Rajasthan High Court - Jodhpur
Lal Singh Rathore vs State Bank Of Bikaner & Jaipur & Ors on 8 June, 2009
Author: H.R.Panwar
Bench: H.R.Panwar
1
SBCWP NO.3073/1997.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.CIVIL WRIT PETITION NO.3073/1997
Lal Singh Rathore
Vs.
State Bank of Bikaner & Jaipur and Ors.
Date of Order :: 8th June, 2009
PRESENT
HON'BLE MR.JUSTICE H.R.PANWAR
Dr.P.S.Bhati, for the petitioner.
Mr.Jagdish Vyas, for the respondent-Bank.
BY THE COURT:
Reportable By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the orders Annexure-10 dated 3rd January, 1994, Annexure-11 dated 31st December, 1993 and Annexure-15 dated 3rd May, 1994 and a direction to the respondents to reinstate him in service with all consequential benefits including the payment of salary, annual grade increments, seniority, further promotion etc. 2 SBCWP NO.3073/1997.
Briefly stated facts to the extent they are relevant and necessary for the decision of this writ petition are that the petitioner initially came to be appointed in the year 1977 on the post of Clerk-cum-Godown Keeper. However, he became eligible for the promotion on the post of Junior Management, Grade-I and therefore, applied for the same and was qualified in the written test as well as in interview and thereupon, he came to be promoted on the post of Junior Management, Grade-I w.e.f. 1.11.1988 and has been working with the respondent-State Bank of Bikaner and Jaipur (for short "the respondent-Bank" hereinafter) since then. A criminal case came to be lodged against the petitioner for offences under Sections 420, 467, 468, 471 and 120-B IPC read with Section 5(1)(d) and 5(2) of the Prevention of Corruption Act. The matter was investigated by the C.B.I. and after investigation, on challan being filed by the C.B.I. before the Special Judge, C.B.I. Cases, Jodhpur, the trial proceeded and ultimately, by the judgment and order dated 21st March, 1997 Annexure-1, the petitioner came to be honourably acquitted by the Special Judge, C.B.I. Cases, Jodhpur. However, even after acquittal of the petitioner, a disciplinary enquiry came to be initiated against the petitioner under the 3 SBCWP NO.3073/1997.
State Bank of Bikaner and Jaipur (Officers) Service Regulations, 1979 (for short "the Regulations of 1979"
hereinafter). A memorandum of charges was issued on 7th May, 1992 purported to be under Chapter-X of Regulations of 1979 vide Annexure-2. The enquiry was held and on completion of the enquiry, the Enquiry Officer submitted the report to the Disciplinary Authority and Disciplinary Authority by communication dated 27th October, 1993 sought objections with regard to the enquiry report vide Annexure-7. The petitioner submitted his objections with regard to the enquiry report vide Annexure-8 dated 17th November, 1993. Apart from the written statement, the petitioner requested the Disciplinary Authority to afford him an opportunity of personal hearing by communication Annexure-9 dated 30th November, 1993. However, the respondent did not afford the opportunity of personal hearing to the petitioner and the Disciplinary Authority (General Manager, Operations) forwarded the enquiry report to the Chief General Manager, as the Chief General Manager being the appointing Authority of the petitioner, for its approval and imposed the penalty of his dismissal from service. The petitioner was served with a communication dated 3rd January, 1994 by the Disciplinary 4 SBCWP NO.3073/1997.
Authority imposing the penalty of his dismissal from service of the respondent-Bank. That order came to be challenged by the petitioner by way of an appeal before the Appellate Authority and the Appellate Authority by order Annexure-15 dated 3rd May, 1994 dismissed the appeal of the petitioner. Hence, this writ petition.
The respondent-Bank filed reply to the writ petition supporting the orders impugned and contended that the writ petition suffers from delay and laches. In the reply, lodging of the criminal case and the trial of the said case before the Special Judge, C.B.I. Cases, Jodhpur have not been disputed. However, it has been stated that the criminal trial on the same set of facts and also the departmental enquiry can proceed simultaneously and finding arrived at by the respondent-Bank in the disciplinary enquiry cannot be influenced by the acquittal of the petitioner in a criminal case. It is also contended that charge sheet has been issued to the petitioner by the competent Authority with the allegation of serious misconduct alleged to have been committed by the petitioner while working in the Branch of the respondent-Bank at Surana Market, Pali and according to the respondent-Bank, a regular enquiry was held strictly in accordance with law including 5 SBCWP NO.3073/1997.
serving of the charge-sheet upon the petitioner supporting the case of the respondents on the facts.
I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the very basis for initiation of the enquiry against the petitioner was a complaint made by Mohan Lal and Chimna Ram, beneficiaries of the Fixed Deposit Receipt (for short "the FDR" hereinafter) which according to learned counsel for the petitioner, has been withdrawn. According to learned counsel for the petitioner, on the very facts the respondent-Bank lodged the FIR against the petitioner and one Shri M.S.Gaur, the then Branch Manager and after investigation, challan was filed before the Special Judge, C.B.I. Cases, Jodhpur. However, after holding the trial of the case, the petitioner and Shri M.S.Gaur, the then Branch Manager, both were acquitted from the criminal charges. The allegation against the petitioner is that a banker's cheque dated 2nd September, 1988 for a sum of Rs.16,932.10/- in favour of the beneficiaries of the said FDR i.e. Mohan Lal and Chimna Ram against the full and final payment of FDR was prepared. However, indisputably, the said cheque was not prepared by the petitioner but it was prepared by Shri B.L.Bairwa as per 6 SBCWP NO.3073/1997.
the requirement under the governing Rules and Instructions, it was the duty and responsibility of the person preparing such cheque to endorse "Account Payee" which has not been done by the Officer preparing such banker's cheque. The said banker's cheque came to be presented for payment before the respondent-Bank on 12th December, 1988 and after usual formalities, the same was paid to the beneficiaries by Shri J.K.Singhvi, the then cashier. The allegation in the memorandum of charges/charge-sheet against the petitioner is after the event of payment on 12th December, 1988 that the petitioner knowingly passed the banker's cheque dated 2nd September, 1988 for the sum of Rs.16,932.10/- in favour of the beneficiaries for making the payment in cash instead of making the payment through the Bank Account and according to the respondent-Bank, for making the payment in cash of the banker's cheque amount was in violation of para 30 Chapter VIII of the Banks Book of Instructions and that act said to be gross negligence and carelessness, alleged to have been displayed by the petitioner as mentioned in the two charges stating therein that such an alleged act of the petitioner exposed the respondent-Bank to a serious financial risk/loss for Rs.16,932.10/-. According to the petitioner, the 7 SBCWP NO.3073/1997.
beneficiaries of the banker's cheque did not claim any payment from the bank on any subsequent occasion and therefore, the respondent-Bank was not put to any financial loss/risk. So far as the lost of cheque is concerned, according to learned counsel for the petitioner, the petitioner has no role for the loss of the alleged cheque. Had there been any allegation against the petitioner in respect of losing of the cheque, the respondents would have lodged an FIR which has not been lodged by the respondent-Bank. According to the petitioner, the petitioner was not the person who kept the record of cheque after the payment having been made of the cheque and the respondent-Bank failed to charge-sheet the bank employee who was responsible to keep the record of cheque after the payment having been made of the said cheque. It is further contended that there had not been any evidence connecting the petitioner for taking away or losing of the cheque in question. Even it is not the case of the respondent-Bank that Mohan Lal and Chimna Ram have not taken loan on the FDR amount. They were the beneficiaries of the FDR who took the loan on FDR and that is why, the respondents failed to frame the charge to the effect that Mohan Lal and Chimna Ram have not taken the loan on FDR. 8
SBCWP NO.3073/1997.
Learned counsel for the respondents contended that the order imposing the punishment is dated 3rd January, 1994 of the Disciplinary Authority and the order dismissing the appeal filed by the petitioner against the said order of imposing punishment is dated 3rd May, 1994. The petitioner failed to challenge the order of the Appellate Authority dismissing his appeal within reasonable time and the writ petition came to be filed almost after three years on 2nd August, 1997. The writ petition suffers from delay and laches. Learned counsel for the respondent has relied on the decision of Hon'ble Supreme Court in Sudhir Vishnu Panvalkar Vs.Bank of India, AIR 1997 SC 2249. Learned counsel for the respondents further contended that the scope of the interference in the writ jurisdiction is limited in such matters. He has relied on a decision of Hon'ble Supreme Court in Apparel Export Promotion Council Vs. A.K.Chopra, AIR 1999 SC 625.
Controverting the contention raised by learned counsel for the respondents, learned counsel for the writ petitioner submits that after dismissal of the appeal filed by the petitioner challenging the order imposing the penalty of dismissal from service, the petitioner was awaiting the order 9 SBCWP NO.3073/1997.
of the criminal court since there had been a criminal trial against the petitioner on the same facts and on the basis of same set of evidence, the decision of the criminal court acquitting the petitioner came to be passed on 21st March, 1997 Annexure-1 and thereafter, promptly a writ petition came to be filed by the petitioner. The petitioner was under a legal advice by the counsel that the order dismissing the appeal filed by the petitioner against the order of imposing penalty of dismissal from service can be challenged on the conclusion of the trial of the criminal case and accordingly, under a legal advice, the petitioner remained under impression that the order passed by the Appellate Authority could be challenged after the decision of the criminal court. The petitioner was already acquitted by the criminal court on 21st March, 1997 and thereafter, the petitioner filed the writ petition before this Court and therefore, according to learned counsel for the writ petitioner, it cannot be said that there had been inordinate delay in filing the writ petition challenging the order passed by the Appellate Authority. Even otherwise, according to learned counsel for the writ-petitioner, there had not been any period prescribed for filing the writ petition challenging such order. This fact has specifically been pleaded 10 SBCWP NO.3073/1997.
by the petitioner in para 24 of the writ petition and it is contended by learned counsel for the petitioner that at any rate, on account of delay, the petitioner is not going to get anything nor there is any reason for not filing the petition immediately after the order passed by the appellate Authority. Learned counsel has relied on a decision of Hon'ble Supreme Court in Ajaib Singh Vs. The Sirhind Co-operative Marketing- cum-Processing Service Society Ltd. & Anr., AIR 1999 SC 1351.
Learned counsel for the petitioner further submits that the writ petition came to be admitted in the month of May, 2002 after service of notice to the respondents and upon hearing learned counsel for the respondents. According to learned counsel for the petitioner, the writ petition is admitted and reply etc. has been filed by the respondents and the whole material is available before the Court to adjudicate upon the matter and to resolve the involved issue. In such situation, in view of the Division Bench decision of this Court in Smt.Pushpa Dave Vs. Rajasthan High Court, RLW 2001(2)Raj. 784, the matter cannot be thrown out only on the ground of delay. According to learned counsel for the petitioner, there is no delay in filing the writ petition and writ petition does not 11 SBCWP NO.3073/1997.
suffer from delay and laches. Even otherwise, it is settled law that while considering the question of delay, the Court should first examine the merit and without examining the merit of the case, the matter cannot be thrown out mechanically only on the ground of delay. Learned counsel for the petitioner submits that the petitioner has strong case on merits as also, there is no delay in filing the writ petition and challenging the orders impugned. Even if the Court considers that there is some delay in filing the writ petition, then considering the merit of the case, the delay in filing the writ petition may be condoned and the relief prayed for may be granted.
It is further contended by learned counsel for the petitioner that firstly, the charges in the instant case are vague and therefore, the enquiry conducted by the Enquiry Officer is vitiated. Secondly, in the departmental enquiry, the burden of proving the charges always lies upon the department and according to learned counsel for the petitioner, in the instant case, the respondent-Bank failed to prove the charges by reliable evidence since the findings arrived at by the Enquiry Officer, Disciplinary Authority and Appellate Authority are not based on any cogent evidence. Learned counsel has relied on the decisions of Hon'ble 12 SBCWP NO.3073/1997.
Supreme Court in Swai Singh Vs. State of Rajasthan, AIR 1986 SC 995 and in State of Madras Vs. G.Sundaram, AIR 1965 SC 1103. According to learned counsel for the petitioner, the witnesses produced by the respondent-Bank did not make statements in examination-in-chief. Only their statements recorded under Section 161 Cr.P.C. in an investigation by Police in criminal case have been produced and tendered in evidence and therefore, the statements of the witnesses recorded in criminal proceedings under Section 161 Cr.P.C. cannot be an evidence to be used against the petitioner in the departmental enquiry. A copy of the statement of the witness produced by the respondent-Bank i.e. Shri B.L.Bairwa under Section 161 Cr.P.C has been placed on record as Annexure-16 and such statement has been used by the Enquiry Officer to prove the charge Nos.1 and 2. Before the Appellate Authority, the petitioner sought to produce the document by an application dated 20th March, 1994. The genuineness of those documents was not in dispute and yet the Appellate Authority in cursory manner denied consideration of such documents which were having bearing on the controversy in issue and therefore, the orders impuged passed by the Enquiry Officer, Disciplinary authority as well as Appellate Authority are 13 SBCWP NO.3073/1997.
vitiated.
Learned counsel for the petitioner further contended that Shri H.C.Jain was the witness in the list of the witnesses produced by the respondent-Bank. However, the respondent-Bank deliberately withheld Shri H.C.Jain from the enquiry and he was not produced in the enquiry, obviously for the reason that DW2-Shri B.L.Bairwa in his statement before the Enquiry Officer has categorically stated that he has prepared the banker's cheque in question and the said cheque was to be endorsed as Account Payee and it was his duty but he failed to endorse as Account Payee and, therefore, paying the amount of said cheque in cash, is at any rate at the instruction on the cheque since it did not bear the endorsement of Account Payee. So far as the custody of the cheque in question is concerned, according to DW2-Shri B.L.Bairwa who has stated in his statement that after preparing the said banker's cheque, he passed the same to Shri H.C.Jain, the then Accountant and he was responsible for custody of the said cheque after having been passed by DW2- Shri B.L.Bairwa and the said cheque remained in custody of Shri H.C.Jain and Shri H.C.Jain was the person named in the list of witnesses submitted by the respondent-Bank but the 14 SBCWP NO.3073/1997.
respondent-Bank deliberately withheld Shri H.C.Jain from the disciplinary eqnuiry failed to produce him as witness and, therefore, an adverse inference as envisaged under Section 114 of the Indian Evidence Act ought to have been drawn against the respondent-Bank. In the instant case, Shri H.C.Jain was a material witness with regard to the preparation and passing of the banker's cheque and its custody to him and non-production of this witness vitiates the enquiry. Learned counsel has relied on a decision of Hon'ble Supreme Court in Hardwari Lal Vs. State of U.P. & Ors., AIR 2000 SC 277.
So far as the statements of the witnesses produced by the respondent-Bank under Section 161 Cr.P.C. on which the Enquiry Officer has placed reliance, learned counsel for the petitioner has relied on the decisions of Hon'ble Supreme Court in M/s Kesoram Cotton Mills Ltd. Vs. Gangadhar & Ors., AIR 1964 SC 708 and in Anil Kumar Vs. Presiding Officer & Ors., AIR 1985 SC 1121 and on the strength of these two decisions, learned counsel for the petitioner submits that the entire enquiry is vitiated since the respondent-Bank has taken into consideration the extraneous material without giving the opportunity of rebuttal.
It is further contended by learned counsel for the 15 SBCWP NO.3073/1997.
petitioner that in absence of direct evidence, the petitioner cannot be held guilty on the basis of circumstantial evidence alone. Learned counsel has relied on a decision of this Court in Lekh Ram Vs. Union of India, 1968 RLW 272. It is also contended that the charges in the criminal case and in the departmental enquiry so far as the petitioner are concerned, are altogether different yet the respondent-Bank imported the statements of the witnesses recorded in the criminal case to hold the petitioner guilty of the charges which were not even the charge in the departmental enquiry but it was only the subject matter of the criminal trial. There had not been any charge making the outside payment to the beneficiaries but the same has been treated having been proved as charge No.2. Learned counsel has relied on the decisions of Hon'ble Supreme Court in Ramesh Chander Gupta Vs. State of Rajasthan & Ors., 1979 SLJ 214 and in Birdhi Chand Vs. Jaipur Development Authority, Jaipur 1992(1) WLC (Raj.) 309.
It is also contended by learned counsel for the petitioner that the penalty of dismissal from service imposed by the Disciplinary authority and affirmed by the Appellate Authority is extremely high and disproportionate to alleged delinquency though the delinquency, according to learned 16 SBCWP NO.3073/1997.
counsel for the petitioner, has not been established. The enquiry has also been held against Shri H.C. Jain to whom DW2-Shri B.L.Bairwa after making/preparing the banker's cheque passed on the said cheque and he was the person to whom custody of the said cheque was given but for the same transaction, the penalty imposed against Shri H.C. Jain is only censure and thus, the punishment awarded to the petitioner is discriminatory. So far as the custody of cheque is concerned, it is alleged that the said cheque was lost while it was in the custody of Shri Mitha Lal who has not even been charge- sheeted and no FIR has been lodged against him in this regard. So far as the cashier who made the payment, has not even been charge-sheeted and the petitioner has been made scapegoat of the whole issue to which the petitioner has no connectivity. Learned counsel has relied on the decisions of this Court in State of Rajasthan Vs. Amolak Chand Singhvi, 1982 WLN 633, in Vijay Singh Vs. R.S.R.T.C., 1993(1) WLC (Raj.) 577, in Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Pd. Singh & Anr. 2002 SCC (L&S) 909 and in State of U.P.& Ors. Vs. Raj Pal Singh, JT 2001 (Suppl.1) SC 44.
It is further contended by learned counsel for the petitioner that the Appellate Authority did not apply its mind 17 SBCWP NO.3073/1997.
what the conclusion arrived at by the Disciplinary Authority. On the contrary, the Appellate Authority simply concurred the findings of the Disciplinary Authority. According to learned counsel for the petitioner, the Appellate Authority is also equipped with the powers to take additional evidence. The petitioner requested to take on record the evidence by supporting certain documents which came to be declined. In last, it is contended by learned counsel for the petitioner that penalty of the dismissal from service do not commensurate with the alleged delinquency and highly disproportionate and shockingly high. Learned counsel has relied on the decisions of Hon'ble Supreme Court in Ram Chander Vs. Union of India & Ors. AIR 1986 SC 1173, in United Planters Association of Southern India Vs. K.G.Sangameswaran & Anr., AIR 1997 SC 1300, in Ranjit Thakur Vs. Union of India & Ors. (1987) 4 SCC 611, in Indian Railway Construction Co.Ltd. Vs. Ajay Kumar, (2003) 4 SCC 579 and in Coimbatore District Central Cooperative Bank Vs.Coimbatore District Central Cooperative Bank Employees Association & Anr. (2007) 4 SCC 669.
I have given my thoughtful consideration to the rival contentions raised by learned counsel for the parties. Carefully gone through the material available on record. 18
SBCWP NO.3073/1997.
From the record, it appears that Mohan Lal and Chimna Ram deposited a sum of Rs.19,000/- in FDR for a period of five years in the month of June 1983 which was to mature in the month of June 1988. However, before maturity of the said FDR, the beneficiaries of the FDR, namely, Mohan Lal and Chimna Ram borrowed a sum of Rs.15,000/- against the FDR. At the time of payment of maturity, these two beneficiaries came with a case that they did not take the loan of Rs.15,000/-. However, later on, they withdrew their allegation of not taking the loan and accepted having taken a loan of Rs.15,000/- against the said FDR. In the meantime, the respondent-Bank lodged an FIR which came to be investigated by the CBI against the petitioner and Shri M.S.Gaur, the then Branch Manager. After investigation, the challan said to have been filed by the Investigating Agency before the competent court i.e. Special Judge, C.B.I. Cases, Jodhpur. However, indisputably, the petitioner and the said co- accused Shri M.S.Gaur came to be honourably acquitted by the Special Judge, C.B.I. Cases, Jodhpur. The banker's cheque as appears from the evidence on record came to be prepared by Shri B.L.Bairwa as per the statement of DW2-Shri B.L.Bairwa. The said cheque was prepared by him and was 19 SBCWP NO.3073/1997.
passed on to Shri H.C.Jain on 2nd September, 1988 for a sum of Rs.16,932.10/- in favour of beneficiaries of the said FDR as against the full and final payment of FDR. It is not the case of the respondent-Bank that the banker's cheque was either prepared by the petitioner or passed on by him. The evidence before the Disciplinary Authority clearly goes to show that the said banker's cheque was prepared by DW2-Shri B.L.Bairwa and passed on to Shri H.C.Jain. The allegation against the petitioner is that the banker's cheque was not marked as Account Payee. When the evidence indisputably is that the said cheque was neither prepared nor passed on by the petitioner, the question of marking and endorsing it as Account Payee does not arise. If a cheque is not marked as Account Payee and passed on by the responsible Bank's Officer then the person making payment has no option except to pay in cash. Even otherwise, the said banker's cheque came to be presented for payment before the Bank on 12th December, 1988 and after usual formalities, the amount of the said cheque was paid to the beneficiaries by Shri J.K.Singhvi, the then Cashier. The charges against the petitioner as mentioned in memorandum of allegation that the petitioner knowingly passed the banker's cheque dated 2nd September, 20 SBCWP NO.3073/1997.
1988 for a sum of Rs.16,932.10/- in favour of beneficiaries for payment of cash instead of through their bank account and made the payment to unauthorised person other than beneficiaries without identification and other formalities contained in Para 30 Chapter-VIII of the Banks Book of Instructions. As a result of gross and utter carelessness, the petitioner exposed the respondent-Bank to a serious financial loss/risk for a sum of Rs.16,932.10/-. From the evidence available on record and noticed above, when the respondent- Bank failed to establish that the banker's cheque was either prepared by the petitioner or passed by him whereas it has been established from the evidence that banker's cheque was prepared by DW2-Shri B.L.Bairwa and passed on to Shri H.C.Jain and payment thereof was paid by Shri J.K.Singhvi, the then Cashier. With this evidence as to how it can be said that these charges have been proved against the petitioner. The other charge against the petitioner is that the petitioner surreptitiously removed the said cheque from the branch record after its payment having been made. The evidence as noticed above clearly goes to show that the petitioner was not the custodian of the cheque after payment having been made. The custodian of the cheque in question as is evident from the 21 SBCWP NO.3073/1997.
evidence is some one else other than the petitioner. At any rate, there is absolutely no evidence establishing the fact that after the payment of the said cheque having been made, it was handed over to the petitioner and, therefore, the petitioner was neither responsible nor the custodian of such cheque. The burden of proving the charges lies on the respondent-Bank and in absence of any direct and reliable evidence, the conclusion arrived at by the Enquiry Officer and affirmed by the Disciplinary Authority appears to have been based on mere surmises and conjectures. At any rate, there is no cogent and reliable evidence to prove these charges against the petitioner. The Enquiry Officer has discarded the evidence of many of the defence witnesses by only saying that they are not reliable. The witnesses produced either by the respondent-Bank or in defence by the petitioner were employees of the respondent-Bank and well versed with the facts and circumstances of the case and what they stated cannot be said to be incorrect to the extent supporting the case of the petitioner. It is strange that if a cheque after the payment having been made, is lost from the record of the bank and respondent-Bank would not go for lodging a crime report. Had the cheque been lost, the respondent-Bank would 22 SBCWP NO.3073/1997.
have lodged the crime report and the matter could be investigated by the Investigating Agency and truth could have been revealed but it appears that the respondent-Bank never intended to know the truth and simply fastened the liability on the petitioner. The charges against the petitioner is for the happening after presenting the banker's cheque for payment on 12th December, 1988. So far as the charge No.1 that the petitioner passed the banker's cheque is concerned, the said cheque was not produced by the respondent-Bank which would have been a material documentary evidence and the respondent-Bank simply came with a case that the said cheque has been surreptitiously removed from the branch record. If these allegations are taken on its face value then it is definitely a case of committing the theft of cheque from the Bank and such an occurrence went on without investigation because the respondent-Bank never intended this fact to be enquired into by the competent Investigating Agency may be for the reason that the cheque was never lost and the respondent-Bank withheld the said cheque from producing in evidence. Had the cheque been produced, the truth would have been revealed that the said banker's cheque was not prepared by the petitioner as against this, there is specific 23 SBCWP NO.3073/1997.
evidence of DW2-Shri B.L.Bairwa who stated that it was he who prepared the said banker's cheque and passed on to Shri H.C.Jain. With these evidence whether it can be concluded that it was the petitioner who removed the said banker's cheque from the branch record. Had there been a direct evidence showing that it was the petitioner who was in custody of said cheque after its payment having been made had either lost or removed intentionally. In absence of any such evidence, the petitioner cannot be held to be responsible for the loss of cheque. Even in departmental enquiry, the burden of proving the charges is always lies upon the department who alleged any happening of the occurrence. In the instant case, the respondent-Bank utterly failed to discharge the burden of proving the charges against the petitioner. Even the charges framed are not explicit clear, on the contrary are vague and any enquiry on vague charges cannot be said to be fair play.
So far as the passing of the banker's cheque is concerned, para 29 of Chapter-VIII of the Banks Book of Instruction provides that when a banker's cheque is presented for payment, its number, amount and the words 'entry reversed' will be entered in the banker's cheque account 24 SBCWP NO.3073/1997.
register and the contra date noted against the original item. The official passing the banker's cheque will check the entry and initial the contra date and the balance register. In the instant case, there is no evidence that the petitioner put his initial on the contra date or the balance. On the contrary, the evidence available before the Enquiry Officer is that it was Shri H.C.Jain whose initial appears in the contra date and on the balance. There is no evidence that the petitioner passed the banker's cheque and made the entry and put his initial on the relevant register. The statement of the witnesses recorded by C.B.I. in a criminal case has been used as evidence by the Enquiry Officer against the petitioner which otherwise cannot be said to be admissible in evidence even in departmental proceedings. Moreso the signature of Shri H.C.Jain who passed the cheque on the relevant register have been proved from the evidence produced before the Enquiry Officer even on the cross entry of the cheque in question. However, Shri H.C.Jain who was cited as a witness in the list of witnesses submitted by the respondent-Bank had not been produced before the Enquiry Officer. Obviously, for the reason that had Shri H.C.Jain been produced as witness, probably the things would have been otherwise that it was Shri H.C.Jain who put his 25 SBCWP NO.3073/1997.
signature on the register and cross entry.
In Hardwari Lal Vs. State of U.P.& Ors. (supra), the sole ground urged before the Hon'ble Supreme Court was as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagidsh Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant therein that the non-examination of these two persons has prejudiced his case. The Hon'ble Supreme Court observed that examination of these two witnesses would have revealed as to whether the complaint made by Virdender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or condition of the appellant therein. On these premises, the Hon'ble Supreme Court held that the Tribunal and the High Court were not justified in thinking that non-examination of these two persons could not be material. Both the Courts below erred in not attaching importance to the sole contention of the appellant therein. It was held that there was no proper enquiry held by the authorities and on that ground, the 26 SBCWP NO.3073/1997.
Hon'ble Supreme Court quashed the order of dismissal passed against the appellant therein.
So far as using of the statement recorded by C.B.I. in the criminal case under Section 161 Cr.P.C. by the Enquiry Officer against the petitioner is concerned, firstly, the charges in a criminal case instituted by the C.B.I. were altogether different and even the charge-sheet filed before the criminal court has not been produced and exhibited in the departmental enquiry. In M/s Kesoram Cotton Mills Ltd. Vs. Gangadhar & Ors. (supra), the Hon'ble Supreme Court observed as under:-
"It may be accepted that rules of natural justice do not change from tribunal to tribunal. Even so the purpose of rules of natural justice is to safeguard the position of the person against whom an enquiry is being conducted so that he is able to meet the charge laid against him properly. Therefore the nature of the enquiry and status of the person against whom the enquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice. Where, for example, lawyers are permitted before a tribunal holding an enquiry and the party against whom the enquiry is being held is represented by a lawyer it may be possible to say that a mere reading of the material to be used in the enquiry may sometime be sufficient. But where in a domestic enquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker. 27
SBCWP NO.3073/1997.
Further, the Court can take judicial notice of the fact that many of the industrial workers are illiterate and sometimes even the representatives of labour union may not be present to defend them. In such a case to read over a prepared statement of a witness in a few minutes and then ask the workmen to cross- examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves.
Therefore when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the witnesses from the beginning to the end in the presence of the workman at the enquiry itself. Oral examination always takes much longer than a mere reading of a prepared statement of the same length and brings home the evidence more clearly to the person against whom the enquiry is being held. Generally speaking therefore the Court should expect a domestic enquiry by the management to be of this kind. Even so, the main principles of natural justice cannot be change from tribunal to tribunal and therefore it may be possible to have another method of conducting a domestic enquiry (though this should not be the rule but the exception). The minimum that the Court shall expect where witnesses are not examined from the very beginning at the enquiry in the presence of the person charged is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the enquiry well in advance before the enquiry begins and it should be given at least two days before the enquiry is to begin. If this is not done and yet the witnesses are not examined in chief fully at the enquiry, it cannot be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic enquiry in an industrial matter.
Where all that had happened was that the prepared statements were read over to the workmen charged and they were asked them and there to cross-examine the witness the enquiry did not 28 SBCWP NO.3073/1997.
comply with the principles of natural justice. The inquiries were vitiated by disregard of rules of natural justice is correct."
In Anil Kumar Vs. Presiding Officer & Ors.(supra), the Hon'ble Supreme Court observed that the Enquiry Officer did not apply his mind to the evidence except setting out the names of the witnesses. He did not discuss the evidence. He merely recorded his ipse dixit that charges are proved without assigning a single reason why the evidence produced by the appellate therein did not appeal to him or was considered not credit worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant therein and on these premises, the Hon'ble Supreme Court held that the order of termination of the service based on such proceedings is liable to be set aside. It was further held that the disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially and an enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion.
So far as the contention of learned counsel for the 29 SBCWP NO.3073/1997.
respondent that writ petition suffers from delay and laches is concerned, indisputably, the impugned order of the Disciplinary Authority is of the month of January, 1994 and that order was affirmed by the Appellate Authority by dismissing the appeal by order dated 3rd May, 1994 and the instant writ petition came to be filed on 2nd August, 1997 after a period of 3 years and about 3 months from the order passed by the Appellate Authority. The notices of the writ petition were issued to the respondent-Bank and after service of notice upon hearing counsel for the respondent-Bank, the writ petition came to be admitted in the month of May, 2002. A division Bench of this Court in Smt.Pushpa Dave Vs. Rajasthan High Court (supra) held that the writ petition cannot be dismissed after having been admitted on the ground of laches and availability of alternative remedy and the Court has to dispose of the matter only on the merits since all the required materials are already filed and the same are available for adjudication of the court and on these premises, the contention raised by learned counsel for the respondent therein seeking dismissal of the writ petition on the ground of delay and laches came to be dismissed.
In Ajaib Singh Vs. The Sirhind Co-operative
30
SBCWP NO.3073/1997.
Marketing-cum-Processing Service Society Ltd. & Anr. (supra), while considering the provision of Industrial Disputes Act, 1947, the Hon'ble Supreme Court held that the provision of Article 137 of the Schedule to Limitation Act, 1963 are not applicable to the proceedings under the Act and that the relief under it cannot be denied to the workman merely on the ground of delay. The plea of delay if raised by the employer is required to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical defence. It was further held that no reference to the Labour Court can be generally questioned on the ground of delay alone. Even in a case where the delay is shown to be existing, the Tribunal, Labour Court, or Board, dealing with the case can appropriately mould the relief by declining to grant back wages to the workman till the date he raised the demand regarding his illegal retrenchment/ termination or dismissal. Even otherwise, as noticed above, the petitioner was facing a criminal trial before the Special Judge, C.B.I. Cases, Jodhpur on an FIR lodged by the respondent-Bank in relation to the transaction in issue and by a judgment and order Annexure-1 dated 21st March, 1997, the petitioner and co-accused Shri M.S.Gaur came to be acquitted. The petitioner was under a 31 SBCWP NO.3073/1997.
legal advice as stated in the writ petition as also contended by learned counsel for the petitioner that since after passing the order dismissing the appeal filed by the petitioner, the petitioner contacted his lawyer dealing in the matters of the disciplinary enquiries and he was made to understand on the legal advice that since on the same set of facts, a criminal trial is pending against him, therefore, he waited to the decision of criminal trial which was likely to be concluded after the decision of the Appellate Authority and therefore, the petitioner waited the decision of criminal trial and ultimately, the Special Judge, C.B.I. Cases, Jodhpur acquitted the petitioner by order dated 21st March, 1997. Thereafter, the petitioner filed this writ petition may be slightly after expiry of period of three years i.e. about three months.
In Sudhir Vishnu Panvalkar Vs. Bank of India (supra), a contention was raised by learned counsel appearing for the respondent-Bank therein that the termination order was simpliciter termination without being influenced by the criminal proceedings and there was no reason for the appellant therein to wait until disposal of the criminal proceedings. The delay of three and half years in the event of reinstatement involves financial implications relating to back 32 SBCWP NO.3073/1997.
wages. The Hon'ble Supreme Court after considering the judgments of learned Single Judge and Division Bench was of the view that the Division Bench was right in holding that the writ petition suffered from the vice of delay and laches. In that case, the termination order was a simpliciter termination. However, the appellant who insisted for the reasons for his termination and therefore, the Bank was constrained to inform the appellant that the termination was resorted to because of loss of confidence. The Hon'ble Supreme Court further observed that if the Bank though it fit to terminate the services of the appellant therein on the ground of loss of confidence, such an action could not be said to be unwise or mala fide and on these premises, the Hon'ble Supreme Court held that the Division Bench was justified in dismissing the appeal of the petitioner therein on the ground that the writ petition suffered from the vice of delay and laches. In the instant case, the writ petition came to be filed after a period of about 3 years and about 3 months from the date of order of the Appellate Authority dismissing the appeal and thus, even if considered the reasonable period of three years than also it could have been only delayed by three months. In the case relied on by learned counsel for the respondents, there had 33 SBCWP NO.3073/1997.
been a delay of three and half years as also it was a case where the Bank has lost the confidence of its employee. The case in hand is that service of the petitioner came to be terminated on a departmental enquiry and the finding arrived at in the departmental enquiry is not based on direct and reliable evidence as has been concluded hereinabove and the writ petition came to be admitted after notice to the respondent-Bank in the year 2002 and the respondent-Bank was allowed to file the reply to the writ petition which had been filed and the pleadings of the parties are completed and therefore, in my view, at such an stage when the matter has been heard on merit and a meritorious case cannot be thrown out on the technical ground of small delay though there had not been any period prescribed for filing of the writ petition for entertaining the writ petition by Statute and therefore, the contention raised by learned counsel for the respondents with regard to the delay stands rejected.
So far as the scope of interference under writ jurisdiction in such matters is concerned, the learned counsel for the respondent has relied on a decision of Hon'ble Supreme Court in Apparel Export Prmotion Council Vs. A.K.Chopra (supra) wherein the Hon'ble Supreme Court held 34 SBCWP NO.3073/1997.
that the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re- appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. In the instant case, as noticed above, the finding recorded by the Enquiry Officer on each of the charge has not been based on direct or reliable evidence. On the contrary, the finding is contrary to the charges framed. In the charge No.3, the Enquiry Officer records the finding that charge No.3 has not been proved and the charge No.2 is based on same sequence and line of charge No.3 and interconnected with charge No.3 and, therefore, the finding holding charge No.2 as proved is contrary finding based on no evidence. There are procedural illegalities including the use of the statement of the witnesses recorded by the police under Section 161 Cr.P.C. against the petitioner in the departmental enquiry as also the defence evidence 35 SBCWP NO.3073/1997.
produced by the petitioner, who are the officers of the respondent-Bank has not been considered and totally ignored without assigning any reason by saying that they are not reliable. As to why they are not reliable has not been said and the finding on charges is contrary to the record available with the respondent-Bank and therefore, the Enquiry Officer failed to take into consideration the material evidence available on record and reached to the conclusion on surmises and conjectures and therefore, in view the decision of Hon'ble Supreme Court in Hardwari Lal Vs. State of U.P. & Ors., the conclusion arrived at by the Enquiry Officer, Disciplinary Authority and Appellate Authority vitiates and is not tenable. It is settled law that in departmental eqnuiry, this Court can interfere if the finding is based on no evidence and non- consideration of material evidence on record by the Enquiry Officer, Disciplinary & Appellate Authority not to reassess the evidence.
For the reasons mentioned hereinabove, in my view, the orders impugned cannot sustain and liable to be quashed.
In view of the aforesaid discussions, the writ petition is allowed. The orders impugned Annexure-10 dated 36 SBCWP NO.3073/1997.
3rd January, 1994, Annexure-11 dated 31st December, 1993 and Annexure-15 dated 3rd May, 1994 are hereby quashed. The respondent-Bank is directed to reinstate the petitioner in service with continuity of service. However, the petitioner shall not be entitled for the monetary benefits for the interregnum period but shall be entitled for notional benefits for all relevant purposes. In the facts and circumstances of the case, there shall be no order as to costs.
(H.R.PANWAR), J.
NK