATED 04-03-2005 ISSUED BY THE INSPECTION WING.** **EXHIBIT R1(C) TRUE COPY OF THE CHARGE MEMO DATED 02-06-2005 ISSUED BY THE CHAIRMAN.** **EXHIBIT R1(D) A TRUE COPY OF THE ORDER ISSUED BY THE CHAIRMAN DATED 30-04-2004.** **// TRUE COPY//** **P.S TO JUDGE.** **Hr.....** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.7818 of 2015-B ------------------------------------------- _Dated this the 16[th] day of February, 2018_ ## _**JUDGMENT**_ Petitioner, who was dismissed from service while working as an officer in Omassery Branch of the Kerala Gramin Bank, has filed this writ petition challenging the order of dismissal and seeking a direction to reinstate him in the light of his acquittal as per Ext.P3 judgment in C.C.No.214/2009. 2. The petitioner had been working in the Kerala Gramin Bank since the year 1981. The petitioner had taken charge at Omassery Branch of the Bank on 12.6.2004. While working there, one Sri. Hamsa, a customer, lodged a complaint when the withdrawal slip he submitted was returned for want of funds in his savings account, stating that somebody had withdrawn amount from his account. Thereafter, the petitioner was placed under suspension on 06.03.2005. A memo of charge - Ext.R1(c) was issued to him on 02.06.2005. 2 W.P(C) No.7818 of 2015-B 3. In the memo of charge it was alleged that the petitioner misused his official position and fraudulently took possession of the cheque leaves and withdrew a sum of Rs.17000/- by a cheque in favour of one Jameela, forging the signature of the customer, cheating the customer. Sri. Hamsa filed a complaint before the Magistrate Court, dissatisfied with the inaction of the Manager of the Bank. The departmental action culminated in Ext.P2 order of dismissal issued on 4.5.2006. 4. The petitioner submits that he is innocent of the charges. He belongs to Scheduled Caste community and he was harassed. According to him, one C.K.Abraham, Senior Manager, who conducted preliminary inquiry and Sri. Rajagopal, who was the then Branch Manager instigated and compelled him to admit the charges against him and they obtained signed papers and letters from him under threat and he had given the same in fear of physical and mental torture. It is stated that though he had filed complaints against this, it was not considered properly. In Ext.P1 inquiry report dated 25.01.2006, the petitioner was found guilty of all the charges, based on the alleged confession statements. As per Ext.P2 order he was dismissed from service. Even though Ext.P4 appeal was filed, it was rejected as per Ext.P5 order on 14.01.2006. 3 W.P(C) No.7818 of 2015-B 5. In the complaint before the criminal court, he was charge sheeted as first accused for offences under Section 120B, 406, 409, 418, 420, 465, 467 and 468 read with 34 of IPC. A daily waged employee one Muhammed was the 2[nd] accused. The petitioner states that the witnesses PW1 to PW13 examined in the criminal case included the complainant, the inquiry officer, the Manager Sri. Rajagopal and other officials of the Bank, who were the witnesses before the departmental inquiry. The Judicial First Class Magistrate Court, as per Ext.P3 judgment dated 31.12.2013 acquitted both the accused. 6. The writ petition is filed seeking a direction to the respondent to reinstate the petitioner with all benefits as the order of dismissal is liable to be set aside, as he was honourably acquitted by the criminal court, in the light of the judgment of the Apex Court in **G.M. Tank v. State of Gujarat,** [(2006) 5 SCC 446 : 2006 (3) KLT 514 (SC)], since both the departmental and criminal proceedings are on same set of facts, charges as well as evidence. 7. The respondents have filed counter affidavit seriously opposing the maintainability as well as the merits of the case. It is pointed out that the writ petition was originally filed suppressing material facts relating to the 4 W.P(C) No.7818 of 2015-B rejection of appeal filed against the order of dismissal. It is alleged that the writ petition is barred by resjudicata stating that the petitioner had already filed W.P(c).No.12085/2015 challenging the disciplinary action initiated against him and its continuance pending finalisation of the criminal proceedings. That writ petition was dismissed for default as per Ext.P6 judgment dated 27.09.2010 (produced after amendment of the writ petition).; the present writ petition was filed suppressing it and it was amended only when the respondent pointed out the same. It is pointed out that the order of dismissal as well as the appellate order rejecting the appeal were issued as early as in 2006 and a writ petition will not lie challenging those orders after a period of 9 years. The respondents have produced Ext.R1(a) order issued on 4.3.2005 by which the petitioner was placed under suspension on the basis of an investigation conducted on receipt of a complaint from the customer Sri C.K.Hamza, alleging unauthorised withdrawal of money from his savings bank account. As per Ext.R1(b) investigation report dt.4.3.2005, the petitioner and one Sri B.Abdulla, a daily wage hand, were found responsible for the incident. Thereafter, Ext.R1(c) memo of charge was issued to the petitioner on 2.6.2005 and Sri Sreekumaran, a Senior Manager of the bank was appointed as enquiry authority. The explanation furnished 5 W.P(C) No.7818 of 2015-B by the petitioner was not found satisfactory. The enquiry was conducted in accordance with the relevant rules affording opportunity to the petitioner to defend. In Ext.P1 report, the petitioner was found guilty of all the charges levelled against him; respondent bank being a financial institution it has to see that the employees are maintaining utmost honesty and integrity especially in financial matters. It is stated that the purpose of departmental proceedings as well as criminal proceedings is different. Persons, who are found guilty of serious misconduct or dereliction of duty, are to be dealt with in accordance with law. It is stated that the petitioner was proceeded against for financial indiscipline earlier also and as per Ext.R1(d) order dt.30.4.2004 a punishment of withholding of an increment with cumulative effect was imposed on him. It is stated that Ext.P2 order of dismissal was passed as the petitioner was found guilty and the incident seriously affected the reputation of the bank. Further it is pointed out that the petitioner, who did not demur for the last 10 years, cannot be heard to contend that punishment has to be revised. 8. According to the learned counsel for the respondents, the degree of evidence required for departmental action and that required in criminal proceedings is different. It is also pointed out that all the witnesses, who 6 W.P(C) No.7818 of 2015-B were examined in the departmental proceedings, were not examined in the criminal proceedings. Therefore, the punishments already awarded cannot be modified. 9. The learned counsel for the respondents relied on in the judgment of the Apex Court in **Divisional Controller, K.S.R.T.C. v. Vittal Rao** [2012 (1) KLT SN 29 (C.No.33) SC], wherein the Apex Court held that question of reinstatement after acquittal in criminal cases arises only in a case where the dismissal was ordered consequent to conviction in the criminal case registered against the delinquent. The learned counsel pointed out that in the cases relied on by the petitioner, departmental action was pending when the criminal court acquitted the employee. On the other hand, in the present case dismissal was not even under challenge. 10. I have considered the contentions on either side. 11. The petitioner joined the Bank in the year 1981. He joined the Omasserri Branch in June, 2004. His services were terminated by an order of dismissal issued on 25.01.2006. Ext.P4 appeal challenging the dismissal, was dismissed as per Ext.P5 order on 14.10.2006. The acquittal of the petitioner in C.C.No.214 of 2009 was by Ext.P3 judgment dated 31.12.2013. This writ petition was filed on 11.03.2015, more than one year thereafter. W.P(C) No.7818 of 2015-B 7 12. The charges in the departmental inquiry were found proved on the basis of the confession statements obtained from the petitioner-marked as ME4(a). The case of the petitioner in the defence before the inquiry officer and as well as in the appeal, was that the confession statements were obtained from him under coercion and at the instigation of the then Bank Manager Sri. Rajagopal and Sri. Abraham, who conducted the inquiry into the complaint of the customer. His case is that he gave the statement under their threat to his life as well as that of the members of his family, exploiting his social backwardness, being a member of the scheduled caste. He points out that the Manager had initially given a reply to the customer saying that there was no substance in his complainant and saying that he himself had withdrawn the amount. When the customer took up the matter in the media and news was spread against the Bank criticizing the inaction of the Manager on the complaint of a customer that somebody else had drawn amount from his savings bank, the then Manager in consultation with Sri. Abraham, Senior Manager of the Bank, who conducted the preliminary inquiry, got self incriminating statement as dictated by him under threat and coercion that he would be subjected to police harassment at the instance of the bank and that he would never see his wife and children if he did not 8 W.P(C) No.7818 of 2015-B concede to his direction and owned the responsibility as he was in charge of the internal works department responsible for passing of the cheque. In the appeal, he stated that he had only passed the cheque after it was processed by other staff in the Bank. Even though he pleaded that the Manager compelled him to write down the confession in his hand without permitting him to go out or to contact any of his friends, ridiculing him in his caste name, despite the fact that the petitioner pleaded his innocence and begged him not to compel him to do it and not to implicate him in a crime which he did not commit. He stated that he had pointed out these facts before the disciplinary authority in his representation dated 29.06.2005. Even though he agitated the matter before the SC/ST cell of the Bank and the Chairman of the Bank, there was no positive action. He further stated that his predecessor Vijayan had, on a query from the Manager of the Bank as to whether any cheque book issued to customer was not delivered to him and was retained in the bank, he had replied that he had not noticed the same. Therefore, such a cheque book could not have come to his hands. He alleged that it was only after the receipt of that letter the Manager of the Branch in collusion with Sri. Abraham, the Senior manager, Inspection department, implicated him, in the case creating false evidence. On 01.12.2005 also he W.P(C) No.7818 of 2015-B 9 submitted a representation to the disciplinary authority to interfere in the matter. But they proceeded with the matter; the petitioner filed a writ petition on 27.04.2005; by the next posting date on 05.05.2006, they dismissed him from service. 13. In Ext.P5 order rejecting the appeal it was stated that after threadbare discussion the appellate authority decided to uphold the punishment. It was stated that the proved charges are shockingly grave and it tarnished the image of the Bank among customers and public. It was also stated that his past record was blemished with penalties. 14. Admittedly, the petitioner did not challenge the appellate order. It is in the writ petition filed in March, 2015 that he has challenged it on the basis of the judgment Ext.P3 delivered on 31.12.2013. The petitioner has filed this writ petition relying on the judgment in **G.M. Tank v. State of Gujarat, (2006) 5 SCC 446 : 2006(3) KLT 514** . In that case the employee was issued a memo of charge dated 20-2-1979 alleging that he had illegally accumulated the excess income by way of bribe, corruption and illegal gratification and hence violated Rule 3(1) of the Gujarat Civil Services Conduct Rules, 1971. On completion of the departmental inquiry he was dismissed as per order dated 21-10-1982. He took up the matter before the 10 W.P(C) No.7818 of 2015-B High Court and when the Division Bench also upheld the dismissal, he filed appeal before the Apex Court. On the very same allegation the AntiCorruption Bureau, lodged a criminal complaint against the employee before the Special Judge, for offence punishable under Section 5(1)( _e_ ) read with Section 5(2) of the Prevention of Corruption Act, 1947. During the pendency of the appeal before the High Court, the Special Judge, as per judgment dated 30.01.2002, honourably acquitted the appellant of the offence punishable under Section 5(1)( _e_ ) read with Section 5(2) of the Act. In that case the Apex Court after analysing the charges under the departmental proceedings as well as the criminal proceedings found that the charges were identical. On analysis of evidence it was found that the findings in the departmental proceedings were based on no evidence at all. Therefore, it was found that the employee was entitled to all benefits. 15. On perusal of the memo of charges issued by the Bank and the offence under which the petitioner was charge sheeted in the criminal case, it can be seen that there is difference in the charges like criminal conspiracy, cheating, impersonation, criminal breach of trust, etc., even though the incidents leading to both proceedings were the same. 16. In the departmental proceedings, the petitioner is found guilty 11 W.P(C) No.7818 of 2015-B of the charges on the basis of the confession statement of the petitioner, which the petitioner in his appeal had explained that it was given under coercion and threat. The inquiry officer discarded his contention saying that no questions were put on that when the witnesses were examined. 17. The criminal court discarded the confession statement seeing that testimony of none of the prosecution witnesses was sufficient to establish the allegation against him. The criminal court found that the Manager had not stated anything relating to the confession statement before the investigating officer. 18. On a perusal of Ext.P1 inquiry report, it cannot be said that it is a case of no evidence as in the case of **G.M. Tank** ( _supra_ ). The degree of proof in the domestic enquiry is limited to preponderance of probability and not beyond reasonable doubt, as in a criminal trial. It is settled law that the purpose of departmental enquiry and of prosecution are two different and distinct aspects. While crime is an act of commission in violation of law or of omission of public duty to the society, departmental enquiry is to maintain discipline in the service and efficiency of public service. 19. In the judgment in **In** _**Karnataka SRTC v. M.G. Vittal Rao, (2012) 1 SCC 442**_ **,** relied on by the learned Counsel for the respondents it 12 W.P(C) No.7818 of 2015-B ## was held as follows : 11. The question of considering reinstatement after decision of acquittal or discharge by a competent criminal court arises only and only if the dismissal from services was based on conviction by the criminal court in view of the provisions of Article 311(2)( _b_ ) [ _sic_ Article 311(2) second proviso ( _a_ )][*] of the Constitution of India, or analogous provisions in the statutory rules applicable in a case. In a case where enquiry has been held independently of the criminal proceedings, acquittal in a criminal court is of no help. The law is otherwise. Even if a person stood acquitted by a criminal court, domestic enquiry can be held, the reason being that the standard of proof required in a domestic enquiry and that in a 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 that constitutes the test to be applied. 20. Apart from the judgment in **Tank v. State of Gujarat** [2006 (3) KLT 514 (SC)], the learned counsel for the petitioner relied on the judgments of the Apex Court in **Joginder Singh v. UT of Chandigarh [(2015) 2 SCC 377], Radhakrishnan C.R v. State of Kerala & Ors. [2017 (3) KHC 292]** and the judgment dated 8.1.2018 of the Apex Court in Union Territory, Chandigarh Administration & Ors. v. Pradeep Kumar & Anr. in Civil Appeal No.67/2018. The judgments dt.8.1.2018 in Civil Appeal No.67/2018 and **Joginder Singh v. UT of Chandigarh** _(supra_ ) are relating to termination with respect to the character and antecedents and hence not applicable to the case of the petitioner. 21. The Apex Court has in the judgment dated 9.11.2017 in Civil 13 W.P(C) No.7818 of 2015-B Appeal no.107 of 2013, **Management Bharath Heavy Electricals Ltd v. M.Mani** reported in [2018 (1) SCC 285] reiterated the same proposition in a case where the Labour Court directed re-instatement of two employees on the basis of his acquittal in a case where they were chargesheeted for commission of theft. In that case the Labour Court found that the departmental inquiry was proper and the act of theft while on duty was proved in the enquiry. The order of dismissal was on 31.08.1991. They were acquitted by the criminal court on 24.11.1992. The order of dismissal was challenged in I.Ds of 1993. Award of Labour Court was in 08/2001. The Single Judge remanded the matter after upholding the inquiry, holding that once the enquiry was found legal, the only thing left for the Labour court was to examine whether the penalty was proper. Division Bench reversed it and upheld the award of the Labour Court. The Apex Court reversed the judgment of the Division Bench and held that the Single Judge should have decided the matter instead of remanding it. In para.31 of the judgment, the Apex Court reiterated that when it is not a case of dismissal ordered on the basis of conviction by criminal court and that conviction order was set aside by a superior court; but on the basis of an independent departmental inquiry, there cannot be an order of re-instatement. 14 W.P(C) No.7818 of 2015-B 22. It is seen that the petitioner has not approached the respondents after he was acquitted by the criminal court. All along the case of the petitioner was that the confession statements were obtained by him on coercion and under threat to the life of the members of his family, as a measure of harassment meted out to him only because he happened to be a member of scheduled caste community. All along he has raised this point. Even though this aspect was detailed in his appeal, there is no specific reference to those contentions. The petitioner has rendered about 25 years of service. The dismissal was ordered on the basis of the confession statement. Therefore, I am of the view that the petitioner has to be given an opportunity to approach the respondents for a review of the decision pointing out those facts as well as the acquittal. Now that his date of superannuation is also over, the respondents shall consider his grievance with an open mind after affording him an opportunity of hearing. 23. The writ petition is therefore disposed of with the following directions: i) The petitioner is free to approach the first respondent with a review petition within one month from the date of receipt of a copy of the judgment. W.P(C) No.7818 of 2015-B 15 ii) The first respondent shall consider the review petition untrammeled by the findings in Ext.P5 order and pass orders within a period of three months from the date of its receipt, after affording an opportunity of hearing to the petitioner. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_