JUDGMENT R.B. Misra, J.
Heard Sri Devendra Pratap Singh, learned Counsel for the petitioner, and Sri Pankaj Bhatia, learned Counsel for the respondents.
1. In this petition prayer has been made for issuance of writ of certiorari quashing the penalty order dated 21.12.1993 (Annexure-4 to the writ petition) passed by the Regional Manager, Agra Region.
2. The brief facts necessary for adjudication of the case are that the petitioner was appointed as an Agriculture Assistant in the Bank of India on 09.03.1987, which is a post carrying higher responsibilities, for which the allowances pursuant to Clause 5.11 of the First Bipartite Settlement dated 19.10.1966 read with Bipartite Settlement dated 31.10.1979 and 17.9,1984 are paid to the petitioner and besides doing the routine duties function of clerical cadre an Agriculture Assistant is required to do the work of deposits and withdrawals at the bank counter and the Agriculture Assistant is not waived to do field work. The petitioner was charge sheeted on 04.08.1992 for committing alleged acts of gross misconduct such as prejudicial with the bank within the meaning of Para 19.5 (j) of the First Bipartite Settlement dated 19.10.1966. The following charges were levelled against the petitioner:
"(1) Acts of removing the pay slip along with covering letter from dispatch tray, attempting to encash the pay slip through impersonator after detaching it from covering letter and keeping the letter in his drawer and removing the photograph of the real borrower Shri Kishan Lal from loan application form i.e. Attempting to misappropriate Rs. 2900/- through an impersonator amount to gross misconduct of doing acts prejudicial to the interest of the Bank within the meaning of para 19.5 (j) of the First Bipartite Settlement dated 19.10.1966.
(2) Acts of temporary misappropriation of Rs. 1680/- being the claim amount received from Insurance Company due to Srimati Maur Shree, by not delivering the pay order No. 2814531 dated 16.07.1991 to the real borrower and fraudulently encashing the pay order by putting a third party's right hand thumb impression on the reverse of the pay order and on the counter foil of pay order and by falsely identifying the right thumb impression on the pay order amount to gross misconduct of doing acts prejudicial to the interest of the Bank within the meaning of para 18.5 (j) of the First Bipartite Settlement dated 19.10.1966."
3. Inquiry Officer was appointed to the, conduct the inquiry against the petitioner. The inquiry was made by the Inquiry Officer on 26.09.1992, 28.10.1992, 21.11.1992, 28.1.1993, 25.02.1993 and 18.03.1993 in the Manager's Office at Mainpuri. The specific dates and time of inquiry were fixed, defence representative was allowed to be proceeded during the course of inquiry at the instance of the petitioner. Copies of the inquiry proceedings, copies of exhibits and details of evidences and witnesses were given to the petitioner. The Presenting Officer produced four management witnesses, namely, Shri S.K. Sinha as M.W.-1, Shri Kishori Lal as-M.W.-2, Smt. Maur Shree as M.W.-3 and Shri Kishan Lal as M.W.-4, however, only Shri S.K, Sinha and Shri Kishori Lal were examined as M.W.-l and M.W.-2 respectively. In order to defend himself and rebut the charges, the petitioner gave names of Smt. Maur Shree, Shri Sri Ram, Shri Sukhpal Singh and Shri Ram Kishore as D.W. -l, D.W.-2, D.W.-3 and D.W.-4 respectively, out of which only Shri Sukhpal Singh, D.W.-3, was produced as defence withness, whereas, Smt. Maur Shree was intended to be presented on behalf of Management as M.W.-3, therefore, she was not examined as D.W.-l at the instance of the petitioner. In order to prove the charges, the Presenting Officer produced the following documents in the inquiry :-
"M-1: Original covering letter of pay slip Ref. No. KSA : SINIA 000383 dated ' 8.10.1991 of Kusmara Branch.
M-2 : Original letter dated 30.10.91 of Shri Kishori Lal, part time sweeper of Kusmara Branch.
M-3 : Original letter dated 8.1.92 of Shri Amar Deep Singh Jadon addressed to the Investigating Officer, R.O. Agra. M-4 : Original application for Agricultural Credit of Shri Kishan Lal.
M-5 : Original pay order No. 2814531 dated 16.7.91 for Rs. 1680/- of Kusmera Branch favouring Smt. Maur Shree W/O Shri Sri Ram, Village Dhamiapur.
M-6 : Original complaint letter dated 30.10.91 of Smt. Maur Shree w/o Shri Sri Ram.
M- 7 : Original letter dated 7.1.92 of Smt. Maur Shree.
M-8 : Original loan application under IRDP of Smt. Maur Shree W/o Sri Sri Ram.
M-9 : Original written statement dated 31.10.91 signed by staff members recording incidence of 29.10.91.
M-10: Original written statement dated 8.1.92 of Shri S.K. Sinha, Agr. Officer of Kusmera Branch addressed to the Investigating Officer M-11 : Office copy of Kusmara Branch letter No. 000432 dated 30.10.91 addressed to Shri Amar Deep Singh Jadon.
M-12: Original letter dated 30.10.91 of Shri Amar Deep Singh Jadon addressed to the Manager Kusmara Branch. "
4. In order to defend himself/ rebut the charges, the petitioner produced the following documents:
"D-1 : Original Notary Affidavit dated 24.10.92 of Smt Maur Shree W/O Shri Sri Ram.
D-2: Original Notary Affidavit dated 24.10.92 of Shri Sukh Pal Singh S/o Shri Chhatoo Singh, Village Pradhan, Gram Sabha Dhamiapur.
D-3 : Original acknowledgement of cheque from Smt. Maur Shree."
5. After fixing specific date, time and place of inquiry and after perusing the documents and examining the management as well as defence witnesses and making inquiry in consonance to the principle of natural justice the inquiry officer Sri B.K. Goel held the petitioner guilty of both. the charges and submitted his inquiry report dated 29.06.1993 to the disciplinary authority. The Regional Manager, Agra Region was appointed/ nominated as disciplinary authority by the Chairman/ Managing Director of the Bank and in terms of inquiry report he wanted reply of the petitioner, and following oral and written pleadings in the course of personal hearing against the proposed punishment of dismissal were submitted by the petitioner, as under:
"i) He is unable to plead his case against the proposed punishment in the absence of Defence Representative.
ii) His wife is suffering from heart disease and his parents aged 65 and 60 years are also suffering from Asthma. They are under medical treatment and are dependants on him.
iii) He had no malafide intention in committing the acts of misconduct. He has committed the act of misconduct unknowingly.
iv) The proposed punishment will ruin his family members.
v) The proposed punishment is too disproportionate and heavy as the charges are not grave and serious.
vi) He is alone earning member of the family and there is no other source of livelihood.
vii) No financial loss has been caused due to his acts of misconduct.
viii) He prayed for exoneration of the charges."
6. After taking into consideration the submissions of petitioner to the proposed punishment indicated in terms of the inquiry, where the petitioner was held guilty of misconduct, has indicated that the misconduct was not acted knowingly and after affording personal hearing and taking into consideration the circumstances and entire facts and records the disciplinary authority passed the order of punishment by order dated 21.12.1993 dismissing the petitioner from service. Being aggrieved against the order the petitioner has filed the present writ petition on the ground that without, any evidence directly or indirectly in support of the charges and without examining the relevant evidences and without lodging the first information report the dismissal order by way of rigorous imprisonment is disproportionate to the alleged offences levelled against the petitioner.
7. During the course of argument learned Counsel for the petitioner has submitted as under:-
(I) Inquiry was not properly held, contrary there was violation of principle of natural justice, because firstly the petitioner was not examined by the bank during inquiry; secondly, complainant Smt. Maur Shree was neither produced nor examined by the department during inquiry; thirdly, two important witnesses namely Krishan Lal and Smt. Maur Shree, whose money was alleged to be misappropriated by the petitioner, were not examined in the inquiry proceedings and this fact has been admitted by the respondent in para-12 of the counter affidavit. Thus, the inquiry proceeding suffers from illegality and accordingly the order of dismissal passed on the basis of inquiry report is also liable to be quashed, in view of the decision of this Court (Lucknow Bench) in (1994) 3 U.P.L.B.E.C. 1522 (Sri Kant Pandey v. Managing Director, U.P. State Food and Essential Commodities Corporation and Anr.), where it was held that the order of dismissal is vitiated on account of violation of principle of natural justice if the complainant was neither examined nor employee concerned was given opportunity to cross-examine him, and also in view of the decision of the Supreme Court in 2000 (84) FLR 3 (Supreme Court) (Hardwari Lal v. State of U.P. and Ors.), where two important witnesses were not examined in the departmental inquiry, therefore, holding it as no proper inquiry the dismissal order against the appellant was quashed. (II) The past record of the petitioner was excellent, however the disciplinary authority had failed to take into account the previous record of the petitioner, therefore, the punishment is said to be vitiated. In support of his contentions learned counsel for the petitioner has placed reliance on (Ved Prakash Gupta v. Delton Cable India (P) Ltd.), where the Supreme Court has held that "....There is nothing on record to show that any previous adverse remark against the appellant has been taken into consideration...." It was further held that "....We are therefore, of the opinion that the punishment awarded to the appellant is shockingly disproportionate regard being had to the charge framed against him...."
(III) Scrutiny of the evidences shows that no charge is to be levelled against the petitioner in reference to the judgment of this Court in (1998) 2 UPLBEC 830 (Director, Rajya Krishi Utpadan Mandi Parishad, U.P. Lucknow and Ors. v. State Public Services Tribunal, Indra Bhawan, Lucknow and Ors.) where it was held that "....In cases where the extreme penalty of dismissal from service is passed, strict and close scrutiny of the evidence in support of a finding is necessitated."
(IV) Lastly, learned Counsel for the petitioner while referring the judgments of the Supreme Court in AIR 1992 SC 417 (Ex. Naik Sardar Singh v. Union of India and Ors.) and (Ranjit Thakur v. Union of India and Ors.) has indicated that in view of the facts and circumstances the punishment is disproportionate to the gravity of the charges.
8. Counter affidavit has been filed on behalf of respondents controverting the contents of the writ petition. During the course of argument Mr. Bhatia has contended that the petitioner has himself admitted the misconduct by saying that the same was committed knowingly and after admitting the misconduct and without taking any ground of malafide the fact finding arrived at by the Inquiry Officer, who has conducted the inquiry in all fairness in consonance to the principle of natural justice after fixing the date, time and place of the inquiry and taking into consideration all the relevant material records, documentary evidences has submitted its report, which has been acknowledged by the disciplinary authority and the disciplinary authority in all fairness has passed the order of dismissal, can not be said to be illegal or in violation of principle of natural justice. In these circumstances, this Court is riot to sit over the fact findings of the disciplinary authority in view of the verdict of the Supreme Court in (Union of India and Anr. v. G. Ganayutham), (State of Punjab and Ors. v. Bakhshish Singh) as well as in View of the observations made by the Hon'ble Supreme Court in (U.P.S.R.T.C. and Ors. v. Har Narain Singh and Ors.) .
9. Learned Counsel for the respondents has placed reliance on the 2004 (2) AWC 1692 (S.R. Kashyap v. Canara Bank and Ors.), where the writ petitioner being a bank employee has challenged the dismissal order as well as appellate order passed by the Deputy General Manager, Canara Bank, Lucknow and General Manager, (Personal Wing), Canara Bank, Bangalore and the prayer of the writ petitioner for (reinstatement in service was rejected by this Court (D.B.) by saying that in the departmental inquiry officer is not bound by strict rules of evidence and provisions contained in the Evidence Act or Code of Civil Procedure. This Court has further held that neither there should be illegality nor any prejudice caused to the writ petitioner bank employee in providing photocopies of the documents lost in the police custody, when the inquiry officer has found the writ petitioner guilty of misappropriating proceeds of cheque and the finding of fact arrived at by the inquiry officer can not be interfered in the writ jurisdiction as writ Court does not sit as a Court of appeal, more so, merely non-examination of hand writing expert was not to vitiate the inquiry when the complainants themselves appearing as witnesses and their version were believed, therefore, the evidence can not be reappreciated in the writ jurisdiction. It was also held that every minor technical mistake could not vitiate the departmental inquiry when the writ petitioner was given opportunity of hearing.
10. No exception could be taken to the procedure followed by the inquiry authority. It is well settled that the rules of natural justice are not a straitjacket formula but are flexible vide Union of India v. Tulsi Ram Patel, (para 101); Hiranath Misra v. Principal, ; Maharashtra State Financial Corporation v. Suvama Board Mills, and State Bank of Patiala v. S.K. Sharma, , etc.
11. It may also be mentioned that in a departmental enquiry the inquiry officer is not bound by the strict rule of evidence and procedure contained in the Evidence Act or C.P.C., vide . Union of India v. T.R. Verma, (para 10); Tannery Footwear Corporation v. State of U.P., 1980 (40 FLR 138; State Bank of Bikaner v. Srinath Gupta, 1996 .(74) FLR 2739; Yeshwant Redkor v. Hindustan Petroleum Corporation, 1997 Lab IC 3137 (Bom.) and Kuldip Singh v. State of Punjab, 1997 Lab 1C 147 (SC), etc.
12. In Union of India v. T.R. Verma (supra), the Supreme Court observed "If these rules (the rules of natural justice) are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed." Similarly, in State Bank of Bikaner and Jaipur v. Srinath Gupta, 1996 (74) FLR 2739 (SC) the Supreme Court observed, as under:-
"It is now well settled that strict rules of evidence are not applicable and are not required to be followed in a domestic enquiry."
Hence in absence of the original documents photocopies could, be produced and they could be read as evidence, vide State of Maharashtra v. Madhukar Narayan Mardihar, (para 6).
13. It has been held by the Supreme Court in Municipal Committee v. Krishnan Behari, , that for misappropriation of money the only punishment can be dismissal even if misappropriation is of a small amount.
14. It has been held by a series of decisions of the Supreme Court and of this Court that in a bank the highest standards of integrity and devotion to duty have to be maintained by employees because a bank runs on public confidence vide Union Bank of India v. Vishwa Mohan, ; Sudhir Singh v. District Cooperative Bank, 2003 ALJ 1213; Ram Pratap Sonkar v. Allahabad Bank, 2000 (2) AWC 1333 : 2000 ALJ 2510; K.K. Singh v. Gomti Gramin Bank, 2002 (1) AWC 362: 2002 ALJ 480; Prakash Chandra Bansal v. General Manager, W.P. No. 19658 of 2001, decided on 13.12.2001, etc. in Fact greater integrity and devotion to duty is required from bank employees as compared to the employees of other organizations vide V.K. Bahadur v. State Bank of India, 2000 (2) AWC 1617: 2000 (4) ESC 796. Any leniency shown in such matters would be wholly uncalled for vide Disciplinary Authority v. N.B. Patnaik, .
15. In fact in State Bank of India v. T.J. Paul, , the Supreme Court held that in the case of bank employees even if there was no actual loss to the bank, the employee could be punished for negligence.
16. Writ jurisdiction is discretionary jurisdiction and hence this Court is not bound to interefere even if there is technical violation of the rules vide Chandra Singh v. State of Rajasthan, , where it was observed (para 43):
"Issuance of writ of certiorari is a discretionary remedy (see Champaklal Binani v. C.I.T., ). The High Court and consequently this Court while exercising jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so."
17. Similarly in Ramniklal N. Bhutta v. State of Maharashtra, 1996 AWC (Suppl) 1.49 (SC) (NOC): (para 10) the Supreme Court observed:
"The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point."
18. Even assuming that there was some technical violation of the rules relating to the procedure of the inquiry 1 am not inclined to exercise my discretion under Article 226 of the Constitution as 1 am of the opinion that no serious prejudice has been caused to the petitioner. It may be mentioned that to obtain a writ the petitioner has not only to show violation of law but he must also show that some prejudice was caused to him. If there is mere violation of law but there is no serious prejudice against the petitioner this Court under Article 226 of the Constitution shall not interfere merely because of that "violation, as writ is a discretionary remedy, vide State Bank of Patiala v. S.K. Sharma, .
19. I have heard learned Counsels for the parties. I find that undisputedly the petitioner has admitted the allegations against him and has admitted the guilt and misconduct and the inquiry officer after careful consideration has conducted the inquiry in consonance to the principle of natural justice and after taking into consideration the material evidence from management side and also from defence side has submitted the inquiry report, which has been rightly confirmed by the disciplinary authority. I find force in the contentions of the learned Counsel for the respondents that this Court is not to upset the fact finding and to sit over the findings of the disciplinary authority. The decisions of this Court in (2002)3 ESC 256 (Mirza Barkat Ali v. Inspector General of Police, Allahabad and Ors.) and (2003) 2 U.P.L.B.E.C. 1496 (Sant Kumar Upadhyay v. State of U.P. and Ors.) shall not protect the cause of the petitioner, as the petitioner could not submit any point,, whereby this Court could record reasons saying that the said punishment in question is disproportionate, and also no material has been brought before this Court by the petitioner, whereby it could be said that in the facts and circumstances the punishment shocks the conscience of the Court, therefore, the punishment can not be said to be disproportionate.
In view of the above observations, the writ petition is dismissed.