CWP No. 19093 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 19093 of 2009 Date of Decision : 11.12.2009 Yash Pal Mangla .......... Petitioner Versus The Board of Directors, Malwa Gramin Bank and another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. R.K. Malik, Sr. Advocate with Mr. Surya Pratap Singh, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This writ petition under article 226 of the constitution of India has been moved to challenge the order of Punishment as well as the appellate order passed against the petitioner. The petitioner was charged on the following grounds :- “That in contravention of terms of the instructions in para 19 of chapter IV of The Malwa Gramin Bank (Officers and Employees), Service Regulations, 2001 he on 27.11.2004, embezzled the bank cash amounting to Rs. 25,000/- by making a debit entry of Rs. 25,000/- in his Cash Payment Scroll at Sr. No.5 mentioning there against SB A/c No. 213 whereas there was no voucher / debit authority from the above said account holder and the balance of the account was only Rs. 430 as on 27.11.2005. CWP No. 19093 of 2009 2 Consequently when the concerned Saving ledger No.2 was balanced as on 31.3.2005 and there was a difference of excess balance of Rs. 25,000/- during balancing of accounts by the Clerk-cum- Cashier, he (Sh. Yash Pal Mangla) decreased the grand total of balance book no.2 by Rs. 25,000/- to make it read as Rs. 344042.35 from actual grand total of Rs. 369042.35 so shown the clerk/cashier. He also wrote “tallied and put his signatures in the Balance Book Furthers he mislead the Head Office by wrongly certifying in the various certificates (MMC) sent to Head Office as on 31.3.2005 that all the accounts are tallied at the Branch. Sh. Mangla thus embezzled the Bank cash amounting to Rs. 25,000/- and with a view to conceal / cover his misconduct altered the Branch records and mislead the Head Office which acts on his part a re considered as unbecoming of a bank office and are detrimental to the interests of the Bank. Sh. Yash Pal Mangla, thus contravened regulation 19 of The Malwa Gramin Bank (Officers and Employees), Service Regulations, 2001, which constitutes misconduct in terms of regulation 38 ibid and has rendered himself liable for disciplinary action under Regulation 38 ibid.” The petitioner denied the allegations. Enquiry officer was appointed. The Enquiry Officer found the charges proved. A specific finding was recorded that the defence raised by the petitioner was based on evidence created subsequently to cover up his lapse. CWP No. 19093 of 2009 3 The Enquiry Officer on consideration of evidence, recorded the following findings :- “ The decision by the I.A. has been taken keeping in view the circumstances created by the DW-1 in the enquiry. Otherwise full opportunity has been provided to the defence by allowing them additional defence documents and their no relevant question has been refused in the enquiry proceedings held today.” viii. As regards the plea of the defence that the entry of Rs. 25000/- has been made in the passbook of SB A/c No. 376 of Gram Panchayat Nagla, it is not a concrete proof of establish that the payment of Rs. 25000/- was actually made in SB A/c No. 376 in as much as all the entries in the passbook are made in the handwriting of OPA and there is no other entry in the passbook subsequent to 27.11.2004. There is scope for the OPA to change the passbook or for making superfluous entry in the passbook to create evidence to show that payment was received by Gram Panchayat, Nagla. The circumstances of the case as mentioned above when viewed in totally, reflect that the OPA has tried to make a concocted story to save himself. ix. The plea of the OPA that the Panchayat Authorities received the payment of Rs. 25000/-, which could not be posted in the ledger on the material date, came for rectification, the rectification was not made for the best reasons known to the present Branch Manager, is not tenable in as much as the payment is shown to be made in SB A/c No. 213 by the OPA (in Ex.P-4) CWP No. 19093 of 2009 4 himself without any debit authority and without any sufficient balance SB A/c No. 213. An FIR in this re gar d was also lodged against the OPA for alleged embezzlement of Rs. 25000/-. Under such circumstances, the present Branch Manager of Bhai Ke Pishore Branch has rightly not agreed to adjust the entry of Rs. 25000/- shown to be made in SB A/c No. 213 with the SB A/c No. 376 of Gram Panchayat, Nagla. x. Further, the plea of the officer that the difference of Rs. 25000/- was recorded by him in the balance book ( Ex.P-8) and no alteration was made, is not tenable as it is a matter of enquiry record that the difference of Rs. 25000/- was mentioned by Sh. Varinder Kumar Clerk-cum- Cashier (PW-3) in ex.P-8 who made balancing of the SB A/c but it is the OPA who shown as tallied the ledger No.2 by mentioning the wrong totals as Rs. 3,44,042.35 in Ex.P-8, whereas actual grand total come out as Rs. 3,69,042.35. xi. The further plea of the OPA that e has not mislead the Head Office through MMC, is totally wrong a s he has mentioned therein that all the accounts are tallied as on 31.3.2005 whereas in SB ledger No.2 there was a difference of Rs. 25000/- as mentioned above. Sh. Varinder Kumar was deputed to Bhai Ke Pishore Branch to provide clerical support to the Branch and not only for balancing of the ledgers as pleaded by the OPA. The contention of the OPA that the pending balancing was in the knowledge of the Head Office is without any substance. Xii. As regards the plea of OPA that the CWP No. 19093 of 2009 5 passbook pertaining to SB A/c No. 376 and police finding on FIR against him were not allowed as defence documents, it is observed that the passbook was very much allowed as additional defence document as annexure along with Ex. D-4. However, the copy of police findings on FIR lodges by the bank against the OPA was not allowed as neither it was in possession of the Bank nor the bank’s charge was based on the police findings. The departmental proceedings of the bank are separate and independent of the criminal proceedings. After considering the complete proceedings, all the documents brought on enquiry record, deposition of the witnesses and after applying my mind dispassionately and considering the case in entirety, I find that Sh. Yash Pal Mangla, embezzled the bank cash amounting to Rs. 25,000/- on 27.11.2004 and with a view to conceal / cover his misconduct, altered the Branch record and misled the Head Office. Therefore, the charge contained in the charge sheet date: 16.7.2005 served upon Sh. Yash Pal Mangla, has been considered as fully proved.” Notice was issued to the petitioner along with the report of the Enquiry Officer. The petitioner submitted reply to the show cause notice and also raised objections to the findings recorded by the Enquiry Officer. The disciplinary authorities after considering the matter in detail agreed with the findings of the Enquiry Officer and keeping in view the charges leveled against the petitioner imposed a punishment of dismissal from service as charge against the petitioner was that of embezzlement. CWP No. 19093 of 2009 6 The appeal filed by the petitioner also failed. The petitioner approached this Court by filing the Civil writ Petition No. 1775 of 2007, which was disposed of on 5.9.2008 by directing the appellate authority to give an opportunity of hearing to the petitioner and thereafter pass appropriate order. In pursuance to the order passed by this Court, the appeal on recommendation also stand dismissed. The learned Sr. counsel for the petitioner has challenged the order of punishment as well as the appellate authority on the plea that this is a case of no evidence, and that the petitioner has been punished because of inadvertent clerical mistake. In support of the submissions the learned senior counsel appearing on behalf of the petitioner relied on the averments made in para 15(i), of the writ petition which reads as under :- In nut shell the allegations against the petitioner was that he has withdrawn Rs. 25,000/- from the Account No. 213 belonging to one Kuldeep Singh and embezzled the said amount. In nut shell the reply of the petitioner was that in fact it was a typographically mistake in fact Karamjit Singh Sarpanch of Gram Panchayat, Nagla, account holder of A/C No. 376, has withdrawn the said amount of Rs. 25000/- and wrongly mentioned account No.213. In support of this, the Sarpanch has given his affidavit and also brought to the notice of the authority, the register of the Panchayat wherein he was authorized to withdraw Rs. 25000/- from the account of the Panchayat No. 376. Even the said Kuldeep Singh, CWP No. 19093 of 2009 7 account holder No. 213 has also given in writing that he has not withdrawn any amount, rather there was only few Rs. 430/- in his account. Rather he also brought to the notice of the Bank that Sarpanch of his village has drawn Rs. 25000/- in his presence. So in view of the above circumstances and evidence produced before the enquiry officer, there was no mistake on the part of the petitioner except a clerical error. So the petitioner has been punished without any fault and present was a case of no evidence. The pass book of the Account No. 376 of Gram Panchayat Nagla showing the detail from 2004 to 2005, is attached as Annexure P/18. The details of the saving account No. 213 of Kuldeep Singh is attached as Annexure P/19. The cash book of the Panchayat of village Nagla showing the statement from 1.10.2001 to 30.11.2004 and 1.12.2004 to 11.7.2005 to this effect is attached as Annexure P/20. By perusing these documents it is clear that although in the pass book of the Gram Panchayat Nagla entry of Rs. 25,000/- was made on 27.11.2004 but since no entry has been made in the bank account. So the bank account has still shown Rs. 81177/- in the account of the Panchayat which was prior to 27.11.2004. The saving account No. 213 of Kuldeep Singh also demonstrate that there was not even Rs., 25,000/- in his account but due to typographical mistake the said amount was shown to be deducted from the said account. Apart from that it is clear from the cash book of Panchayat that in Oct. 2004 the balance has been shown in Malwa Gramin Bank CWP No. 19093 of 2009 8 Pishore Rs. 81177/-. While in the month of Nov. 2004 the said amount was shown Rs. 56177/- which clearly demonstrate that the Gram Panchayat has withdrawn the amount from the bank. So by perusing these documents P/18 to P/20 any reasonable person will reach to a conclusion that it was only a clerical mistake, the amount was withdrawn by the Gram Panchayat from the account No. 376 but inadvertently the said amount was not shown to be drawn by Gram Panchayat but shown to be drawn from Account No. 213 where there was not even amount of Rs. 25,000/- in the said account. It is necessary to mention here that in the saving long book on 27.1104 there is a entry that Rs. 25,000/- have been withdrawn from account no. 213 and said entry in the saving long book has been made by the clerk-cum-cashier Sh. Mahesh Kumar. This clearly demonstrate that the cashier cum clerk could only make entry on the saving long book on the basis of some withdrawal from (Debit Authority). So the averments made in the impugned order that there is no withdrawal form/cheque debit authority is totally contrary to the record. The petitioner has requested for supplying the copy of the agenda which was supplied vide letter dated 6.10.09. The copy of the forwarding letter dated 6.10.09 and the copy of the agenda to this effect is attached as Annexure P-21.” The contention of the learned senior counsel for the petitioner was that the appellate authority did not taken into consideration the CWP No. 19093 of 2009 9 documents produced by the petitioner, as ordered by this Court while considering the appeal. It is further the contention of the learned senior counsel for the petitioner that the documents placed by the petitioner before the appellate authority leaves no doubt that it was merely a clerical mistake, and the charge of embezzlement was not proved. The learned senior counsel for the petitioner also contended that the criminal proceedings were also initiated against the petitioner in which he was not found guilty by the police authorities, and was discharged. Thus, it is contended that the impugned order deserves to be set aside. On consideration, I find no force in the contentions raised by the learned Sr. counsel for the petitioner. The finding of the enquiry officer as well as the appellate authority would show that by way of documentary evidence it was proved that the record was not properly maintained to cover up the embezzlement. Before the enquiry officer in spite of order the necessary register was not produced by the Sarpanch, therefore, the enquiry officer drew adverse inference. Furthermore a positive finding has been recorded by the Enquiry Officer, the disciplinary authority, as well as the appellate authority that the evidence produced subsequently is created to cover up the lapses. The contention of the learned senior counsel for the petitioner that it is a case of no evidence cannot be sustained and deserves to be rejected. The contention of the learned senior counsel for the petitioner that in view of the finding by the police it cannot be said that the petitioner CWP No. 19093 of 2009 10 was guilty of embezzlement, also is devoid of any force, as criminal proceedings and departmental proceedings are independent of each other. Mere discharge / acquittal by Criminal Court, the departmental action cannot be set aside. No merit. Dismissed. 11.12.2009 ( VINOD K. SHARMA ) 'sp' JUDGE