IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 4786 of 1992 PHOOLA RAM CHOUHAN V/S MARWAR GRAMIN BANK,PALI & ORS Mr. RN UPADHYAY, for the appellant / petitioner Mr. MD PUROHIT assisted by Mr. RAKESH KALLA, for the respondent Date of Order : 16.5.2006 HON'BLE SHRI N P GUPTA,J. ORDER ----- This petition has been filed by the petitioner, seeking to challenge the orders Annexure-8 and Annexure-11, being dt. 19.2.1991 and 23.4.1992 respectively, whereby the punishment of removal from service was imposed, after holding departmental enquiry, and was affirmed in appeal. The facts of the case, as pleaded by the petitioner in the writ petition are, that while working at Sirohi Branch, an explanation was called from the petitioner regarding wrong payment of Rs. 700/- from S.B. Account of one Shri Naina Ram, which was replied on 22.4.1985. Thereafter a charge sheet dt. 19.11.1985, along with memorandum of charges was served upon him, being Annexure-1. Before issuance of the charge sheet, an F.I.R. 2 had already been filed on 18.9.1985, inter alia for the offences under Sections 408, 468, 411 and 201 I.P.C., and the case had been registered on filing challan in the Court of Munsif Magistrate. The petitioner then requested the Bank on 22.1.1986, not to proceed with the departmental enquiry on the same charges. This request was turned down on 11.6.1986, and the petitioner was asked to submit reply, which was accordingly filed on 6.7.1986, denying all the charges. Then, Enquiry Officer was appointed. Then on 17.11.1986, the petitioner again requested, that since police had challenged the case on the same charges, which is subjudice, the enquiry may be stayed, but that request was also not acceded to. Thereafter, in the enquiry three witnesses were examined, being Shri D.C. Sharma, Shri P.D. Vaishnav, and Shri R.K. Suthar. However, Shri Naina Ram was not examined. The copies of the statements of three witnesses have been produced as Annexures 2, 3, and 4 respectively. It is then alleged, that the petitioner demanded copy of the duty list of Cashier/Clerks, so also of Token Book on 3.8.1989, which was not supplied. Then, the petitioner demanded for perusal of the original documents on 3.8.1989, but these documents were also not got perused by him, and on 30.8.1989 only photo stat copies 3 of specimen signature form, ledger sheet, withdrawal form, and preliminary report were shown, but copies were not supplied. Likewise, enclosures referred to in the preliminary report were neither got perused, nor supplied. This objection was got noted on 30.8.1989 in the proceeding. It is then alleged, that these were subsequently shown in the Court, but copies were not supplied. It is then alleged, that the petitioner was required to adduce evidence on 26.5.1990, but since his wife was on advance family way, he informed the Enquiry Officer on 25.5.1990, and applied for leave on 26.5.1990, and on reaching home he found the wife in a precarious condition, and confined to bed, and therefore, he requested for further extension, enclosing the medical certificates of wife's serious illness. It is alleged that the Enquiry Officer presumably accepted this request, and fixed the date of hearing on 7.6.1990, at Joyala Branch, and the Defence Counsel was said to have been asked to advise the petitioner, but then, the Defence Counsel did not inform the petitioner, and thus the petitioner remained under bonafide belief, that he will receive information about the date of hearing, and thus the petitioner could not attend the hearing on 7.6.1990. The allegation of the petitioner, then is, that in view of state of pregnancy of the wife, the petitioner sought leave, which was duly sanctioned for 4 7.6.1990, and that was extended upto 10.6.1990. The petitioner's wife delivered child on 6.6.1990 at his village. However, it is alleged that the petitioner had to proceed to Sheoganj to procure medicine, and it was, when he was at the bus stand of the Sheoganj, that he found the Enquiry Officer and the Presenting Officer, and he came to know from them, that they are proceeding to Joila Branch, for the purpose of holding the enquiry. However, the petitioner informed the fact that his wife has delivered a child on previous evening, and therefore, he was on leave, and has come to Sheoganj only to procure medicines, and he is not in a position to attend the enquiry, nor in a position to produce any witness on that date. It is also alleged, that while the petitioner was at Sheoganj, he came to know of a function of farewell party of Shri C.L. Suthar, which was incidentally attended by him. However, absence on 7.6.1990 in the enquiry is contended to be on account of want of knowledge of the date, it being not possible for him to produce witnesses, and his being on leave on 7.6.1990, which was extended to 10.6.1990, which leave was duly sanctioned. Enquiry is thus said to have proceeded exparte, and Enquiry Officer submitted the enquiry report after more than three months i.e. on 20.9.1990. A stand has been taken, that on the one hand the Enquiry Officer thought, that the petitioner is delaying 5 the enquiry, and therefore, proceeded exparte while, on the other hand, he took more than three months in submitting the report. Then, vide letter dt. 24.1.1991, a show cause notice was issued to the petitioner, enclosing therewith enquiry report, to which a detailed reply was submitted on 4.2.1991. Copy of the notice, enquiry report and the petitioner's reply has been produced as Annexures 5, 6 and 7 respectively. It appears, that thereafter, Annexure-8 has been passed, dismissing the petitioner from service. An appeal being Annexure-9 was filed against that order, which was dismissed vide Board's order dt. 24.3.1992. The copy of the appellate order has been produced as Annexure-11. Then, the petitioner has sought to plead the precise charges, and the things required to be proved, for proving the charges, and has tried to contend, that the petitioner was no-where responsible for dereliction of duty, as the duty, was that of the Branch Manager, who failed to discharge his duty, and the petitioner has been held guilty by relying upon the statement of that very Branch Manager. The petitioner requested for being supplied the copy of the charge sheet, given to the Branch Manager, and the decision given thereon, but vide letter dt. 9.6.1992, he was informed, that the petitioner cannot be made available the copies of the papers relating to the 6 matters of other staff members. With these averments, the writ petition has been filed. The main grounds given in the writ petition are; firstly about justification for his absence on 7.6.1990, error on the part of the Enquiry Officer in proceeding exparte, and thus a ground of violation of principles of natural justice has been taken. The other ground given is that the petitioner demanded certain documents to defend his case on 3.8.1989, but these were not made available to him. Then, on 30.8.1989 only photo stat copies of some documents were shown but copies were not supplied, copy of the preliminary report was not supplied, and photo stat copy shown was not with the enclosures shown to be enclosed therewith. This objection was got noted on 30.8.1990, these were shown only in the Court but copies were not supplied. Likewise the petitioner was not supplied the copy of the duty list of clerk/cashier as also the Token Book, and thus also violation of the principles of natural justice is contended. It is also contended, that when no original documents were shown, and only photo stat copies were shown, it was observed by the Enquiry Officer himself, that the copies are not legible, and thus the enquiry could not proceed, still on 30.8.1989 Enquiry Officer remarked the copies to be legible, and thus, the petitioner was deprived of the proper opportunity to defend himself. Then, certain grounds have been taken 7 regarding merits of the findings on the charges. The other ground given is, that the enquiry proceedings were unfair, inasmuch as, it was the Branch Manager Mr. D.C. Sharma who failed to discharge his obligation but that aspect has altogether been neglected, and instead, the officer required to be punished, was pitted against the petitioner, by being produced as prosecution witness, and that Enquiry Officer, as also the Presenting Officer, were both junior to the said Branch Manager, and mainly relying upon his evidence, the petitioner has been found guilty. Thus, that witness cannot be said to be independent witness, his evidence cannot be said to be admissible, capable of being relied upon, and acted upon. The other ground raised is, that when on the same charges the criminal case was pending, the petitioner's request for staying the proceedings was wrongly declined. Then, reliability of statements of Sarva Shri P.D. Vaishnav and R.K. Suthar has been assailed. Then, usual grounds have also been taken about the dismissal order being non-speaking. Reply to this petition has been filed by the Bank, inter alia contending, that the charges in the departmental enquiry and criminal case were different, apart from the fact, that both the proceedings can go on together, and therefore, request to stay the departmental proceedings was 8 untenable, the fields of two proceedings are entirely different, and thus there cannot be any hitch or legal obstacle in continuing both the proceedings simultaneously. Regarding filing reply to the charge sheet, it was denied that the reply was filed on 6.7.1986, rather it was received by the Bank on 12.11.1986 only. Regarding non production of Naina Ram, detailed facts were given about his being summoned, one of the letters having been received by him, and then subsequent letters having been refused to be received, or about the addressee being out of station/having left without address. It is pleaded, that it appears, that the petitioner some how pressed, persuaded, and used illegal means, to keep this witness out of the departmental enquiry, using muscle power. This conduct of the petitioner has also been highlighted, to contend, that Article 226 jurisdiction should not be invoked to help person with such conduct. At the time of filing of reply the criminal case was said to be pending. It was pleaded that the petitioner was given full opportunity to cross- examine the witness, which was duly availed by him. Regarding documents, it was pleaded, that the original documents were filed in the Criminal Court, and as such the petitioner was allowed to peruse these documents, he was shown these documents, and allowed to inspect them in the Court itself, and that he was shown the withdrawal form. 9 Thus, as the petitioner had inspected all relevant documents, no grievance can be raised on that count by the petitioner. Regarding the enquiry, proceeding exparte, it was pleaded, that the petitioner deliberately absented, when the enquiry was in active progress, as the petitioner was attending the enquiry on every date, and was cross- examining the witnesses. However, on 26.5.1990 when the petitioner was asked to appear on 28.5.1990, and since he was not present on that day, it was adjourned to 7.6.1990, and was fixed at the place of working of the petitioner, being Joila Branch. It was contended, that there is nothing to show, that the Defence Counsel did not intimate of the date, and thus the plea is a false one, and raised to camouflage. Then, it is also contended, that on 7.6.1990 the Enquiry Officer saw the petitioner at Bus Stand, Sheoganj, informed him personally, and the petitioner did come to the Branch Office, but the petitioner did not come before the Enquiry Officer, and when he was asked to join the enquiry proceedings, which were going on, the petitioner told, that he had come to the Branch only to join the farewell ceremony of Shri Suthar, who was transferred from Joyala to some other Branch, and that, he will participate in the enquiry only if his Defence Representative attends, and there is very likelihood of his not attending the enquiry. It was also pleaded, that 10 surprisingly the petitioner visited the Bank premises where the enquiry was going on, and on being asked to come and join the enquiry, he refused to join the same, on the pretext of his having come only to join farewell. With this conduct, it cannot be said, that he was not given opportunity to participate in the enquiry, so also, does not entitle him to invoke Article 226 jurisdiction. Regarding wife's ailment, it is pleaded, that when the petitioner did come to the Branch to attend the farewell, it does not stand to reason, that he was prevented from joining the enquiry, apart from the fact, that no medical certificate about ailment of wife has been produced. Thus, it is contended, that the petitioner was given adequate opportunity to defend, which was not availed by him, rather time and again he used to request to change his counsel. In all four Defence Counsels were given to him, and it appears, that all this was resorted to by the petitioner to protract the proceedings, and to beguile the trial, rather the petitioner made all efforts to see that the enquiry is not finished. It is alleged that it is the petitioner who did not allow Naina Ram to be produced in the enquiry, being a local person, and he has every means to tamper with the evidence, and all other evidence produced, does prove the case beyond any manner of doubt. Some sequence of dates was given to show, that the petitioner was given adequate 11 opportunity to defend. It was denied that on 7.6.1990 he incidentally attended the farewell. Regarding leave, it was pleaded, that if the incumbent applies for leave while the proceedings are going on, that does not furnish good ground to absent from the enquiry. It was then pleaded, that the petitioner was fully aware of the proceedings being fixed on 7.6.1990. He consciously neglected to appear on that date. It was then pleaded that so far the time taken by the Enquiry Officer in submitting report is concerned, it was pleaded in reply to para B/12, at internal page 14 of the reply, that the Enquiry Officer had to go through the entire record, and was to give finding. The presenting officer submitted the gist of his stand, which was supplied to the petitioner, and the petitioner was expected to submit his counter gist, but then, surprisingly no such counter gist was submitted by the petitioner, and the blame, about lapse of three months, is leveled against the Enquiry Officer, which cannot be accepted. Various other pleadings were taken. However, on facts, it was also pleaded, that the account holder Naina was not a literate person, and the account was opened on his photograph, and he had put thumb mark on the forms, when the account was opened. The document of withdrawal, which purported to bear thumb mark of Naina Ram, thereon, the thumb impression was verified by the petitioner, which on examination by the 12 handwriting expert, did not tally with the thumb impression available on the form of opening the account. Thus, it was contended, that the thumb mark was verified by the petitioner with intent to defraud the Bank in an amount of Rs. 700/-. Regarding circular, it was pleaded, that in the present case the petitioner has not denied to have verified the thumb impression of Naina Ram, rather he has appended initials on the verification, and therefore, if Naina Ram is prevented from coming in the witness box, the petitioner cannot escape from the liability. Then, submitting reply to the grounds, it was contended, that the contention about the circumstances, in which the proceedings were held on 7.6.1990, as pleaded by the petitioner are completely bereft of truth, rather once the enquiry was adjourned, to contend that he absented on the ground, that the petitioner was proceeding on leave, was nothing but an eye wash, the petitioner was present in the bank premises, was requested to participate in the proceedings, but he, point blank refused, on the ground that he has come to attend the farewell, and not the enquiry proceedings, with such conduct, he cannot invoke Article 226 jurisdiction. It was pleaded, that in order to facilitate the petitioner the enquiry was kept at his door step. It was also pleaded, that the petitioner was in habit of remaining on leave as and when there was date of enquiry, and thus was avoiding 13 and trying to prolong the enquiry unnecessarily, notwithstanding this, the petitioner had been given ample opportunity to defend, to inspect the documents, the original documents were shown in the Court, where the documents had been produced in the criminal case, and thus the petitioner was given full opportunity, in the direction of complying with the principles of natural justice. The conduct of the petitioner, as an employee of the bank, was highlighted to support the order of punishment. On merits, it was also contended, that the charges have been duly proved, and have rightly been found to be proved, and that the order has rightly been upheld in appeal. A rejoinder has also been filed by the petitioner, reiterating that Naina Ram was not produced in the enquiry, and it does not behoove to the respondents to take a plea like, that the petitioner somehow pressed, persuaded, and used illegal means, to keep the witness out of departmental enquiry, as there is no material on record in that regard. Then, it was maintained, that the respondents have admitted, that there was no token book introduced in this branch, and no duty list of the cashier cum clerk was also available in the branch, with the result, that if token book was not introduced, that was the fault of the Branch Manager, and for that, the petitioner cannot be held 14 liable, for not adhering to the system of issuing of token. Non issuance of token book was the fault of the Branch Manager, for which the petitioner cannot be held responsible. The Circular, Annexure-12, was again pressed into service, to contend, that it was the Branch Manager alone who was responsible for the lapse, whereas the petitioner has been scapegoat, which clearly makes out a case of discrimination as well. Then, some details were pleaded as to how the petitioner had not been shown the documents desired by him, and the submissions on the anvil of non issuance of Token Book were reiterated. Then, it was pleaded, that for the date fixed, being 7.6.1990, the petitioner was never informed of this particular date, which was obligatory on the part of the respondents, as per circular dt. 24.1.1989, and in case of absence of the party in the proceedings, on the preceding date, to send intimation to the charged official, and where the charged official does not turn up continuously, and if exparte proceedings are resorted to, it is obligatory on the part of the enquiry officer to send notice to charged official, which all had not been done, and therefore, the petitioner remained under bonafide belief, that the petitioner will receive information from enquiry officer about the date of hearing, but no information was received. Then, justification for absence on 7.6.1990, on the ground of 15 wife's ailment was pleaded, and it was contended, that his going to branch for farewell function, which was going on, does not mean that the petitioner had information about the enquiry proceedings, and the petitioner cannot be expected to be prepared for the same, and he could not be in a position to spare so much of time to attend the proceedings, when his wife was seriously ill, and that, his attending farewell was a matter of courtesy, which required his presence for short while, whereas the enquiry proceedings were to take full day, for which he was not available, nor prepared. It was also pleaded, that the petitioner had also proceeded on leave earlier on 7.6.1990, and on 6.6.1990 night his wife delivered a child, he again applied for leave for 8th and 9th, June 1990, which had been sanctioned. It was denied, that the petitioner tried to avoid attending the proceedings on one pretext or the other. Then, regarding absence on certain dates, as pleaded in the reply, rejoinder was given explaining dates. However, it was pleaded that on certain dates intimation was sent by the petitioner, or the Defence Assistant, to adjourn the dates, the date was fixed, and in such cases the adjournments, whichever were sought, were on the grounds which were beyond control of either the petitioner or the Defence Assistant. 16 Then, the petitioner also filed an application on 13.9.2001, praying for taking on record the two documents, being the decision of the criminal court, and that of the Appellate Court, as Annexure-15 and 16. Then, on 17.2.2003, the petitioner filed yet another application for taking on record the statements of certain witnesses recorded in the criminal proceedings, as Annexure-17 to 28, and vide orders dt. 15.10.2001, it was directed regarding first application that application shall be considered at the time of hearing. However, on 15.6.2003 the second application was allowed, and the documents Annexure 17 to 28 were taken on record. In view of the fact that Annexure-17 to 28 have already been taken on record, I think it appropriate to accept the earlier application dt. 13.9.2001, and accordingly the same is allowed, and the documents Annexure-15 and 16, being the certified copy of the judgment of criminal court, and that of the Appellate Court, are also taken on record. I have heard learned counsel for the parties at considerable length, to their heart’s content, rather for days together. 17 The main submission of the learned counsel for the petitioner was, that Naina Ram has not been examined in the enquiry; the petitioner has already been acquitted in the criminal case vide Annexure-16; the petitioner asked for certain documents, more particularly, as to what are his duties, but then they were not supplied, on 30.8.1989 only photo stat copies of the certain documents were shown, and not their originals, the enclosures of the preliminary enquiry were neither shown to the petitioner, nor supplied to the petitioner. Then, it was contended, that the petitioner was not informed about the date of hearing fixed being 7.6.1990, as the petitioner's wife delivered a child on 6.6.1990, and the petitioner was on leave from 7 to 10th June, 1990, still the enquiry was conducted exparte, and completed. Other submission made was, that the main fault was on the part of the Manager, but then, he was not at all proceeded against departmentally, rather he was produced as witness against the petitioner, and on his evidence the petitioner has been found guilty, which is bad. Reliance was placed on the judgment of Hon'ble the Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd., reported in AIR 1999 SC-1416, to contend, that even the already passed dismissal order is liable to be set aside where the delinquent has been acquitted in the criminal case. Then, the judgment of this Court in Himmat Singh Bhati Vs. State 18 of Rajasthan, reported in 2003(4) WLC(Raj.)-155, was relied to contend, that for the same delinquency if different punishments are to be imposed, then reasons have to be recorded, which has not been done in the present case. Then, judgment of Hon'ble the Supreme Court, in Kashinath Dikshita Vs. Union of India, reported in AIR 1986 SC-2118 was relied upon to contend, that on account of non supply of the documents to the petitioner, the enquiry is vitiated. It was reiterated, that it is admitted by the respondents, that no token book was introduced in that branch. Regarding the enquiry, proceeding exparte, reference was made to circular dt. 24.1.1989, however, the contents of that circular was not made known to