TaxTMI 
TaxTMI 
2019 (1) TMI 2035
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....was appointed. Despite notice, the appellant stayed away from the enquiry. On the basis of the materials collected during enquiry, the enquiry officer returned a finding that the appellant was guilty of the charge. Acting on such report, the bank proposed to dismiss the appellant from service. A show cause notice was issued on August 19, 2002 calling upon the appellant to show- cause why such penalty shall not be imposed upon him. The enquiry report was enclosed with the show-cause for obtaining the comments of the appellant thereon. The appellant by his reply dated August 30, 2002, while purporting to show cause, clarified as to why no penalty should be imposed on him. The disciplinary authority of the appellant by an order dated December 7, 2003 removed him from the service of the bank with superannuation benefits, i.e., pension and/or provident fund and gratuity as would be due otherwise under the rules and regulations prevailing at the relevant time and without disqualification for future employment. The order of removal was carried by the appellant in a departmental appeal dated March 10, 2003 before the appellate authority. By an order dated January 31, 2004, the appellate au....
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....the writ petition, the appellant prayed for quashing of the order dated September 29, 2011 as well as the disciplinary proceeding initiated against him earlier. 6. WP 1050 of 2011 was considered by another learned Judge of this Court. His Lordship was of the view that notwithstanding acquittal recorded by the criminal court, the appellant was not entitled to any relief since the standard of proof in a disciplinary proceeding is quite different from the standard of proof applied in a criminal proceeding. By a judgment and order dated May 16, 2017, the writ petition of the appellant stood dismissed. It is the dismissal of WP 1050 of 2011 by the said judgment and order that was questioned by the appellant in APO 508 of 2017. 7. The learned Judge presiding over the Hon'ble Division Bench was of the view that the disciplinary proceeding and the criminal proceeding being based on the self-same set of incident, the order of acquittal recorded by the criminal court had to be given its due weight and the punishment imposed upon the appellant ought to have been reviewed on receipt of his representation dated April 30, 2010. His Lordship, therefore, proceeded to set aside the order of r....
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....kash Mitter vs. The Hon'ble Mr. Justice H.K. Bose, The Chief Justice of the High Court, Calcutta, reported in AIR 1963 CAL 483, the present reference is incompetent. According to him, clause 36 of the Letters Patent requires the learned Judges, differing in opinion, to state their point of difference and the Judge or Judges to whom the reference is ultimately made to state his or their opinion on that point. Much stress has been laid on the observations that the strict letter of the law should, in this respect, be followed or else there is a possibility of the reference becoming abortive or infructuous, necessitating a remit to the differing Judges for regularising matters for an appropriate reference. 12. Considering such preliminary submission of Mr. Chakraborty, I had the occasion to peruse the decision in Jyoti Prokash Mitter (supra) in between the lines. The following passage from the judgment of the learned Judge presiding over the Special Bench is instructive and, therefore, is set out below: "On certain occasions, however, when the point of difference was apparent or manifest on the face of the differing judgments and/or was reasonably certain or readily ascertainabl....
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....ad been drawn by me to the decisions of learned Judges of this Court, while acting as the referee Judge, in Shivani Properties Private Limited vs. Bank of India, reported in 2014 (4) CHN CAL 242 and Tapas Paul vs. State of West Bengal & Ors., reported in 2015 (2) CLJ (Cal) 141. In Tapas Paul (supra), the differing Judges of the Hon'ble Division Bench had framed one point of difference, i.e., whether the decision under challenge is sustainable in law. The learned referee Judge had the occasion to consider the decisions in Jyoti Prokash Mitter (supra) and Shivani Properties (supra) and held that the learned Judges of the Hon'ble Division Bench having differed completely on the conclusions drawn and directions issued by the learned Single Bench and having framed the point of difference, as aforesaid, the decision would necessarily require consideration of four different points as appears from a reading of the impugned order of the learned Single Bench and all such points had to be decided to return a finding whether the order of the learned Single Bench was sustainable in law. 19. I am of the clear considered view that no statement of law laid down in Jyoti Prakash Mitter (su....
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....iable to conviction and sentence under any provision of law. 23. Since my opinion as to the fate of this appeal would hinge on clause 3, I extract the same in its entirety hereunder: "3. (a) When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended. (b) If he be convicted, he may be dismissed with effect from the date of his conviction or be given any lesser form of punishment as mentioned in Clause 6 below. (c) If he be acquitted it shall be open to the management to proceed against him under the provisions set out below in Clauses 11 and 12 infra relating to discharges. However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension pro....
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.... A reading of the aforesaid clauses would make two procedures for taking disciplinary action very clear. The first is that an employee may suffer disciplinary action if he is found guilty of any specified "gross misconduct" in an enquiry, and in such a case any of the penalties mentioned in clause 6 could be imposed on him depending upon the gravity of misconduct committed by him. The other procedure is, when an "offence" of moral turpitude is alleged to have been committed by an employee and prosecution is launched against him before the criminal court. The employee, pending trial, may be placed under suspension. In case such an employee is found guilty by the criminal court and is convicted and sentenced, the conviction itself, without anything more, may form the basis of an order of dismissal or any other lesser punishment as is specified in clause 6. This procedure of disciplinary action is also what the said settlement permits, without the employer being under any obligation to comply with natural justice. 30. Insofar as the orders of penalty imposed in terms of clause 6 and clause 3(b) are concerned, the employee suffering the penalty is conferred the right of filing a depar....