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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 798 OF 2008

BANK OF INDIA & ANR.         …. APPELLANTS

Versus

BHIMSEN GOCHHAYAT         …. RESPONDENT

O R D E R  

1. This  appeal  is  by  the  appellant  -  Bank of  India  against  the  judgment of  

Division  Bench  of  the  High  Court  whereby   the  High  Court  has  allowed  the  writ  

petition filed by the respondent herein namely; Bhimsen Gochhayat.  The respondent  

initially started his career as a sweeper in the Bank of India, Basta Branch on 22.6.1978  

and rose  ultimately  to the post of daftry.  At the relevant time, the respondent was  

working  in  Akhupada Branch of the Bank.  While so working, a report came to be  

made against him that he had  tried to defraud the bank by attempting to withdraw Rs.  

35,000/-  allegedly deposited in the name of one Babaji Nayak.  The prosecution for the  

offences under Sections 419/420/468 IPC  came to be launched against him and he was  

convicted by the trial court for the offence punishable  under Section 468 IPC alone  

though he was acquitted of the other offences.

2. The  prosecution  case  against  the  respondent  was  that   on  17.8.1982  the  

Manager of the Bank of India, Balasore Branch  

received an inter office memorandum dated 9.8.1982 for Rs. 35,000/- purported to have  

been sent by the Bank of India,  Lindsay Street Branch, Calcutta requesting him to  

open a Saving Bank Account  being the housing loan disbursement in the name of

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Babaji Nayak.  Accordingly, on the same day, a Saving Bank Account No. 2255 for Rs.  

35,000/-  was opened in  the Bank of  India,  Balasore  Branch in  the name of  Babaji  

Nayak.  On the next day i.e. on 18.8.1982,  one young man  identifying  himself to be the  

son  of  Babaji  Nayak  came  to  the  Bank  of  India,  Balasore  Branch  with  a  bank  

withdrawal form bearing the signatures of Babaji Nayak. But the bank staff refused  

the payment as the signatures of the Babaji Nayak in the record of the bank  and on the  

withdrawal  form differed  and  requested  him  to  bring  Babaji  Nayak  who  was  the  

account  holder.  At  that  time,  the  present  respondent  Bhimsen Gochhayat  was also  

present in the bank premises along with the so called son of Babaji Nayak.

3. Again, on 20.3.1982 at about 12 noon, the so-called Babji Nayak came to the  

Bank of India, Balasore Branch and presented a blank withdrawal form to the saving  

bank ledger keeper and requested him to fill  it up for Rs. 30,000/-.  He also put his  

signatures  in  the   withdrawal  form.   As  the  signatures  of  Babaji  Nayak  on  the  

withdrawal form did not match with the recorded signature in the bank, the bank staff  

questioned him on certain points.  From the answers given by  

him, the doubt became stronger.  So, the then Manager of the Bank of India, Balasore  

Branch contacted with the Lindsay Street Branch over the trunk call  regarding the  

genuineness of the aforesaid account and came to know that no such transaction has  

ever taken place.  During that period,   Babaji Nayak is said to have fled from the Bank  

and was located by the  staff  of  the bank near  Nargis  Talkies,  Balasore.   So-called  

Babaji Nayak told that due to the influence of the respondent, he came to receive the  

payment.  A police report, therefore, came to be made.

4. After a usual investigation, it turned out that the respondent herein had the

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hand in the whole affair. The respondent along with two other co-accused was put for  

trial and was  convicted by the trial court.  Since, the respondent was convicted by the  

trial  court,   the bank proceeded to dismiss him on account  of  the conviction.   The  

respondent filed an appeal before the learned Additional Sessions Judge.  The appellate  

court acquitted the respondent of the charge on the ground that it was not proved that  

he had committed any forgery and, thereby, had committed any offence under Section  

468 IPC.

5. The  respondent was reinstated after his acquittal by the appellate court.  In  

the meantime, the bank initiated a departmental inquiry  against  the respondent by  

serving him  

charge sheet.  It in the charge-sheet-cum-suspension order, it was stated as under:

“While working as Daftary in Akhupada Branch during the year  

1982,  you were alleged  to  have  attempted to commit a fraud at  

Balasore branch in collusion with outsiders by signing CAN No.  

226007  dated  09.08.1982  for  Rs.  35,000/-  containing  forged  

signatures  purported  to  have  been  signed  from  Lindsay  Street  

Branch by Shri  R.R. Nabar and R.B.  Shah.  You had stolen the  

entire pad of CAN No. 4521 containing CANs  bearing No. 226001  

to 226050 from the Branch kept the same at your residence. You  

had used the broken pieces of Branch Receipt Scroll Rubber Stamp  

to affix Lindsay Street Branch on CAN No. 226007 you had filled  

in  the  blank  CAN  No.  226007  dated  9.8.1982  for  Rs.  35,000/-  

favouring Shri Babaji Nayak with forged signature of R.R. Nabar  

and R.B. Shah to defraud Balasore Branch of the Bank.  A sheet of  

paper  containing  many  forged  signatures  were  found  in  your  

possession.   From your  residence  CAN 226012  bearing  Lindsay

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Street   Branch stamp  favouring Shri Babaji Nayak purported to  

have been signed by the above officials  was seized.  You had in  

collusion with the outsiders namely Shri Maheswar Khillar, who  

impersonated  himself  as  Babaji  Nayak  and  Shri  Pitambar  

Gochhayat tried to withdraw a sum of Rs. 30,000/- dishonestly by  

the  aforesaid  instrument  dated  9.8.1982.  Your  handwriting    is  

appearing  on  the  forged  

instrument through which you had attempted to commit the fraud  

of Rs. 35,000/- in collusion with the said outsiders.

2. Your  above  acts  of  stealing  Bank's  instruments  and  

forging  the  signatures  of  the  officers  as  aforesaid  on  the  said  

instrument with a view to defrauding the bank in collusion with the  

said outsiders being prejudicial to the interest of the Bank, amount  

to acts of gross misconduct in terms of clause 19.5(j) of the First  

Bipartite settlement dated 19.10.1966.

3.   It has been decided to hold a departmental enquiry in respect of  

your  above  misconduct  in  terms  of  clause  19.3(d)  of  the  above  

settlement.  Accordingly, in exercise of the powers vested in me as  

Disciplinary Authority by the Chairman and Managing Director  

vide his order dated 17.8.1987, I appoint Shri Gyanendra Kumar  

Acharya, Bhubaneswar Branch as Enquiry Officer to enquire into  

the charges levelled against you and submit his report to me for  

further action.   The Enquiry  Officer  hold departmental enquiry  

against you on the date, time and place to be notified by him to you.  

You are required to report to the Enquiry Officer on the appointed  

date, time and place as will be notified to you by him, failing which  

please note that the enquiry will be held ex-parte”

6. On 11.5.1991, the Disciplinary Authority dismissed the respondent from the  

service.  His appeal before the Appellate Authority also failed.  Therefore, he proceeded

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to file the Writ Petition before the High Court of Orissa.   

7. In the impugned judgment, the Division Bench took the view that firstly the  

departmental proceedings were on the same material and identical and similar set of  

facts/allegations  were  also  made  against  the  respondent  as  those  in  the  criminal  

prosecution.  The Division Bench then relying on the decisions of this Court in G.M.  

Tank Vs. State of Gujarat and another 2006 AIR SCW 2709 and Prafulla Chandra  

Mohapatra  Vs.  State  of  Orissa  1993  Suppl  (1)  SCC  564  held  that  the  subsequent  

departmental inquiry could not be proceeded  since on the identical charges, he was  

acquitted by the competent criminal court.   The other reason which was given by the  

Division Bench was that it was  only after acquittal of the delinquent by the appellate  

court that the order for initiation of the departmental proceedings  was passed after  

about seven years had elapsed.  On that ground also the Division Bench found fault  

with the aforementioned enquiry.

8. We have  gone  through the  judgment  vary carefully.   We have  also  gone  

through the judgments of the criminal courts one convicting the respondent and  the  

other of appellate court acquitting him.  We have compared the prosecution case with  

the charge-sheet which we have deliberately quoted above.  We find  that the charges  

alleged in the charge-sheet  in the departmental enquiry are quite different from the  

one's on which the respondent was tried by the criminal court.   The  

respondent was tried only on the basis of the allegations of fraud committed by way of  

forgery  whereas  a glance at the charge-sheet would suggest that the allegation therein

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was that the respondent had used the broken pieces of Branch Receipt Scroll Rubber  

stamp to  affix  Lindsay  Street  Branch on CAN No.  226007.   Apart  from this,   the  

respondent had also stolen the entire paid of CAN No. 4521 containing CANs bearing  

NO.226001 to 226050 from the Branch and kept the same at his residence.  All these  

allegations were not there in the criminal proceedings.  Therefore, it is quite apparent  

that  the criminal  proceedings and the departmental  proceedings  were separate and  

distinct affairs.  The Division Bench has not disclosed anything in this behalf nor has  

the Division Bench given any  finding in respect of the available material on the basis of  

which the Bank wanted to prove charges.  There is no discussion whatsoever in the  

matter.  Further the Division Bench  held that on the question of delay, the Bank could  

not have proceeded only after the appeal of the respondent was allowed and he was  

acquitted.

9. We are not impressed by this reasoning either.  We do not find that the Bank  

was late or  there was  delay in initiating the departmental proceedings.  In this view of  

the matter, we cannot agree with the impugned judgment passed by the Division Bench.  

10. Mr. J.R. Dass, learned  counsel  appearing  for  the  

respondent  invited  out  attention  to  the  ruling  of   this  Court  in  Prafulla  Chandra  

Mohapatra (supra). We have gone through the said judgment.  Reliance was placed on  

para 9 of the judgment which reads as under:  

“Where  it  was  stated  that  the  incident  relates  to  May,  1973.   The  

Disciplinary proceedings were initiated on October 7, 1974 but were not  

continued presumably in  view of the criminal case started against the  

appellant and the co-accused Anil Chandra Patnaik.  It is important to  

note that so far as the appellant is concerned, he was acquitted by the  

Sessions Judge himself by order dated May 11, 1979 and an application

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for leave to appeal  filed  by the State Government under Section 378  

Cr.P.C. was rejected by the High Court by order dated October 9, 1979.  

Therefore, no action was taken to restart the disciplinary proceedings,  

on the other hand the appellant was reinstated in service by order dated  

April 18, 1980 and the entire period during which he remained under  

suspension on dismissal was ordered to be treated as  on duty.”     

11. It is  on this ground that this Court in that case had found fault  with the  

delayed initiation of the departmental enquiry.

12. The factual situation is different in this matter.  Here a prompt action was  

taken by the bank in dismissing the respondent soon after his conviction by the trial  

court. But after he was acquitted by the appellate court, it was entirely on the different  

ground that the departmental proceedings were  

initiated  against  him.  In  this  view  of  the  matter,  we  cannot  affirm  the  impugned  

judgment passed by the Division Bench.  It is, accordingly, set-aside.  However, Mr.  

J.R. Dass, learned counsel appearing for the respondent  submits that he had other  

questions which were not argued as the writ petition was allowed on these two grounds.  

In this view of the matter, we  remand the matter to the Division Bench for deciding it  

afresh in accordance with law  where the so called other questions not raised before the  

High Court in the first round shall be allowed to be raised.  There shall be no interim  

orders regarding the departmental inquiry or it's outcome.

13. With these observations, This appeal stands disposed of.  No costs.    

     ......................J.       [ V.S. SIRPURKAR ]

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......................J.       [ DEEPAK VERMA ]

NEW DELHI AUGUST 12, 2009.