JUDGMENT Sunil Ambwani, J.
1. Heard Sri Suneet Kumar and Sri Ratnesh Khare for petitioner and Sri Vipin Sinha for respondents.
2. The petitioner has prayed for quashing the orders dated 31.10.2000 passed by the Assistant General Manager (IV)/ Disciplinary Authority, State Bank of India by which he has confirmed his tentative order dated 23.8.2000 to dismiss the petitioner service us Clerk-Cum-Cashier (under suspension) without notice in terms of para 521(5) of the Shastri Award read with para 18.28 of Desai Award and para 15 (iv) (a) of the bipartite settlement dated 14.2.1995 entered between the Bank of India v. State Bank of India Staff Federation, and has directed that the period of suspension will be treated as such that no salary and allowance except subsistence allowance, already paid, to be paid to him and has also decided to forfeit the gratuity payable to him in terms of the provisions of Section 4 Sub-section (6) (a) and (b) of the Payment of Gratuity Act, 1972; and the order dated 3.3.2001 passed by the Deputy General Manager/Appellate Authority rejecting petitioners appeal against the punishment order.
3. In writ petition No. 8638 of 2002, the petitioner has prayed for quashing the order dated 24.8.2001 passed by Assistant General Manager (IV), Zonal Office, Varanasi, in compliance with the order of this Court dated 16.5.2001 in writ petition No. 18790 of 2001 rejecting petitioner's application for release of National Savings Certificate of Rs. 90,675/- pledged with the Bank as guarantee towards the Demand Loan Account after closing the Account.
4. The petitioner was appointed as clerk in State Bank of India on 5.9.1989. The proceedings giving rise to this petition relate to the charge when he was working as clerk/cashier in the High Court Branch of the State Bank of India, Allahabad. On 6.5.1994, an F.I.R. was lodged by the Branch Manager with Police Station Cantt., Allahabad against the' petitioner with regard to manipulation in Savings Bank Account No. 3081 of Sri Krishna Nand Yadav and Savings Bank Account No. 3267 belonging to Sri M.A. Haseen. It was reported that the petitioner has changed the ledger sheet of the previous account in which an entry of clearing the cheque Rs. 40,000/- was not shown and that a cheque book issued in respect of the account No. 3081 was shown to be issued in the account No. 3267, a cheque of Rupees one lac was issued from this cheque book of account No. 3267 of Mr. M.A. Haseen in favour of Sri B.N. Tiwari who had withdrawn the amount. The bank informed that further irregularities will be reported later. The petitioner was placed under suspension on 22.7.1994. He was arrested and sent to jail on 22.7.1994. He was granted bail and released on 22.12.1995. A charge , sheet No. 112 was submitted in case crime No. 160 of 1994 on 15.10.1994. In the charge sheet the police found that the petitioner has also committed irregularities with regard to a total number of 14 account including bank account no. 2848 of Km. Binita and 4147 of Shri Gopal Prakash.
5. After about six years a charge sheet dated 5.2.2000 was served upon the petitioner imputing three charges against the petitioner. The first charge related to the withdrawal of Rs. 19,000/- on 17.7.1993 from the Savings Bank Account No. 4187 of Sri Gopal Prakash. It was alleged that the withdrawal form was not accompanied by pass book and the signature of the drawer was forged. The fraudulent entry dated 17.9.1993 was concealed by making a fictitious credit without putting any date on the ledger sheet and raising the balance and again the balance was casted to read Rs. 1630.92 after deleting the credit entry of Rs. 19,000/-. The second charge was with regard to fraudulent withdrawal of Rs. 4500/- on 5.5.1993 and Rs. 8,000/- on-18.5.1993 from S. B. Account No. 2848 of Km. Binita and the posting of a cheque of Rs. 10,000/- in her account, without reference of issuance of cheque book in ledger sheet and that inspite of the fact that the account was a non cheque book facility account, the cheque leaf obtained fraudulently was posed for withdrawal without relative pass book. When Km. Binita detected the defalcation and visited the branch the petitioner surreptitiously paid to her Rs. 22,500/- and another amount of Rs. 600/- towards intered with a view to conceal fraud. The third charge was with regard to withdrawal of Rs. 21,192 from the account of Pankaj Mathur and Saroj Mathur after closing the account on a letter which was forged on 6.7.1993, and making entries in inoperative register where the account was parked.
6. The petitioner submitted his reply on 29.2.2000. The Inquiry Officer informed the petitioner that the enquiry will be conducted at the High Court Branch on 16.6.2000. The petitioner sent his reply consenting to participate in the enquiry and by letter dated 8.6.2000, he demanded copies of the record on which charges were based. On 16.6.2000 when the petitioner presented himself before the Inquiry Officer, he was served by letter of the Manager stating that the enquiry was postponed to 24.6.2000. On 23.6.2000, the petitioner again requested for documents. The enquiry fixed for 2.4.6.2000 was postponed to 28.6.2000. The petitioner filed Civil Suit seeking injunction not to. proceed with the enquiry proceeding being suit No. 266 of 2000 in which no stay order was given. The petitioner did not attend the enquiry proceedings on 28.6.2000 due to hospitalization of his elder brother. The enquiry proceed exparte and was concluded with intimation to the petitioner on 29.6.2000.
7. The petitioner thereafter made a representation dated 5.7.2000 on which the enquiry was re-opened and that by letter dated 6.7.2000, the petitioner was required to submit his defence latest by 10.7.2000. The petitioner submitted his reply on 10.7.2000 and again requested to peruse the original record and demanded copies of the documents and evidence in the custody of the bank. On 10.7.2000, the date fixed in the enquiry proceedings, the Inquiry Officer informed the petitioner that he will be supplied with all the documents and that the enquiry proceedings will be held on 11.7.2000. The concluding portion of the proceeding of enquiry dated 11.7.2000 at page 19 of Annexure-18 is quoted as below:
"Keeping in view the entire sequence of events, facts and circumstances as recorded in the enquiry proceedings dated 28.6.2000 and 11.7.2000 you arc hereby directed to give in Writing your defence brief by 17th July, 2000 till 2.00 P.M. directly to the enquiry officer at our Johnstonganj Branch.
The inquiry proceedings are concluded herewith. A cony of the proceedings being handed over to you on 11.7.2000 at 7.40 P.M. which please acknowledge."
8. By a memorandum dated 12.7.2000 (annexure 19 to the writ petition), the Deputy Manager of the Bank, in accordance with petitioner's request dated 11.7.2000 supplied Photostat copies of the documents. These documents, included signature card, ledger sheet and cash payment register of 5/5, 18/5, 28.5.1993 of Account No. 2848 of Km. Bjnita, Ledger Sheet and Cash Payment Register of 17.9.1993 of account No. 4287 of Gopal Prakash and the Ledger sheet, copy of payment register dated 6.7.1993 and photostat copy of cheque book, surrender register of account no. 2925 of Smt. Saroj Mathur and Pankaj Mathur. On 17.7.2000 the petitioner gave a detailed reply. In para 24 and 47 of his reply he demanded an opportunity to get the documents examined from the handwriting expert of his own choice and protested that full report of handwriting expert of documents had not been supplied with regard to the account of Gopal Prakash, Pankaj Mathur and Saroj Mathur and further made a protest that the enquiry has been conducted in hasty and haphazard manner.
9. Nothing further happened in the enquiry. An enquiry report dated 23.8.2000 was submitted which shows that the last date in the enquiry proceedings was 11.7.2000 and no further proceedings were held. Para 6 of the enquiry report states the fact that on 11.7.2000, the charged employee was shown all the documents and copies were supplies to him on 12.7.2000. The enquiry report confirmed that no further proceedings were held in the enquiry and that Sri Ajai Kalra, the Inquiry Officer submitted his report dated 18.7.2000 by which he reported that charge Nos. 1 and 2 are proved against the petitioner. The tentative order of the Disciplinary Authority for imposing the punishment of dismissal without notice was served upon the petitioner along with a covering letter dated 23.8.2000. It was observed in the enquiry report that the charged employees did not try to prove his innocence against the charges levelled against him, and engged himself in delaying the enquiry, as if he knew fully well that the allegations against him will be proved by documentary evidence against him.
10. Sri Suneet Kumar, counsel for petitioner submits that the petitioner was placed under suspension in the year 1994. The enquiry proceedings were initiated by charge sheet dated 5.2.2000 after a period of 6 years. On 16.6.2000 and 24.6.2000, the enquiry proceedings were adjourned. On 28.6.2000, the enquiry was concluded exparte. It was, however, re-opened and thereafter only two dates were fixed namely 6.7.2000 and 11.7.2000 and whereas the documents for the first time were given to the petitioner on 11.7.2000 and 12.7.2000 and the petitioner gave his reply on 17.7.2000, the enquiry was closed on 11.7.2000, and that nothing happened thereafter. He submits that the enquiry was crosed midway without concluding the proceedings and without giving any opportunity to the petitioner to prove his innocence. Sri Suneet Kumar submits that no evidence was recorded in support of the charges. The Presenting Officer did not lead any evidence and that after supplying the documents on 11.7.2000 and 12.7.2000 on the basis of which the petitioner gave his reply on 17.7.2000, the enquiry was closed. He submits that the record establishes that the petitioner was not allowed any opportunity to defend himself. He has relied upon the judgments of Supreme Court in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and Ors. (2001) 1 SCC 182; Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471; Jagdish Prasad Saxena v. State of Madhya Bharat and Ors. AIR 1961 SC 1970; S.C. Girotra v. United Commercial Bank and Ors., 1995 Supp (3) SCC 212, in support of the Submissions that the reasonable opportunity includes right to cross-examine witnesses, right to file documents and adduce witnesses in defence and a fair opportunity to present his case. He submits that the Criminal Court has dropped the two charges in respect of accounts of Km. Binita, and Pankaj Mathur, and Saroj Mathur in the charges framed on 16.4.201 and that the criminal charge relate only to the accounts of Sri K.N. Yadqav, and M.A. Haseen whereas in departmental enquiry the charges with respect to account of Km. Binita, Pankaj Mathur and Saroj Mathur were persued. Sri Suneet Kumar has prayed for quashing the enquiry disciplinary proceedings including the charge-sheet.
11. Counsel for State Bank of India, on the other hand, submits that the petitioner was deliberately delaying the enquiry proceedings. He avoided filing the reply and did not produce defence witnesses. Relying on Bank of India v. Apoorva Kumar Saha J.T. 1993 (Supp) SC 188. he submits on behalf of the Bank that where an employees refused to avail the opportunity and to defend himself, the Court shall not hear the complaints that he was not given reasonable opportunity. He has further relied upon the judgment in Bank of India and Anr. v. Degala Suryanaravana, JT 1999(4) SC 489; and Union Bank of India v. Vishwa Mohan JT 1998 (3) SC 118 in submitting that the strict rule of evidence are not applicable to departmental enquiries and the Court exercising judicial review shall not reappraise the findings of fact. The Banking business requires absolute devotion, diligence, integrity and honesty, and that the confidence of the public/depositors should not be impaired He has also relied upon Ram Pratap Sonkar v. Chairman and Managing Director, Allahabad Bank Calcutta and Ors., 2000 (2) F.S.C. 814 in submitting that where the bank employee was found guilty of misappropriation in large number of transactions, the Court shall not interfere under Article 226 of the Constitution of India. He submits that in Chairman and Managing Director, United Commercial bank and Ors. v. P.C. Kakkar, JT 2003 (2) SC 78, the Supreme Court has laid down the principles on which the proportionality can be considered and that in the matter of serious charges the High Court shall not be justified in interfering with the matter.
12. I have considered the respective submissions, and perused the record and find that the petitioner was not given any opportunity to defend himself in the disciplinary enquiry. The petitioner was under suspension for about six years. The charge-sheet, on the basis of which enquiry was initiated, was issued on 5.2.2000. The proceedings were adjourned on first two dates fixed in the enquiry i.e. 16.6.2000 and 24.6.2000 and the disciplinary enquiry concluded exparte against the petitioner on 28.6.2000. The enquiry was re-opened on petitioner's request and he was required to submit his defence latest by 10.7.2000. Thereafter the proceedings were held only on one date i.e. 11.7.2000. The record of proceedings dated 11.7.2000 enclosed to the writ petition demonstrate that oil this first and the only date of enquiry, the petitioner requested for the documents which was sought to be relied in proof of charges and prayed for one months time after supply of documents. On 17.7.2000 the petitioner was shown some documents and at about 7.50 P.M. he was given 17 papers. The Enquiry Officer agreed to give him copies of the documents and gave him time to submit his defence brief by 17.7.2000 till 2,00 P.M., and thereafter closed the enquiry on the same day. The petitioner was supplied documents on 12.7.2000 and he gave his reply on 17.7.2000 but nothing happened thereafter. No further date was fixed. The petitioner was not given copy of the hand writing expert in respect of the account of Gopal Prakash, Pankaj Mathur and Saroj Mathur and despite his denial to the charges, without giving him any opportunity to file the document in his defence or to. lead defence evidence and opportunity of sending documents to the hand writing expert of his choice, the enquiry was closed.
13. The record of proceedings, establishes that the observations of Inquiry Officer as well as Disciplinary Authority to the effect that the Petitioner was trying to delay the proceedings and that he never tried to prove his innocence against the allegations levelled against him, are v incorrect. The Inquiry Officer found the charges to be proved without taking any evidence in proof of the charges. With regard to the reply of the petitioner that the Inquiry Officer did not ask the Presenting Officer to produce the prosecution witnesses and to record the evidence, the Disciplinary Authority found that it was in the discretion of the Presenting Officer to prove the allegations against the charged employee. If he feels that the documentary evidence is sufficient, there was no-necessity of presenting the witnesses. In reply to 24 and 25 of the defence plea, the Disciplinary Authority concluded that there was no need to obtain the opinion of any hand writing expert as demanded by Sri Mohla. The record of the proceedings, report of the Inquiry Officer, and the tentative order of the Disciplinary Authority, conclusively established that the Inquiry Officer closed the enquiry proceedings immediately after giving the documents to the petitioner and without giving him any opportunity to defend himself, submitted an enquiry report. The procedure grossly violated' the principle of natural justice, and thus the enquiry report as well as order of the Disciplinary Authority and Appellate Authority cannot be sustained.
14. For the aforesaid reasons, the writ petition is allowed. The enquiry report as well as impugned orders dated 31.10.2000 and 3.3.2001 are set aside. The respondents are directed to proceed with the enquiry from the stage where the petitioner was supplied the requisite documents. The petitioner shall be given full and adequate opportunity to defend himself in the enquiry proceedings. It will be open to the Inquiry Officer to' consider the reply, and request with regard to obtaining second opinion of the hand writing expert. He will also consider the effect of the order dated 16.4.2001 of the Judicial Magistrate-VII, Allahabad framing criminal charges only with regard to the accounts of K.N. Yadav and M.A. Haseen whereas the police had collected material and filed charge sheet in respect of the accounts, which are subject matter of departmental proceedings. The petitioner shall be treated to be under suspension and shall be paid substance allowance. The enquiry shall be concluded as expeditiously as possible.
15. Since the writ petition No. 42205 of 2001 has been allowed and the order of punishment as well as the order 3.3.2001 has been set aside, the relief claimed in writ petition No. 8638 of 2002 for release of National Savings Certificate pledged with the Bank as Security towards the demand loan amount, which was denied to the petitioner on the ground that this amount will be set off against the amount held in protested bill account, and on account of the act of embezzlement, misappropriation and fraud perpetrated by the bank, is no longer available. The writ petition No. 8638 of 2002 is also allowed with a direction that the respondents shall release the National Savings Certificate pledge with the Bank towards the demand loan account. The other service dues of the petitioner and the gratuity will be sufficient security in case the enquiry is concluded against the petitioner.