Criminal Trial – Departmental Action – Standards of Proof – When the standards of proof in the two set of actions are distinct, the impending criminal trial on the same set of allegations cannot be a shield to an employee charged in a departmental action to keep the disciplinary proceedings indefinitely at bay.
# Criminal Case
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL
WRIT JURISDICTION APPELLATE SIDE
SANJIB BANERJEE, J.
Date: June 24, 2016
WP No. 8487 (W) of 2016
ANJAN BISWAS -VERSUS- CENTRAL BANK OF INDIA AND OTHERS
For the Petitioner: Mr Anindya Lahiri, Adv., Mr Ravi Kumar Dubey, Adv.; For the Bank: Mr Bishwambhar Jha, Adv.
SANJIB BANERJEE, J.
The substance of the petitioner’s submission is that either a public employer not lodge a criminal complaint against an employee who is perceived to have committed a criminal offence and against whom a departmental action is initiated; or, if a criminal complaint is lodged in respect of the same matters, the departmental action has to be suspended till the criminal trial is concluded.
2. The petitioner is a frequent visitor to this court. This is, at least, the third petition under Article 226 of the Constitution carried to this forum by the petitioner. On or about December 13, 2013, a criminal complaint was filed on behalf of the employer bank accusing the petitioner of, inter alia, criminal breach of trust and cheating. In respect of the same set of allegations, a departmental charge-sheet was issued to the petitioner on or about March 3, 2014. The petitioner carried WP 13315(W) of 2014 to this court, complaining of the criminal and the disciplinary proceedings continuing in tandem and an order was passed on June 3, 2014 requesting the criminal court to ensure that the trial was completed within a year of the communication of the order. The criminal court was also requested to see to it that the petitioner cooperated in the course of the trial and, “any observation of the criminal court that the trial has been delayed even on a single occasion on account of the petitioner will immediately result in the present order restraining the disciplinary proceedings to be stayed till the conclusion of the criminal trail to stand vacated without reference to this court”.
3. The rationale for the order is evident from the following sentence therein:
“Ordinarily, disciplinary proceedings may not be automatically stayed upon a criminal case in respect of the same matters being initiated; but, in this case, since the employer did not suffer any pecuniary loss it is desirable that the disciplinary proceedings should not continue in tandem, subject to the condition as indicated hereinafter.”
4. Whether or not such consideration was relevant for the purpose arresting the departmental action for a specified duration, it is evident that the order of June 3, 2014 was on the perception of the court that the employer did not suffer any pecuniary loss as a consequence of the misconduct proceeded against by way of the disciplinary action.
5. Fortunately, and may be even fortuitously, the criminal trial was concluded expeditiously and the judgment delivered thereon within about 18 months of the order dated June 3, 2014 – quite a remarkable feat, given the pendency of criminal matters.
6. The judgment dated December 7, 2015 passed by the criminal court found that the evidence did not support the charges as the “witnesses have not uttered anything clearly towards that fraudulent transactions and the exact quantum of the misappropriated amount”. The court observed that no document had been produced by the prosecution to prove the allegation of criminal breach of trust and “the prosecution has miserably failed to connect the accused person with the alleged charges …”.
7. Buoyed by the order of acquittal, the petitioner carried a second petition, WP 86 (W) of 2016, in an attempt to have the connected departmental action quashed on the ground that the petitioner had been “honourably acquitted” of the criminal charges. Such petition was dismissed by a judgment of January 18, 2016. In course of such judgment, it was observed that the acquittal in the criminal case could not be regarded as an honourable acquittal. The legal position was enunciated with reference to a judgment now reported at
# Tamal Chanda v. State Bank of India, (2016) 1 CHN (Cal) 677
Paragraphs 13 to 15 of the judgment of January 18, 2016 are relevant for the present purpose:
“13. It is possible that a criminal charge is brought against an employee in respect of a matter which is totally unconnected with his line of duty and the departmental action is initiated as a consequence of the criminal charge being brought against him. There may also be parallel criminal and departmental proceedings against an employee in respect of similar charges which are somewhat connected to his line of duty but do not arise directly in course of the official duties discharged by such employee. Then, there could be both civil and criminal consequences of a perceived act of misconduct directly in course of the official functions discharged by an employee which result in simultaneous departmental and criminal actions being pursued against him. The other parameters that ought to be taken into consideration in every individual case may depend on the nexus of the similar charges levelled in the departmental and criminal proceedings against an employee with his line of duty.
“14. The dictum in Tamal Chanda is that apart from the other relevant factors that ought to be considered in assessing whether the departmental proceedings should be stayed pending the criminal trial when the charges levelled against the employee are similar, as to whether such charges have a nexus with the line of duty of the employee would have a bearing on the matter. In other words, if an employee is charged with murder in an incident away from the workplace, it may almost invariably be appropriate to stay the departmental action pending the criminal trial. But if a charge of illegal gratification is brought against an employee in both departmental and criminal proceedings, it may not be appropriate in every case to arrest the departmental action pending the outcome of the criminal proceedings; but the order of punishment if passed in the departmental proceedings may be made subject to reconsideration upon the honourable acquittal of the employee in the criminal trial. Again, where the charges in the departmental and criminal actions are based on the same set of allegations which have a direct nexus with the usual duties discharged by the concerned employee, the writ court should be loath to stay the departmental action pending the criminal trial; but again permit the departmental proceedings to be concluded and the punishment, if any, to be implemented subject to the right of the employee to have the punishment reconsidered if honourably acquitted in the criminal trial.
“15. It appears that the same test of the nexus of the charge with the line of duty of the concerned employee may be apposite in assessing whether an order of acquittal in the criminal trial should result in the departmental action being quashed. The primary reasons for this is elementary: the standards of proof in the two sets of proceedings are completely different. The next reason is that the charge in the criminal proceedings may be wholly unconnected with the functions discharged by the concerned employee in the usual course of his duty and the charge may not have an effect of polluting the work atmosphere. Such a distinction must necessarily be made as personal enmity outside the workplace or reasons completely extraneous to the usual line of duties of the concerned employee may prompt a criminal case being filed against the employee. In such a situation, the acquittal of the employee of the criminal charge should, ordinarily, result in the departmental action following the order of acquittal; though if the charge is of sexual harassment or of moral turpitude, the employer must be left free to assess the facts by a different standard of proof than in criminal proceedings to ensure discipline, integrity and good behaviour at the workplace. But when the similar charges brought against an employee in both criminal and departmental proceedings have some nexus with the workplace or a direct nexus with the usual duties of the concerned employee, the order of acquittal in the criminal proceedings – honourable or otherwise – will only be a relevant consideration in the departmental proceedings. In any event, it cannot be said that as a matter of rule that an order of acquittal in the criminal proceedings – even if honourable – must result in the departmental action being dropped as no contrary view, on a different standard of proof, can be taken at the conclusion of the departmental action.”
8. It needs to be recorded that the judgment of January 18, 2016 is pending consideration in the petitioner’s appeal.
9. A second criminal complaint has been lodged by the bank against the petitioner on September 21, 2015. It has been alleged therein by the Branch Manager of the New Jalpaiguri Branch of Central Bank that the petitioner herein was responsible for defalcating a sum of about Rs.3,94,000/- by fraudulently operating some accounts and causing transfer therefrom for his personal benefit. In respect of the transactions referred to in the criminal complaint of September 21, 2015, a departmental charge-sheet was issued to the petitioner on February 3, 2016. It is such departmental action which is sought to be arrested by the present petition on the ground that the petitioner’s defence of the charges in the disciplinary proceedings conducted by the bank would amount to self-incrimination and be in derogation of the fundamental right of the petitioner under Article 20(3) of the Constitution of India.
10. The first head of charge under the notice of February 3, 2016 claims that a fraudulent account was opened in the name of a constituent of the bank under the user ID of a subordinate employee and authorised by the petitioner under his user ID. An ATM card is also alleged to have been issued in respect of the fraudulent account under the petitioner’s authority. A total of Rs.3,94,000/- was withdrawn from the account by using the ATM card at different places. The second charge claims that the money in a fixed deposit account kept as security with the bank was wrongfully authorised by the petitioner to be transferred to the fraudulent account referred to in the first charge.
11. In his reply of March 1, 2016 to the departmental charge-sheet, the petitioner has denied the charges by asserting that it is the usual practice for a superior officer to accede to a request for authorisation by a subordinate employee, without the superior officer verifying the purpose or questioning the intent of the request. The petitioner’s reply appears to be convincing and also points to the crucial aspect that nothing other than the petitioner’s authorisation of the transactions has been referred to in the imputation of the charges. There appears to be substantial basis to the petitioner’s defence that the petitioner has not been linked with the receipt of the proceeds from the alleged fraudulent account.
12. But the issue here is not as to whether the petitioner is guilty of the charges levelled against him in the departmental action. Even a prima facie suspicion that the charges may be trumped up cannot influence the decision on the larger issue which has been raised, particularly since the departmental charges have not yet been inquired into.
13. The principal ground urged by the petitioner is that the petitioner should not be called upon to prove his innocence in the departmental action when the same set of transactions is the subject-matter of a criminal complaint which is yet to run its course. In addition, the petitioner contends that the affidavit filed by the bank in the present proceedings would reveal its biased attitude and the closed mind of its highest officials at the regional level. The petitioner refers to the averment in the bank’s affidavit that the petitioner is liable to be dismissed, though no inquiry into the departmental charges has yet been concluded. The petitioner suggests that the previous departmental proceedings and the present are part of an attempt to gun down the petitioner on extraneous considerations.
14. The allegations of bias and prejudice cannot be considered on the grounds of propriety, however swayed the court may be by the petitioner’s cynicism. It is not urged on behalf of the petitioner that the show-cause notice dated February 3, 2016 should be quashed. Indeed, the show-cause notice cannot be set aside as the ingredients of misconduct are made out therein, there is no allegation of lack of jurisdiction and the petitioner has already submitted his response thereto. The disciplinary proceedings will continue and the petitioner has, per force, to await the outcome of such action. And yet, there is the lurking suspicion that the petitioner is being hounded with some other motive.
15. Though the very purpose of the courts is to do justice, there is no unbridled authority to do what is perceived to be just by abandoning propriety or judicial discipline or the principles that fasten to the exercise of adjudication. The court cannot presume, for instance, that in course of the inquiry in the departmental proceedings, no evidence would be produced to link the petitioner with the receipt of the funds from the alleged fraudulent account. It is not for the court to rush to the conclusion that the petitioner may be punished for merely authorising the transactions despite not being connected to the perceived fraudulent act of withdrawing the money from the relevant account or being the beneficiary thereof. Things have to be left to work themselves out in the usual course; and that is the first rule of judicial discipline.
16. In Tamal Chanda, while discussing the desirability of staying a departmental action involving the same fundamental facts which are the subject-matter of a criminal action, a distinction has been sought to be made on the basis of the nexus of the charges with the concerned employee’s usual line of duty: whether the acts complained of in either action are relatable to the duties of the perceived delinquent or have no connection therewith. The discussion at paragraphs 15 to 21 of the judgment is apposite in the context and it may be summarised thus: if the acts complained of have no nexus with the usual line of duty of the concerned employee, it may be more appropriate for the departmental action to be temporarily stayed so that the criminal trial may be completed within reasonable time; if the acts complained of are somewhat connected to the usual duties of the perceived delinquent, it would depend on the facts of a particular case as to whether the departmental action should be stayed pending the criminal trial; and, if the acts complained of pertain to the official functions of the delinquent, it may be inappropriate to allow the delinquent to continue in service or remain suspended indefinitely while the criminal matter languishes.
17. The petitioner refers to the judgment in the polygraph test matter reported at
# Selvi v. State of Karnataka, (2010) 7 SCC 263
for its recognition of the right embodied in Article 20(3) of the Constitution to have an exalted status as a part of the non-derogable rights under Part III of the suprema lex. The judgment also quotes texts and precedents to emphasise that the underlying principle of Article 20(3) of the Constitution is also seen to be the basic distinction between an adversarial system and an inquisitorial.
18. The petitioner has also relied on a Division Bench judgment reported at
# Balai Kumar Sanfui v. State of West Bengal, (2014) 3 CHN 198
where the court noticed the complexity of the charges levelled against the delinquent and stayed the departmental inquiry for a year so that the criminal trial could be concluded within such time. The dictum in Balai Kumar Sanfui is not that every departmental action founded on similar allegations as in the simultaneous criminal action must be stayed; as it could not have been, in the light of the rule enunciated by the Supreme Court that the departmental proceedings may be stayed pending the criminal case if both sets of proceedings are “based on identical and similar set of facts” and the charge in the criminal case is of a grave nature which involves complicated questions of law and fact.
19. Article 20(3) of the Constitution mandates that no person accused of an offence shall be compelled to be a witness against himself. In its plain meaning, it safeguards against self-incrimination when a person is accused of any criminal offence that is tried by a criminal court as an extension of the sovereign. But since it is a fundamental right and liable to a liberal construction, the celebrated judgment reported at
# Capt. M. Paul Anthony v. Bharat Gold Mines Limited, (1999) 3 SCC 679
has, in a guarded and limited manner, extended the principle to departmental proceedings only if “the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact …”
20. The right accorded under Article 20(3) of the Constitution may or may not be seen as otherwise included in Article 21 thereof, but the essence of the safeguard against self-incrimination is that a civilised system of criminal jurisprudence must accord the judiciary some means of excluding confessions or admissions obtained by improper methods. It is open to an accused to make an admission or confession voluntarily and such material has forever been regarded as exalted incriminating evidence; but if an accused were to be questioned on his connection with a crime under investigation, it would partake an inquisitorial character and there would be a temptation to coerce him into making an incriminating statement.
21. The ethos of the principle embodied in Article 20(3) of the Constitution is a fundamental rule in criminal jurisprudence and is reflected in, inter alia, Section 161(2), Section 162 and the proviso to Section 164(1) of the Code of Criminal Procedure, 1973. That there is no such parallel in civil law may be a corollary to the standard of proof – preponderance of probabilities – in such jurisdiction.
22. Article 20(3) of the Constitution has also to be seen in the context of the two clauses that precede it, particularly the immediate preceding provision: no person shall be prosecuted and punished for the same offence more than once. The words, “convicted”, “prosecuted”, “punished” and “accused” used in Article 20 unmistakably point to the proceedings being in the nature of a criminal action before a court of law or a judicial tribunal. It is in the same sense that Article 20(3) of the Constitution has also to be construed.
23. Fundamentally, when Article 20(2) of the Constitution cannot be invoked to question the propriety of a departmental action and a criminal case in respect of the same set of allegations, it may follow that contesting a departmental action founded on the same allegations as in the simultaneous criminal case may not amount to the violation of the rule against self-incrimination envisaged in Article 20(3) of the Constitution. Since the obvious, however banal it may be, must always be remembered, it ought to be noticed that the standards of proof in the two apparently parallel actions are indisputably distinct.
24. The life of law may be experience and not logic, but that does not imply that the law is illogical or asinine. That criminal matters are not disposed of in a hurry in this country is a matter of public knowledge and has been judicially recognised for decades. Notwithstanding the present fashion of even questioning the obvious and irrefutable by taking advantage of the rules of evidence, the judicial system cannot be mocked by suggesting the absurd. While a civilised process demands a charge to be proved upon the person charged being afforded an opportunity to defend himself, it cannot be said that merely because a criminal complaint has been filed in respect of the same set of transactions that form the subject-matter of an earlier or later disciplinary action, the disciplinary action will be stultified till the criminal case, or the trial therein, is concluded. Judicial notice must be taken of cases under the Prevention of Corruption Act, 1988 that stretch beyond the service-life of the accused or even their lifetimes. It may not be reasonable to accept that a public employer has to suffer a perceived corrupt employee till the charge of corruption is proved in the criminal case. The same principle would apply to any employee charged by a public employer of other misconduct.
25. Again, a public employer cannot be faulted for instituting a criminal action against an employee perceived to have committed a criminal offence and, thereby, forfeit the right of pursuing any disciplinary proceedings against such employee. Indeed, it may be obligatory on the part of a public employer to bring an offender to justice. In the ideal, utopian State, criminal trials should be concluded without undue delay. But this is not the place to discuss why criminal trials take so long or complain of the lack of infrastructure or resources at the command of the judiciary or even refer to the planted stories in a section of the media of the inadequacies of judges with no one to speak on the judges’ behalf. Yes, there may be inadequacies in the personnel and in the system; but that is only a half- truth that is fanned by the relentless onslaught against the judiciary to emasculate it and, thereby, replace the rule of law by the law of the rule. So as not to digress any further, it would suffice to merely notice that the criminal justice system takes more time than may be desirable. But the delay in such process cannot be made the basis for destroying discipline at the public workplace by applying the guarded rule in Paul Anthony to every departmental action.
26. The charges against the petitioner herein are straight-forward and do not involve any complicated questions of law or fact for the departmental action against the petitioner to be arrested till the outcome of the criminal case lodged against him. This is not an indictment of the petitioner; just as the judgment of January 18, 2016 on the petitioner’s plea of quashing the earlier departmental proceedings against him on the basis of his order of acquittal in the connected criminal matter was not an acceptance of the petitioner’s culpability in the misconduct alleged against him. The judgment of January 18, 2016 and the view expressed herein are two sides of the coin, so to say, of the same principle. An acquittal of an accused of the criminal charges, without the criminal court affirmatively establishing his innocence, would not destroy the edifice of a pending departmental action on the same set of facts. Likewise, when the standards of proof in the two set of actions are distinct, the impending criminal trial on the same set of allegations cannot be a shield to an employee charged in a departmental action to keep the disciplinary proceedings indefinitely at bay.
27. Nothing in the preceding paragraphs should be held against the petitioner in either the criminal action or in the departmental proceedings.
28. Since the present matter cannot be seen to be covered by the rule of limited application enunciated in Paul Anthony, the departmental action launched against the petitioner by the notice of February 3, 2016 is left free to run its course notwithstanding the criminal complaint lodged against him on September 21, 2015.
29. WP 8487 (W) of 2016 stands dismissed.
30. There will be no order as to costs.
31. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.