IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.6606 of 1993 Date of decision: 18.02.2010 Harbans Lal ….Petitioner versus Bank of India and others .…Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. H.C.Arora, Advocate, for the petitioner. Mr. Ravi Verma, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. I The factual basis for litigation 1. The petitioner, who was a staff Clerk-cum-Cashier, had been charge-sheeted for gross misconduct of embezzlement and forging of bank accounts in the course of his duty. The misappropriation attributed to the petitioner was the misconduct of receiving monies from customers which had not been entered into their accounts but misappropriated by the petitioner. The proceedings initiated against the petitioner was on the basis of complaints from the affected customers and the enquiry resulted in the proof of guilt. The petitioner was reported to have given a letter of confession about the misdemeanor on his part and he was Civil Writ Petition No.6606 of 1993 - 2 - alleged to have sought for condonation on the ground that he had redeposited the moneys in the respective accounts. This statement in confession was withdrawn at the time of enquiry but still on the basis of evidence adduced before the Enquiry Officer, he had given a report finding the charges to have been established. 2. The disciplinary authority on receipt of the report, had provisionally concluded that the charges had been established and he issued a show cause notice on the proposed punishment on 27.10.1992 and furnished to the petitioner the report of the Enquiry Officer along with the show cause notice. The petitioner has given his objections to the show cause notice and given a personal hearing on 09.11.1992. The disciplinary authority found that there was no reason to differ from the findings of the Enquiry Officer and affirmed the guilt and inflicted the punishment of dismissal. In the appeal to the Appellate Authority, the petitioner had submitted copies of affidavits of two of the customers withdrawing their complaints but the Appellate Authority proceeded to examine the appeal on the grounds urged by the petitioner and confirmed the decision of the disciplinary authority by his decision dated 24.04.1993. It is the decision of the disciplinary authority and the order passed in appeal that are challenged in the writ petition II. Grounds of challenge by petitioner 3. The foremost grounds of challenge are that (i) out of the three customers, who were reported to have given complaints against the petitioner for temporary misappropriation and forging wrong entries, two of them had not been examined before the Enquiry Officer and the Civil Writ Petition No.6606 of 1993 - 3 - finding of guilt against the petitioner was on the basis of no evidence at all and the ultimate findings were therefore vitiated; (ii) the Enquiry Officer’s report had not been furnished to the petitioner before the show cause notice was issued by the disciplinary authority against the punishment proposed and that he was grossly prejudiced in being not afforded the opportunity to contest the same. The ultimate punishment was the result of prejudged conclusion and hence vitiated. III. Non-examination of 2 of the complainants, effect of 4. On the first contention that the Enquiry Officer’s report was vitiated by the fact that the persons, who had complained, had not been examined, it will have to be understood in the context of the imputations against the petitioner and the nature of evidence that had been adduced before the Enquiry Officer. Charges Nos.1 and 2 related to receipt of amounts of Rs.11,000/- and Rs.16,000/- on 04.05.1991 and 10.05.1991 respectively from a customer by name Shri Mohan Lal and Smt. Kamla Vermani when after receiving the money, he had not entered the amounts in the respective accounts but issued counterfoil receipts as though the amounts had been deposited in their accounts while still retaining the moneys with him. Charge No.3 was connected with the first two incidents that on 16.09.1991 yet another customer Subhash Chander had deposited Rs.65,000/- along with pay-in-slip to credit the amount to his SBI account but the petitioner had dishonestly misappropriated the cash of Rs.27,000/- to deposit the amounts to the account of Kamla Vermani in joint account No.24433 to make good the previous misappropriation of Rs.27,000/- and retained the remaining Rs.38,000/- in his drawer Civil Writ Petition No.6606 of 1993 - 4 - which on a surprise inspection at about 11 A.M. revealed the excess cash in his custody. On being confronted with the availability of excess cash, the petitioner was reported to have confessed his guilt and given his statement on 16.09.1991 in the presence of some witnesses. This statement, as I have stated already, was resiled in the course of enquiry before the Enquiry Officer. 5. Before the Enquiry Officer admittedly Mohan Lal and Kamla Vermani had not been examined. However, the written statements given to the Chief Manager on 16.09.1991 was spoken to by one Sukhbir Singh, who gave evidence to the effect that he was present at the time when the complaint was handed over to the Chief Manager which had referred to the incidents about the fact that Shri Mohan Lal had come to the Bank on a subsequent date to have the entries in the passbook recorded for the amounts meant to be deposited and how he found that the amounts had not been credited to his account. Sukhbir Singh gave evidence to the effect that the counterfoil signed by the petitioner on a subsequent date had not been accounted for in the books of the Bank. Among the other witnesses namely, I.S. Dosanjh, R.K.Behal and B.B.Mannan, the first of them had given evidence about his presence at the time when the complaints were handed over to the Manager and also the presence of B.D.Mannan and R.K.Behal at the time when the confession statement has been given by the petitioner admitting to the guilt. As regards the 3rd charge, Subhash Chander himself was present to give evidence about the fact that the petitioner had accepted cash of Rs.65,000/- from him along with unscrolled pay-in-slip to the credit of Civil Writ Petition No.6606 of 1993 - 5 - his account No.8389 and instead of getting the same accounted in the bank passbook, he had dishonestly misappropriated Rs.27,000/- for depositing it in some other account which turned out to be the account of Kamla Vermani and even the remaining amount of Rs.38,000/- had not been shown to have been immediately deposited in his account but kept in cash which was noticed on a surprise inspection. There was cogent evidence from Subhash Chander himself and produced the pay-in-slip with the signature of the petitioner for the fact that he had attempted to deposit Rs.65,000/- through the petitioner. IV. Statement of witnesses who were present when complaint was given, not hearsay 6. The Enquiry Officer had himself noted that Mohan Lal and Kamla Vermani had not been examined but he had relied on the statement of witnesses, who were present at the time when the complaint had been filed and the signatures identified by the witnesses as belonging to the petitioner for making false entries as though the amounts had been received from Mohan Lal and Kamla Vermani but not brought to their accounts in the Bank. As regards the evidence of Subhash Chander, the fact that excess money had been found in the custody of the petitioner was also spoken to by the Bank witnesses themselves and the Enquiry Officer, therefore, found the guilt as having been clearly established 7. The learned counsel appearing for the petitioner relies on the decision of Kuldeep Singh Versus The Commissioner of Police and others-JT 1998(8) SC 603 that held that using statements of witnesses which are but hearsay was a case of no evidence and absence of complainants would mean that there was no complaint in the eye of law. Civil Writ Petition No.6606 of 1993 - 6 - This decision was referred to by the learned counsel appearing for the petitioner to say that when Mohan Lal and Kamla Vermani had not been examined, the Enquiry Officer must have found that there was no evidence at all with reference to the said complaints. The learned counsel appearing for the respondent, however, points out that this position must be understood in the factual context of the availability of other evidence and in this case three witnesses had spoken about the fact of the drawing of complaint by Mohan Lal and Kamla Vermani and they being personal witnesses to the fact of handing over of the complaints to the Manager. Such a type of situation was dealt with by the Hon’ble Supreme Court in J.D.Jain Versus State Bank of India-1981(3) SLR 175 , where the Hon’ble Supreme Court dealt with the situation of an oral statement relating to deposit with the cashier which had not been recorded and when the evidence of a witness, who was present at the time when oral statement was given, was tendered before the Enquiry Officer, the Hon’ble Supreme Court held that such evidence of a person, who was present at the time when oral complaint was given, was not hearsay and evidence of such a person, who was not the complainant, could itself afford proof of what the complainant had stated. In this case, the evidence of witnesses, who were present at the time when the complaints had been signed, was very much available. The Enquiry Officer was, therefore, perfectly justified in relying on the statements and finding that Rs.27,000/- had been received from them but not accounted by the petitioner immediately by entering them in their accounts. The finding of guilt was not merely with reference to the misappropriation of money Civil Writ Petition No.6606 of 1993 - 7 - from the aforesaid two persons but another customer, who had actually come to deposit with the Bank a sum of Rs.65,000/- but he had been merely given the counterfoil of pay-in-slip signed by the petitioner and when the amount had still not been deposited in his account, the excess cash had been found in the custody of the petitioner and that had been spoken to by the witnesses. The finding of guilt by the Enquiry Officer was, under the circumstances, perfectly justified. 8. An attempt was made by the petitioner to state that the Appellate Authority had not given him sufficient opportunity to tender affidavits of Mohan Lal and Kamla Vermani, who had given statements to the effect that their money had not been misappropriated. The counsel for the respondents states that the very same Mohan Lal had given a further statement before the Appellate Authority that he had given an affidavit under the compulsion of the petitioner himself. One thing could be noticed that the petitioner was trying to tamper with the evidence and the fact that he was able to file some affidavits before the Appellate Authority itself explains why those two witnesses could not be presented before the Enquiry Officer by the Presenting Officer. Even without reference to the statement of the two persons, I have already pointed out that the statement of Bank officials of their presence at the time when the complaints were drawn, signed and handed over to the Manager, was sufficient proof that a complaint had been given by customers. The petitioner had also attempted to give evidence before the Appellate Authority that Mohan Lal and Kamla Vermani after giving the money had taken back the amounts. This explanation given by the petitioner Civil Writ Petition No.6606 of 1993 - 8 - was found by the Appellate Authority to be inconsistent with the whole version of how the petitioner had issued receipts in his handwriting and when the entries had ultimately been made in the accounts of Mohan Lal and Kamla Vermani as though amounts had been deposited on a later date, which became possible by misappropriating Rs.27,000/- from Subhash Chander. The finding of the guilt of the petitioner in relation to the charges is unexceptional and it was clear that the petitioner was trying to cook up a false story to escape the finding of guilt. V. Non-supply of Enquiry Officer’s report before show cause notice not to affect the decision, if prejudice is not shown. 9. The issue that still remains to be answered would be whether the non-supply of the report of the Enquiry Officer before issuing a show cause notice against the proposed punishment vitiated the whole enquiry. The learned counsel refers to a decision of this Court in Mushlim Khan Versus Dakshin Haryana Bijli Vitran Nigam Limited and others-2008 (2) SCT 610 , and the decisions in Jitender Singh Versus State of Haryana and others-2006(3) SCT 352, and Ramesh Kumar Versus State of Haryana and others-2006(3) SCT 799 , that where the Enquiry Officer and punishing authority are different persons, the enquiry report must be supplied to the delinquent before forming of any opinion by the punishing authority as to the correctness of findings of Enquiry Officer and the proposed punishment so as to enable him to represent against the findings of the Enquiry Officer. The non-supply of copy of enquiry report before confirming the evidence of the Enquiry Officer and providing a copy of the same only with the final show cause notice, according to the learned counsel for the petitioner, are violative of Civil Writ Petition No.6606 of 1993 - 9 - principles of natural justice, as held by the Hon’ble Supreme Court in Union of India Versus Mohd. Ramzan Khan-1991(1) SCC 588 and Managing Director, ECIL, Hyderabad and others Versus B.Karunakar-(1993) 4 SCC 727. The decision of this Court in Ramesh Kumar and in Jitender Singh must be understood in the context of the particular situations where the Court found that even the Enquiry Officer’s report had not been supplied along with the show cause notice. Mushlim Khan adverts to the inconsistency that it has noticed in the judgment of Ramesh Kumar with the principles of law laid down in Mohd. Ramzan Khan and Karunakar’s case and has referred the matter to a larger Bench for consideration on a formulation of point namely whether the agreement (concurrence) recorded by the disciplinary authority in the show cause notice with the findings of the Enquiry Officer violates the principles of natural justice. The Bench has noted that even Karunakar makes specific reference to the fact that it was not required for the disciplinary authority to record separate reasons than those given by the Enquiry Officer and that it is not always necessary that the Enquiry Officer’s report must be supplied to the petitioner before the show cause notice was issued. Although the matter has been referred to a Bench, I still hasten to state that the decision need not wait even for a decision by a larger Bench in view of a decision of the Hon’ble Supreme Court in Haryana Financial Corporation Versus Kailash Chandra Ahuja-(2008) 9 SCC 31, that squarely answers the issue and which explains the Constitutional Bench’s decision in Karunakar. The Hon’ble Supreme Court said, “from the aforesaid decisions, it is clear Civil Writ Petition No.6606 of 1993 - 10 - that though supply of report of the Inquiry Officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non-supply of report of the Inquiry Officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” In view of the settled position, a party, who complains that an Enquiry Officer’s report has not been furnished when the disciplinary authority was a different person, could not be urged that the punishment is vitiated unless prejudice is shown to a party. 10. In this case, the ultimate decision affirming the guilt was taken by the disciplinary authority only after supplying the report of the Enquiry Officer and after an explanation was given and when a right of personal hearing was also afforded to the petitioner by the disciplinary authority before the punishment was awarded to him. Whatever irregularity that was committed by not supplying the Enquiry Officer’s report before reaching a provisional conclusion that the Enquiry Officer’s report was found acceptable, it was made good by receiving the delinquent’s objection and also giving him a right of personal hearing before the ultimate decision of dismissal was made. In this case, the guilt of the petitioner had been proved to the hilt and it cannot be said that the Civil Writ Petition No.6606 of 1993 - 11 - petitioner was in any way prejudiced by the manner of conduct of enquiry or how the ultimate order of dismissal was made by the disciplinary authority. 11. The decisions of the disciplinary authority and the Appellate Authority are very well reasoned and make cogent reasoning on how the petitioner was guilty of the charges attributed to him. The writ petition is wholly without merit and is dismissed accordingly. (K.KANNAN) JUDGE 18.02.2010. sanjeev