C.W.P No.14702 of 1990 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.14702 of 1990 (O&M) Date of Decision. 18.05.2011 G.R. Nagar, Clerk-cum-Cashier-Godown Keeper, Punjab National Bank, Saffidon, Distt. Jind (Haryana) ......Petitioner Versus Dy. General Manager, Appellate Authority, Punjab National Bank, Zonal Office, PNB House, Sector 17-B, Chandigarh and others .....Respondents Present: Mr. A.P. Bhandari, Advocate for the petitioner. Mr. G.S. Bajwa, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. 1. The writ petition challenges the order of suspension on the petitioner that stood modified on 02.07.1988 passed by the respondents imposing stoppage of four increments with cumulative effect. The enquiry officer's report itself is not filed by the petitioner but the petitioner took up legal challenges to the validity of the report and the ultimate finding of guilt by the disciplinary authority and to the punishment imposed upon him. 2. The petitioner was a Clerk-cum-Cashier-cum-Godown Keeper in Punjab National Bank and he was served with a charge-sheet on 21.5.1985 imputing allegations of misappropriation in connivance with the Superior Officer in the manner of disbursement of some loans for C.W.P No.14702 of 1990 (O&M) -2- farmers under a scheme for purchase of buffaloes. The charges were that the suppliers of the cattle were fictitious and that some of the account holders themselves were not eligible for the loan. Two of the alleged borrowers were fictitious. The loan transaction was said to be under a subsidy scheme and the subsidies were literally appropriated by the petitioner himself. Preparatory to allowing of charge-sheet, a preliminary enquiry had been conducted by the very same Enquiry Officer, who was subsequently appointed as the Enquiery Officer. The petitioner had sought for the preliminary enquiry and had also objected to the fact that the Enquiry officer was prejudiced by the fact that he was already involved in collecting evidence against him. The Enquiry Officer, however, found him guilty and it was accepted by the Disciplinary Authority and visited him with removal from service. In an intra-departmental appeal filed by the petitioner, although the findings were affirmed, the Appellate Authority reduced the charge from removal from service to one of stoppage of increments with cumulative effect. 3. The petitioner's objection to the validity of the enquiry was (i) the preliminary eqnuiry report which was the basis for allowing of charge-sheet had not been supplied to him and therefore, there was gross prejudice; (ii) the officer that conducted the preliminary enquiry was himself the Enquiry Officer and therefore, he was himself the prosecutor as well as the judge, there was a violation of principles of natural justice; (iii) there was no misappropriation at all, for, the persons, who were borrowers were real persons against whom even suits for recovery had been filed subsequently for non-payment and decrees C.W.P No.14702 of 1990 (O&M) -3- had been obtained. If they were fictitious, suits of recovery could not have been filed; (iv) no misuse of authority was made, for all the suppliers or sellers of cattle were only known to him since he belonged to a small village and the fact of his acquaintance ought not to be taken as an incidence of misappropriation; and (v) the Superior Officer, who was a sanctioning authority had been exonerated but he had been merely made a scapegoat in finding him guilty and visiting him with penalty. 4. Learned counsel for the respondents points out to the fact that the petitioner had not even filed enquiry officer's report and the finding has been rendered on proper appreciation of all the relevant facts. The limits of interference by the High Court in matters of departmental enquiry are themselves restricted and a decision that had come about after due appreciation of evidence would require no interference. In the manner of quantum of punishment itself there was nothing capricious and in fact an order of removal from service had been subsequently modified and reduced to merely stoppage of increments. He, therefore, sought for dismissal of the writ petition. 5. At the time of argument, the learned counsel would also point out to the fact that the petitioner had been placed in suspension even before the enquiry was constituted. He referred to the fact that the suspension was effected on 15.09.1984 and the charge-sheet had been levied subsequently on 21.05.1985. Referring to the relevant Rules under Clause 19.11, he would state that the rules contemplate imposition of a suspension order only after fixing a date for enquiry and after a decision is taken to constitute disciplinary action against an C.W.P No.14702 of 1990 (O&M) -4- employee. I will not take this as a major impediment for examination of the issues, for, on merits even if the order of suspension was wrong and if the enquiry resulted in exoneration of the petitioner from all the charges, it would have a bearing on how the period of suspension had to be treated. If the findings were to ultimately uphold the charges, then the manner of imposition of suspension itself will not have any bearing. I will, therefore, examine the whole case only from the point of view of the validity of the enquiry and the findings arrived in the departmental enquiry and the punishment imposed by the management. 6. As regards the contention that the Enquiry Officer was also the person, who had carried out the preliminary enquiry and therefore, he was himself acting as a prosecutor as well as the judge, I find that there is no merit in such a contention. A preliminary enquiry is invariably to ensure that there is some material on the basis of which an enquiry could be ordered. This is again to save any embarrassment from taking action without adequate basis. If only an Enquiry Officer was using his own preliminary enquiry report or he had in the course of his order relied on his own findings, there could be a ground for even a suspicion that the Enquiry Officer was biased. This matter has also been considered in judgment of the Hon'ble Supreme Court in Sunil Kumar Vs. State of West Bengal 1983 SCC 304 where the Hon'ble Supreme Court held that there was no inference that a person, who had carried out the preliminary enquiry and who was appointed an an Enquiry Officer that he would be acting both as a prosecutor and a judge. 7. The contention by the learned counsel that he had made a demand for supply of preliminary enquiry and the same had not been C.W.P No.14702 of 1990 (O&M) -5- given and therefore, he had been grossly prejudiced is equally without any merit. If an enquiry officer was relying only on a preliminary enquiry report then the issue of supply of the report to the delinquent would be necessary. A preliminary enquiry report is never an important document unless it is relied and this aspect is also covered by decisions of the Hon'ble Supreme Court in Pandit D. Aser Vs. State of Madhya Pradesh 2007 (1) SCC 445 and Krishan Chander Tandon Vs. Union of India 1974 (4) SCC 374. 8. The learned counsel's contention that the suit has been instituted by the bank for recovery from the various loanees and therefore, the charge that the loanees were bogus could not be sustained. This argument is also without any proper reference to the charge-sheet. The charge-sheet does not show any where that all the loanees were fictitious. On the other hand, it makes specific reference to two persons as persons, who were fictitious namely Ramesh Chander and Budh Ram. The charge-sheet specifically made reference to the fact that the buffaloes had not been purchased for these two persons but actually the amount had been credited in the Account No.5455 in the name of his wife Sunari Devi and Rs.1500/- in his own account. The plea of misappropriation was directly cast on the petitioner for these loans alleged to have been advanced to the above said two persons. The counsel does not refer to any suit as having been filed against these two persons for recoveries. The contention by him that even the charge of the suppliers being bogus could not be true by the only fact that he was acquainted with all of them being resident of the same village, carries no conviction of the existing state of affairs. The C.W.P No.14702 of 1990 (O&M) -6- purpose of charge was that all these persons purporting to be suppliers were personally identified by the petitioner or his father and the subsidies were granted for purchase of buffaloes had not gone to the suppliers towards the price but they had been ultimately pocketed by the petitioner himself. If the allegation was that all of them had been known to the petitioner and the suppliers were really not the beneficiaries of sales, the management was setting out the details but the petitioner was not prepared to join issues on the particulars disclosed but made a wild statement that mere acquaintance of the petitioner with the suppliers could not be taken as a proof of misappropriation. Such a wild statement was not an article of charge at all. I find that the enquiry report gives detailed account of charges being levelled and the reasons for the same giving specifics of subsidiary amount, the beneficiaries, the bank account details and the sequence of events that showed that there had been a misappropriation. The charges had been properly proved and I have no ground to accept the contention of the learned counsel that they had not been established. 9. The argument of the learned counsel that the Superior Officer had been exonerated and that he had been made as a scapegoat is also without merit. The superior officer was a sanctioning authority and therefore, there was a suspicion that he must have connived with the petitioner and hence also implicated. The evidence was collected for the petitioner's active involvement and if they found nothing incriminating against the sanctioning authority, it cannot urged by the petitioner that since the superior officer was exonerated, he must also be exonerated. C.W.P No.14702 of 1990 (O&M) -7- 10. If the petitioner's order of removal was subsequently modified for one of stoppage of increments, it was on due consideration of the fact that the volume of fraud was not such as to deserve an extreme penalty. There was surely a misappropriation by the petitioner in securing the benefit of bargain to persons, who were his close privies. The credits of even some portion of the amounts granted as loan in SBI account of himself or his wife were sufficient to prove that he had secured a personal benefit in the entire transaction. 11. The proceedings culminating in the punishment were fully supported by reasons and supported by documentary evidence and I find no reason to interfere with the same. Having regard to the fact that I find that the enquiry and the ultimate decision imposing the punishment are appropriate, I see no reason to deal with the issue of the fact of suspension even before constituting an enquiry. 12. The writ petition is dismissed. (K. KANNAN) JUDGE May 18, 2011 Pankaj*