Rajasthan High Court - Jaipur
R.S. Tanwar vs Marwar Gramin Bank And Ors. on 22 April, 1999
Equivalent citations: 1999(1)WLN603
JUDGMENT B.J. Shethna, J.
1. By an order dated 12.9.1997, passed by my learned Brother Hon'ble V.G. Palshikar, J. the respondents were called upon to show cause as to why this petition should not be admitted only on the ground of excessive punishment. Detailed reply affidavit is filed in this petition on behalf of the respondents.
2. In view of the aforesaid order passed by this Court on 12.9.1997, learned Counsel Shri Dave for the petitioner submitted that though the petitioner has got very good case on merits, the maximum penalty of dismissal from service would be as good as death penalty which may be reduced proportionately, looking to the peculiar facts and circumstances of the case. He submitted that the penalty of dismissal from service can be modified by imposing a penalty of stoppage of three increments with cumulative effect and also denying the back wages to the petitioner from the date of dismissal till the order of reinstatement with the modified penalty.
3. However, learned Counsel Shri Vyas for the respondent Bank relying upon Supreme Court judgment in case of Inspecting Assistant Commissioner v. Sharat Narayan Parab reported in 1997 (9) Supreme Today page 381 vehemently submitted that Court cannot go into the question of punishment unless and until it is found that the penalty of dismissal is highly disproportionate or the order of dismissal is wholly unreasonable. He submitted that at the most the order of dismissal can be converted into an order of removal but nothing more can be done in the matter. He further submitted that looking to the gravity of the charges levelled against the petitioner he cannot be continued in service of the Bank any more by passing the aforesaid order of stoppage of three increments with cumulative effect, and denying back wages from the date of dismissal till the date of reinstatement.
4. Once the respondent Bank is not agree on the point of reduction of penalty, this Court is left with no option but to go into the merits of the case and decide the same.
5. The petitioner was appointed as clerk cum cashier with the respondent Bank on 23.7.97. On 4.2.1993 he was placed under suspension and the charge of visiting another village and mis-appropriating the amount of Rs. 8,000/- was imposed for which F.I.R. was also lodged on 28.2.1993 with the police. Thereafter, on 13.7.1993, the petitioner was served with the charge sheet in departmental proceedings. During the departmental proceedings, some of the witnesses have been examined, whose statements were earlier recorded in the preliminary enquiry but some of them were not examined and their statement recorded in the preliminary enquiry have been relied upon by the disciplinary authority in passing the impugned order of dismissal from service. The impugned order of dismissal (Annex. 1) was challenged by the petitioner in appeal before the appellate authority. The same also came to be dismissed on 1.6.1995 (Annex.4). These orders are challenged in this petition by the petitioner.
6. Learned Counsel Shri Dave for the petitioner vehemently submitted that once the FIR was lodged by the Bank with the police and after thorough investigation police found the charges to be baseless and submitted the F.R. in favour of the petitioner before the competent criminal court then it was not open to the respondent Bank to proceed against the petitioner by way of departmental enquiry. He further submitted that the impugned order of dismissal is based on statement of those witnesses which were recorded at the time of preliminary enquiry and they were not offered for cross examination. Thus, the impugned dismissal order is in clear violation of principles of natural justice.
7. However, learned Counsel, Shri Vyas for the respondent Bank vehemently submitted that mere submission of F.R. by the police in favour of the petitioner before the competent criminal court is not sufficient to exonerate the petitioner from the charges levelled against him in the departmental enquiry. He submitted that it was always open to the Bank to proceed against the petitioner with the departmental enquiry even though the criminal case was pending against the petitioner. Learned Counsel for the respondent submitted that mere relying on the statement of the witnesses recorded during the preliminary enquiry would not be sufficient for this Court to interfere with the order of dismissal as other witnesses have deposed against the petitioner in the departmental enquiry.
8. It is true that there is no bar to proceed against the petitioner by way of departmental enquiry when there was a criminal complaint pending before the Court. However, it always depends upon the facts of each case. In this case, as stated earlier, the FIR was lodged on 28.2.1993 with the police against the petitioner for the same charges which were levelled against the petitioner in the departmental enquiry. Police is an independent agency which has made thorough investigation in the case and found that allegations made against the petitioner were baseless and false, therefore, the police submitted F.R. in favour of the petitioner before the competent criminal court. It may be that so far there is no decision by the Court on the said final report, however, once there is a F.R. in favour of the petitioner accused then it was not open for the respondent Bank to proceed against the petitioner by way of departmental enquiry for the same charges. It was upto the Bank to move the competent Court before which the F.R. was submitted and to submit that such final report submitted by the police should not be accepted and the court should take cognizance against the petitioner. Admittedly, this has not been done by the petitioner.
9. Under the Circumstances, the impugned order of dismissal cannot be allowed to sustain any more The dismissal order is required to be set aside also on the ground that the statement of some of the witnesses have been relied upon by the disciplinary authority which were recorded during the preliminary enquiry, without offering them for cross examination in the regular enquiry. This is in clear violation of principles of natural justice. Such statements made at the back of the petitioner cannot be used in this way in the departmental proceedings. The Bank should have offered those witnesses for their cross examination during the regular enquiry. It cannot use those statement without offering those witnesses for cross examination. Thus, on this ground also the dismissal order is required to be set aside.
10. Once the order of dismissal is found to be bad in law and illegal then subsequent order passed in appeal is also required to be set aside.
11. In view of the above discussion, this petition is allowed. The impugned order of dismissal from service (Annex. 1) and confirmed in appeal at Annex.4 are hereby set aside. The petitioner is reinstated in service forthwith with all order benefits of service as if the petitioner's services were never terminated and he was continued in service, except the back wages from the date of dismissal till today. If the petitioner is not reinstated in service on or before 30.6.1999 then the respondent Bank will have to pay interest at the rate of 187, p.a. on salary of the petitioner from today onwards.