1. The petitioner was an employee in the State Bank of India, branch at Wardha and was working as a clerk in the said branch. One Meshram was also an employee of the said bank and Meshram and the petitioner were occupying seats side by side at a table in the bank.
2. Between 27th February, 1967 and 3rd March, 1967, it was discovered that a blank form of bank drafts which were being handled by Meshram was lost bearing No. J. 942980. The said bank draft found its way to the Katol Branch of State Bank of India and was encashed on the 3rd March, 1967. The draft was drawn in the name of one M. R. Joshi. The petitioner had taken leave on 2nd and 3rd March, 1967 from his office at Wardha. He extended that leave up to 4th March, 1967.
3. The fact of the draft forms being missing was notified by the Bank authorities to its branches and on the 29th March, 1967, it was discovered that this bank draft was encashed at the Katol Branch. Enquiries were then made and suspicion gravitated towards the petitioner. The petitioner was then arrested and was subsequently charged with having committed the offences under Ss. 380, 381, 465, 467, 468, 471 and 420 of the Indian Penal Code. The draft was for an amount of Rs. 5450. During the course of investigation the house or the room where the accused was residing at Wardha was searched and a journal was attached therefrom, on which a signature of V. S. Kamble was also found made. There were some other unimportant articles which were also attached, with which we are not concerned. Whatever evidence which transpired and was collected during the investigation was that the accused had opened an account in the Bank of Maharashtra at Nagpur on the 9th March, 1967 and had deposited an amount of Rs. 1500 in that account. Further during the investigation the mother of the accused produced a sum of Rs. 2200 before the Investigating Officer. Specimen signatures and writings of the accused were obtained while he was under arrest. Similarly his admitted writings and signatures were similarly secured. These were sent to Government Handwriting Expert, who opined that the signature on the draft of M. R. Joshi and the signatures of the accused on the specimen handwriting were made by one and the same person namely the accused. As regards the writing on the draft, the handwriting expert did not give a clear opinion. Apart from the draft there were two other documents which also appeared in the case and during the investigation which are described as letters of credit or advice memo. The letters of credit or advice memo were sent from Wardha Branch and were received by the Katol Branch and a memo was also received.
4. The case of the prosecution against the accused was that while accused and Meshram were sitting side by side, the accused abstracted and stole a blank draft form from the table drawer where Meshram has kept these blank draft forms, used and forged that blank draft form to prepare a draft, namely draft No. J. 942980 therein, presented that draft to the Katol Branch of the State Bank of India personally and obtained payment thereof. It was also the case of the prosecution that the accused was refused payment when he presented the draft to the Katol Branch and cashier Kadam insisted upon a verification by an account-holder. It was further also alleged that the accused then told the Branch Manager and the concerned clerk that an advice was being received and had been sent to the Katol Branch soon thereafter. The advice was received at the Katol Branch through the Post Office and it is on the strength of that advice that payment was later effected in favour of the accused. An identification parade was also held after accused was arrested in which the accused was said to have been identified by witness Thakre, the messenger of the Bank and the Agent or Branch Manager, Saraf. Kadam, the Cashier who made the payment was not however taken for purposes of identification parade.
5. In a trial held by the Sessions Judge, Wardha, the accused was convicted of the offences with which he was charged and sentenced to suffer R.I. for four years. The accused then preferred an appeal, which was Criminal Appeal No. 359 of 1968. It is unnecessary to state what transpired between the conviction of the accused and the ultimate decision of the appeal, being Criminal Appeal No. 259 of 1968. Suffice it to say that the accused who was refused bail had to undergo the sentence of four years which he had been before his appeal finally came to be disposed of on 10th January, 1973.
6. The appeal filed by the accused succeeded and a Division Bench of this Court acquitted the accused of all the offences with which he was charged. In substance this Court held that the only circumstance which was found against the accused, petitioner in this case, was the admitted fact that he and Meshram used to sit side by side in their office. Beyond that it held that 'there is no material on record' to come to a conclusion that 'the accused committed 'the subsequent offences', namely offences under Ss. 467, 468 and 471 of Indian Penal Code. It recorded its conclusions briefly, to reproduce them in its own words, as follows : 'The direct evidence namely testimony of the witnesses regarding the accused being the culprit is not entitled to credence. The opinion of the handwriting expert does not stand the requisite tests. The circumstances admitted in corroboration are either not made out as the incriminating circumstances or have been duly explained by the accused.'
7. On the accused being thus acquitted, he made a representation to the respondent-Bank that he be reinstated. Accordingly he was reinstated on the 11th August, 1973.
8. Nearly two years thereafter, the petitioner received a charge-sheet wherein he was informed that the Bank proposed to hold an enquiry against him on the basis of a charge-sheet which was served upon him and which said that the petitioner was guilty of a misconduct, in that 'after obtaining possession of the draft form bearing No. J. 942980, you completed the same by writing the date, the amount, the name of the fictitious payee, M. R. Joshi and other particulars and dishonesty and fraudulently encashed the same on the 3rd March, 1967 at the Katol Branch after putting on the reverse of the draft the signature of the fictitious payee, thereby causing wrongful loss to the Bank'. The petitioner was then proposed to be dealt with under this charge in a departmental enquiry which was to be conducted by the staff officer of Arvin Branch.
9. The petitioner opposed the holding of the enquiry and submitted by his letter dated 21st July, 1975 that in terms of the Desai Award, such an enquiry could not be held. It was contended that after he was acquired and had applied to the bank for reinstatement, that were only two courses open to the bank, either to reinstate him or after reviewing his case proceed against him under the provisions of S. 521(2)(d) of the Desai Award and not in any other manner. As the bank persisted in continuing the proceedings against the petitioner, the petitioner approached this Court with a prayer of writ of prohibition against the bank and praying that the charge framed against him and the further proceedings be quashed.
10. The contention of the petitioner briefly stated in support of his prayer and writ of certiorari and for prohibition was that the bank had two alternatives pursuant to the Award known as Desai Award, which governed the terms and conditions of services of bank employees. It could either reinstate him or it could review the case against the petitioner and it could proceed against him as contemplated by S. 521 of that Award. It was contended that those alternatives and the option to exercise either of these alternatives was and had to be exercised at that stage only. It could not be exercised in a different way, having one exercised it in a particular manner, at a later stage. In other words, what is contended is that the bank having agreed to reinstate the petitioner, it could not at a later stage and after two years decide to have recourse to the other option, namely of holding an enquiry against the petitioner. It was also contended that the petitioner is being charged for the commission of the same acts in respect of which he has been held to be not guilty by this Court. It was contended that the foundation for holding the departmental enquiry and for concluding that the petitioner was guilty either of a minor or major misconduct was the act of his obtaining possession of the blank draft form and his encashing the bank draft at the Katol branch on the 3rd March, 1967. Both these facts have been found to be not proved and not established in the criminal trail held against the petitioner. That being so, it was impermissible for the respondent-bank to hold an enquiry into the conduct of the petitioner on the same facts. A stay was obtained of the enquiry and the enquiry has not been proceeded.
11. The respondent-bank filed a return disputing the contentions of the petitioner. It contended that it is not correct that an action cannot be taken against the petitioner subsequent to his reinstatement. That the bank after considerable deliberation and collection of additional further evidence particularly in the form of admitted writings of the petitioner and getting them duly examined by the handwriting expert came to the conclusion that there was a prima facie case against the petitioner for deciding whether the petitioner's services should be continued in view of the fact that a gross misconduct was disclosed. It was contended that the misconduct of which the petitioner prima facie was deemed to have been responsible was of causing loss to the respondent-bank. The charge was not for the purpose of finding out whether the petitioner had committed any offence, but whether a sort of an offence it could be an act which amounted to a misconduct. It was also contended that the object in a criminal trial and the object in a departmental enquiry are different. There scope is also different. The standard of proof is different. The evidence which could be received is also different. It is also alleged and contended that a conclusion or a finding of a criminal Court 'would not be binding on the disciplinary authority enquiring into the misconduct alleged against the petitioner'. The respondent-bank also claimed the right to proceed departmentally and refuted the contention that paragraph 521(2)(d) of Desai Award is mutually exclusive. His reinstatement, therefore, does not operate as a bar to holding the departmental enquiry subsequently against him.
12. Considerable arguments were advanced before us on both aspects of the matter. It will be seen that the two crucial issues which are raised are whether the respondent-bank was precluded by reason of the provisions in the Sastri Award as confirmed in the Desai Award governing the terms and conditions of service of the bank employees from holding a departmental enquiry. The second most important and wider question was whether a departmental enquiry could be held against an employee who was acquitted in a criminal trial held in respect of the same act, i.e. where the acts which constituted an offence of which the employee was acquitted, whether it would be permissible for the departmental enquiry to go into the question in order to find out whether the act was committed by the delinquent or otherwise. It is this larger and second question which has been agitated before us at considerable length.
13. We would firstly address ourselves to the question whether in the present case the respondent-bank had a right to proceed against the petitioner in a departmental proceeding notwithstanding his reinstatement subsequent to a decision acquitting him. The provisions in that behalf are to be found in paragraph 521 of the Sastri Award which was subsequently adopted and accepted in the Desai Award. The relevant provisions of the paragraphs which are applicable are to be found in paragraph 521, sub-paragraphs 2(2) and (d). Paragraph 521, relates to the taking of disciplinary action against a person and sub-paragraph 2(c) applies to a case of the kind which is before us. Sub-paragraph 2(c) lays down that if the accused 'be acquitted, it shall be open to the management to proceed against him under the provisions set out below in sub-paragraphs (9) and (10) infra relating to discharges.' Then follows the other portion with which we are not concerned. It only limits the kind of punishment which can be awarded to a person in such a case where the management proceeds against him even after his acquittal in terms of sub-paragraphs (9) and (10). Sub-paragraphs (9) and (10) really lay down the procedure and the modalities of a disciplinary enquiry, which by virtue of sub-para (c) us intended or proposed to be taken. We are also not concerned with that aspect of the matter and the only relevant portion of para 521 which is applicable, and that is the common ground, is sub-para (d). We consider it desirable to reproduce that portion of sub-para (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 him under the provisions set out below in sub-paras (9) and (10) .........'
14. It will thus be seen that the petitioner who had been dealt with after his conviction upon his acquittal in an appeal represented to the management for reconsideration of his case. That he did so is beyond question. The management then must be deemed to have reviewed his case. The relevant and material portion upon which reliance is placed appears in sub-para (d) and is as follows :
'The management ...... may either reinstate him or proceed against him under the provisions set out below.'
The emphasis on behalf of the petitioners is on the conjunction 'or' and the alternatives provided by the use of the word 'either'. It is, therefore, contended that the respondent-bank has an alternative. It would either do one or the other, namely it can reinstate him or decide to proceed against him. Having chosen one of the courses and having exercised one of the options of reinstating the petitioner, the respondent-bank, it was urged, has lost its right to exercise the other option or right, namely to proceed against the petitioner. The occasion and time for deciding as to whether to reinstate the petitioner or to proceed against him had to be at the commencement. The respondent-bank, it is urged, was not bound to reinstate the petitioner. It could have as well decided that the petitioner be proceeded against in a disciplinary enquiry notwithstanding his acquittal. The respondent-bank, however, having chosen to reinstate the petitioner was not at liberty at its sweet will to forego that option or notwithstanding petitioner's earlier reinstatement decide to proceed against him on evidence alleged to have been discovered and collected by it late on. The wording of the paragraphs which govern the conditions of service, gives to the employer, only one of the two options which it could exercise. Having exercised one, the employer had disentitled itself to the exercise of the other.
15. Mr. Modak, the learned counsel for the respondent-bank contended that this interpretation is not consistent with the object that the misconduct committed by employees, whether gross or minor, should be dealt with and punished. Besides he pointed out that in such cases latter part of sub-para (c) limits the punishment which could be imposed, and the enquiry where the person has been acquitted, has also to be more careful and additional safeguards have also introduced. It was his further submission that the employment of the words 'either' and 'or' do not mean that only one of the courses was open. They are not mutually exclusive. If that were to be the intention, then it was urged that it would be difficult for the employer where material collected subsequently revealed pointing towards the commission of a misconduct by an employee who was earlier charged. That material subsequently obtained not having been available earlier, might have resulted in a conviction or affect the result of the case against that person. The intention, according to him, is not that such evidence cannot be of any avail and cannot be considered at a later stage by the respondent-bank. He, therefore, pleaded that the same should not be read as mutually exclusive. Mr. Modak also referred to paragraph 505 in the Sastri Award whereunder it was observed that :-
'...... The acquittals should not be lightly challenged by departmental enquires for disciplinary action unless the bank management feels that there has been such a gross violation of the departmental rules as to necessitate a further enquiry in the interests of the institution on matters other than those in respect of which he has been already acquitted.'
16. Mr. Modak, therefore, contended that though it may not be permissible to hold a departmental enquiry to hold contrary to what has been held by a Criminal Court that the employee had not committed an offence, it would still be permissible on the basis of the same facts in a departmental enquiry to consider whether the employee should 'continue in its service' and whether in the interests of the institution the enquiry should be held in regard to his conduct 'on matters other than those in respect of which he has been already acquitted.' It was urged, therefore, before us, that though an enquiry into the question whether the offence with which the petitioner was charged was committed by him or not could not be held in the disciplinary proceedings. Nevertheless his action resulting in a loss to bank could be enquired into. Mr. Modak submits that a sum of Rs. 5,455.00 has been lost to the State Bank of India from its Katol branch. If the loss could be traced to the petitioner as the person responsible for the loss, then he urged a departmental enquiry against him for his further continuation in service can still be held.
17. We think that the rule laid down in para 521(2)(d) of the Sastri Award empowers the employer to have recourse to any of the two courses. The consequence of the exercise of that course and the language adopted, in our opinion, clearly indicate that that consequence must be followed and the options exercised at the time when any of the actions contemplated is to be taken. Therefore, in our opinion, when an employee who has been dealt with earlier is subsequently in an appeal is acquitted and makes a representation to the management for consideration of his case, then it is at that time that the management upon a review of his case decide whether it will reappoint him or reinstate him or proceed against him. Having once taken a decision, the words and the sequence of the procedure indicated and the language of the paragraph have now become the terms and conditions of the bank employees, in the employer renders himself powerless either to alter that decision or change the course and pick up the other alternative. In our opinion, Mr. Modak is not right in contending that either of the options continue to be available and could be exercised at any time and particularly when after the event some additional material becomes available and discloses the guilt. We do not think that any of the paragraphs enable the respondent-bank to do so. In a case where the departmental enquiry rules and service rules and conduct rules of employee permit the reopening of an enquiry or of holding an enquiry even after reinstatement of the basis of material subsequently disclosed, then it may be possible to do so. In the present case we do not find any such words predicating or preserving any such right in the employer. In the absence of any such predication or preservation of the right in the employer on an alleged contingency, raised before us of subsequent discovery of evidence, we think it was not permissible for the respondent-bank having reinstated the petitioner to proceed against him at a later stage in respect of the same act. We think it could not do so on the basis of an information which it says it had obtained subsequently contrary to what has been expressed in the earlier proceedings in that behalf. The question which is, however, raised we think is also intimately would up with the second aspect of the matter, which is of a more general importance with which we propose to deal. Our observations in respect of the first contention raised above, therefore should also be understood and taken in the light of what follows.
18. As was natural, the learned counsel for the respondent placed considerable reliance upon a Division Bench judgment of this Court reported in Bhaurao v. State of Maharashtra : (1973)ILLJ153Bom . Reliance was also placed on some other cases to which we shall presently come. On the other hand, the learned counsel for the petitioner, Mr. Manohar, contended that the charge in the present case which the petitioner is required to face and the subject of the departmental enquiry was directly in issue in the sessions trial. What has been found as not proved by the Division Bench of this Court is purported to be the basis of an enquiry being held against the petitioner. Mr. Manohar contended that the petitioner could be proceeded against and found to be guilty of a misdemeanour or misconduct of having caused the loss to the respondent-Bank at the Katol Branch only if it could be held that it was the petitioner accused who had encashed the draft on 3rd March, 1967 at the Katol Branch. Further it was urged that the foundation for recording a conclusion that it was the accused who had encashed the drafts was that the accused had the opportunity and had in fact dishonesty obtained possession of the blank draft form. Further it was pointed out that the conclusion further could not be reached unless it was also further held and found that it was the petitioner accused who had either forged he draft or knew that the document, namely the bank draft, was a forged draft or a false instrument and knowing it that it was a fraudulent document represented that it was genuine. All these aspects of the matters, he contended, had been found in favour of the petitioner and against the prosecution in appeal. There could not be, therefore, any enquiry to find out (1) whether as a matter of fact the petitioner accused had obtained dishonestly or fraudulently possession of the blank draft form; (2) whether he had forged that blank draft form and made it out in his name; (3) whether knowing full well that the document was forged and fabricated document; used it as a genuine document and (4) fraudulently and dishonestly forged the signature of M. R. Joshi and obtained the proceeds of the draft. It was contended that all these four ingredients constituted the commission of the various offences. If those offences and those to have been proved in that case, it was not permissible to hold another enquiry for the very purpose of finding out whether the petitioner accused had obtained possession fraudulently and dishonestly of the blank back draft form, had forged and written out and completed the blank draft form, forged the signature therein, used it as genuine and encashed it. Mr. Manohar contended that the fact that the Katol Branch of State Bank of India paid an amount of Rs. 5455 on the 3rd March, 1967 and that a loss was caused to the bank is a circumstance which may be true and assumed. Unless however the connection of the petitioner with the loss and payment is found or made, there cannot be any enquiry against him. The only connection of the petitioner with the loss is via the commission of the offences aforesaid. In as much as those offences have been found and held not to have been committed by the petitioner, it was not permissible to go into the same question again and contrary to the finding of the Division Bench of this Court come to a conclusion that it was in fact so done. The issue between the parties, it was urged, is the same which was in issue between in the prosecution and the petitioner accused in the criminal case. Since that issue has once been found in favour of the petitioner in cannot be re-agitated and the doctrine and principle of res judicata as obtained in the question of 'issue estoppel' applies even if the parties in a sense are not same. It was also in this connection urged that a judgment of a criminal Court is in the nature of a judgment in rem. Such a judgment would be binding on authorities which are amenable to the law. Permitting a domestic tribunal or any tribunal for that matter to go into this very same question as if sitting in an appeal and to consider the correctness of those conclusions would be prohibited. Those conclusions of the Court could only be revised and superseded by a superior tribunal and not by an inferior tribunal or a collateral tribunal. The domestic tribunal in a sense is an inferior tribunal being amenable to the writ jurisdiction of this Court. It would not therefore be entitled to come to a conclusion, contrary to that which has been reached by this Court, that the offences were committed. It is the commission of the very same offences. It was urged which only could be the basis of a charge of misconduct.
19. Mr. Modak in this contest and in this connection submitted that it may be that the result of a departmental enquiry which may be held against the petitioner would be to acquit him and discharge him. There is no bar, however, according to him, for holding of an enquiry. The circumstance that the domestic tribunal cannot reach a finding contrary to that which is reached on a question of fact by any other tribunal, which operates as an estoppel between the parties may be a circumstance to discharge the proceedings. The petitioner or the person concerned is in no way prejudiced by merely requiring to face a charge. He, therefore, submitted that though at the conclusion of the departmental enquiry a writ of certiorari may lie; if the proceedings, result in a finding contrary to what has earlier been reached, that the petitioner committed the acts, which it was held he had not, then the entire proceedings and the decision may be liable to be quashed. It was his submission that this however could not be done at the initial stage and the enquiry had to be allowed to be completed.
20. For the reasons which follow and which we shall presently give, we do not think that this contention is sound. If the principle of issue estoppel and the principle of res-judicata applies, then we think that subjecting a person to a proceeding over again for determination of the same questions and same facts is opposed to the normal rules and principle of justice and jurisprudence. A proceeding therefore would be liable to be quashed at any stage and including at the commencement stage where they are found to be or shown to be opposed to rules and principles of jurisprudence and law governing finality of matters decided between the parties.
21. As we stated considerable reliance was placed upon Bhaurao's case (supra). It was urged that the decision being a Division Bench judgment of this Court was binding upon us. We have no quarrel with that proposition. But if by that it is meant that every statement made in that decision is binding upon us and is a gospel, we think Mr. Modak is not right. A decision is in the settings of the facts obtained therein. It is law with regard to those cases and it is only when certain principles emerge which are applicable to all situations that the decision can be extended beyond the facts of the case and made applicable in other situations. It would be worth while to state the facts which arose in Bhaurao's case. Bhaurao was head constable attached to Nawapur Police Station in Dhulia District. While he was so attached he was entrusted with certain enquiries in the commission of some offences, in which one Limji was concerned. This Limji subsequently complained against Bhaurao to the Sub-Divisional Police Officer, Anti-Corruption that he was demanding a bribe of Rs. 5 from the said Limji. Trap was laid on the basis of this complaint, and Bhaurao, as the report says, was 'caught red handed while accepting bribe of Rs. 5 from the said Limji.' He was then tried by the Special Judge, Dhulia in Special Case No 4 of 1958 and was acquitted. On Bhaurao's acquittal, he filed a suit in the Court Judge, Senior Division in 1962 against the State of Maharashtra for arrears of salary and for a declaration that he continued in service. In the mean time upon the report made of the incident to the Superintendent of Police, Dhulia, an order of dismissal was passed against Bhaurao which came to be confirmed by the Deputy Inspector-general of Police in an appeal Bhaurao's Revision to the State Government also failed and it was thereafter that this suit was filed. The suit was decreed by the trial Court. But that decree was set aside and reversed and the suit came to be dismissed by the Extra Assistant Judge, Dhulia in an appeal filed by the State against the decree. It was this appellate decree which camp up for challenge before this Court and before a Division Bench of this Court. It was contended before the Bench that 'that finding of the Special Judge negativing the story of the appellant (Bhaurao) having taken bribe is binding on the dismissing authorities and it was not open to him to record a contrary finding and accept the evidence of those whose evidence was discarded.' The Bench ruled that this contention was misconceived and referred to Rule 446 of the Bombay Police Manual. Rule 445(2) of the Bombay Manual says;
'445(2) On the termination of the judicial proceedings, it will be the duty of the departmental head to consider the evidence and findings and determine whether the retention of the subordinate in service is desirable or not .....' (so far as is relevant-rest of the portion is not reproduced).
22. It was pointed out that Rule 445 ibid requires the competent authority to consider the question whether 'such acquitted public servant should be retained in service', or not. It was pointed out that the validity of this rule was not challenged as being 'violative of any constitutional or legal provision.' No such contention appears to have been raised in that case. Mr. Modak naturally relied upon the observations of this Court that the contention that a finding of a criminal Court is binding upon a domestic tribunal was negatived by this Court.
23. Further reliance was placed upon the subsequent observations in the judgment distinguishing the features of a criminal trial and a domestic enquiry. It was pointed out that 'in the one the question at issue is solely whether the accused has committed any offence against the public as a whole while in the other the short question involved is as to whether the public servant concerned deserves to be retained in service which essentially is a matter of public interest.' A distinction was thus drawn between what are matters of public interest and what is the commission of a crime against the society. In a prosecution, it was also pointed out, what was relied to be proved is the case' beyond possibility of any doubt' while the object in a departmental enquiry was only limited to find out whether the continuation of the employee in the service was desirable or otherwise.
24. Reliance in that case for the appellant Bhaurao was naturally placed upon the decision of the Madras High Court, J. D. 'Silva v. R.T.A. : AIR1952Mad853 , and Madhya Pradesh High Court, Qumarali v. State : AIR1959MP46 , which have taken a contrary view, namely that 'the findings recorded by the criminal court in the course of the criminal trial are binding on the quasi judicial tribunals holding departmental proceedings'; Mr. Modak relied upon the conclusion and observations set out in that behalf by the Bench; 'We regret, we do not find it possible to subscribe to the view enunciated in the above passage. We say so with great respect to the learned Judges. To us the law so enunciated appears to have been stated in too wide terms.' Mr. Modak also pointed out the view expressed by this Court that the principle of res-judicata and the principle of issue estoppel 'operate in limited fields under limited circumstances specified therein' and that it could not, therefore, 'be laid down as an inflexible rule of law that judgments and findings recorded by the municipal Courts - Civil or Criminal - should be conclusive in all cases, if the controversies covered by them are raised before such tribunals.'
25. In Bhaurao's case reliance was also placed two decisions of the Supreme Court, M. S. Sherif v. State of Madras : 1SCR1144 and Pritam Singh v. State of Punjab : 1956CriLJ805 , and the observations extracted in Pritam Singh's case (supra) from Sambasivan's case (1950) A.C. 458. It was observed with reference to the observations of the Supreme Court in Pritam Singh's case that 'In spite of the width of the language employed. We have no doubt that the Supreme Court could not have intended to make such acquittal effective even in departmental proceedings when the Rules and the provisions of the Constitution themselves loudly speak to the contrary'. The effect of the decision, therefore, was, and it was upon this that heavy reliance was placed, that notwithstanding an acquittal by a criminal Court a departmental enquiry could be held and an order of dismissal could be passed. Mr. Modak naturally pointed out to us that while the criminal case was for a charge of having accepted a bribe of Rs. 5 from Limji and resulted in an acquittal, the departmental proceedings also, as the report goes to show, called upon Bhaurao to show cause as to 'Why he should not be dismissed on account of his having accepted bribe of Rs. 5' Mr. Modak, therefore, contended that the question whether Bhaurao's accepted bribe of Rs. 5 was very much in issue before the Sessions Judge and was also in issue before the domestic enquiry. That the judgment of this Court, therefore, permitted, notwithstanding the finding of the criminal Court that it was not proved that Bhaurao had taken a bribe of Rs. 5 from Limji, the domestic tribunal came to the conclusion that Bhaurao had taken bribe of Rs. 5. What, he submitted, could be done according to the judgment to consider whether retention in service of Bhaurao was improper and dismissal justified.
26. Put in this manner no doubt, it would appear that this Court ruled that in a domestic enquiry an identical fact can be found differently, and in a contrary way than the one which had been found earlier in a criminal of Civil Court. If the criminal Court had found that no bribe from Limji, on the hypothesis that that finding is binding upon a domestic tribunal, it ought to have been held that the domestic enquiry could not go on to find that and was liable to be quashed, thus enabling Bhaurao to obtain a decree in a suit. This Court, however, ruled, it was Mr. Modak's submission, that this can be done in the departmental enquiry, not with a contrary conclusion by a criminal Court and that a decision to remove Bhaurao could be taken and was upheld.
27. It is no doubt true that the report uses these expressions which we have extracted. But we think that it is not right to use the word 'bribe' and go only by the words used in the report to indicate the transaction. It does not appear and we are inclined to think that Judgment in Bhaurao's case can be and could be supported as well in different grounds namely that a sum of Rs. 5 had passed from the hands of Limji to Bhaurao. The transaction of commerce with Limji by Bhaurao was itself, though it had been found that the amount was not received by way of bribe, a circumstance requiring consideration as to whether Bhaurao should be continued in service. But it is one thing to say that a fact found in a particular manner in a criminal Court or a Civil Court is capable of being found differently or contradictorily by a domestic tribunal and another thing to say that on the basis of those facts which were found and which are also found again in the departmental enquiry, the question as to whether the continuation of the person in employment is desirable or otherwise. In the second case, it is not the finding of fact which is altered, but what is disclosed and what follows from the finding of the fact, the act of taking Rs. 5 is found to be not amounting to taking an illegal gratification. It may, however, equally be capable of being described as a conduct unbecoming of a police officer making his further continuation in service undesirable. From the same fact, therefore, different results may follow. But it is one thing to say that a domestic tribunal can come to a contrary or contradictory conclusion in regard to the same fact and another that an inference or conclusion drawn may follow differently from the act having different aspects for which the act or conduct is under enquiry. In one case the act or conduct is enquired into for the purpose of finding out whether an offence is spelt out under the relevant enactment or is not committed, while for the other purpose the question is as to whether the act committed renders the continuation of the person in the employment undesirable. While, therefore, more than one consequence is capable of following from the same act holding of an enquiry for the purpose of determining whether that other consequence has followed disentitling the person from further continuation or requiring his terminations, is a question which can be legitimately gone into by a domestic tribunal, notwithstanding that no offence is disclosed. The areas, therefore of the two authorities are clearly different. We do not, however, think that this Court in coming to his conclusion had held or opined that it would be permissible for the other tribunal to come to a contrary conclusions of fact. If it had been found by the criminal Court in Bhaurao's case (supra) that no money passed from the hands of Limji to Bhaurao as a fact, then we have considerable doubt, and that is not what has been held, that it was possible for the domestic tribunal to hold as a matter of fact that an amount of Rs. 5 did pass from the hands of Limji to Bhaurao. It is this aspect of the matter and controversy which acquired considerable importance in the present case. With very great respect, we are unable to agree that the Supreme Court when it made any observation in Pritam Singh's case (supra) did not mean what it said. What was said in Pritam Singh's case (supra), following the observation of Lord MacDermott in Sambasivam's case was that verdict is binding 'and conclusive in all subsequent proceedings between the parties to the adjudication.' In terms of Art. 141 of the Constitution of India we think that the Supreme Court approved these observations and stated in its judgment that that is the law of the land and has to be followed and respected by every subordinate Court.
27-A. The other decision on which reliance was placed by Mr. Modak is T. V. Gowda v. State of Mysore : (1975)IILLJ513Kant . Mr. Modak pointed out that decision approves and adopted the observations in Bhaurao's case and upon a consideration of the various cases in this behalf, it has not approved the line of decisions of the Madras High Court J. D.'Silva's case (supra) and the Madhya Pradesh High Court Qumarali's case (supra). The Full Bench, according to Mr. Modak, refers to the Supreme Court decisions and points out that the Supreme Court has not ruled that such a decision would be binding on the domestic tribunal. We may observe, however, that Pritam Singh's case (supra) has not been referred, nor the decision in Sambasivam's case (supra), by the Full Bench of the Mysore High Court. As we shall presently point out, a later Madras decision and a later Supreme Court decision has also not been referred in that case. The Full Bench of the Mysore High Court referred to the decision of the Supreme Court, R. P. Kapur v. Union of India : (1966)IILLJ164SC , as not laying down the proposition that the finding are binding in a departmental enquiry and relied upon the decision of the Supreme Court, Delhi Cloth and General Mills Ltd. v. Kushal Bhan : (1960)ILLJ520SC , for the purpose of holding that a departmental enquiry could be held.
28. The statements of law in R. P. Kapur's case (supra) as made be Mr. Justice Wanchoo is to the following effect : 'If the trial of the criminal charge results in conviction, disciplinary proceedings are bound to follow against the public servant so convicted; even in the case of acquittal proceedings may follow where the acquittal is other than honourable.' This was held to mean that an acquittal does not mean the holding of an enquiry by a domestic tribunal and was interpreted to mean as lending 'itself to an inference that where the acquittal is honourable, disciplinary proceedings cannot follow. 'This inference, however, was not drawn by the Full Bench on account of the Supreme Court's decision in other matters, to which a reference was made. With very great respect, having considered the other Supreme Court decisions, we do not find that a similar question was involved in them. No question like the one which was raised in Pritam Singh's case (supra), namely where a certain finding of fact is reached, by a criminal Court, it would be permissible for a domestic tribunal or for any other Court to come to a contrary finding arose in those cases. It is no doubt true that in Pritam Singh's case (supra) the very same issue or questions of fact was also in issue in a subsequent criminal trial. But the observations go beyond and we think that they lay down a rule of law that a finding which operate as an issue estoppel continues to be binding later on also, no matter before whom that question comes. The underlying principle preventing the trial and enquiry into the same fact again is the finality of any litigation. If a final result has been reached in respect of fact in a particular proceeding, then, the issue may operate as res-judicata or estoppel in subsequent proceedings against that person. He cannot be exposed or tried on a second occasion to determine whether that finding of fact is correctly reached or otherwise. In other words, no tribunal can constitute itself, except the superior tribunal to which there is a right of appeal, an authority which can like an appellate Court find whether the fact held to have occurred in a particular manner or to have existed did not exist or occurred in a different manner. That function and power is only with a superior Court and with a co-ordinate Court or a subordinate or inferior Court.
29. The question before the Supreme Court, J. K. Cotton Spg. & Wvg. Co. v. Its Workmen 1965 II L.L.J. 153, was only with regard to the jurisdiction of the Industrial Tribunal while considering a reference arising out of an enquiry held by a domestic tribunal. The limits of that jurisdiction were laid down and it was pointed out that it is one in such case that the result of the domestic enquiry could be quashed or set aside. It was observed that 'This Court has pointed out time and again that an industrial tribunal to which a dispute arising from dismissal has been referred for adjudication is not an appeal Court having the power to examine the correctness of the conclusions of the fact arrived at by a domestic tribunal.' In that case two workmen were convicted by the trial Court of the offence of theft but were acquitted in appeal by the District and Sessions Judge. It was after they were convicted on 23rd March, 1955 by the trial Court that the enquiry was commenced and even before they were acquitted by the appellate Court, they were dismissed. The appellate decision was received subsequently and therefore it was urged that no value could be attached to the finding in the enquiry which is contrary to the finding of the appellate Court. The decision in J. K. Cotton Mill's case (supra) therefore does not lay down, equally with great respect, that a finding of a criminal Court can be enquired into and gone into a domestic enquiry and contrary finding was permissible to be reached therein. We do not think that this case is of any avail in the present case.
30. Similar is the decision in D.C.M.'s case (supra) where the question was whether the domestic enquiry should be deferred and should be stayed pending enquiry by a criminal Court in respect of the same incident.
31. We may, however, point out that in T. V. Gowda's case (supra), conflict of judicial opinion in this behalf was noted and it was pointed out that the Madras and Madhya Pradesh High Courts had taken a view on the one side of the spectrum while Bombay and Kerala High Courts had taken a view lying on the other side of the spectrum. We find, however, that another decision of the Mysore High Court, Channappa v. Mysore R. S. Tribunal A.I.R. 1966 Mys 68 wherein Justice Hegde (as he then was) took a contrary view, has not been referred, which had followed the Madras decision in D.'Silva's case (supra). The Head Note therein reads : 'When a particular charge had been enquired into and found against by a competent criminal Court, Tribunals constituted under other enactments, cannot again enquiry into the same charge, so long as the acquittal before the Criminal Court is not on any technical ground, but on merits.'
32. We would now refer to two decisions of the Supreme Court in Pritam Singh's case (supra) and Lalta v. State of U.P. : 1970CriLJ1270 . In Pritam Singh's case (supra), which arose from his conviction and sentence of death passed upon him, he was charged with having committed the murder by means of revolver. Pritam Singh was tried under the Arms Act, S. 19 for being in unlawful possession of the revolver and was acquitted. It is these facts, on the basis of which, the following observation was made by Mr. Justice Bhagwati in Pritam Singh's case After referring to the observations of Lord MacDermott in Sambasivam v. Public Prosecutor, Federal of Malaya 1950 A.C. 458, that 'The maxim 'res judicata proveritate acceptor ' is no less applicable to criminal than to civil proceedings.' The Supreme Court ruled that the acquittal of Pritam Singh of that charge was tantamount of finding that the prosecution had failed to establish the possession of the revolver, Ex. P-56 by him. The possession of revolver was fact in issue which had to be established before he could convicted of the offence with which he had been charged (murder). It was then stated that having regard to the observations of Lord MacDermott quoted above, that the fact 'could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him.' In other words, therefore, Pritam Singh's case is an authority for the purpose of laying down the proposition that where a fact is found in one way or other in a criminal proceeding, the finding of that fact would be binding not only in criminal Courts but also in civil proceedings, where the question arose between that person and the other person. In other words, where a fact is found in a certain way and manner in favour of a person in a criminal trial, the same fact cannot be found in a contrary manner in a subsequent criminal trial or case or also in civil proceedings. The question then before the Supreme Court was not with regard to the latter aspect of the matter, namely of civil proceedings, but of a criminal proceeding. That is true. But we do not think that if the Supreme Court wanted to limit the principle laid down by Lord MacDermott in Sambasivam's case to criminal cases only it would not have said so.
33. If there was any doubt in this behalf, though the matter again arose before the Supreme Court in a criminal case, we think it was set at rest in Lalta's case (supra). In that case Lalta had brought a suit against Swami Nath to recover a sum of money due on the allegation of execution of a promissory note on 1st July, 1952 by Swami Nath. A criminal complaint had been filed by Swami Nath against Lalta and other alleging that 'they had forcibly taken his thumb impressions on a number of blank forms of pronotes and receipts.' The magistrate who heard that case acquitted Lalta. But the case instituted by Swami Nath continued against Lalta under other sections, Ss. 342 and 354 of the Indian Penal Code. The Civil Suit came to be dismissed for default of Lalta's appearance. A report was called from the Superintendent, Security Press. Nasik who informed that the stamps in question used for promissory note of 1st July, 1952 were first printed in December, 1953 and were issued only on 16th January, 1954. Lalta therefore, not remaining present was understandable.
34. In the criminal case Lalta was found guilty of the offences under Ss. 467 and 471 of the Indian Penal Code. This finding was confirmed by the Sessions Judge in appeal, so far as the other accused were concerned, but resulted in an acquittal so far as Lalta was concerned. The convicted accused went up in a Revision Application before the Allahabad High Court, which rejected their Revision Application. It is thereafter that they filed this appeal by special leave before the Supreme Court. A reference was then made to Pritam Singh's case (supra) and it was observed by the Supreme Court that 'that effect to verdict of acquittal passed by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence but to that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication'. In other words, this is what, according to the observations of the Supreme Court in Lalta's case, the statement of law. This decision in Lalta's case has not been referred in Bhaurao's case (supra). If it had been, then probably the observations to which we have made a reference earlier would not have appeared. What the Supreme Court held further in Lalta's case (supra) as below :-
'The question is whether where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence.'
All that in the present case that we have to substitute is reception of evidence for the purpose of disturbing the finding reached by the competent criminal Court in the case of the petitioner that it was not the petitioner who tendered that draft at Katol Branch and withdrew the money is not permissible in any subsequent proceedings. The principle on which this conclusion was based is further to be found stated in the same decisions :
'But if such a condition of affairs arises, I see no reason why the ordinary rules of issue estoppel should not apply. Such rules are not to be confused with those of res judicata which in criminal proceedings are expressed in the pleas of autre-fois acquit and autre-fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the relitigation of issues which are settled by prior litigation.'
The rule was also said to be based on sound principle and supported by high authority and is also supported by Pritam Singh's case (supra) and Manipur Administration. Manipur v. Bira Singh : 7SCR123 . We think, therefore, that the question is clearly well settled by the Supreme Court that an issue of fact would operate as an issue estoppel between the parties in subsequent proceedings.
35. It remains now to refer to one more decision where most of these cases relating to the decisions in criminal cases affecting departmental enquiries have been considered and cited. That is the judgment of Justice Rangarajan (Delhi High Court) reported in Kundanlal v. Delhi Administration 1976 (1) S.L.R. 133. The learned Judge therein, as he says, that the 'Survey of judicial opinion seems to point to a preponderating preference for the middle view which is that when there is a substantial acquittal of the accused on a criminal charge there should not be a departmental proceeding against him in respect of the same charge on the same facts unless there are present conditions like the acquittal being on a technical ground or establishing conduct which would make it unworthy of the said officer continue in office etc. 'The learned Judge said the decision of Anantanarayan J., reported in Shalik Kasim v. The Superintendent of Post Offices : (1965)ILLJ197Mad , had not been cited in Bhaurao's case (supra) and also referred to Pritam Singh's case (supra) and the earlier Madras decisions and noted that on the question of the 'impact of a judicial acquittal on departmental action', diametrical of opposite views have been expressed.
36. It seems to us that where an acquittal is based upon a finding of fact, either to be existing or not existing as alleged, either by the prosecution or by the accused, then to that extent such a finding of fact becomes a binding and conclusive fact in all proceedings against that party. It will acquire the status of an issue estoppel and would not be capable of being further investigated or inquired into for the purpose of coming to a conclusion differently or contradictorily. The same can never form as a basis and considered as a basis for purposes of determining the desirability of the employee to be retained in service or his continuation. On the other hand where the acquittal is on account of a technical defect in the prosecution or trial, where the accused has been given a benefit of doubt and where no fact as such is found to have been established or is proved, then on the basis of the same fact and evidence relating to same matters, a departmental enquiry can be held. It is between these two decisions that a twilight area occurs and presents difficulties. It seems to us that in such cases, the middle course which has been suggested by Rangarajan J., would be most properly suited. Nevertheless no hard and fast rule of inflexible dictum can be laid down, that in no case where a criminal prosecution has ended in an acquittal can there be a departmental enquiry held on the basis of the same facts and allegations. It is equally also not true to hold the rule that notwithstanding an acquittal a departmental enquiry can be held even in respect of the same facts and on the same evidence, even though a contrary conclusion and finding is reached by the concerned Court. That we think in the circumstance is the true and correct position as to the effect of the failure of a criminal prosecution on a departmental enquiry.
37. Applying these rules or principles to the present circumstances, as we have pointed out, this Court came to the conclusion that it was not proved that petitioner accused had committed the theft of the blank draft form in question. It is significant in this connection to note that the charge does not say as to how the possession of the draft was obtained. It is not clear as to how and in what way the respondent-bank is going to show that the petitioner obtained possession of the draft. Proceeding further to hold that a loss was caused to the respondent bank when monies were paid from the Katol Branch upon Draft J - 942980, it could only be on the basis that the petitioner accused presented that draft and got it encashed. It would also be necessary for that purpose to hold that he forged the draft in the name of M. R. Joshi, knew that it was so forged, and knowing full well that it was forged used it as a genuine document. In signing himself as M. R. Joshi, petitioner accused also fabricated and forged the instrument. All these are the ingredients of the same offences for which he was acquitted and holding that there was no evidence to show that the petitioner had forged the instrument or had presented it at Katol Branch and got the draft encashed.
38. The entire return would suggest that the respondent No. 1 has obtained a second opinion of the hand-writing expert and it is because of the second opinion of the hand-writing expert based upon material which was not produced at the time of the criminal trial that they seek to establish the very same offences as having been committed by the petitioner accused, for which he was acquitted. At best the opinion of a hand-writing expert is a weak piece of evidence and cannot be said to be conclusive. It would be holding contrary to what this Court held with regard to the signatures said to have been made by the accused, if the departmental enquiry were to conclude that it was the accused who had signed the draft on the basis of the new evidence collected by the respondent-bank. We do not think that such a course can be permitted or is permissible by the respondent-bank. In the circumstances, the proceedings sought to be held against the petitioner must be quashed and a writ of Certiorari issue against the respondent-bank as prayed.
39. We are really surprised that the respondent-bank should have thought of commencing this enquiry even after two years after the petitioner was allowed to join, in the teeth of the provisions of para 521 of the Sastri Award as adopted by the Desai Award. We are also surprised that even after discarding of the opinion of the hand-writing expert and the evidence adduced of the three witnesses from the Katol Branch of the bank, the respondent-bank should have chosen to obtain an expert opinion in regard to the same handwriting to enable its enquiry officer to come to a contrary conclusion, sitting in appeal upon the judgment of this Court for all practical purposes. Though it is true that the petitioner could not have been held to have been guilty of any of the offences by any tribunal in the land, the Departmental enquiry would be producing such a result in case it comes to a conclusion that the charges are proved. The respondent-bank seems to be sanguine of this effort, which we think is wholly misguided and not proper.
40. The result, therefore, is that the petition is allowed and the rule is made absolute. The respondent-bank will pay the costs of the petitioner and shall bear its own.