S.K. Dhaon, J.
1. By means of this petition under Article 226 of the Constitution, an employee desires that this Court should thwart the departmental proceeding commenced against him by his employer.
2. The petitioner was posted as a Manager of the Central Bank of India in its branch at Ganhasand, Sahjanwa, district Gorakhpur during the year 1972-73. For the sake of brevity the Central Bank of India shall hereinafter be referred to as the Bank. The petitioner along with Sarvashri Shankar Dayal Tripathi, Daya Shanker Tripathi and Ram Nain Rai, was prosecuted for having committed offences under Sections 120B, 419, 420, 468, 471 of the Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act Shanker Dayal Tripathi and Daya Shankar Tripathi are real brothers. The prosecution case was that the petitioner entered into a criminal conspiracy with the other aforementioned accused persons with the object to obtain pecuniary advantages by corrupt and illegal means and also by abusing his official position as a public servant and to cheat the Bank. Ram Nain Rai, it appears, made a confession and his case was separated from the other accused. The Special Judge, Anti-Corruption, on 24th January, 1983, acquitted the petitioner and convicted the remaining accused. The Bank, on 18th July, 1984, initiated departmental proceedings against the petitioner by issuing a charge-sheet to him. According to the petitioner, he was given a clean and honourable acquittal by the Court It is also the case of the petitioner that the Bank has initiated departmental proceedings against him on charges identical to those for which his prosecution in a regular Court of law remained unsuccessful. This, according to the petitioner, tantamounts to an abuse of the power vested in the Bank. He has, therefore, made a prayer in this Court that the departmental proceedings initiated againt him may be quashed and a suitable order, direction or writ in the nature of mandamus may be issued to the Bank not to continue the departmental proceedings.
3. In a nutshell the prosecution case against the petitioner was that in furtherance of the conspiracy the petitioner in his capacity as the Manager of the Bank sanctioned and paid to 6 different persons a total sum of Rs. 24,900/- without conducting ore and post verifications and ascertaining the com fides of the borrowers and the guarantors. The prosecution examined 23 witnesses in support of its case. The defence taken by the petitioner was that he had advanced loans in good faith after considering the; transactions to be genuine. He did not enter into any conspiracy. While dealing with the case of the petitioner the learned Special Judge observed:.The point for consideration here is whether P.H. Tripathi was also involved in the conspiracy and also whether he had knowledge that the bank was being cheated in the manner as alleged by the prosecution.... The point for consideration is whether the intention of the accused was criminal or he was simply negligent in his duties....
Thereafter the Judge observed:.The Manager thinking that the pre-inspection has been done and all the papers are complete sanctioned the loan. The evidence of Akhila Nand Singh clearly goes to establish that it was his duty to verify the contents of the application and he always recommended it after verification The Manager P.H. Tripathi, did not verify it again and also did not conduct post inspection. It can at the most be a negligence and criminal intention cannot be inferred from these circumstances.
Proceeding further, the Judge observed:.The Manager did not conduct post-verification whether the engine has been installed or not can at the most only be a negligence on his part and this only can not lead to the conclusion that the accused was also a conspirator along with the other accused persons.
The Judge concluded:
I have thoroughly considered the evidence against present accused and have come to the conclusion that the prosecution has not been able to establish the charge against this accused.
4. It is well known that in order to bring home the charge against an accused in a criminal case before a regular Court of law the element of mens rea or criminal intent is the prime factor. Mere negligence on the part of an accused person is not enough so as to entitle a Court to record a finding of guilt. The negligence must be a culpable one so as to warrant a conviction. The Special Judge was not concerned with the negligent acts of the petitioner in his capacity as the Manager of the Bank. (Sic) question as to whether the petitioner acted with due deligence and alertness as was expected of him by the Bank. In the absence of either any principle or any authority that in a case of the present nature where the petitioner held an office of trust in a nationalized bank and where not only the interest of the depositors but also of the public at large is involved, departmental proceedings cannot be initiated to enquire into the negligent conduct of a manager so that an administrative action, if necessary may be taken. Further, such an enquiry may lead to the introduction of remedial measures so as to prevent, so far as possible, the repetition of such mistakes thereby securing the financial interest of the Bank.
5. The subject matter of the criminal trial of the petitioner was the advancement of loans by him (the petitioner) to 6 persons only. They were: (1) Ram Naresh, son of Badri, (2) Ram Chandra Tripathi, son of Ram Shankar, (3) Baiji, son of Ram Avadh, (4) Rajman Singh, son of Badri Singh, (5) Ashok Kumar, son of Laxmi Narain and (6) Ori Rai, son of Nageswar. A bare look at the charge-sheet will show that the proposed departmental enquiry extends to a very wide field. In the letters sent by the Disciplinary Authority to the petitioner it was mentioned that the Bank proposed to hold a departmental enquiry in regard to the imputation of misconduct to the petitioner. A statement of the alleged misconducts was annexed to the said letter. The letter pointed out to the petitioner:
Shri Tripathi should note that the articles of charges listed would constitute misconduct within the meaning of Regulation 3, read with Regulation 24 of the Central Bank of India Officers Employees Conduct Regulations, 1976 attracting penalty under Regulation 4 of the Central Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976.
Some of the charges may be noted at this stage. Charge No. 6 was that the petitioner did not t follow the norms and procedure of bank while making loan advances and allowed loan to minors and cases which were not feasible viable to get loan from the bank. Charge No. 8 was that the petitioner obliged only one firm dealing in pump set and whose shop was situated at Khalilabad in another district in spite of the fact that authorised dealer of pump set of make supplied by this particular firm for Gorakhpur district was situated at Gorakhpur city. All advances were made by the firm who was not authorised dealer for Gorakhpur but authorised for Basti district Charge No. 8 was that the petitioner gave loans and advances indiscriminately without observing the bank's norms and had made scattered advances much beyond the command area of the branch and in another district where other commercial banks and cooperative banks were functioning.
Charge No. 10 was that the petitioner did not follow the rules procedure norms of the bank in daily routine work in other than agriculture advances, deposit accounts and other routine work of the bank. He deliberately ignored the laid down procedure and rules of the bank. A loaning list of instances of alleged misconducts committed by the petitioner was supplied to the petitioner in the form of statement. We have gone through this list very carefully and we are satisfied that, according to the Bank, the petitioner in his capacity as its Manager in its branch at Ganasand advanced loans to a number of fictitious persons apart from the aforementioned six persons. Some of these persons were: (1) Ram Adhar, (2) Raksha Ram son of Sri Ram Sagar, (3) Bansar, son of Sri Raghubar, (4) Rajman, (5) Chandra Bhan Tewari, (6) Hanuman, Lalman, Rajbali and Lalji and (7) Ram lakhan son of Sri Kalpp. In the case of these persons the allegation of the Bank is that the loans were not only advanced to fictitious persons but also the transactions were not entered into in accordance with the settled norms and rules in so far as fictitious documents were executed. One of the charges is that the petitioner did not pay any attention to the Central Office Circular dated 27th February, 1968 and the Zonal Office Circular dated 28th March, 1971 for opening of savings account of the borrowers before making advances to them. Instead, the petitioner opened the nominal account margin money on pumpsets for deposits of their margin money in the said accounts. We have only given a few instances. The instances supplied by the Bank to the petitioner are innumerable. We are fully satisfied that the charges which are the subject matter of the departmental enquiry against the petitioner are clearly separate and distinct from the charges which were the subject matter of the trial of the petitioner before the Special Judge. It cannot be said by any stretch of imagination that the Bank is proceeding with a departmental enquiry against the petitioner on charges or matters identical to those which were the subject matter of adjudication in the trial before the Special Judge.
6. learned Counsel for the petitioner has placed reliance upon two authorities which lay down that a departmental enquiry should not be allowed to proceed on charge identical to those which were the subject matter of a criminal trial in a regular court of law and in which the delinquent person had been given a clean or honourable acquittal. They are: Bhagwat Charan v. State of U.P. (1973) 2 Serv. I.R. 238 and Kundan Lal v. Delhi Administration, Delhi (1976) Serv. L.R. 133, (Delhi). The Supreme Court in the case of Corporation of the City of Nagpur, Civil Lines, Nagpur v. Ramchandra 1981 II L.L.J. 6, however, in our opinion, struck a different note. The observations of the Court may be profitably extracted (at pp. 8 and 9).
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental enquiry pending against the respondents would have to continue. This is a matter which is to be decided by the department after considering the nature of the findings given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue departmental enquiry on the very same charges of grounds or evidence, but the fact remains, however, that merely because the accused is acquitted the power of the authority concerned to continue the departmental enquiry is not taken away nor is its discretion in any way fettered. However, as quite some time has elapsed since the departmental enquiry had started the authority concerned will take into consideration this factor in coming to the conclusion if it is really worthwhile to continue the departmental enquiry in the event of the acquittal of the respondents. If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the enquiry, he can certainly do so.
The Supreme Court has emphasised that the mere fact that a person has been acquitted honourably and completely exonerated of the charge will not divest the jurisdiction of the authority concerned to either initiate or continue a departmental enquiry on the very same charges or grounds or evidence. According to the Supreme Court the power of the officer concerned to direct a departmental enquiry remains unaltered. The discretion of such, an officer or authority remains unhampered. The only thing, according to the Supreme Court, which has to be seen is whether in a given case it would be expedient and fair to continue with the departmental proceedings on charges which are identical to those which were levelled against a delinquent in a criminal case before a regular Court and that Court had given him a clean acquittal. In view of the dictum of the Supreme Court, in our opinion, the proposition laid down in the aforementioned two cases that the departmental proceedings on identical charges cannot be allowed to take place cannot be accepted in its absolute form.
7. Assuming, in the departmental proceedings the petitioner is being asked to face the charges which are identical to those (which) were the subject matter of the criminal trial, on the material placed before us, it is difficult, if not impossible, to record a finding that the Bank has acted arbitrarily in initiating the departmental enquiry. The question whether it is expedient to proceed departmentally against the petitioner is primarily to be decided by the department itself.
8. learned Counsel next contended that the Bank has commenced the departmental proceedings after an inordinate delay. It is true that the petitioner was acquitted on 24th January, 1983 and the charge-sheet has been given to the petitioner on 18th July, 1984. In Para. 6 of the counter-affidavit filed on behalf of the Bank an attempt has been made to explain the delay. The averment made is that the departmental proceedings were initiated soon after the judgment of the Special Judge and the delay in serving the charge-sheet took place on account of administrative exigencies as the record of the criminal proceedings and the judgment of the learned Special Judge were being scrutinised with the object of considering the desirability or propriety of initiating the proceedings. learned Counsel has placed reliance on the decision in Corporation of the City of Nagpur, Civil Lines, Nagpur v. Ramchandra (supra). In that case the employee was acquitted on 21st January, 1971 and the summary of allegations or charges were handed over to him on 25th May, 1973 by the Deputy Superintendent of Police. It is to be noted that in that case the departmental proceedings had been initiated on the very facts on which the employee had faced a criminal trial and had been given a clean acquittal. Besides, from a reading of Para. 21 of the judgment it appears that there was some departmental rule or instruction that proceedings should be initiated within three months of the date from which an occasion arose for doing so. This case, therefore, is distinguishable, learned Counsel for the parties are agreed that so far as the Bank is concerned, there is no rule laying down the period within which departmental proceedings can be initiated by it (the Bank) against its employees, In the absence of any rule, statutory or otherwise, no plea of limitation can be raised by any employee including the petitioner. We are conscious of the fact that even in the absence of the rules proceedings should be initiated within a reasonable period. Having regard to the material on record and keeping in view the averments made on behalf of the Bank in its counter-affidavit, it cannot be said that there has been any undue delay on the part of the Bank. It, therefore, follows that it cannot be said in the instant case that the proceedings have not been initiated by the Bank within a reasonable period.
9. The last submission made on behalf of the petitioner is that the Enquiry Officer has acted arbitrarily in refusing permission to the petitioner to take the assistance of one Sri M.P. Pandey, an employee officer of the Bank, in the departmental proceedings. In this connection reliance is placed on Regulation 6(7) of the Central Bank of India Officer Employees (Conduct) Regulations, 1976. This regulation may be extracted:
The Officer employee may take the assistance of any other officer employee but may not engage a regular practitioner for the purpose.
learned Counsel for the Bank has pointed out that Sri M.P. Pandey may, in all probability, be examined by the Bank as one of its witnesses in the departmental proceedings and, therefore, the Enquiry Officer has considered it necessary not to permit the petitioner to secure the assistance of that gentleman. However, the learned Counsel t has stated at the bar that if the petitioner insists upon giving Sri M.P. Pandey as his aid in the departmental proceedings the Bank will have no objection whatsoever. learned Counsel has pointed out that it is doubtful if Sri Pandey will accept the request of the petitioner. He apprehends that in view of the fact that the petitioner is due to retire on 30th November, 1984, he may seek an adjournment of the proceedings on the ground that he may be given some other officer to assist him in place of Sri M.P. Pandey, and thus render the proceedings infructuous. Despite this submission made by the learned Counsel for the Bank, learned Counsel for the petitioner has maintained that the petitioner will have no other officer except Sri M.P. Pandey to assist him. In this situation, the learned Counsel for the Bank has made a statement before us that the Enquiry Officer shall permit the petitioner to requisition the services of Sri M.P. Pandey for his assistance. We, accordingly, issue a direction to the Bank that it shall allow Sri M.P. Pandey to assist the petitioner in the departmental proceedings. We also make it clear that in case Sri Pandey declines to assist the petitioner in the departmental proceedings it will not be open to the petitioner to either seek any adjournment in the departmental proceedings on that ground or insist upon any other officer of the Bank being given to him (the petitioner) for rendering him assistance in the departmental proceedings.
10. Though this writ petition has not been admitted formerly, yet the parties have exchanged affidavits. We, are, therefore, disposing it of finally.
11. The writ petition is disposed of accordingly. There shall be no order as to costs.