1. The petitioner was appointed as an employee of the Bank of Baroda Ltd. Branch Secunderabad on 12-12-55 as a Clerk. Some of the employees of the respondent Bank along with some outsiders in the year 1963 formed a private society know as the Bank of Baroda Housing society of which one Shri Y.C Rao, was the President and the petitioner secretary. On 17-3-1964 the President of the society lodged a Criminal complaint under section 409 IPC, alleging that the petitioner had collected monies from the members of the aforesaid society for purchase of land at the rate of Rs. 5/- per sq. yard; whereas the contract for the purchase of the land had been entered into at the rate of Rs. 3/- per sq. yard. Pending investigation in the aforesaid complaint, the Bank by its communication dated 18-8-1964 suspended the petitioner from that date. The petitioner was on 15th November, 1965 convicted and sentenced by the 5th City Magistrate in C.C 7309/64. The respondent Bank dismissed the petitioner from its service with effect from 15-11-1965 by a communication dated 30-11-1965.
2. The petitioner aggrieved by the conviction and sentence of the 5th City Magistrate, filed an appeal before the Principal Sessions Judge being Criminal Appeal No. 334/65. The learned Sessions Judge allowed the appeal on 16-2-1966 and acquitted the petitioner. After his acquittal by the learned Sessions Judge the petitioner through his Advocate sent a notice to the Bank informing it of the acquittal and demanding reinstatement and payment of the salary due to him for the period of suspension to the date of notice. In reply to the aforesaid notice to the Bank, the respondent Bank by its communication dated 27th October 1956 informed the petitioner that as the State had filed an appeal before the High Court against the acquittal and as it has been admitted, the matter will be considered only after the decision of the High Court is made. The Criminal Appeal filed against the acquittal of the petitioner was dismissed by the High Court on 21st June, 1968. The petitioner by a letter dated 1-7-1968 informed the respondent Bank of his acquittal by the High Court and requested that he be reinstated and immediate arrangements may be made to pay his arrears of salary, allowances, bonus, etc. with effect from 15-8-1964. The aforesaid letter being left unreplied, he addressed another letter to the respondent-Bank on 19th July 1968 enclosing therewith a certified copy of the Judgment of the High Court in Crl. Appeal No. 760 of 1966. He also enclosed therewith a copy of the judgment delivered by the Principal Sessions Judge, Secunderabad. He again requested to reinstate him and also pay his arrears of salary, allowance, bonus etc. from 15-8-64. To this letter be received a telegram stating that a reply will be sent to him soon. The petitioner also addressed another letter on 9th September, 1968 expressing his surprise that he had been credited with a sum of Rs. 7,800/- and odd whereas he claimed that he had to receive three times that amount towards his arrears of salary, allowances, bonus etc.
3. The Bank by its letter No. Staff/13/255, dated 7th October, 1968 informed him;
“We note you have been acquitted by the High Court by giving you the benefit of doubt. It has been decided to hold a departmental enquiry against you under the provisions of the Bipartite settlement.
You were dismissed from the Bank's service with effect from 15th Nov. 1965. However, as a result of your acquittal by the High Court by giving the benefit of doubt, it has been decided to treat you as under suspension from 15th November, 1965 and continue you under suspension pending departmental enquiry to be held against you, which please note.
During the period of suspension, you will be entitled to subsistence allowance at the rate permissible under the rules. You should leave with the Bank your address where charge-sheet and other communication can be served on you. You should not leave the Headquarters during the period of suspension without prior permission of the undersigned.”
4. The present writ petition has been filed by the petitioner against the aforesaid order for a declaration that the aforesaid communication issued to the petitioner is null and void and without jurisdiction and for the issuance of the any appropriate order or direction under Article 226 of the Constitution of India directing the respondent Bank not to act upon or in pursuance of its aforesaid communication.
5. The petitioner in his affidavit has raised several grounds impugning the aforesaid order of the respondent dated 7th October 1968. His contention is that the petitioner was charged and prosecuted for an act that does not come within the purview of the terms and conditions of his employment. The learned principal sessions Judge acquitted him of the charge on the ground that the prosecution had failed to make out a case against the petitioner for criminal breach of trust. The High Court also held that the sale agreement was not for Rs. 3/- per sq. yard, but was for sale at the rate of Rs. 5/- per sq. yard. The prosecution case was thus thoroughly disbelieved by the High Court also. It is contended that on the same facts and allegations, the respondent-bank cannot hold another enquiry which would involve not only an enquiry into the petitioner's conduct but also enquiry into the correctness of the judgment of the High Court. It is averred by the petitioner that the judgment of the High Court being final and binding, no such enquiry can be held by the respondent-Bank because the law denies the legal capacity to any person to hold such enquiry. It is the duty of the management of the respondent-Bank to accept the decision of the High Court and failure to do so and the insistence on the part of the respondent-Bank to conduct a departmental enquiry, clearly shows that the respondent-Bank is not acting bona fide in the matter but is acting with mala fide intention to harass the petitioner as he is an active trade unionist and is Ex-General Secretary of the A.P Bank Employees Federation. The fact that the respondent suspended the petitioner pending police investigation relating to the alleged offence for which he was charged shows, that the Bark does not purport to conduct an enquiry against the petitioner for gross misconduct or minor misconduct under the provisions of the Bipartite Settlement. It is further contended by the petitioner that his case does not come within the Bank Award. Even assuming that his case is governed by the Bank Award, the proposed enquiry by the respondent Bank is barred by virtue of the provisions contained in para 505 of the Sastry's Award, as at the time of the original suspension on 18-10-1964 there was no charge pending against him nor any mention was made in the original suspension order of any gross violation of the departmental rules on his part as to necessitate further enquiry in the interests of the institution on matters other than those in respect of which he had already been acquitted. The respondent-Bank is not competent to issue an order of suspension with retrospective effect. As there was no domestic enquiry pending at the time the petitioner was suspended on 18-8-64 or on 15-11-65 the date on which he was dismissed, the Bank is not competent to pass any order of suspension with effect from 15-11-1965.
6. The respondent-Bank filed a counter-affidavit in the Stay petition and has not filed any counter-affidavit on the merits of the writ petition except taking an objection that the writ petition as filed is not maintainable. The Bank has prayed for the dismissal of the writ petition in limine as no writ can lie against the Bank. The Bank is a Banking company registered under the Indian Banking Companies Act and for the purpose of carrying on business of banking it engages large number of employees whose service conditions are determined by the contract of employment and the awards passed by Industrial Tribunals constituted under the Industrial Disputes Act. Apart from these awards, the management and the Workmen have entered into a settlement which determine the terms and conditions of service. The Bipartite Settlement is one such settlement. The action that is being taken against the petitioner is purely in exercise of the Bank's rights as an employer against the employee depending on the contractual obligation. If at all, the employee has got any right against the Bank it arises out of the terms of employment and nothing more. The purpose of the writ being the enforcement of the petitioner's contractual obligation, no writ can lie for the said purpose; apart from the fact that no writ can be issued against the Bank.
7. The relief sought for in the writ petition is to refrain the respondent-Bank from taking any action in pursuance of its communication dated 7th October, 1968. The Bank has not yet taken any action in pursuance of the aforesaid communication and it is always open to the petitioner to raise an industrial dispute if any action is taken against him. The Bank has not yet made up its mind as to whether it should proceed with the domestic enquiry or should discharge the petitioner from service under the terms of employment or even to retain him in service. These are all matters on which a decision has yet to be taken by the Bank and it is too early to predict the final action.
8. As regards the maintainability of the writ petition against the Bank, it was argued by the learned counsel for the petitioner that the jurisdiction vested in the High Court under Article 226 of the Constitution is much wider than the jurisdiction exercised by the English Courts for issuance of prerogative writs. Under Art. 226 of the Constitution writs can be issued to any person or authority and the term “any person” would include a Corporation. Further, the respondent-Bank is a public authority as it is serving a public purpose. The various provisions of the Banking Regulation Act and the Banking Laws (Amendment) Act 1968 clearly show, according to the learned counsel, that the Reserve Bank of India controls practically every activity of the Bank and in view of the control so exercised, it can be said that the Bank is a public authority. Even otherwise, as the Bank serves a public purpose, it is, not juris privati. Therefore one of the necessary conditions for the issuance of a writ of Mandamus, i.e, the Public Character of the office and the institution is satisfied in case of the respondent Bank. It is also contended that a writ of Mandamus can issue not only where the duty is imposed by statute but also in cases where duty is imposed by common law. It can be issued where there is a specific legal right but there is no specific legal remedy. In any case a declaration can be made that the impugned order is illegal and without jurisdiction.
9. The nature and purpose of an order of mandamus has been very succinctly expressed in Halsbury's Laws of England Vol. II page 84, para 159 thus:
“The order of mandamus is an order of most expensive remedial nature, and is, in form, a command issuing from the High Court of justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or to their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and it will issue to command that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where although there is an alternative legal remedy, vet that mode “of redress is less convenient beneficial and effectual.”
10. Thus for the issuance of an order of mandamus the question whether the respondent against whom such an order is issued is a person or corporation or an inferior Tribunal does not arise. The necessary condition for issuance of such an order is that the respondent has to perform a public duty appertaining to his or their office. The question therefore is not so much as whether the respondent-Bank is a private institution or a public institution; but the question for determination is whether any public duty has been cast upon the Bank for the performance of which a writ can be issued in the circumstances of the case. Article 226 of the Constitution confers on the High Court a power to issue writs in the nature of habeas corpus, mandamus, prohibition, Certiorari and quo warranto. But these writs cannot be issued to “any person” and for any purpose. The purposes for which and the persons to whom these writs can be issued have long been well settled. Therefore the power to issue writs of the nature expressly mentioned “to any person” can only mean a power to issue such a writ “to any person according to the well established principles the writ lay”. The words “for any other purpose” must mean “for any other purpose for which any of the writs would according to well established principles issue.” The word ‘other’ being read in anti-thesis to “for the enforcement of fundamental rights. Vide Servai's Constitutional Law of India, para 16, 71(2).
11. The Supreme Court in a recent decision in C.A 612/22 (Praga Tools Corporation V.C.A Emanual and others) observed.
“An order of mandamus is, in form, a command directed to a person, corporation or an inferior Tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however not necessary that the person or the authority, on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a person constituted by a statute for the purposes of fulfilling public responsibilities.”
12. It further held that a declaration under Article 226 of the Constitution “can be issued against a person or authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority, or body by such a statute”.
13. Reference may here be made to several decisions relied upon by the learned counsel for the parties in this context. Strong reliance was placed on a decision of Jaganmohan Reddy, J., (as he then was) in Jaya Sri v. Kakatiya Medical College . 1967 1 An. W.R 247.. The case related to the admission of students to Kakatiya Medical College, Warangal. The complaint of the petitioners was that the admissions had not been effected in accordance with the rules framed by the said college. The College raised an objection that no writ can be issued against it as it is only a private institution. While dealing with this question, it was held on page 254 that the College which is registered under the Societies Registration Act, 1350 F. is a legal person, brought into existence for fulfilling a public purpose viz., imparting medical education to all those who satisfy the requirements of their rules. It has as its members Minister of Medicine, Education Minister, the Chairman of the University Grants Commission and the Vice-Chancellor of the Osmania University. The Executive Committee further consists of ex-officio members who are Government servants, the President of which is the Collector of the District. It is also run on public donations. It was also observed that the Medical College private or otherwise, cannot impart medical education without the assistance of an attached hospital. It had to satisfy the requirements of all India Medical Council and the Osmania University has to approve not only the academic qualification of the teachers hut also the curricula etc. In view of the aforesaid requirements, his Lordship held that “the institution is serving a public purpose and that the persons who are discharging those duties are quasi-public, if not public authorities”. It was also held that “where private bodies discharge public functions they cease to be juris privati. It is thus seen that of the two requirements for entertainment of a petition for issue of a writ of mandamus one of them, namely the public character of the office and the institution, is in my view satisfied”.
14. Adverting to the question whether the petitioners had a right under law to obtain admission, it was held that the requirements of the rules having been satisfied, the petitioners have a legal right to ask the society to have their applications considered and the society has a duty to consider them in accordance with the rules if not under the statute, under a contractual obligation arising out of the offer and acceptance, which is a legal right. A declaration was therefore issued that the petitioners are entitled to have their applications for admission considered by the College as conforming to the rules of the respondent-College for admission.
15. The Madras High Court in V. Ramaiah v. State Bank of India . A.I.R 1964 Mad. 335. considered a writ petition filed by an employee of the State Bank of India who claimed that his service could not have been terminated under Rule 14 of the State Bank of India (Sub-Accountant and Head Cashier) Service Rules. The learned Judge referring to the various provisions of the State Bank of India particularly the Public purpose, which it is meant to serve, the extensive Government control over the Bank including several matters of policy, appointment and removal, fixation of remuneration of particular officers of Central Board and the power of nomination and appointment of directors etc. held that the State Bank of India is a public authority. He further held that it was charged with public duties by various provisions of the Act in respect of several matters Merely because there are provisions in the Act for disposal of profits, it cannot be considered as a commercial concern constituted for gain. Disposal of profits is not the primary object of the establishment of the State Bank but it is merely incidental to the nature of the business transacted by the Bank. While considering the State Bank of India (sub-Accountants and Head Cashiers) Service Rules, 1959 it was held that they are not statutory rules and do not have the force of law. The said rules may be the terms and conditions which govern the employees of the State Bank, but they do not as statutory rules have the force of law. It was therefore held that the petitioner's contention that he was dismissed in violation of the service rules cannot be enquired into in the writ petition.
16. This decision thus shows that even though the learned Judge held that the State Bank of India was a Public Authority discharging public duties; but as the rules sought to be enforced by the petitioner in that writ petition do not have statutory force no writ would lie.
17. Reliance was placed on a passage at page 561 of Judicial Review of Administrative Action” by S.A de Smith (2nd Edition). It reads.
“To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by Charter, common law, custom or even contract”
18. In continuation of the aforesaid passage, the learned authority observed on page 562:
“But in most cases the answer to the question whether mandamus may properly issue will depend on whether the duty is statutory or non-statutory. Thus, it is thought that if a domestic tribunal wrongfully declines jurisdiction in a particular case, mandamus will issue to it provided that its jurisdiction is regulated by statute but not if its jurisdiction is based merely on contractual or other non-statutory foundations.”
19. The learned author on page 561 has also observed:
“The duty to be performed must be of a public nature. Mandamus will not lie to order admission or restoration to an office that is essentially of a private character; nor in general, will it lie to secure the due performance of the obligations owed by a company towards its members, or to resolve any other private dispute, such as a claim to reinstatement to membership of a trade union, nor will it issue to a private arbitral tribunal.”
20. The passage extracted above show that Mandamus will not issue to resolve a private dispute and though a public duty does not necessarily have to be one imposed by statute, mandamus will not issue if the jurisdiction of a domestic tribunal is not regulated by statute but is based merely on contractual or other non-statutory foundations.
21. The learned counsel for the respondent—Bank relied upon two cases where the company against whom writ of Mandamus was sought, was a company fully owned by the Government or the President of India. The first of such cases is the decision of the Madras High Court in R. Lakshmi v. Neyveli Lignite Corporation . 29 F.J.K 223. The petitioner a telephone operator in Neyveli Lignite Corporation was served with a charge sheet dealing with absence from duty and instanced certain wilful acts of insubordination. It is at this stage that the petitioner came to the Court with a petition under Article 226 of the Constitution of India with a prayer that the proceedings against her may be quashed. The learned Judge held that the respondent though owned by the Government did not purport to exercise any authority conferred on them by the Government and do not perform any statutory duties. When an employer is taking disciplinary action against his employee, he is not deciding any rights thereof. The proceedings of a domestic tribunal of a private body cannot be challenged under Article 226 of the Constitution.
22. In the second case the Calcutta High Court in Sunil Kumar Dabnath v. Mising and allied Machinary Corporation . 1968 1 L.L.J 643. dealt with a writ petition for quashing what is known as absorption list prepared by the respondent, the Allied Machinary Corporation Ltd. that Corporation is a Government Company as defined under section 76 of the Companies Act of which the share holders are the President of India and his nominees. It is a private Limited Company. It was held that such a company cannot be considered as public body or its official public officers, and no writ can issue against it.
23. In another case wherein the respondent was State Bank of India, the Calcutta High Court in K.M Mukherjee v. Secretary State Bank of India . A.I.R 1968 Calcutta 59. held that in appropriate cases writ can lie against the State Bank of India which is a statutory corporation. But no mandamus can lie to enforce the award of an Industrial Tribunal, because it has no more statutory force than the decree of a Civil Court. The Industrial Disputes Act provides statutory penalty for violation of an award and the breach of it may itself be raised as an industrial dispute, Dismissed employee may also claim compensation for wrongful dismissal in violation of the previous award or reinstatement and the violation of para 251 of Sastry's Award cannot give rise to a plea of violation of rules of natural justice. In that case the High Court interferred as the dismissal of the employee was not by statutory authority.
24. The Allahabad High Court in Ram Kishun v. Central Bank of India . A.I.R 1958 Allahabad 41. had to deal with a case wherein the respondent was the Central Bank of India which is not a statutory corporation. In that case action was taken against the Bank employee by the Bank management after his acquittal by a Criminal Court. It was held that for the issuance of an order of mandamus for the enforcement of the statutory right, it must appear that the statute in question imposes a duty. An argument was advanced that by virtue of the Industrial Disputes (Banking Companies) Decisions Act, 1955 statutory obligation had been created; but the learned Judge held that the Act by itself does not create any statutory obligation against any person. The Award recognised by the said Act cannot be placed on higher footing than a decree of a Civil Court. The High Court cannot issue a writ of Mandamus in order to enforce a decree of the Civil Court.
25. Reference need he made in some detail to the decision of the Supreme Court in Praga Tools Corporation v. C.A Emanual (C.A 612/66) given on 19th February 1969. The respondents filed a writ petition in the High Court of Andhra Fradesh under Article 226 of the Constitution of India challenging the validity of the agreement entered into between the Fraga Tools Corporation Employees Union and the appellant on 20th December 1963. The learned single Judge of this High Court dismissed the writ petition on merits without deciding the preliminary objection raised by the company that no writ of Mandamus would lie against it. On appeal by the workmen, a Division Bench of this Court held that the company being one registered under the Companies Act and not having any statutory duty or function to perform, was not one against which a writ of Mandamus or any other writ would lie. The Division Bench however held that though the writ petition was not maintainable it could grant a declaration in favour of three workmen that the impugned agreement was illegal and void and dismissed the writ petition subject to the said declaration. The question raised in the appeal was whether the High Court having taken a view that the writ petition was not maintainable against the company, could still grant a declaration.
26. The Supreme Court upheld the view of the High Court that the writ petition filed under Art. 226 of the Constitution claiming against the company Mandamus or an order in the nature of Mandamus was misconceived and not maintainable observed.
“The company being a non-statutory body and one incorporated under the companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a Mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court therefore was right in holding that no writ petition for a Mandamus or an order in the nature of Mandamus could lie against the company.”
27. While dealing with the question whether a declaration can be issued under Article 226 of the Constitution the Supreme Court observed.
“It is therefore fairly clear that such a declaration can be issued against a person or an authority or a corporation where the impugned act is in violation of or contrary to a statute under which it is set up or governed or a public duty or responsibility imposed on such person, authority or body by such a statute.”
28. The Supreme Court also observed:
“No such declaration against a company registered under the Companies Act and not set up under any statute or having any public duties and responsibilities to perform under such a statute could be issued in writ proceedings in respect of an agreement which was essentially of a private character between it and its workmen”.
29. It also held that the High Court in the circumstances of the case ought to have left the workmen to resort to the remedy available to them under the Industrial Disputes Act by raising an industrial dispute thereunder.
30. The learned counsel for the petitioner sought to distinguish the above decision of the Supreme Court on the ground that the Praga Tools Corporation is purely a commercial concern and was not a public body and the duties it has to perform cannot be compared with the duties which a banking company has to perform in the financial set up of the country. The fact that the Praga Tools Corporation is a commercial concern; whereas the respondent before me is a banking company, does not make any material difference. The question to be considered according to the aforesaid decision of the Supreme Court is whether a statutory or public duty is imposed by statute in respect of which enforcement could be by means of a Mandamus and whether the workmen have corresponding legal right for the enforcement of any such statutory or public duty.
31. The contention of the learned counsel for the petitioner is even though no statutory duty is imposed upon the respondent-Bank to act in a particular manner in regard to disciplinary proceedings the Bank was seeking to take against him, there is a duty cast upon it either because of the provisions of the Sastry's Award and Bipartite Settlement or by the principles of natural justice and jurisprudence that the petitioner having been acquitted by the High Court, no disciplinary proceedings can be instituted against him in regard to the same facts. The petitioner has also corresponding legal right for enforcement of the aforesaid duty which is public in nature.
32. The Award given by the All India Industrial Tribunal (Banking Dispute) Bombay; commonly known as Sastry's Award was published on 26th March, 1953. Para 505 of that award says that a verdict of acquittal passed by a competent court of law should not be lightly thrown aside by the bank management in trying to institute departmental enquiries after the acquittal as it would amount to a double trial in respect of the same offences. It also states that the decisions of the courts are entitled to highest respect and the hank managements should reinstate an employee who is honourably acquitted and pay him his full salary and allowances. “The acquittal should not be lightly challenged by departmental enquiries for disciplinary action unless the bank management feels that there has been such a gross violation of the departmental rules as to necessitate a further enquiry in the interests of the institution on matters other than those in respect of which he has been already acquitted. If after the departmental enquiry the management still feels that the employee cannot continue in its service it can terminate his services only on payment of three months's salary and allowances in lieu of notice”.
33. On the basis of this recommendation, it is argued that the departmental enquiry or the disciplinary action can only he for gross violation of the departmental rules or the matters other than those in respect of which the courts have already acquitted the employee. It is necessary to refer to para 521 which speaks of procedure for taking disciplinary action. Sub-para (2)(c) of this paragraph says:
“If he be acquitted, it shall he open to the management to proceed against him under the provisions set out below in sub-paragraphs (9) and (10) 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.”
34. Sub-paragraphs (9) and (10) speak of the procedure to be adopted while taking disciplinary action. This recommendation shows that even in a case where an employee has been acquitted, departmental action can be taken against him with a view to ascertain whether he should be discharged.
35. Sastry's Award was followed by the Award of the National Industrial Tribunal presided over by Mr. Justice K.T Desai in Reference No. 1 of 1960 which inter alia modified certain provisions of the Sastry's Award. A Bipartite settlement was arrived at in regard to the bank employees on 19th October, 1966. This Bapartite settlement in the very first paragraph states that the Sastry's award and the Desai Award shall govern the service conditions of the Bank employees except to the extent that the same have been modified in this settlement. Chapter XIX of this Bapartite Settlement deals with disciplinary action and procedure therefor Clause 19.3(c) is in identical terms with paragraph 521(2)(c) of Sastry's Award. It also says that on an acquittal of an employee it shall be open to the management to proceed against him under the provisions set out in clauses 19-11 and 19-12 infra relating to discharges. Clauses 19-11 and 19-12 provide the procedure for disciplinary action. A reading of para 521 of the Sastry's Award and clause 19-3(c) of Bipartite Settlement shows that even in cases of acquittal by a Court, it is open to the management to proceed against such employee. But that disciplinary action would be limited to the provisions set out in the Award and Settlement relating to discharges. It cannot therefore be said that on an acquittal by a court, the Sastry's Award and the Bipartite Settlement completely rule out all departmental proceedings by the management concerned.
36. In this context it is also necessary to see whether a writ can be issued to enforce the conditions of an Award or a Settlement. The Allahabad High Court in Ram Kishun v. Central Bank of India has held that the provisions of the Industrial Tribunal (Banking Companies) Decisions Act, 1955 does not create a statutory obligation against any one. The Awards recognised by the said Act cannot be placed on a higher footing than a decree of a civil court. No writ of Mandamus can be issued by a High Court to enforce a decree of the Civil Court. This decision after reference to the Sastry's Award, holds that the disciplinary action taken against the Bank employee by the Bank management after his acquittal by the Criminal Court is not prohibited by that Award. Such an action is permissible under Clause (c) of para 521 of the Award. Of course in the particular circumstances of the case it was not clear whether the subject matter of the disciplinary action was identical to the charges disposed of by the criminal court.
37. To the same effect is the observation of the Calcutta High Court in K.M Mukherjee v. Secretary, State Bank of India which holds that the Award of the Industrial Tribunal is the decision of an industrial adjudication by a statutory tribunal and can have no more statutory force than the decree of a civil court. The Sastry's Award given in 1953 and the Desai Award given in 1960 had no legal force superior to that of the award of a statutory arbitration. Section 29 of the Industrial Disputes Act provides statutory penalty for violation of an award.
38. Thus there is no statutory or public duty cast upon the respondent not to proceed against the petitioner in view of the provisions of the Sastry's Award and the Desai Award. These Awards have no statutory force of law and have only the status of a decree of a civil court. Afortiori Bipartite Settlement does not cast any statutory or public duty upon the Bank management. I have also shown that the provisions of the two Awards and the Settlement do not completely rule out a domestic enquiry albeit it may be for discharging an employee. Therefore no writ or order of Mandamus can issue on the ground that there is a contravention of the two Awards or the Bipartite Settlement. As decided by the Supreme Court in C.A 612/66 no declaration can also be issued that the order passed against the petitioner is in contravention of the two Awards and the Bapartite Settlement.
39. I now turn to the argument raised by the learned counsel for the petitioner that on the acquittal of an employee by a court, no disciplinary action can be taken against him by domestic Tribunal on the same facts. Reliance for this proposition was placed on three decisions of the Madars High Court which were followed by Patna High Court. The first such decision of the Madras High Court is J.D Silva v. R.T.A . A.I.R 1952 Madras 853.. A Division Bench of the Madras High Court consisting of Rajamannar, C.J and Venkataram Ayyar, J. observed that a quasi Judicial Tribunal like Regional Transport Authority or the appellate tribunal cannot ignore the findings and orders of competent criminal courts in respect of an offence when the Tribunal proceeds to take action on the basis of the commission of that offence. As primarily the criminal courts are entrusted with the inquiry into offences, it is desirable that the findings and orders of the criminal courts should be treated as conclusive in proceedings before quasi judicial tribunals like Transport Authority under the Motor Vehicles Act. In para 5 of that decision it was held;
“If the criminal prosecution ended in a discharge or acquittal of the accused and that event happened before the order of any Road Transport Tribunal, then such Tribunal would not have the power to go behind the final order of a competent criminal court.”
40. The aforesaid decision was applied by a single Judge of the Madras High Court in Radhakrishna Mills v. The presiding officer . 1961 D.L.J 291. to domestic Tribunals taking disciplinary action against an employee. The decision of the court would be binding upon the employer and failure to accept that decision or at least to consider it would show that the employer did not act bona fide in the matter.
41. The officiating Chief Justice of the Madars High Court in Shaik Kasim v. Supdt. Post Offices . A.I.R 1965 Mad 502. after a review of the case law held that the following principles emerge:
(1) The Administrative authority in initiating disciplinary proceedings is not bound to wait for the verdict of the Criminal Courts.
(2) If the Criminal Court has acquitted the concerned person it would be improper for the administrative authority to proceed with the disciplinary action such a proceeding is liable to be quashed as not in consonance with the principles of natural justice if the administrative authority comes to a contrary conclusion on the identical facts and identical charges and record; but the acquittal should have been substantially on merits;
(3) There cannot be any rigid or inflexible rule that the finding of the Criminal Court is conclusive in every sense upon the administrative authorities. If the finding is a purely a technical acquittal, the administrative authority may proceed on the same facts. It can punish on the same facts for some lesser charges which might not amount to a criminal offence; but may amount to dereliction of duty entitling disciplinary action; and
(4) It is the basic principle of jurisprudence that where the acquittal is substantially on merits on identical facts and charges, it will not be proper for the disciplinary tribunal to record a finding of guilt and punish thereon.
42. The Patna High Court in Banta Singh v. National Coal Development Corporation . A.I.R 1968 Patna 300. held that if departmental enquiry is not at all launched and criminal prosecution is instituted and that ends in an acquittal, it will not be proper for the Department to proceed on the same charges the Judgment of the criminal trial is admissible in the civil court under the Evidence Act for the purpose that there was a criminal case of identical charge and it ended in acquittal. The other findings or the evidence led in the criminal trial are irrelevant but the conclusion of the trial is admissible in evidence. The departmental enquiry in that view, on the charges of identical nature in the criminal court is not justified. In this case also, after the acquittal of the delinquent by the Criminal Court, a departmental enquiry was instituted and he was found guilty.
43. The principles laid down in the aforesaid cases do not prohibit the initiation of disciplinary proceedings against an employee who has been acquitted by the criminal Court. It is only if a contrary conclusion is reached on identical facts and identical charges and record that the order of administrative authority will be improper and will have to be quashed as not in consonance with the principles of natural justice or basic principle of jurisprudence.
44. A Division Bench of the Gujarat High Court considered this question in Motisingh Chagasingh v. Mehta . 1966 I LLJ. 55.. It held that there is no legal basis for the contention that the departmental enquiry is barred on the same facts on which an order of acquittal has been recorded by the criminal court. It also held that there is go constitutional bar for the disciplinary proceedings being instituted on an order of acquittal being recorded. It was also observed by the learned Judges that the proceedings in the criminal court and before the departmental authority are entirely different in character and operate in different fields and have different objectives. In some cases where the material on evidence which would be evidence in departmental proceedings would be tabooed in criminal proceedings. The strict rules of evidence are not applicable to departmental proceedings and rules relating to appreciation of evidence also vary. The scope of the two enquiries is also different and the degree of proof also varies. The argument that departmental enquiry after an order of acquittal by any High Court, constitutes a contempt of court, was rejected.
45. Kumarayya, J. in State of A.P v. K.H Khan . 1967 II An. W.R 121. considered the question whether the departmental enquiry is competent when on the same facts the officer concerned has been already prosecuted and the said prosecution has resulted in acquittal. After the review of the cases it was held that there was no constitutional bar in instituting departmental enquiry for misconduct after the delinquent was tried on the same facts by a criminal court and acquitted in that behalf.
46. The same learned Judge sitting in Division Bench with Kondaiah, J. held in W.P No. 1977/64 decided on 12-2-1967:
“A criminal proceeding by itself does not debar either in law or in view of the constitutional provisions any departmental proceeding which does not smack of any mala fides or victimisation”.
47. The learned counsel for the petitioner sought to distinguish the aforesaid cases by saying that the matter has been considered in these cases with reference to Article 20(2) of the Constitution of India. Those cases do not advert to the principles of natural justice or the basic principle of jurisprudence which is contravened if such an enquiry is allowed to proceed. I do not agree with this contention. The distinction sought to be made by the learned counsel for the petitioner does not arise. The Division Bench in W.P No. 1977/64 has clearly laid down that there is no constitutional or legal bar for holding a departmental enquiry after the acquittal of the delinquent by a competent court. Further the Madras cases relied upon by the learned counsel are all cases where a domestic enquiry was held and the domestic tribunal came to a conclusion which was contrary to the decision of a court of law. In those circumstances it was held that the order of the domestic tribunal is either not proper or bonafide and contravenes the principles of natural justice and basic principle of jurisprudence. That situation has not arisen in this case. When this writ petition was filed, the respondent had not yet even framed charges against the petitioner and had not started enquiry. It is too early to say that the respondent would arrive at a conclusion contrary to the conclusion arrived at by the High Court. It is also too early to say the action which the respondent will take against the petitioner. As already indicated by me, even under Sastry's Award and under the Bipartite Settlement the respondent is competent to initiate proceedings against the petitioner with an intent to discharge him. Even assuming that the enquiry is held on the same facts on which acquittal of the High Court is based, the respondent-Bank is not precluded from considering whether it is proper for the petitioner to be retained in service. It was argued that the fact that the petitioner was suspended after criminal complaint was filed and was dismissed after he was convicted, shows that the respondent-Bank does not want to proceed against him on other facts. It is also argued that the alleged complaint for misappropriation does not deal with the funds of the Bank and is in no way concerned with the official duties of the petitioner. There is no scope therefore for the Bank to come to a conclusion that the petitioner is guilty of any conduct which would entitle the Bank to take disciplinary action against him. It is too premature to consider these arguments, especially when the Bank has not given the charge sheet to the petitioner and has not come to a definite conclusion as to the proceedings it has to take against the petitioner. In view of these considerations no order or direction prayed for by the petitioner can be given. The only question that remains no be considered is in regard to the suspension of the petitioner with retrospective effect. It is argued that suspension can only be pending an enquiry and as there was no enquiry pending prior to 7-10-1968, the Bank is not competent to suspend the petitioner from 15-11-1965 the date on which he was convicted by the 5th City Magistrate. It has been held by this court in Mohd. Azam v. State . A.I.R 1958 A.P 619. and W.P No. 1362/67 decided on 8-7-1968 that there cannot be any retrospective suspension. “The word ‘suspension’ generally connotes temporary deprivation of office, position or one's privilege”. Suspension of the person retrospectively has therefore no meaning. Of coarse the rules of service or terms of employment may provide for such retrospective suspension; but no rule or term of employment has been brought to my notice by virtue of which such a suspension can be ordered. On the contrary sastry's Award in paragraph 521(10)(b) and Bipartite Settlement in paragraph 19-12(b) make provision for suspension pending enquiry. The suspension of the petitioner with effect from 15-11-1965 is therefore bad. But no writ or direction can be issued to the respondent in this regard as there is no statutory or public duty cast upon the Bank.
48. In the result the writ petition fails and is dismissed; but there will no order as to costs.