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CASE NO.: Appeal (civil)  8046 of 2004

PETITIONER: Jasbir Singh                                                             

RESPONDENT: Punjab & Sind Bank & Ors.                                        

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  

S.B. SINHA,  J :

       Appellant herein was appointed as peon and has been working in the  said capacity in Respondent \026 Bank with effect from 4.4.1984.  He was  confirmed in his services.  On an allegation made that he had forged the  signature of a depositor Rattan Singh and fraudulently withdrawn a sum of  Rs. 25,000/- on 11.4.1989, a departmental proceeding was initiated against  him.  A criminal case was also initiated under Section 409/201 of the Indian  Penal Code.  He was acquitted in the criminal case.  A purported confession  which he had allegedly made was found to have been done under undue  coercion.  The learned Chief Judicial Magistrate noticed that even Rattan  Singh did not make any complaint.  The other officers who were said to be  involved were not proceeded against.   

       It was held:

(i)     A sum of Rs. 25,000/- was not standing to the credit of so called  Rattan Singh on 11th April, 1989.   (ii)    The appellant was found to have been threatened by the officers.   (iii)   His complaints soon after his release from the hands of the bank  officials had not been taken note of.   (iv)    An adverse inference should be drawn against the prosecution  witness Mukhtiar Singh in regard to encashment of the withdrawal  form without observing due formalities.   (v)     Above all, Rattan Singh was not examined.   

       It was also held:

"Sixthly, the amount in question is alleged to have  been misappropriated on 11th April, 1989, whereas  this defalcation was detected on 29th May, 1989  obviously after a long spell.  Extra judicial  confession can be taken of not only a case of its  having been made shortly after the preparation of  crime.  Seventhly, the evidence adduced by the  prosecution is so incompatible inconsistent and  weak that no conviction can be passed thereon.   Eightly, there is no direct evidence worth the name  of the record connecting the accused in any  manner with her offence."

       However, despite acquittal, the departmental proceedings continued.   The said departmental proceedings ended in an exparte report submitted on  24.5.1996 holding that the charges against the appellant had been proved  stating:

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"In the circumstances and facts stated above, I am  of the considered opinion that the C.S.E. has  absented himself intentionally inspite of sufficient  opportunity provided to him.  In the absence of any  defence documents/ witnesses, I have no second  choice except to reply on the documents &  witnesses produced by the P.O.  The Management  witnesses and the documents are a sufficient proof  to agree with the arguments pleaded by P.O. that  Sh. Jasbir Singh, C.S.E. has fraudulently  withdrawn Rs. 25000/- on 11.4.89 through &  withdrawal form by forging the signature of a  depositor Sh. Rattan Singh of S.B. A/c 7069 he  received the payment himself from the cashier and  to hide this fraudulent transaction, he tempered the  record, torn off the relevant portion of SB log  book, removed the ledger sheet of SB A/c 7069  and destroyed the withdrawal form dated 11.4.89  of Rs. 25000/- bearing S.B. A/c No. 7069."

       Interestingly, Respondent \026 Bank also filed a suit against the appellant  for recovery of a sum of Rs. 25,000/-.  The suit was decreed.  On an appeal  preferred thereagainst, the Addl. District Judge, Faridkot by a judgment and  decree dated 3.3.2001, on analysis of the evidences brought on records, held  that Respondent \026 Bank miserably failed to prove that the appellant has  withdrawn the said sum of Rs. 25,000/- and the allegation against him that  he had embezzled an amount of Rs. 25,000/- was not proved and, thus, it  was not entitled to recover the said amount.

       The correctness of the said judgment was not questioned by the Bank.   It, thus, attained finality.

       Respondent \026 Bank, therefore, invited findings of a competent civil  court on the issue as to whether the appellant has committed any  embezzlement or not.  It is not in dispute that embezzlement of fund was the  principal charge against the appellant in all the proceedings.  He is also said  to have been forged the signature of the account holder and tempered with  the records.  Respondent \026 Bank failed to prove any of these charges before  any court of law.

       In Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Another  [(1999) 3 SCC 679], this Court held that if departmental proceedings and  criminal case are based on identical set of facts, evidence in both the  proceedings are common and employee is acquitted in the criminal case, an  order of dismissal already passed may also be set aside.   

       The learned counsel for the respondent contended that the decision of  this Court has no application.  He may be right.  But, it is not necessary for  us to delve deep into the matter as we are of the opinion that the judgment in  civil matter having attained finality, the same was binding on Respondent \026  Bank.

       In Narinder Mohan Arya v. United India Insurance Co. Ltd. & Ors.  [JT 2006 (4) SC 404], it was opined:

"It is, however, beyond any controversy that when  a crucial finding like forgery is arrived at on an  evidence which is non est in the eye of the law, the  civil court would have jurisdiction to interfere in  the matter."

       It was further observed:  

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"It is also of some interest to note that the first  respondent itself, in the civil suit filed by the firm  relied upon a copy of the report of the enquiry  officer. The first respondent, therefore, itself  invited comments as regards the existence of  sufficiency of evidence/acceptability thereof and,  thus, it may not now be open to them to contend  that the report of the enquiry officer was  sacrosanct. We have referred to the fact of the matter in some  detail as also the scope of judicial review only for  the purpose of pointing out that neither the learned  Single Judge nor the Division Bench of the High  Court considered the question on merit at all. They  referred to certain principles of law but failed to  explain as to how they apply in the instant case in  the light of the contentions raised before them.  Other contentions raised in the writ petition also  were not considered by the High Court."

         In a case of this nature, therefore, the High Court should have applied  its mind to the fact of the matter with reference to the materials brought on  records.  It failed so to do.   

       The High Court relied upon a decision of this Court in Pratibha Rani  v. Suraj Kumar [AIR 1985 SC 628 : (1985) 2 SCC 370] where a statement  of law was made that criminal law and civil law can be allowed to operate  side by side.  There is no quarrel with the said proposition.   

       The High Court, however, failed to take note of the decision of the  civil court.  It could not have refused to look into the materials on record  solely relying on or on the basis of clause 19.3 (c) of Bipartite Settlement to  hold that the departmental proceedings could have been initiated even after  the judgment of acquittal is passed in criminal case.  We, therefore, are of  the opinion that impugned judgments cannot be sustained.

       It was, however, urged that no back wages should be directed to be  paid.  Reliance in this behalf has been placed on U.P. State Brassware  Corpn. Ltd. and Another v. Uday Narain Pandey [(2006) 1 SCC 479].  In  that case, this Court was dealing with a power of the Industrial Courts under  Section 11-A of the Industrial Disputes Act.  Therein, as the establishment  was closed, the question of reinstatement of the workman did not arise.  Still  then, 25% back wages were directed to be paid as also the compensation  payable in terms of Section 6-N of the U.P. Industrial Disputes Act.   

       The judgments of both the Civil Court and the Criminal Court  established that the appellant was treated very unfairly and unreasonably.   For all intent and purport, a criminal case was foisted upon him.  A  confession, according to learned Chief Judicial Magistrate, was extracted  from him by the bank officers in a very cruel manner.   It is, therefore, not a  case where back wages should be denied.  Respondent \026 Bank has tried to  proceed against the appellant both in a civil proceedings as well as in a  criminal proceedings and at both the independent forums, it failed.   

       We, therefore, are of the view that the impugned orders and  judgments cannot be sustained.  They are set aside accordingly.  The appeal  is allowed.  The appellant is directed to be reinstated with back wages,  continuity of service and other consequential benefits.  The respondent shall  also pay and bear the costs of the appellant which is quantified Rs. 10,000/-.