1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3653 of 2004 VINCENT JOSEPH S/O LATE JOSEPH JULIUM, R/O CHRISTIAN QUARTER, BETTIAH, P.O.-P.S. BETTIAH, DISTRICT- WEST CHAMPARAN, AT PRESENT POSTED AS CLERK-CUM-CASHIER IN CHAMPARAN KSHETRIYA GRAMIN BANK, THAKRAHA, IN THE DISTRICT OF WEST CHAMPARAN ……….Petitioner Versus 1. THE CHAMPARAN KSHETRIYA GRAMIN BANK THROUGH ITS CHAIRMAN, HAVING ITS HEAD OFFICE AT RED CROSS BUILDING, FIRST FLOOR, HOSPITAL ROAD, MOTIHARI, DISTRICT- EAST CHAMPARAN. 2. THE BOARD OF DIRECTORS OF THE CHAMPARAN KSHETRIYA GRAMIN BANK THROUGH ITS MANAGING DIRECTOR-CUM-CHAIRMAN, RED CROSS BUILDING, FIRST FLOOR, HOSPITAL ROAD, MOTIHARI, DISTRICT- EAST CHAMPARAN. 3. THE CHAIRMAN-CUM-DISCIPLINARY AUTHORITY, CHAMPARAN KSHETRIYA GRAMIN BANK, RED CROSS BUILDING, FIRST FLOOR, HOSPITAL ROAD, MOTIHARI, DISTRICT- EAST CHAMPARAN. 4. THE GENERAL MANAGER, CHAMPARAN KSHETRIYA GRAMIN BANK, RED CROSS BUILDING, FIRST FLOOR, HOSPITAL ROAD, MOTIHARI, DISTRICT- EAST CHAMPARAN. ……….Respondents ----------- 10. 22.07.2011 This writ petition has been filed, inter alia, for quashing of the order of punishment dated 23.8.2002 (Annexure-1) against reduction of salary, as also the order dated 19.12.2002 passed pursuant to the aforesaid order of punishment and further for quashing the appellate order dated 29.11.2003 (Annexure-3) and for consequential relief. It appears that on 5.2.2001, the petitioner was directed by the Branch Manager of the respondent Bank, to encash a cheque from Central Bank of India, Bettiah, and carrying the same to Pakhwaha Branch of the respondent Bank where the petitioner was posted. After making the withdrawal, the cash was kept by him 2 under lock in the dicky of his motor cycle and he then proceeded for Pakhwaha. It appears that en-route, he encountered a census procession of over 20,000 school children, which is said to have delayed him in reaching his destination. On arrival he found the lock of the dicky of the motor cycle open and the cash bag missing. He thus took steps to inform the Branch Manager of the Bank and subsequently on his Fard Bayan being forwarded to Bettiah, the Bettiah Town P.S. Case No. 36 of 2001 came to be instituted. In due course, disciplinary proceedings were initiated against the petitioner and three charges were framed against him to the following effect as follows:- Charge No. 1- Petitioner traveled a distance of 13 Kms.in about one hour time by stopping in the way, but did not keep his eye on the amount of the branch even for once, which is highly objectionable and is an example of dereliction of duty on his part. Charge No. 2- While the petitioner was posted in Sargatia Branch of the Bank, theft was committed in the Branch due to his negligence and cash was stolen and the loss amount was also recovered from him and, therefore, he should have been more vigilant and attentive in course of remittance of the sum of Rs. one lac. Ignorance of the earlier lapses on his part shows lack of his sincerity towards the Bank. Charge No. 3- Vide H.O. letter No. 0/25/2000-01/CMS/459, dated 7.2.2001 he was directed to deposit of the saie letter, but the said direction was disobeyed and the amount was not deposited by him. In 3 this connection, a representation was submitted by him on 15.2.2001, which was said to have been found unsatisfactory and again an opportunity was given to him to deposit the amount within 15 days vide letter No. H.O./ 25/200/2001/ CMS/464, dated 21.2.2001. All the above said directions were over looked and disobeyed by him as he has not yet deposited the said amount. It further transpires that after police investigation in the aforesaid Bettiah P.S. Case No. 36 of 2001, the police submitted final form on 14.7.2001 stating that while the occurrence in question was true, however, no clue had been found. As against the loss of the cash amount of Rs. 1,00,000/- the petitioner was directed to make good the loss. The petitioner however, requested that he should be called upon for recovery only in the event of refusal on the part of the insurance company to compensate the loss suffered by the Bank. It transpires that the insurance company did indeed compensate the Bank partially to the extent of Rs. 73,622/- and in this view of the matter only the differential amount of Rs.26,378/- with 16% interest was directed to be recovered from petitioner. It has been submitted by learned counsel for the petitioner that the impugned orders are wholly illegal and unsustainable. He submits that the three charges framed against him as narrated above are ex 4 facie untenable and the impugned punishment order dated 23.8.2002 could not validly have been passed by finding the petitioner guilty thereof, much less affirmed in appeal as done. As regards charge no. 1, he submits that he was duly diligent throughout the journey. It would be physically impossible to him to have kept his eye on his dicky while at the same time eyes keeping his on the road while riding the motor cycle. He also complains that he was provided neither escort nor vehicle nor were safety and security to both life and property ensured, which are always at risk in such circumstances. With regard to the charge no. 2, he submits that it relates to a previous charge for which separate disciplinary proceedings have already been concluded and the same has nothing to do with the present occurrence. In respect of charge no.3, it is submitted that the same is really in substance part of charge no. 1 itself and relates to recovery of amount. It is also the case of the petitioner that along with the charges neither list of witnesses was supplied nor the various documents enumerated in para 33 of the writ petition were supplied by the 5 management, despite specific request made by the petitioner. It transpires that three management witnesses had been examined. While the second and third witnesses did not state anything against the petitioner, the third has supported the petitioner’s version. The first witness after his cross-examination was illegally permitted to be re-examined by the management without, however grant of any further opportunity of cross-examination by the petitioner. Learned counsel for the petitioner also challenges the validity of the appellate order, which has been issued under the signature of the Chairman of the Board of Directors of the respondent bank, who also happens to be the disciplinary authority. It is the further case of the petitioner that the entire amount of Rs. 1,00,000/- had been directed to be recovered from the petitioner even before he had been found guilty for the said loss in a duly constituted disciplinary proceeding. Besides the very fact that the insurance company had compensated the bank with an amount of Rs. 73,622/- itself intrinsically established that the petitioner was not guilty of negligence, as the insurance company does not cover cases of negligence. Moreover, the fact that the police had submitted final form in Bettiah P.S. Case No. 36 of 2001 having been 6 found the occurrence to be true, has also not been given its due weight. Learned counsel appearing for the respondent Bank supports the impugned order passed against the petitioner stating that the petitioner was found guilty after the charges against him were duly proved in accordance with law and on the basis of evidence and materials brought before the enquiry officer. He also relies upon the decision in 2010 (10) SCC 539 (para 34) (Mohd. Yunus Khan Vs. The State of U.P.) for the proposition that past incidents and conduct were required to be incorporated in the articles of charge and this requirement has therefore also been complied with in the shape of charge no.2. Besides past conduct provided a good indicator of the behaviour of the petitioner which was a material consideration in establishing the petitioner’s guilt. Having perused the materials on the record and heard the parties at length, this court is of the view that in the facts and circumstances of the case, the punishment order dated 23.8.2002 (Annexure-1) cannot be faulted as being arbitrary and without application of mind. It is difficult to conceive that any prudent person specifically entrusted with the task of 7 carrying a sum of Rs. 1,00,000/- in cash on his motor cycle would not take a diversion to avoid a 20,000- strong procession and take an alternative route if that were not possible then to wait some distance away until the procession dispersed in due course. It is difficult to imagine that the petitioner would have been so unmindful as to have been completely unaware of the lock of the dicky having been broken, and to have discovered the same only after arrival at his destination. It would further appear that procedural lapses in the conduct of the enquiry, if any have also not acted to the prejudice of the petitioner who has duly participated in the entire disciplinary proceeding as well as the appellate proceedings. Coming to the quantum of punishment awarded to the petitioner and computed in terms of the order dated 19.12.2002 (Annexure-2), the same does appear disproportionate and excessive in the facts and circumstances of the case. The fact that adequate compensation has already been received from the insurance company and also that carrying cash of Rs. 1 lac in a motor cycle is itself inherently fraught with risk and jeopardy, are relevant factors which cannot be lost sight of. 8 To the limited extent relating to the quantum of punishment, therefore, the matter is hereby remitted to the disciplinary authority for taking a fresh decision in the light of the above observation, which should be done by a speaking order within a period of four months hereof. This writ petition is accordingly disposed of. Fahad. ( Vikash Jain, J. )