IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3342 of 2004 SHAMS NAWED SON OF MD.YASIN, RESIDENT OF VILLAGE SONTHA, POLICE STATION KOCHADHAMAN, DISTRICT KISHANGANJ-PETITIONER Versus 1.VAISHALI KSHETRIYA GRAMIN BANK THROUGH THE CHAIRMAN, HEAD OFFICE, SHARMA COMPLEX, KALAMBAGH CHOWK MUZAFFARPUR 842001 2.THE CHAIRMAN-CUM-DISCIPLINARY AUTHORITY, VAISHALI KSHETRIYA GRAMIN BANK HEAD OFFICE SHARMA COMPLEX KALAMBAGH CHOWK, MUZAFFARPUR 842001 3.THE BOARD OF DIRECTORS APPELLATE AUTHORITY THROUGH THE CHAIRMAN, VAISHALI KSHETRIA GRAMIN BANK, HEAD OFFICE SHARMA COMPLEX, KALAMBAGH CHOWK, MUZAFFARPUR- 842001----- --RESPONDENTS ----------- For the petitioner :Mr.Firoz Ahmad, Advocate For the respondent Bank:Mr.Prashant Vedasan, Advocate ----- 6. 16.12.2010 The writ application has been filed for quashing of the order dated 10.1.2003 (Annexure-5) passed by the Chairman-cum-Disciplinary Authority, Vaishali Kshetriya Gramin Bank by which a punishment has been imposed upon the petitioner of degradation to one stage lower in the incremental scale for one year under Regulation 30(1)(c) of the Vaishali Kshetriya Gramin Bank (Staff) Service Regulation, 1980 and recovery of Rs.One Lakh from his monthly salary in 20 instalments of Rs.5,000/- along with regular rate of interest in terms of Regulation 30(1)(d). The petitioner further seeks quashing of the appellate order dated 28.11.2003 rejecting the appeal filed by the petitioner as communicated by the respondent No.2 by his 2 letter dated 23.1.2004 (Annexure-8/1) and also for return of the amount recovered. The facts of this case lie within a narrow compass. The petitioner was a Clerk-cum-Cashier in the Vaishali Kshetriya Gramin Bank (now merged with Uttar Bihar Gramin Bank) and posted at Sahebganj Branch in Muzaffarpur district. On 26.5.2001 the petitioner was directed by the Branch Manager to bring cash amount of Rs.1,00,000/- from the Central Bank, Sahebganj for which a Banker’s cheque for the said amount was given to the petitioner. The petitioner claims to have objected stating that at least two persons be jointly deputed to bring the cash but he was compelled by the Branch Manager to go and bring the cash as no other person was available to go with him. It is the case of the petitioner that after withdrawing the cash amount from the Central Bank he wrapped the same in a cloth bag and kept it in the dickey of the motorcycle. However, on finding that one of the tyres was deflated he took the motorcycle to a nearby puncture repairing shop. While the repair work was being carried out the petitioner noticed that the dickey was open and the cash had been taken away, which fact he reported to the 3 Branch Manager and FIR was lodged in the Police Station in which final report was submitted on 16.8.2002 with the finding that the case is true but no clue. For the aforesaid incident departmental proceeding was initiated against the petitioner and charge-sheet dated 17.8.2001was also issued. After recounting the facts the following charges were recorded in the charge-sheet against the petitioner :- “Sri Nawed with ulterior motive and malafied intention made out a story of having lost the said amount of Rs.one lakh and embezzled the money. He did not deposit the said amount of Rs.one lakh at his Branch at Sahebganj. Sri Nawed cooked up a story that the sum of Rs.one lakh was kept in the dickey of the Motorcycle by which he was returning and the amount was stolen by someone while he was getting his deflated Tyre of the Motorcycle repaired at some repairing shop. Thus Sri Nawed submitted a false report regarding the incident of loss of Rs.one lakh by him to his Branch Manager Sri Nawed has thus committed gross act of misconduct by stealing Bank’s Cash of Rs.one lakh himself and presenting a false story of losing Rs.one lakh in transit. The aforesaid action of Sri Nawed is highly prejudicial to the Bank’s interest & thus he is charged under Regulation 30(1) of VAISHALI KSHETRIYA GRAMIN BANK(STAFF) SERVICE REGULATION, 1980.” 4 The petitioner contested the said charges in the departmental enquiry. The Enquiry Officer in his report came to the conclusion that ulterior motive and mala fide intention for embezzlement of the Bank’s money could not be proved against the petitioner and so also the charge of making false story regarding puncture of his motorcycle and embezzlement of bank’s money himself was also not proved, but noted that due to carelessness and negligence of the petitioner the Bank has lost Rs.One Lakh cash. The Disciplinary Authority accepted the findings of the Enquiry Officer and on the basis of the remarks regarding carelessness and negligence he imposed the aforesaid punishment of degradation to one stage lower in the incremental scale for one year in terms of the said Regulation and recovery of Rs.One lakh with interest from his salary. Aggrieved by the same the petitioner filed an appeal which was also dismissed. Learned counsel for the petitioner submits that there was no charge against the petitioner of carelessness and negligence and thus there was no occasion for the petitioner to defend himself against the said charge. It is contended that the charges were made that petitioner had 5 acted with ulterior motive and mala fide intention and had cooked up a story regarding loss of Rs.One Lakh; whereas he had embezzled the Bank’s money himself by presenting false story of losing the money in transit. In the said circumstances, the petitioner was only required to defend himself against the charge of ulterior motive and mala fide intention and embezzlement and stealing of Bank’s money and there was no occasion for the petitioner to answer any charge regarding carelessness and negligence. Had the same been so then the petitioner could have defended himself on the basis of the Bank’s Rules and Regulations regarding withdrawal and carrying of cash but in the absence of any charge of negligence and carelessness no occasion arose for the same. Learned counsel for the respondent Bank, on the other hand, submits that from the very statement of fact it is evident that the petitioner had admitted that he was negligent and careless and thus the punishment has rightly been imposed upon him. It is submitted that on account of the fact that an amount of Rs.One Lakh has been lost by the Bank due to carelessness and negligence of the 6 petitioner the said punishment has been awarded rightly in terms of the Service Regulation. On a consideration of the facts and circumstances of the case, this Court finds sufficient force in the submission of learned counsel for the petitioner. It is evident from the charge-sheet, which has been quoted above, that the charges against the petitioner were solely of having acted with ulterior motive and mala fide intention and having thereby embezzled/stolen Bank’s cash of Rs.One Lakh by presenting a false story of losing the money in transit. That being the position, the petitioner was only required to disprove those very charges and not anything else. The remarks made in the enquiry report regarding negligence and carelessness of the petitioner by the Enquiry Officer are beyond the charges that were required to be considered in the enquiry proceedings. It is evident that so far as the specific charges are concerned, on the basis of evidence before him the Enquiry Officer has clearly come to the conclusion that both the charge No.1 and charge No.2 are not proved. This Court fails to understand as to how when both the charges have not been proved the Bank could have inflicted any punishment upon the petitioner. 7 The submission of learned counsel for the respondent Bank that the facts themselves amount to admission of carelessness and negligence of the petitioner has only to be noticed to be rejected. Unless the charge was laid down in the charge-sheet itself the petitioner was not at all required to answer the same. Whether the petitioner was careless or negligent in terms of the Rules and Regulations of the Bank with regard to the carrying of cash is a matter which could have only come on the record if the specific charge had been framed in this regard. Nothing prevented the Bank from having proceeded against the petitioner on the alternative charge of carelessness and negligence and only on such charge being proved the punishment under Regulation 30(1)(d) could have been imposed upon the petitioner and not otherwise. It would be a complete failure of justice if a person against whom the Bank has failed to prove the charges in a departmental enquiry is meted out with a punishment under the Service Regulation. In the light of the aforesaid discussions, the writ application is allowed. The impugned orders dated 10.1.2003 and 28.11.2003 (communicated by letter dated 8 23.1.2004) are both quashed and the authorities of the respondent Bank are directed to refund the amount recovered from the petitioner in terms of the said orders within a period of two months from the date of receipt/production of a copy of this order. (Ramesh Kumar Datta,J.) Spal/