1 SBCWP NO.3073/1997. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CIVIL WRIT PETITION NO.3073/1997 Lal Singh Rathore Vs. State Bank of Bikaner & Jaipur and Ors. Date of Order : : 8th June, 2009 PRESENT HON'BLE MR.JUSTICE H.R.PANWAR Dr.P.S.Bhati, for the petitioner. Mr.Jagdish Vyas, for the respondent-Bank. BY THE COURT: Reportable By the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the orders Annexure-10 dated 3rd January, 1994, Annexure-11 dated 31st December, 1993 and Annexure-15 dated 3rd May, 1994 and a direction to the respondents to reinstate him in service with all consequential benefits including the payment of salary, annual grade increments, seniority, further promotion etc. 2 SBCWP NO.3073/1997. Briefly stated facts to the extent they are relevant and necessary for the decision of this writ petition are that the petitioner initially came to be appointed in the year 1977 on the post of Clerk-cum-Godown Keeper. However, he became eligible for the promotion on the post of Junior Management, Grade-I and therefore, applied for the same and was qualified in the written test as well as in interview and thereupon, he came to be promoted on the post of Junior Management, Grade-I w.e.f. 1.11.1988 and has been working with the respondent-State Bank of Bikaner and Jaipur (for short “the respondent-Bank” hereinafter) since then. A criminal case came to be lodged against the petitioner for offences under Sections 420, 467, 468, 471 and 120-B IPC read with Section 5(1)(d) and 5(2) of the Prevention of Corruption Act. The matter was investigated by the C.B.I. and after investigation, on challan being filed by the C.B.I. before the Special Judge, C.B.I. Cases, Jodhpur, the trial proceeded and ultimately, by the judgment and order dated 21st March, 1997 Annexure-1, the petitioner came to be honourably acquitted by the Special Judge, C.B.I. Cases, Jodhpur. However, even after acquittal of the petitioner, a disciplinary enquiry came to be initiated against the petitioner under the 3 SBCWP NO.3073/1997. State Bank of Bikaner and Jaipur (Officers) Service Regulations, 1979 (for short “the Regulations of 1979” hereinafter). A memorandum of charges was issued on 7th May, 1992 purported to be under Chapter-X of Regulations of 1979 vide Annexure-2. The enquiry was held and on completion of the enquiry, the Enquiry Officer submitted the report to the Disciplinary Authority and Disciplinary Authority by communication dated 27th October, 1993 sought objections with regard to the enquiry report vide Annexure-7. The petitioner submitted his objections with regard to the enquiry report vide Annexure-8 dated 17th November, 1993. Apart from the written statement, the petitioner requested the Disciplinary Authority to afford him an opportunity of personal hearing by communication Annexure-9 dated 30th November, 1993. However, the respondent did not afford the opportunity of personal hearing to the petitioner and the Disciplinary Authority (General Manager, Operations) forwarded the enquiry report to the Chief General Manager, as the Chief General Manager being the appointing Authority of the petitioner, for its approval and imposed the penalty of his dismissal from service. The petitioner was served with a communication dated 3rd January, 1994 by the Disciplinary 4 SBCWP NO.3073/1997. Authority imposing the penalty of his dismissal from service of the respondent-Bank. That order came to be challenged by the petitioner by way of an appeal before the Appellate Authority and the Appellate Authority by order Annexure-15 dated 3rd May, 1994 dismissed the appeal of the petitioner. Hence, this writ petition. The respondent-Bank filed reply to the writ petition supporting the orders impugned and contended that the writ petition suffers from delay and laches. In the reply, lodging of the criminal case and the trial of the said case before the Special Judge, C.B.I. Cases, Jodhpur have not been disputed. However, it has been stated that the criminal trial on the same set of facts and also the departmental enquiry can proceed simultaneously and finding arrived at by the respondent-Bank in the disciplinary enquiry cannot be influenced by the acquittal of the petitioner in a criminal case. It is also contended that charge sheet has been issued to the petitioner by the competent Authority with the allegation of serious misconduct alleged to have been committed by the petitioner while working in the Branch of the respondent-Bank at Surana Market, Pali and according to the respondent-Bank, a regular enquiry was held strictly in accordance with law including 5 SBCWP NO.3073/1997. serving of the charge-sheet upon the petitioner supporting the case of the respondents on the facts. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the very basis for initiation of the enquiry against the petitioner was a complaint made by Mohan Lal and Chimna Ram, beneficiaries of the Fixed Deposit Receipt (for short “the FDR” hereinafter) which according to learned counsel for the petitioner, has been withdrawn. According to learned counsel for the petitioner, on the very facts the respondent-Bank lodged the FIR against the petitioner and one Shri M.S.Gaur, the then Branch Manager and after investigation, challan was filed before the Special Judge, C.B.I. Cases, Jodhpur. However, after holding the trial of the case, the petitioner and Shri M.S.Gaur, the then Branch Manager, both were acquitted from the criminal charges. The allegation against the petitioner is that a banker's cheque dated 2nd September, 1988 for a sum of Rs.16,932.10/- in favour of the beneficiaries of the said FDR i.e. Mohan Lal and Chimna Ram against the full and final payment of FDR was prepared. However, indisputably, the said cheque was not prepared by the petitioner but it was prepared by Shri B.L.Bairwa as per 6 SBCWP NO.3073/1997. the requirement under the governing Rules and Instructions, it was the duty and responsibility of the person preparing such cheque to endorse “Account Payee” which has not been done by the Officer preparing such banker's cheque. The said banker's cheque came to be presented for payment before the respondent-Bank on 12th December, 1988 and after usual formalities, the same was paid to the beneficiaries by Shri J.K.Singhvi, the then cashier. The allegation in the memorandum of charges/charge-sheet against the petitioner is after the event of payment on 12th December, 1988 that the petitioner knowingly passed the banker's cheque dated 2nd September, 1988 for the sum of Rs.16,932.10/- in favour of the beneficiaries for making the payment in cash instead of making the payment through the Bank Account and according to the respondent-Bank, for making the payment in cash of the banker's cheque amount was in violation of para 30 Chapter VIII of the Banks Book of Instructions and that act said to be gross negligence and carelessness, alleged to have been displayed by the petitioner as mentioned in the two charges stating therein that such an alleged act of the petitioner exposed the respondent-Bank to a serious financial risk/loss for Rs.16,932.10/-. According to the petitioner, the 7 SBCWP NO.3073/1997. beneficiaries of the banker's cheque did not claim any payment from the bank on any subsequent occasion and therefore, the respondent-Bank was not put to any financial loss/risk. So far as the lost of cheque is concerned, according to learned counsel for the petitioner, the petitioner has no role for the loss of the alleged cheque. Had there been any allegation against the petitioner in respect of losing of the cheque, the respondents would have lodged an FIR which has not been lodged by the respondent-Bank. According to the petitioner, the petitioner was not the person who kept the record of cheque after the payment having been made of the cheque and the respondent-Bank failed to charge-sheet the bank employee who was responsible to keep the record of cheque after the payment having been made of the said cheque. It is further contended that there had not been any evidence connecting the petitioner for taking away or losing of the cheque in question. Even it is not the case of the respondent-Bank that Mohan Lal and Chimna Ram have not taken loan on the FDR amount. They were the beneficiaries of the FDR who took the loan on FDR and that is why, the respondents failed to frame the charge to the effect that Mohan Lal and Chimna Ram have not taken the loan on FDR. 8 SBCWP NO.3073/1997. Learned counsel for the respondents contended that the order imposing the punishment is dated 3rd January, 1994 of the Disciplinary Authority and the order dismissing the appeal filed by the petitioner against the said order of imposing punishment is dated 3rd May, 1994. The petitioner failed to challenge the order of the Appellate Authority dismissing his appeal within reasonable time and the writ petition came to be filed almost after three years on 2nd August, 1997. The writ petition suffers from delay and laches. Learned counsel for the respondent has relied on the decision of Hon'ble Supreme Court in Sudhir Vishnu Panvalkar Vs.Bank of India, AIR 1997 SC 2249. Learned counsel for the respondents further contended that the scope of the interference in the writ jurisdiction is limited in such matters. He has relied on a decision of Hon'ble Supreme Court in Apparel Export Promotion Council Vs. A.K.Chopra, AIR 1999 SC 625. Controverting the contention raised by learned counsel for the respondents, learned counsel for the writ petitioner submits that after dismissal of the appeal filed by the petitioner challenging the order imposing the penalty of dismissal from service, the petitioner was awaiting the order 9 SBCWP NO.3073/1997. of the criminal court since there had been a criminal trial against the petitioner on the same facts and on the basis of same set of evidence, the decision of the criminal court acquitting the petitioner came to be passed on 21st March, 1997 Annexure-1 and thereafter, promptly a writ petition came to be filed by the petitioner. The petitioner was under a legal advice by the counsel that the order dismissing the appeal filed by the petitioner against the order of imposing penalty of dismissal from service can be challenged on the conclusion of the trial of the criminal case and accordingly, under a legal advice, the petitioner remained under impression that the order passed by the Appellate Authority could be challenged after the decision of the criminal court. The petitioner was already acquitted by the criminal court on 21st March, 1997 and thereafter, the petitioner filed the writ petition before this Court and therefore, according to learned counsel for the writ petitioner, it cannot be said that there had been inordinate delay in filing the writ petition challenging the order passed by the Appellate Authority. Even otherwise, according to learned counsel for the writ-petitioner, there had not been any period prescribed for filing the writ petition challenging such order. This fact has specifically been pleaded 10 SBCWP NO.3073/1997. by the petitioner in para 24 of the writ petition and it is contended by learned counsel for the petitioner that at any rate, on account of delay, the petitioner is not going to get anything nor there is any reason for not filing the petition immediately after the order passed by the appellate Authority. Learned counsel has relied on a decision of Hon'ble Supreme Court in Ajaib Singh Vs. The Sirhind Co-operative Marketing- cum-Processing Service Society Ltd. & Anr., AIR 1999 SC 1351. Learned counsel for the petitioner further submits that the writ petition came to be admitted in the month of May, 2002 after service of notice to the respondents and upon hearing learned counsel for the respondents. According to learned counsel for the petitioner, the writ petition is admitted and reply etc. has been filed by the respondents and the whole material is available before the Court to adjudicate upon the matter and to resolve the involved issue. In such situation, in view of the Division Bench decision of this Court in Smt.Pushpa Dave Vs. Rajasthan High Court, RLW 2001(2)Raj. 784, the matter cannot be thrown out only on the ground of delay. According to learned counsel for the petitioner, there is no delay in filing the writ petition and writ petition does not 11 SBCWP NO.3073/1997. suffer from delay and laches. Even otherwise, it is settled law that while considering the question of delay, the Court should first examine the merit and without examining the merit of the case, the matter cannot be thrown out mechanically only on the ground of delay. Learned counsel for the petitioner submits that the petitioner has strong case on merits as also, there is no delay in filing the writ petition and challenging the orders impugned. Even if the Court considers that there is some delay in filing the writ petition, then considering the merit of the case, the delay in filing the writ petition may be condoned and the relief prayed for may be granted. It is further contended by learned counsel for the petitioner that firstly, the charges in the instant case are vague and therefore, the enquiry conducted by the Enquiry Officer is vitiated. Secondly, in the departmental enquiry, the burden of proving the charges always lies upon the department and according to learned counsel for the petitioner, in the instant case, the respondent-Bank failed to prove the charges by reliable evidence since the findings arrived at by the Enquiry Officer, Disciplinary Authority and Appellate Authority are not based on any cogent evidence. Learned counsel has relied on the decisions of Hon'ble 12 SBCWP NO.3073/1997. Supreme Court in Swai Singh Vs. State of Rajasthan, AIR 1986 SC 995 and in State of Madras Vs. G.Sundaram, AIR 1965 SC 1103. According to learned counsel for the petitioner, the witnesses produced by the respondent-Bank did not make statements in examination-in-chief. Only their statements recorded under Section 161 Cr.P.C. in an investigation by Police in criminal case have been produced and tendered in evidence and therefore, the statements of the witnesses recorded in criminal proceedings under Section 161 Cr.P.C. cannot be an evidence to be used against the petitioner in the departmental enquiry. A copy of the statement of the witness produced by the respondent-Bank i.e. Shri B.L.Bairwa under Section 161 Cr.P.C has been placed on record as Annexure-16 and such statement has been used by the Enquiry Officer to prove the charge Nos.1 and 2. Before the Appellate Authority, the petitioner sought to produce the document by an application dated 20th March, 1994. The genuineness of those documents was not in dispute and yet the Appellate Authority in cursory manner denied consideration of such documents which were having bearing on the controversy in issue and therefore, the orders impuged passed by the Enquiry Officer, Disciplinary authority as well as Appellate Authority are 13 SBCWP NO.3073/1997. vitiated. Learned counsel for the petitioner further contended that Shri H.C.Jain was the witness in the list of the witnesses produced by the respondent-Bank. However, the respondent-Bank deliberately withheld Shri H.C.Jain from the enquiry and he was not produced in the enquiry, obviously for the reason that DW2-Shri B.L.Bairwa in his statement before the Enquiry Officer has categorically stated that he has prepared the banker's cheque in question and the said cheque was to be endorsed as Account Payee and it was his duty but he failed to endorse as Account Payee and, therefore, paying the amount of said cheque in cash, is at any rate at the instruction on the cheque since it did not bear the endorsement of Account Payee. So far as the custody of the cheque in question is concerned, according to DW2-Shri B.L.Bairwa who has stated in his statement that after preparing the said banker's cheque, he passed the same to Shri H.C.Jain, the then Accountant and he was responsible for custody of the said cheque after having been passed by DW2- Shri B.L.Bairwa and the said cheque remained in custody of Shri H.C.Jain and Shri H.C.Jain was the person named in the list of witnesses submitted by the respondent-Bank but the 14 SBCWP NO.3073/1997. respondent-Bank deliberately withheld Shri H.C.Jain from the disciplinary eqnuiry failed to produce him as witness and, therefore, an adverse inference as envisaged under Section 114 of the Indian Evidence Act ought to have been drawn against the respondent-Bank. In the instant case, Shri H.C.Jain was a material witness with regard to the preparation and passing of the banker's cheque and its custody to him and non-production of this witness vitiates the enquiry. Learned counsel has relied on a decision of Hon'ble Supreme Court in Hardwari Lal Vs. State of U.P. & Ors., AIR 2000 SC 277. So far as the statements of the witnesses produced by the respondent-Bank under Section 161 Cr.P.C. on which the Enquiry Officer has placed reliance, learned counsel for the petitioner has relied on the decisions of Hon'ble Supreme Court in M/s Kesoram Cotton Mills Ltd. Vs. Gangadhar & Ors., AIR 1964 SC 708 and in Anil Kumar Vs. Presiding Officer & Ors., AIR 1985 SC 1121 and on the strength of these two decisions, learned counsel for the petitioner submits that the entire enquiry is vitiated since the respondent-Bank has taken into consideration the extraneous material without giving the opportunity of rebuttal. It is further contended by learned counsel for the 15 SBCWP NO.3073/1997. petitioner that in absence of direct evidence, the petitioner cannot be held guilty on the basis of circumstantial evidence alone. Learned counsel has relied on a decision of this Court in Lekh Ram Vs. Union of India, 1968 RLW 272. It is also contended that the charges in the criminal case and in the departmental enquiry so far as the petitioner are concerned, are altogether different yet the respondent-Bank imported the statements of the witnesses recorded in the criminal case to hold the petitioner guilty of the charges which were not even the charge in the departmental enquiry but it was only the subject matter of the criminal trial. There had not been any charge making the outside payment to the beneficiaries but the same has been treated having been proved as charge No.2. Learned counsel has relied on the decisions of Hon'ble Supreme Court in Ramesh Chander Gupta Vs. State of Rajasthan & Ors., 1979 SLJ 214 and in Birdhi Chand Vs. Jaipur Development Authority, Jaipur 1992(1) WLC (Raj.) 309. It is also contended by learned counsel for the petitioner that the penalty of dismissal from service imposed by the Disciplinary authority and affirmed by the Appellate Authority is extremely high and disproportionate to alleged delinquency though the delinquency, according to learned 16 SBCWP NO.3073/1997. counsel for the petitioner, has not been established. The enquiry has also been held against Shri H.C. Jain to whom DW2-Shri B.L.Bairwa after making/preparing the banker's cheque passed on the said cheque and he was the person to whom custody of the said cheque was given but for the same transaction, the penalty imposed against Shri H.C. Jain is only censure and thus, the punishment awarded to the petitioner is discriminatory. So far as the custody of cheque is concerned, it is alleged that the said cheque was lost while it was in the custody of Shri Mitha Lal who has not even been charge- sheeted and no FIR has been lodged against him in this regard. So far as the cashier who made the payment, has not even been charge-sheeted and the petitioner has been made scapegoat of the whole issue to which the petitioner has no connectivity. Learned counsel has relied on the decisions of this Court in State of Rajasthan Vs. Amolak Chand Singhvi, 1982 WLN 633, in Vijay Singh Vs. R.S.R.T.C., 1993(1) WLC (Raj.) 577, in Tata Engineering and Locomotive Co. Ltd. Vs. Jitendra Pd. Singh & Anr. 2002 SCC (L&S) 909 and in State of U.P.& Ors. Vs. Raj Pal Singh, JT 2001 (Suppl.1) SC 44. It is further contended by learned counsel for the petitioner that the Appellate Authority did not apply its mind 17 SBCWP NO.3073/1997. what the conclusion arrived at by the Disciplinary Authority. On the contrary, the Appellate Authority simply concurred the findings of the Disciplinary Authority. According to learned counsel for the petitioner, the Appellate Authority is also equipped with the powers to take additional evidence. The petitioner requested to take on record the evidence by supporting certain documents which came to be declined. In last, it is contended by learned counsel for the petitioner that penalty of the dismissal from service do not commensurate with the alleged delinquency and highly disproportionate and shockingly high. Learned counsel has relied on the decisions of Hon'ble Supreme Court in Ram Chander Vs. Union of India & Ors. AIR 1986 SC 1173, in United Planters Association of Southern India Vs. K.G.Sangameswaran & Anr., AIR 1997 SC 1300, in Ranjit Thakur Vs. Union of India & Ors. (1987) 4 SCC 611, in Indian Railway Construction Co.Ltd. Vs. Ajay Kumar, (2003) 4 SCC 579 and in Coimbatore District Central Cooperative Bank Vs.Coimbatore District Central Cooperative Bank Employees Association & Anr. (2007) 4 SCC 669. I have given my thoughtful consideration to the rival contentions raised by learned counsel for the parties. Carefully gone through the material available on record. 18 SBCWP NO.3073/1997. From the record, it appears that Mohan Lal and Chimna Ram deposited a sum of Rs.19,000/- in FDR for a period of five years in the month of June 1983 which was to mature in the month of June 1988. However, before maturity of the said FDR, the beneficiaries of the FDR, namely, Mohan Lal and Chimna Ram borrowed a sum of Rs.15,000/- against the FDR. At the time of payment of maturity, these two beneficiaries came with a case that they did not take the loan of Rs.15,000/-. However, later on, they withdrew their allegation of not taking the loan and accepted having taken a loan of Rs.15,000/- against the said FDR. In the meantime, the respondent-Bank lodged an FIR which came to be investigated by the CBI against the petitioner and Shri M.S.Gaur, the then Branch Manager. After investigation, the challan said to have been filed by the Investigating Agency before the competent court i.e. Special Judge, C.B.I. Cases, Jodhpur. However, indisputably, the petitioner and the said co- accused Shri M.S.Gaur came to be honourably acquitted by the Special Judge, C.B.I. Cases, Jodhpur. The banker's cheque as appears from the evidence on record came to be prepared by Shri B.L.Bairwa as per the statement of DW2-Shri B.L.Bairwa. The said cheque was prepared by him and was 19 SBCWP NO.3073/1997. passed on to Shri H.C.Jain on 2nd September, 1988 for a sum of Rs.16,932.10/- in favour of beneficiaries of the said FDR as against the full and final payment of FDR. It is not the case of the respondent-Bank that the banker's cheque was either prepared by the petitioner or passed on by him. The evidence before the Disciplinary Authority clearly goes to show that the said banker's cheque was prepared by DW2-Shri B.L.Bairwa and passed on to Shri H.C.Jain. The allegation against the petitioner is that the banker's cheque was not marked as Account Payee. When the evidence indisputably is that the said cheque was neither prepared nor passed on by the petitioner, the question of marking and endorsing it as Account Payee does not arise. If a cheque is not marked as Account Payee and passed on by the responsible Bank's Officer then the person making payment has no option except to pay in cash. Even otherwise, the said banker's cheque came to be presented for payment before the Bank on 12th December, 1988 and after usual formalities, the amount of the said cheque was paid to the beneficiaries by Shri J.K.Singhvi, the then Cashier. The charges against the petitioner as mentioned in memorandum of allegation that the petitioner knowingly passed the banker's cheque dated 2nd September, 20 SBCWP NO.3073/1997. 1988 for a sum of Rs.16,932.10/- in favour of beneficiaries for payment of cash instead of through their bank account and made the payment to unauthorised person other than beneficiaries without identification and other formalities contained in Para 30 Chapter-VIII of the