Hon'ble Ved Prakash Vaish,J.
We have heard Sri B.N. Singh for the petitioner; Sri Vishnu Pratap for the respondents; and have perused the record.
The petitioner has challenged the orders dated 28.08.2008; 15.12.2009 and 29.07.2010 passed by disciplinary authority, appellate authority and review authority respectively by which the petitioner has been dismissed from service and, thereafter his appeal and review has also been dismissed.
Briefly stated the facts giving rise to this petition are that the first respondent (Central Bank of India- in short the Bank) is a nationalized bank in which the Central Government has more than 51% stake; that the petitioner was appointed in the year 1978 and in the year 2004 was serving as a Manager Grade Scale-II at Branch Office Sikandra City, Agra; that in the month of June 2004 he was transferred to Branch Office Azadgan, district Etawah; that to shift his house hold goods from Agra to Etawah, the petitioner engaged a truck No. RJ-05-G-3248 through R.S. Yadav Transport Co. Agra in respect of which he was provided transport receipt bearing GR no.402, dated 31.07.2004, of Rs.3010/-; that to claim transfer allowance, the petitioner submitted T.A. Bill dated 18.08.2004 claiming Rs. 9046/- which included incidental expenses, truck charges, etc.; that as per policy, freight charges were reimbursable only to the extent of freight charged by railway for transport of goods in between the two stations up to a limit of 10 quintals; that the petitioner was therefore required to submit freight rate charged by railway for transport between Agra and Etawah; that the petitioner claimed the railway freight @ Rs.38.05 per quintal for transport between the two stations; that T.A. Bill of Rs.9046/- submitted by the petitioner was passed for Rs.8319/- inclusive of freight charges to the extent of Rs.2283/- in place of Rs.3010/- that was allegedly paid by the petitioner to the road transport company; that, on some complaint, a vigilance enquiry was done; that the vigilance officer (MW1) submitted report thereby questioning genuineness of the transport receipt; that, on the basis thereof as also upon discovering that railway freight charge for transport of goods from Agra to Etawah was @ Rs.24.30p per quintal and not Rs.38.05p per quintal, the petitioner was served charge-sheet leveling the following two charges:
"1. Sh. Bhadouria claimed transfer TA Bill dated 18.08.2004 for Rs. 9046/- by submitting a forged transport receipt no. 402 dated 31.07.2004 for Rs. 3010/ purportedly issued by R S Yadav Transport Company, Head Office-Firozabad Road, Opposite Tulsi Dharam Kanta, Shahdara, Agra.
2. Sh. Bhadouria claimed Railway freight charges @ Rs. 38=05 per quintal, rate by goods train for 123 Kms i.e., from Agra to Etawah, whereas correct rate for the same distance as informed by Booking office Etawah are Rs. 24=30 per quintal. Thus he claimed excess amount from the prevalent rates."
The petitioner denied the charges. In respect of first charge, the claim of the petitioner was that he had transported household goods on a truck; and the transport receipt issued to him was genuine and not bogus. In respect of the second charge, the petitioner's claim was that the freight rate mentioned for claiming reimbursement was on the basis of information received and, in case excess payment has been made, he would refund the same.
During the course of enquiry, the Management examined the officer who had conducted vigilance enquiry as a solitary witness (MW1). His statement was to the effect that, despite best effort, the existence of transport company, namely, M/s R.S. Yadav Transport Company, which had allegedly issued transport receipt (MEX-3) to the petitioner could not be established. However, from his answer to question no.3, which is at page 94 of the paper book, it appears, upon verification, he did found the receipt book with R.S. Tyres from which transport receipt no.402 was issued to the petitioner. The petitioner in his defence examined the proprietor of the transport company as witness (DW-3). DW-3 specifically stated that the receipt was issued; and that the transport business is run by the name of M/s R.S. Yadav Transport Company. Apart from DW-3, the petitioner also examined a person who helped him in deloading the goods at Etawah as DW-1. He stated that the goods had arrived on a truck at Etawah and that he had helped in taking out the goods from the truck. He gave description of those goods.
In the Departmental Enquiry, the vigilance officer (MW1) was specifically queried by the Assistant Officer, on behalf of the petitioner, to ascertain whether he had obtained any written statement from petitioner's neighbours at Etawah to ascertain whether household goods were there at his place. In response thereto, at page 104 of the paper book, he stated that since the petitioner had a parental house at Etawah, there was no need to check the house hold goods there. Further, in response to question no.11, at the same page of the paper book, MW1 admitted that he did not obtain any written statement of any witness contacted by him and that he did not visit residence of the petitioner at Etawah. In nutshell, the evidence led by the department was as regards non-existence of the firm i.e. the transport company which had issued the transport receipt and not much evidence was there to prove that there was actually no transportation of the goods, which is evident from the inquiry report, at page 145 of the paper book, where the inquiry officer observed: "therefore, the only point is whether M/s. R.S. Yadav transport company exists or not".
DW3, the proprietor of the transport company came forward as a witness. He proved issuance of the receipt. He stated that he keeps letter pad of M/s R.S. Yadav transport company. He also gave a leaf from it as a specimen which was marked as DEX-5. The enquiry officer, after dealing with the evidence recorded by him, concluded, at page 146 of the paper book, as below:
"From the close scrutiny of MEX-3, DEX-5 and deposition of DW3 on EPP-51 following facts emerge-
1. MEX-3-Head Office of transport Co. is at Ferozabad Road, Agra. There is no mention of branch office.
2. DEX-5- Head Office at Ferozabad Road, Agra. Branch Office at Transport Nagar, Agra.
3. EPP-51- Office at Transport Nagar, Agra with branch at Ferozabad, Agra Thus it appears that there is something fishy. Therefore the genuineness of MEX-3 is doubted.
Therefore, in the light of evidences on record I hold that the charge no.1 against CSOE is partly proved."
In respect of the second charge, the management placed reliance on MEX-5 i.e. certificate dated 14.07.2004 issued by railway authority, disclosing rail freight rate, for transportation of goods by rail from Agra to Etawah, at Rs. 38.05 per quintal, which was submitted by the petitioner, to claim allowance in respect of transportation of goods from Agra to Etawah, on his transfer. The management case was that the rail freight rate was only Rs.24.30 per quintal therefore the petitioner claimed in excess of his entitlement. In response thereto, the petitioner had produced a document DEX-1, dated 25.07.2007, (Annexure 16 at page 133 of the paper book), which was a letter on which a clarification note was put by the concerned clerk of the Railways Store, Etawah. In fact the said letter was petitioner's query to the Railway Officer concerned as to why on 14.07.2004 incorrect information about freight rate being Rs.38.05 per quintal was provided by the concerned railway office. The note of the concerned clerk of railways was to the effect that by mistake on 14.07.2014 freight rate applicable on transportation for 223 kilometers was provided when, in fact, the rail distance between Agra and Etwah was 123 kilometers only for which freight is chargeable @ 24.30 per quintal.
After noticing the facts as also that the petitioner had refunded the excess amount obtained by him upon getting correct information about rail freight rate, the enquiry officer in respect of charge no.2, found, at pages 147-148 of the paper book, as under:
"From the evidences discussed/ produced during the course of enquiry, it is proved that the CSOE has claimed higher amount in TA Bill than the prevailing rates in respect of freight rate for 123 km i.e. distance between Agra and Etawah. Hence this portion is partially proved.
Thereafter, after issue of charge sheet, CSOE again enquired from Railway Authorities and came to know the correct freight fare and refunded the excess amount, so claimed, on 26/05/2007.
Thus the excess amount stand recovered and there is no loss to the Bank.
.......Charge No.2- Partly Proved"
The enquiry report dated 03.09.2007 was supplied to the petitioner by the disciplinary authority, vide letter dated 11.09.2007, for his comments. Upon which, the petitioner submitted his response by assailing the conclusion that the charges were partly proved.
After consideration of petitioner's reply, on 28.08.2008 the disciplinary authority passed the final punishment order. In respect of charge no1, he concurred with the finding of the enquiry officer and concluded, at page 49 of the paper book, as under:
"The inquiring authority has rightly smelt the situation fishy and doubted the genuineness of the consignment note and therefore held the charge partly proved against the CSOE. Thus Mr. Bhadauria has drawn pecuniary benefits by submitting questioned consignment note and indulged in act unbecoming of an officer. He did not discharge his duties with utmost care, honesty, and integrity. Hence I, concurring with the findings of Inquiring Authority award the penalty of "Dismissal which shall ordinarily be a disqualification for future employment" under Regulation 4(j) of Central Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976."
In respect of the second charge, specific case of CSOE before the disciplinary authority, as noticed in the order, at page 51 of the paper book, was:
"The CSOE had added that the confession of railway that it was their mistake, has been committed through an oversight, was sufficient enough to prove that am not at all liable for claiming pecuniary benefit in any manner at his own. It would have happened with any one including yourself if were in his place."
The disciplinary authority dealt with the above submission, at pages 52 and 53 of the paper book, as below:
"From the above, it is clear that the charge is proved against the CSOE in respect of excess freight claimed/ paid to the CSOE.
To decide whether the CSOE has claimed intentionally/ accidentally the excess amount on false declaration, I have further perused these documents thoroughly. I have observed the following:
MEX-2 reveals that the joining period of the CSOE was from 25.07.2004 to 02.08.2004 and the T.A. Bill (MEX-2) is submitted on 18.08.2004.
MEX-5 is a letter purportedly written by Mr. P.K.S. Bhadauria, Branch Manager, B/o Takia Azad Gan addressed to Station Master, Etwah requesting therein to inform the rates of goods train from Agra to Etawah. The said letter is bearing date 14.07.2004 i.e. date before the commencement of his journey from Agra during joining period. Whether it is possible that any staff member try to procure such rates in advance from the Railway Authorities. Certainly not, in ordinary course of business. If, however, Mr. Bhadauria, had procured the same in advance, why did he not prefer small vehicle for transporting his household goods, which would have cost less so that he could have not paid excess amount of freight from his pocket. On careful observation of MEX-5, it is crystal clear that noting of railway authorites, Etawah on MEX-5 was not procured before hand by Mr. Bhadauria but it was the after creation by Mr. Bhadauria after submission of the TA Bill as MEX-6 proves that the MEX-5 was submitted to the Regional office, Etawah only after submission of the TA Bill as the TA Bill was passed on 03.09.2004 and the MEX-6 was seen by the passing authority in the month of August 2004.
On perusal of MEX-6, I observe that there is overwriting in the name of Mr. P.K.S. Bhadauria. It appears that the said application would have been written by some other person/ Branch Manager earlier and the same has been misused by Mr. Bhadauriya by overwriting the name of the person perhaps by using white ink. I have also observed that the spelling of the name of Mr. Bhadauria is also different in the MEX-6 which is 'Bhadoriya' whereas in the TA Bill (MEX-2) the spelling is mentioned 'Bhadauria'. In the DEX-1 also the signatures of Mr. Bhadauria spelt Bhadauria. Thus it is clear that MEX-5 was prepared at the behest of Mr. Bhadauria through someone for misuse with ulterior motive, which is not in the handwriting of Mr. Bhadauria. It is worth noticing that while submitting the TA Bill by Mr. Bhadauria the original copy of the MEX-5 was not enclosed with the TA Bill which is proved on perusal of MEX-6. MEX-6 gives the clear indication that that Mr. Bhadauria submitted the copy of the MEX-6 to smother the fact of obliteration in name in the original copy.
All the above discussion establishes that Mr. Bhadauria did not actually try to procure the current rates from the railway authorities and misused the MEX-5 for his own use. When a complaint made by someone against Mr. Bhadauria, he procure / managed DEX-1.
On careful observation of the facts mentioned hereinabove, I find that the charge is proved against the member.
I have also observed that the CSOE was well aware that he had claimed excess freight from the bank as the charge sheet was issued to him in Nov. 2006 but he refunded the excess amount to the bank only on 26.05.2007 i.e. after six months, which shows his mentality.
Thus Mr. Bhadauria did not maintain good conduct and claimed pecuniary benefit as per the questioned certificate submitted by him and indulged in an act unbecoming of bank officer. The Inquiring Authority has held the charge partly proved against the CSOE. I, concurring with the findings of the Inquiring Authority award the penalty of "reduction to six lower stages in the bank scale of pay for a period of two years with further direction that he will not earn increment of pay during the period of reduction and on expiry of the period, the reduction will have the effect of postponing his future increment of pay under Regulation 4 (f) of Central Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976."
Aggrieved by the order of the disciplinary authority, the petitioner preferred appeal which was dismissed, after agreeing with the conclusions arrived at by the inquiring authority and the disciplinary authority, vide order dated 15.12.2009. Thereafter, the petitioner applied for a review before the reviewing authority, which was dismissed by the reviewing authority vide order dated 29.07.2010. The reviewing authority by and large agreed with the reasons recorded by the Inquiring Authority and the Disciplinary as well as Appellate Authority but in the concluding portion of his order added few other reasons to support the punishment order, which are found at page 67 of the paper book, as follows:
"While considering the matter in totality, I have more specifically kept in view the following points:
a) when MW1 went for investigation the consignment note book was found after two years but without any consignment note being issued for 2 years subsequent to consignment note No.402 issued to the petitioner
b) contradictions in the addresses as contained in consignment note and letterheads of the transport companies
c) the unusual step of an oath produced on behalf of the owner Shri Meherban Singh Yadav about the existence of the transport company instead of producing standard documentary proof of its existence. It is worthwhile that the owner Shri Meherban Singh is the relative of the petitioner
d) Shri Meherban Singh Yadav admitted having issued receipt No.402 from Transport Nagar, Agra whereas the address of the consignment No.402 bears Firozabad Road, Shahdara.
e) The petitioner in his written statement had admitted that the consignment note was issued by Transport Nagar office (MEX8).
Keeping in view the above I am unable to sustain the defence plea that the transaction of consignment Note No.402 was above board on all aspects."
Assailing the orders impugned, the learned counsel for the petitioners raised various issues such as: (a) lack of authority of the disciplinary authority to pass the punishment order; (b) inquiry being vitiated for non supply of relevant documents such as preliminary enquiry report prepared by MW1 as also statement of persons recorded by him and the complaint on the basis of which preliminary enquiry was held; and (c) the finding that charges were partly proved being perverse as well as contrary to the weight of the evidence on record. It was submitted by him that when it was proved by production /examination of receipt book as well as oral testimony of D.W.3 that the consignment Note No.402 was issued and was not a forged document there was no occasion to hold charge no.1 as partly proved by delving into the existence of the transport company because that was beyond the scope of the charge. Moreover, the petitioner had no concern with its legal existence inasmuch as he was concerned only with transportation of the goods, which was proved as a fact. It was submitted that the enquiry officer in his report, at page-145 of the paper-book, had himself observed:
"It is common practice among the transporters to have one or more companies in almost alike names having branches /offices at different location, having different types of bilty books of all the companies at one place and issue TRs from bilty books of any of the companies.
That is what happened in this case. CSOE contracted R.S. Transport Company at Transport Nagar, Agra and asked them to transport his luggage to Etawah. He was issued TR of R.S. Yadav Transport Company, Firozabad road, Agra. When the fact about non-existence of Transport Company came to the notice of the owner (DW-3), he immediately submitted a Notorised affidavit to the Zonal Manager, Agra."
It was submitted that the enquiry officer instead of finding out as to whether the claim raised by the petitioner in respect of transfer allowance was false or not proceeded to adjudicate whether M/s R.S. Yadav Transport Company existed or not, which was certainly beyond the scope of enquiry. It was submitted that non existence of M/s R.S. Yadav Transport Company in the eyes of law does not falsify the claim of the petitioner when it was established by evidence on record that there had been a transport bill issued to the petitioner; that there had been transportation of goods; that there was a witness in proof of such transportation; and that there was no evidence to prove that there was no transportation. It was submitted that, under the circumstances, the findings returned by the enquiry officer that charge no.1 was partly proved is nothing but perverse.
In respect of finding of the enquiry officer that charge no.2 was partly proved, it was submitted that the enquiry officer found the charge partly proved on the ground that a higher rate of freight was claimed than what was fixed by railways for transportation from Agra to Etawah. It has been submitted that while holding the second charge as partly proved, there was no cogent reason for the enquiry officer, or any other authority, to discard DEX No.1, which was a letter written by the petitioner seeking clarification from the railways as regards the basis on which they earlier gave incorrect information about higher freight rate, upon which, a note was put by the concerned department of the Railways that, under mistaken belief, as regards the distance between Agra and Etawah being 223 kilometers, the Railways had quoted freight rate of Rs. 38.05 per quintal when, in fact, the distance between Agra and Etawah was only 123 kilometers for which freight was chargeable at the rate of Rs.24.30 per quintal. It has been submitted that no effort was made either by the inquiry officer or by the disciplinary authority or any body else to question the veracity of the document from the railways. Therefore, it was proved that higher charge was claimed under mistaken belief and, later, the same was refunded. Moreover, the amount was only few hundred rupees. Hence, it was submitted, the finding that the said charge was partly proved is equally perverse. It was also urged that Disciplinary Authority committed grave error by observing that MEX-5; MEX-6 and DEX-1 were procured documents when there was no such charge.
Per Contra, the learned counsel for the bank has justified the disciplinary action as well as the inquiry report and has submitted that the findings are supported by cogent evidence and have been recorded after penning down reasons therefore they do not call for any interference. It was further submitted on behalf of the bank that charge of submitting a false claim by itself is very serious and warrants major penalty notwithstanding that it may relate to a paltry amount. It has been submitted by him that existence / non existence of the transport company was intrinsically linked with the sanctity of the consignment bill and therefore the inquiry officer as well as disciplinary and appellate authority rightly questioned the existence of the transport company to doubt the consignment note. It was also submitted that all the relevant material relied upon in the inquiry was supplied to the petitioner and in so far as the preliminary enquiry report is concerned that has been filed by the petitioner himself and therefore the petitioner cannot claim any prejudice on that count. He also submitted that while testing the defence of the petitioner if the disciplinary authority had questioned the authenticity of MEX-5; MEX-6 and DEX-1 that would not amount to traveling beyond the charge. He has thus submitted that the petition deserves to be dismissed.
We have gone through the rival submissions and have perused the record carefully.
The first charge against the petitioner was that he had submitted forged consignment/ transport note in support of his TA Bill. It was proved by production of the transport company proprietor (i.e DW3) that consignment note was indeed issued. Further, evidence was led (i.e. DW1) that goods were transported on a truck and were received at Etawah, the place to which the petitioner was transferred. Once it was proved so, there was no justification for any of the authorities to hold the charge as partly proved by casting doubts about genuineness / existence of the transport company, particularly, when it is not the case of the respondents that transport had to be through a specified transport company. When a person is transferred from one place to another, of which there is no dispute in the instant case, he is only concerned as to how is goods would reach the destination. Therefore what is to be seen is whether there has been transportation of goods or not and not whether the transport company is properly registered with tax authorities/ transport authorities or not. Because whether a transporter is saving on taxes, by fraudulently dodging the authorities or by showing transactions in multiple names or otherwise, may not be the concern of a person who is only interested in transport of his goods. In the instant case, no evidence was led by the management that the goods were never transported. Rather, there was evidence of DW1, led by the petitioner, to show that the goods were deloaded from a truck at Etawah. In rebuttal thereof, there is no evidence. The only witness examined by the management was MW1 who, admittedly, did not visit petitioner's place at Etawah to ascertain whether the petitioner had household goods there or not though he stated that there was no need to transport goods because the petitioner had a parental house at Etawah. Such a statement is irresponsible and is not a statement of fact. It is based on assumption, which is not based on sound logic inasmuch as a person, despite having a parental home, to maintain personal status, may need household goods for his own enjoyment. Under the circumstances, we are of the considered view that the finding returned to the effect that charge no.1 was partly proved, as the existence of transport company was not satisfactorily proved, is perverse and, in fact, beyond the scope of the charge.
In so far as charge no.2 is concerned, the simple defense of the petitioner was that freight rate was misquoted by him on wrong information provided to him by the railway authorities (vide MEX-5), which he proved by production of DEX-1, which was a document containing a note of the concerned railway department owning responsibility for providing incorrect information earlier under wrong notion about the travel distance between the two stations. No effort was made either by the inquiry officer or by any other authority to cross check with the railways as regards authenticity of MEX-5 or DEX-1. Yet, without any basis, charge no.2 was held partly proved, merely because excess payment was made even though it was found that the same was refunded. Adverse inference drawn on account of there being some overwriting in MEX-5 and on some delay in making refund was completely misplaced, inasmuch as, the authenticity of MEX-5 was not discarded by getting it verified from the railways. The view of the disciplinary authority that the document MEX-5 was procured, as an after creation, because there was no need to obtain such a document in advance, is purely conjectural and wholly uncalled for, particularly, when the authenticity of MEX-5 and DEX-1 was not got verified from the railways. Moreover, it was never a charge that MEX-5 or MEX-6, of which authenticity was doubted by the disciplinary authority, was bogus or procured. Further, the delay in refund of a paltry sum of few hundred rupees was inconsequential so as to attribute any dishonest intention on the part of the petitioner.
It is well settled that an innocent mistake does not constitute misconduct, particularly, when, upon being apprised of the mistake, it is rectified. Here, admittedly, upon having knowledge of excess payment of few hundred rupees, the money was refunded, as is the finding. The disciplinary authority being conscious about such refund as also the claim that it was a bona fide mistake, unnecessarily went to question the genuineness of the earlier railway freight information letter (MEX-5) as well as MEX-6 to observe that MEX-5 as well as MEX-6 were procured document and an after creation and so was DEX-1, when no such finding was returned by the inquiring authority and, otherwise also, no evidence was called for from the railway authorities to test the authenticity of those documents. More so, when there was no such charge. Under the circumstances, we are of the firm view that the findings recorded by the enquiry officer as well as the disciplinary authority, concurred by the appellate and the review authority, that both the charges were partly proved, are perverse; and while returning such findings they have travelled beyond the scope of the charge. Such findings are therefore not at all sustainable in law as to form basis of departmental action against the petitioner.
Before parting, we would like to observe that the Vigilance Officer in his report had disclosed that the proprietor of the transport company had disclosed to him that the petitioner was his relative. When the transport company proprietor was examined as DW3, a specific question was put to him whether he was related to the petitioner, which he specifically denied, as would be clear from page 128 of the paper book. Other than the Vigilance Officer's report, in respect of alleged relationship of the petitioner with the transport company proprietor, there was no material to suggest that the transport company owner was petitioner's relative. The enquiry report therefore places no reliance on that relationship. Yet, the review authority takes notice of such alleged relationship, unsupported by any cogent material, to reject the review petition. All this goes to indicate that the respondents had been predetermined to somehow nail the petitioner be there material or not. The enquiry on the face of it appears to be a witch hunt. More so, when there was no dispute that the petitioner was transferred from Agra to Etawah and was eligible to Transfer Allowance as per Rules.
Consequently, the writ petition is allowed. The orders dated 28.8.2008, 15.12.2009 and 29.07.2010 are hereby quashed. The petitioner shall be reinstated in service with full consequential benefits including continuity of service. There is no order as to costs.