JUDGMENT D.K. Seth, J.
1. Pursuant to an inquiry held against the petitioner he was found guilty of both the charges levelled against him and punishment of dismissal without notice was proposed in the inquiry report dated July 18, 1983. After giving opportunity to the delinquent with regard to the quantum of proposed punishment, the punishment of dismissal was inflicted upon him. Against the said punishment an appeal was preferred by the petitioner. By the appellate order the quantum of punishment was reduced by stoppage of four increments with cumulative effect. This order dated November 11, 1983, contained in Annexure-8 to the petition, was challenged through a reference under Industrial Disputes Act, being Industrial Dispute No. 147 of 1988. By an Award dated July 30, 1990, contained in Annexure-14 to the petition, the Industrial Tribunal had held that the punishment was justified after recording finding that both the charges were proved. In this background the petitioner has moved this writ petition for appropriate relief.
2. Sri Arun Tandon, learned counsel for the petitioner contends that the finding of guilt in respect of the first charge of misappropriation, as alleged in the charge sheet by the Inquiry Officer, is perverse. The Tribunal has not come to any independent finding and did not record its observation in respect thereto. According to him the Tribunal did not refer to the relevant evidence and material on record to arrive at such finding. Therefore the finding is based on no material and as such is perverse.
3. According to him similar is the finding with regard to second charge by the Tribunal, which also suffers from the same infirmity on similar ground.
4. Sri Vivek Ratan, learned counsel appearing on behalf of respondent Bank, on the other hand contends that unless the Tribunal comes to a finding that the inquiry is vitiated and the report is bad the Tribunal had no jurisdiction to interfere with the findings of the Inquiry Officer. He also contends that since the charges are proved this Court in writ jurisdiction cannot interfere with the same, since the same are findings of fact. According to him no perversity has been brought to the notice of this Court by Sri Tandon. He further contends that even if the second charge is not proved the first charge is grave enough to warrant punishment of dismissal but only on compassionate ground, the punishment has been reduced to stoppage of four increments with cumulative effect. Even if it is found that the first charge is proved then also punishment cannot be said to be disproportionate and harsh. According to him the facts as disclosed, indicate that the same are not disputed but it is only interpretation as to whether the submitted fact can be construed to be a guilt on the part of the petitioner. Since, conclusion has been drawn on the basis of such fact, the inference unless is unjustified cannot be interfered in writ jurisdiction when the Tribunal has concurred with the same.
5. Apart from the grounds taken by Sri Tandon, he has vehemently argued that the punishment is too harsh and disproportionate, on the facts and circumstances of the case. By reason of Section 11A of Industrial Disputes Act it was incumbent on the Tribunal to come to a finding as to whether the punishment was harsh or disproportionate or not since according to him, the second charge could not be proved. He further contends that since the Tribunal has upheld the punishment only on the ground that both the charges were proved and if second charge fails then the matter is likely to go back on remand for decision afresh on the question of quantum of punishment by the Tribunal itself in terms of Section 11A of the Act.
6. Sri Vivek Ratan, on the other hand contends that in view of his contention the first charge is sufficient to inflict punishment of dismissal and the same has already been reduced, there is no question of considering quantum of punishment on the ground of its being harsh and disproportionate, therefore, the matter cannot go back on remand.
7. I have heard both the learned counsel for the parties at some length.
8. Though the Tribunal has not recorded any independent finding with regard to the first charge, but it has recorded as it has gone through the entire material of the inquiry proceeding as well as inquiry report, he did not find any reason to differ with the same. He also records that he has not been able to find out any infirmity with regard to the inquiry on the basis of material disclosed before him. Admittedly, the inquiry was not held by the Tribunal to be vitiated. Neither the Tribunal had set aside the inquiry report. In case the inquiry is not declared to be vitiated and where inquiry report is not set aside, it is not open to the Tribunal to go in detail with the inquiry report in order to arrive at a different finding. Such exercise was open to the Tribunal only in case the Tribunal comes to a finding that there was any perversity in the inquiry report. In absence of any such finding the Tribunal had no jurisdiction to interfere with the inquiry report, particularly with regard to the findings of fact.
9. So far as the second charge is concerned the Tribunal had accepted the finding of the Inquiry Officer. After having heard Sri Tandpn and after going through the relevant material placed before this Court, it appears that the Tribunal has not come to a correct finding and has over-looked perversity in respect to the said charge, as is discussed hereinafter.
The second charge relates to non-disclosure of incurring additional liability in respect of loan sanctioned by the petitioner's Bank to the petitioner's brother on the ground that the petitioner's brother had obtained subsequent loan tor Photostat machines from the Bank of Baroda, which fact was not disclosed to the petitioner's Bank. The findings arrived at by the Tribunal is that the loan from the Bank of Baroda was obtained by the petitioner's brother at a stage subsequent to the loan obtained by him from the petitioner's Bank. In both the cases the petitioner was guarantor. It is on record that two separate Photostat machines were purchased out of the loan money obtained from two different Banks for operating them at two different places though by the same person, namely the brother of the petitioner. Therefore, even if the petitioner's brother had incurred additional liability, it is the additional liability of the petitioner's brother. It is not the liability added to the loan sanctioned by the petitioner's Bank. Then again it is apparent from the material placed before this Court with regard to examination of Sri R.K.Agarwal, Branch Manager of the petitioner's Bank that on receipt of the letter of Bank of Baroda through which he had been informed that Bank of Baroda was going to sanction loan on the basis of approval given on the recommendations of the Branch Manager of Bank of Baroda he had not met the Branch Manager of Bank of Baroda. Therefore, this fact was very much known by the petitioner's Bank at the time of sanction of the loan. Since no additional liability in respect of loan sanctioned by the petitioner's Bank was incurred it was not shown to the Court as to how the petitioner was liable to disclose such liability. Therefore the said finding by the Inquiry Officer appears to be wholly perverse and therefore cannot be relied upon by the Tribunal. Accordingly the findings of the Tribunal with regard to second charge appears to be perverse.
10. Thus it is only on one charge the punishment has to be justified. Sri Tandon contends that the Tribunal had based its finding on the quantum of punishment on the basis of two charges. Therefore, it requires reconsideration.
11. The fact thus remains that initially punishment of dismissal was proposed on the basis that the petitioner was found guilty of misappropriation of Rs. 4000/-. On fact it was found that the petitioner was guilty and responsible for shortage of the amount in the bundle at the rate of twenty notes of Rs. 100/- in two bundles which were sent under signatures of the petitioner himself to some other Branch. On detection that two of the bundles were thinner, in appearance, which the petitioner had collected himself without being accompanied by security alongwith four bundles which were left in the cash box in his Branch, then had left the Bank for a considerable period and had immediately reimbursed the shortage by himself. These are the findings of fact with which this Court cannot interfere.
12. Thus finding of guilty of misappropriation definitely invites infliction of punishment of dismissal or removal, as the case may he. If the first charge is proved then it may invite for higher quantum of punishment than that has been imposed on the petitioner by the appellate authority. Since the appellate authority has reduced punishment though it was open to him to inflict higher punishment, it is not open to the Tribunal even if only one charge is proved, to consider the question of inflicting lesser punishment, when the punishment of stoppage of four increments with cumulative effect has been imposed. In my view also the charges proved do not warrant any interference with regard to quantum of punishment, as has been done in the present case.
13. Before parting with the case I may refer to the other question referred to by Sri Tandon to the extent that before issuing second show cause notice with regard to proposed punishment, referring to the language used in the report, he contends that the disciplinary authority had made up his mind to inflict punishment not lesser than dismissal. Therefore the second show cause notice was empty formality and therefore the punishment imposed by the disciplinary authority is vitiated. Therefore the entire process including that of appeal is vitiated and cannot be sustained.
14. These contentions were opposed by the learned counsel appearing for the respondent by pointing out from the language used in the said report that it does not signify the meaning, which Sri Tandon, has sought to put in.
15. In fact the proposal has been couched in the expression namely "looking to the circumstances of the case I have reasons to believe ...........he does not deserve any lenient punishment other than the punishment of dismissal from service........... I therefore, propose that the punishment of dismissal from service........." Then he says "I shall now give opportunity ...... to show cause against the nature of proposed punishment..........."
16. The very expression shows that the contention raised by Sri Tandon, cannot be sustained. Inasmuch as it begins with the observation that "I have reasons to believe that he does not deserve any lenient punishment other than dismissal." Therefore, it is not definite finding but an opinion that he has reasons to believe that no punishment lesser than dismissal can be inflicted and therefore he proposed such punishment and called upon the delinquent to show cause with regard to the nature of punishment so proposed. Therefore, it is only a proposal.
17. Then again by reason of reduction of punishment this question becomes redundant. At the same time because of the decision in the case of Mohd. Ramzan Khan's case (1991-I-LLJ-29) (SC) second show cause notice with regard to quantum of punishment being mandatory, such notice if issued, the punishment is always proposed and indicates as to what kind of punishment is proposed and then the delinquent is called upon as to why the proposed punishment should not be inflicted. After affording opportunity punishment is inflicted. Therefore there is no question of closed mind or empty formality, in the facts and circumstances of the case, as indicated above.
18. In that view of the matter the writ petition fails and is accordingly dismissed. There will be, however no order as to costs.