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TMI Blog2019 (1) TMI 2035X X X X Extracts X X X X X X X X Extracts X X X X ..... h that clause 3 applied to the facts and circumstances before His Lordship and the appellant was entitled to the benefit of sub-clause (d) thereof. The writ petition of the appellant deserved an order of dismissal but not for the reasons assigned by the learned Single Judge and the companion Judge of the Hon'ble Division Bench - The reference is answered accordingly. Appeal dismissed. - Hon'ble Judges Dipankar Datta, J. For the Appellant : Srijib Chakraborty and J.D. Roy, Advocates For the Respondents : R.N. Majumder and S. Bhattacharya, Advocates DECISION DIPANKAR DATTA, J. 1. While deciding APO 508 of 2017, being a writ appeal arising out of WP 1050 of 2011, the learned Judges comprising an Hon'ble Division Bench differed in their opinion. This led to placement of the appeal before me, for my opinion, on the order of the Hon'ble the Chief Justice. 2. The appellant was an employee of the respondent bank (hereinafter the bank). On the charge that the appellant had forged a withdrawal slip presented before the concerned branch of the bank by a customer, resulting in the appellant wrongfully gaining Rs. 23,000/-, a disciplinary p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's removal from service, the criminal court pronounced its verdict on April 30, 2010. The appellant was acquitted of the charges levelled against him by the prosecution. 4. Armed with the order of acquittal, the appellant approached his disciplinary authority by submitting a representation dated June 15, 2010 and prayed for reinstatement in service citing clause 3(d) of a Memorandum of Settlement dated April 10, 2002 (hereafter the said settlement) to which the bank was a party. The disciplinary authority did not respond resulting in the appellant invoking the writ jurisdiction of this Court by presenting WP 684 of 2011. A learned Judge of this Court by an order dated July 14, 2011 disposed of the writ petition with a direction upon the disciplinary authority of the appellant to take an appropriate decision on the said representation in accordance with law within a period of two months from date of communication thereof. Acting in compliance with the order dated July 14, 2011, the disciplinary authority passed an order dated September 29, 2011 on the said representation of the appellant. For the reasons assigned in the said order, the representation stood reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andard of proof required to drive home a charge in a criminal proceeding is that of 'proof beyond reasonable doubt' which is quite distinct from the standard of proof that is required to establish a charge in a disciplinary proceeding, i.e., 'preponderance of probabilities'; therefore, even though the appellant might have been acquitted by the criminal court, the materials collected during course of enquiry by the enquiry officer were sufficient for the disciplinary authority to arrive at a finding of misconduct committed by the appellant while in service and, therefore, the punishment of removal was perfectly justified. According to Her Ladyship, the learned Judge of the Trial Court was correct in dismissing the writ petition and such order was upheld. 9. In view of such difference of opinion, the learned Judges referred the matter to the Hon'ble the Chief Justice for appropriate administrative orders . 10. Having noted the facts giving rise to the present reference, it is time to record the arguments of Mr. Chakraborty, learned advocate for the appellant. 11. I must record that at the outset, Mr. Chakraborty had sought for an adjournment on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Division Bench, the conclusions drawn by the learned Judges on the same set of facts regarding the fate of the writ appeal are diametrically opposite. In view of the reasonably certain and readily ascertainable difference of opinion, on facts and in the circumstances my duty as the referee Judge is to render my opinion as to whether the writ appeal should succeed or merits dismissal. With that in view, I had called upon Mr. Chakraborty to argue the appeal on merits, which he did. 15. Much the same argument, as he had advanced before the Hon'ble Division Bench was advanced by Mr. Chakraborty before me; hence, I do not consider it necessary to refer to it. Suffice it to record that clause 3 of the said settlement had been made the sheet anchor of his argument. 16. At the fag end of hearing the arguments advanced by Mr. Chakraborty, I had expressed the view that clause 3 of the said settlement had not been considered in the proper perspective by either of the learned Judges of the Hon'ble Division Bench and that the opinion on this reference would require a proper interpretation thereof. It is based on such interpretation, the writ appeal either has to be all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be rendered either way based on the reasoning that would support such opinion. Even if the reason in support of the opinion rendered by the referee Judge is different from the reason assigned by one of the differing Judges for arriving at the same conclusion, such course of action is not precluded by the rules relating to reference and would not disable me from rendering my opinion on the point as to whether the appeal should succeed. 20. It appears from the said settlement that clause 3, on which the presiding Judge of the Hon'ble Division Bench had relied upon, finds place under the caption Disciplinary Act and Procedure therefor . For the purpose of an appropriate opinion, I consider it necessary to refer to certain clauses of the said settlement appearing under the aforesaid caption. 21. Clause 1 ordains that a person against whom disciplinary action is proposed or is likely to be taken shall in the first instance be informed of the particulars of the charge against him and he shall be given an appropriate opportunity to give his explanation as to such particulars. It further ordains that final order shall be passed after due consideration of all the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be liable only for termination with three months' pay and allowance in lieu of notice, as directed above. 24. Clause 4 provides what steps are required to be taken if an employee has been prosecuted for an offence but is not put on trial within a year of the commission of the offence. Since clause 4 has no application here, detailed reference to it is not considered necessary. 25. Clause 5 explains what would amount to gross misconduct . It says that any of the acts and omissions on the part of an employee as indicated in sub-clauses (a) to (t) would amount to gross misconduct, if proved. 26. Clause 6 provides the penalties that could legitimately be imposed on an employee found guilty of gross misconduct. Sub-clause (b) thereof provides the punishment, which the appellant suffered. 27. Clause 11 lays down that a decision to initiate disciplinary action against an employee shall be communicated to him within three days and the procedure therefor in such a case would be as indicated in clause 12. 28. To put it briefly, clause 12 requires the employee concerned to be told what the charge against him is and the procedure that is required to be followed in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt or to raise an industrial dispute as noticed above. He did not pursue either of the remedies. Only after the appellant was acquitted by the criminal court, he started making representations before the bank. The appellant appears to have perceived clause 3(d) to provide him an additional remedy and therefore, he sought to exercise the right that is conferred on an employee of the bank who has suffered an order of dismissal on the basis of a conviction recorded by the criminal court to seek his reinstatement in service. In my considered view, clause 3 deals with offences which are distinct from gross misconduct , both having been defined in the said settlement quite clearly; and a clause which would be relatable to the steps that the bank is required to take upon an order of conviction being converted to an order of acquittal because of a criminal appeal or a criminal revision having succeeded, could not have applied to a case of disciplinary action which is dealt with, inter alia, under clauses 1, 6, 11 and 12 of the said settlement. This vital aspect was not brought to the notice of either of the learned Judges comprising the Hon'ble Division Bench and therefore, decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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