WP(C) 254/2007 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) B.K. Sharma, J The petitioner is aggrieved by the Annexure-H order dated 21.3.2006, by which pursuant to the departmental proceeding, he was dismissed from service of the respondent Bank as Senior Manager (Security). He is also aggrieved by the ap pellate order dated 26.6.2006, by which the departmental appeal preferred by him against the order of dismissal, was also rejected. 2. The petitioner while was serving in the respondent Bank as Senior Manage r (Security) was served with the charge sheet dated 13.8.2005 containing the sta tement of allegations and attributing misconducts as follows :- 1. Doing acts unbecoming of an Officer Employee of the Bank. 2. Failure to discharge his duties with honesty and integrity. 3. Acting otherwise than in his best judgement in the performance of his of ficial duties. STATEMENT OF ALLEGATIONS The following acts of omission and commission have been reported against Shri A.K. Roy, Senior Manager (Security), Regional Office, Guwahati. Ø Kanpith Branch, Surat was holding revolver .32 bore make Webbly Scott No . 60696. On 15.02.1996, Shri A.K. Roy, then Security Officer, Ahmedabad placed a note before the Dy. Zonal Head seeking permission to get the weapon transferred in his personal name. Though the proposal put up by him was not in line with th e Bank’s policy, the then Dy. Zonal Head approved the same. Thereafter, the perm ission of the Licensing Authority was taken and the weapon was transferred in th e name of Shri A.K. Roy at Ahmedabad. Ø Shri Roy was transferred from Ahmedabad to Bhopal in August 1999. On his transfer to Bhopal he was required to take immediate steps to return the weapon to the Bank. However, he preferred to deposit the revolver with the private Arm s Dealer for oiling and servicing on 26.11.1999 against his personal name and Arms Licence for which no permission was accorded by superior officers. Ø In July 2003 when Capt. G.S. Gulati, Asstt. Manager (Security) from Regi onal Office, Baroda visited Kanpith Branch, he learnt about the Bank’s revolver being held by Shri A.K. Roy. Thereafter, the Chief Manager (Security), Central O ffice, telephonically informed Shri Roy on 26.07.2003 to get the weapon transfer red in the Bank’s name. In terms of letter no. SEC:BR:0316:147 dated 27.07.2003 Shri Roy was advised by the Chief Manager (Security) to send the copy of the Saf e Custody Receipt to Zonal Security Manager, Ahmedabad and to get the weapon tra nsferred to any branch in Ahmedabad City in consultation with the Zonal Security Manager, Ahmedabad. Shri Roy thereafter, wrote a backdated letter as of 25.07.2 003 to the Police Commissioner, Ahmedabad seeking permission to transfer the wea pon in the Bank’s name. Ø Subsequently Zonal Office, Ahmedabad was advised to obtain a licence for the said weapon in the name of the Branch Manager, C.G. Road branch. The action of Shri Roy in getting the weapon transferred in his name without any purchase/ gift transaction was viewed seriously by the Police Authorities of Ahmedabad. Th e weapon was taken in the Bank’s possession in July 2004 and was auctioned durin g February 2005 by Zonal Office, Ahmedabad for an amount of Rs. 1.40 lacs. Ø The act of Shri Roy of keeping the Bank’s revolver for 4 years even afte r his transfer from Ahmedabad is against the security policy of the Bank and it is hereby alleged that he had done so as to get the Bank’s weapon transferred in his own name and make wrongful gain from the same. 3. The gist of the aforesaid charge is that the petitioner while was holdin g the Bank’s revolver .32 bore make Webbly Scott No. 60696 as the Security Offic er of the Bank while was posted at Ahmedabad got the weapon transferred to his n ame in the year 1996. Thereafter, although he was transferred from Ahmedabad to Bhopal in August, 1995, he did not return the weapon to the Bank and instead dep osited the same with a private Arms Dealer on 26.11.99 against his personal name . In July, 2003, it was learnt that the Bank’s revolver was being held by the pe titioner. Thereafter, the petitioner was telephonically informed on 26.7.2003 to get the weapon transferred in the Bank’s name. By letter dated 27.7.2003, the p etitioner was also informed by Chief Manager (Security) to send the safe custody receipt to Zonal Security Manager, Ahmedabad and to get the weapon transferred to any branch in Ahmedabad city in consultation with the Zonal Security Manager, Ahmedabad. The petitioner thereafter wrote a back dated letter as of 25.7.2003 to the Police Commissioner, Ahmedabad seeking permission of transfer of the weap on in the Bank’s name. 4. By the aforesaid act, the petitioner got the Bank’s revolver transferred in his personal name without any purchase / gift transaction, which the Police authorities of Ahmedabad viewed seriously. The petitioner also kept the Bank’s r evolver for four years even after his transfer from Ahmedabad, which was against the security policy of the Bank. Thus, it was alleged that he had done the abov e act for wrongful gain. The revolver was eventually taken to Bank’s possession in July, 2004 and thereafter was auctioned in February, 2005, which fetched the amount of Rs. 1.40 lakhs. 5. The above charge sheet was preceded by a show cause notice to the petiti oner regarding illegal possession of the revolver to which the petitioner had re plied vide Annexure-A letter dated 6.6.2005. Being not satisfied with the reply, the Bank had issued the aforesaid charge sheet. In his reply, the plea of the p etitioner was that since his transfer to Bhopal from Ahmedabad was unexpected an d sudden and it was due to exigencies of organizational need, he had to proceed to Bhopal immediately to take charge there and consequently could not hand over the revolver to the Bank. According to the said reply, he had deposited the revo lver with a gun dealer on technical ground for safe custody and timely maintenan ce of the weapon. It was also stated in the reply that the gun licence was to ex pire on 31.12.1999 and since the renewal permission was needed, he made repeated request to the Police Commissioner, Ahmedabad. 6. In response to the above charge sheet, the petitioner in his reply furni shed vide Annexure-C dated 13.9.2005 denied the charge and alleged that the char ge levelled against him was ill motivated. The petitioner in his reply justified his action of retaining the Bank’s revolver on the ground of his sudden transfe r to Bhopal and the request to the Police Commissioner, Ahmedabad for renewal of the gun licence. 7. As noted above, the Disciplinary Authority being not satisfied with the reply furnished by the petitioner, ordered for a departmental enquiry with due i ntimation to the petitioner. The petitioner duly participated in the departmenta l enquiry, on conclusion of which he had submitted his written brief. The Inquir y Officer submitted the report dated 19.12.2005 (Annexure-G) holding the petitio ner to be guilty of the charge/ allegation. The petitioner duly submitted his re presentation against the inquiry report. Thereafter, the Disciplinary Authority in consideration of the materials on record, passed the impugned Annexure-H orde r of dismissal from service dated 21.3.2006, in respect of which the petitioner preferred the Annexure-I appeal dated 1.4.2006. In the appeal, the petitioner ha d contended that there was nothing to prove that he had done anything contrary t o the Arms Act or pre-judicial to the interest of the Institution. He also conte nded that the possession of the revolver by him till it was returned to the Bank , was without any ulterior motive. 8. Being not satisfied with the plea raised in the departmental appeal, the Appellate Authority while holding that the petitioner failed to clarify as to w hy he had deposited the weapon with the Arms dealer instead of with the Bank and that his such action of not handing over the revolver to his successor and reso rting to fraudulent activities to get the weapon transferred in his personal nam e, indicated his loss of honesty and integrity, rejected the appeal. Being aggri eved, the petitioner has filed the instant writ petition, praying for setting as ide and quashing of the impugned orders. 9. The respondents have filed their counter affidavit denying the pleas and contentions raised in the writ petition. It has been stated in the affidavit th at the conduct of the petitioner was unbecoming of a Security officer of a Bank and since it was found that he was guilty of the charge referred to above, the D isciplinary Authority took the decision not to retain him in service, which acco rding to the respondents, cannot be interfered with exercising writ jurisdiction . 10. In paragraphs 6, 7 & 8 of the affidavit, it has been stated thus :- 6. That it is pertinent to mention here that the post of Security Officer i s a supervisory post in respect of supervision of all the branches under a Zonal office and / or Regional Office. In the year 1996 the petitioner was posted at Ahmedabad Zonal Office and under that Zonal office there was a branch known as K anpith Branch at Surat and the said branch was holding a revolver point .32 bore make Webbly Scott No. 60696 in the name of the Branch Manager. The petitioner g ot managed to transfer the said weapon in his personal name while he was at Ahme dabad. The petitioner did not disclose this fact to the higher authorities of th e Respondent Bank. 7. The petitioner was transferred from Ahmedabad to Bhopal in August, 1999 and petitioner, on such transfer, was required to take immediate steps to return the weapon to the Bank but however he did not deposit the revolver and he depos ited the said revolver with a private dealer for oiling and servicing on 26.11. 99 against his personal name , without disclosing this fact to his successor at Ahmedabad or to his superior and / or higher authorities of the Bank. The matter of transferring the weapon in the name of the petitioner came to the knowledge of the Chief Manager, Security Central Office Mumbai only on 26.7.07. The Chief Manager Security asked the petitioner to get that weapon transferred in the Bank ’s name and the petitioner was further advised by the Chief Manager, Security to send a copy of the safe custody receipt to the Zonal Security Manager, Ahmedaba d and got the weapon transferred in his name without any purchase / gift transac tion was viewed seriously by the police authorities of Ahmedabad and the weapon was taken back in the Bank’s possession in July, 2004 and the same was auctioned in the month of February, 2005 by the Zonal Office, Ahmedabad for an amount of Rs. 1.40 lakhs. 8. That the action of the petitioner in keeping the Bank’s revolver for 4 y ears even after his transfer from Ahmedabad was against the security policy of t he Bank and the petitioner transferred the Bank’s weapon in his own name and mak e wrongful gain from the same and therefore the Respondent Bank issued a show ca use notice to the petitioner vide No. CD/IRD/224 dated 26th April, 2005. 11. It has been contended that the very act in which the petitioner was invo lved depicts lack of integrity and honesty and consequently, the petitioner who was in Bank’s service as a Security Officer, had to be dismissed from service. A long with the affidavit, the respondents have also enclosed the copy of the lett er dated 26.12.2002 (Annexure-VIII) by which the petitioner had requested the Po lice Commissioner, Ahmedabad to recommend his case to the Govt. of Gujarat for r enewal of his gun licence in his name. In the letter, there was not even a whisp er that the revolver belonged to the Bank. The letter was under own handwriting of the petitioner, which was followed by another letter dated 7.7.2003 addressed to the Chief Secretary, Govt. of Gujarat by the petitioner, by which also a req uest was made for grant of All India status to the Arm in his name. The said two letters were exhibited during the enquiry proceeding as MEX-19 & 20 respectivel y. For a ready reference, both the letters are quoted below :- To, A.K. ROY The Police Commissioner 204, D.K. Surbhi C/O Police Commissioner GOMTI NAGAR Office, SAHI BAUG COLONY AHMEDABAD DHOPAL-462003 GUJRAT Dt. 26.12.02 CAMP : TIKAMGARH M.P. LALITPUR U.P Sir, Kind attention : SH. KAUSHIK, IPS. Sub : Arms Licence No. 392/Satellite - A.K. Roy The renewed gun licence No. 392/Satelite pertains to the undersigned received on 24.12.02 at my residential address as mentioned above. As per the licence da te of which licence expires 29th Dec 2002, having the area of validity, the Stat e of Gujrat. Application for renewal was submitted at the office of the Police Commissioner o ffice on 24th Nov, 1999 with the request for renewal as well as for extension of area of validity for whole of India. As explicity mentioned in my application d t. 24.11.99 the reason for request to receive the gun licence with extended area of validity, the same reason still hold good. You are therefore requested kindl y recommend my case to the Govt. of Gujrat for doing the needful. Generally it i s time taking processes kindly extend the validity of gun licence for another te rm. The original gun licence will be deposited to you good selves on my return to Bh opal. Kindly Acknowledge. With regards Sincerely yours Sd/- illegible Enclo : Xerox copy of the gun licence. From :A.K. Roy, 204 D.K. Surabhi, Gomti Colony, Bhopal 462003 Ph. ﬁ 0755-2766503. To, Shri P.K. Laheri, IAS, Chief Secretary, Govt. of Gujrat, C/o. Secretariate, Gandhi Nagar. Date 7.7.2003 Sir, Sub : Arms licence No. 329/Satellite Ahmedabad. The undersigned possesses one small caliber weapon on the above numbered licence issued by the Commissioner of Police, Ahmedabad (Xerox copy of licence enclosed ). Consequent upon my transfer (the undersigned is working as Security Officer in t he Union Bank of India- a Central Govt. undertaking) to the State of Madhya Prad esh in Nov, 1999, the weapon as per the arms act, has been deposited with a repu ted arms dealer of Ahmedabad (Xerox copy of the receipt is enclosed). For gettin g all India arms licence status the undersigned applied to the Commissioner of P olice, Ahmedabad ; in turn received reply from the said office of approach licen cing authority in Bhopal for getting extension in the area of validity (Xerox co py of the letter is enclosed). The incharge, arms licence section at the Collectorate office Bhopal, when conta cted explained that since the licence had been issued by the Commissioner of Pol ice, Ahmedabad of Gujrat state and weapon was deposited in the territory of Gujr at, the All India Status of the arms licence was to be granted by the Home Minis try, Govt. of Gujrat. The Home Ministry Govt. of Gujrat is requested to grant al l India status to my arms licence no. 382 satellite. Earlier applications to thi s effect are already submitted to the Commissioner of Police, Ahmedabad. Your good self being at the apex position in the administrative strata of the G ovt. Gujrat, are being approached with the request to kindly help in the long pe nding issue. Thanking you. Yours faithfully, Sd/- illegible . 12. In the reply affidavit filed by the petitioner, he has reiterated his st and in the writ petition. His plea is that the retention of the revolver in his name and his action in not returning the same to the Bank, was bonafide and not with any ill motive. 13. I have heard Mr. B. Kalita, learned senior counsel assistant by Mr. A. K hanikar, learned counsel for the petitioner as well as Mr. L.P. Sarma, learned c ounsel represented the respondent Bank. 14. Mr. Kalita, learned counsel for the petitioner strenuously argued that h aving regard to the facts and circumstances including the fact that although the petitioner had retained the revolver during his transfer to Bhopal, there being no ill intention to convert the same to his personal name, the Disciplinary Aut hority ought to have considered that aspect of the matter. According to him, had it been the intention of the petitioner to make unlawful gain, things would hav e been followed in quick succession. He further submitted that since the licence was transferred in the name of the petitioner as per the approval of the compet ent authority, the possession of the same by the petitioner was not unlawful. 15. Countering the above argument, Mr. L.P. Sarma, learned counsel for the r espondent Bank submitted that since the fact of transferring the gun licence by the petitioner to his name followed by retention of the same by him for long fou r years, is an established fact, that by itself proves the charge against the pe titioner. He submitted that the plea that he did not gain anything by retaining the Bank’s revolver, cannot come to rescue, inasmuch as, it is the conduct of th e petitioner as Security Officer of the Bank, what is required to be looked into and not the inferences which the petitioner seeks this Court to draw. 16. I have considered the rival submissions made by the learned counsel for the parties and the entire materials on record including the departmental procee ding file. In consideration of the same, my conclusion and finding are as follow s. 17. Although the petitioner has contended that the licence of the gun was tr ansferred to his name as per the approval of the Bank and in the charge sheet al though the approval is indicated, but the allegation was that the petitioner mis conducted himself to get the weapon transferred in his personal name and the pro posal was put up by him towards that end, was not in line with the Bank’s policy . The second allegation against the petitioner was that he retained the revolver in his personal capacity inspite of his transfer from Ahmedabad to Bhopal. In t he affidavit-in-reply, the petitioner has annexed certain documents to contend t hat the licence was transferred by him as per the approval accorded by the compe tent authority of the Bank. 18. I have carefully gone through the enclosed documents. Annexure-L is the letter dated 16.2.1996 addressed to the Chief Manager of the particular branch o f the Bank by which the petitioner had sought for transferring of the revolver t o his name. In the letter, the request was made to transfer the licence to the undersigned i.e. the petitioner. On the body of the said letter, an endorsement was made for writing to the Police Commissioner for transfer. Thereafter, the M anager of the Bank by his Annexure-M letter dated 28.2.1996 to the Police Commis sioner, Surat City, Surat, sought for permission for transfer of the revolver fr om Surat to Ahmedabad. The letter was followed by another letter dated 8.4.1996 (Annexure-N) followed by another letter dated 3.5.1996 (Annexure-O). 19. Nowhere in the said communications, there was any indication to transfer the revolver in the name of the petitioner. It was the petitioner, who had writ ten the 1st letter dated 16.2.1996 (Annexure-L), by which he had sought for tran sfer of the licence issued by the District Administration, Ahmedabad to his name . It was none of the business of the petitioner to seek transfer of the licence into his name as the revolver did not belong to him. He being a Security persona l of the Bank ought not to have sought for transfer of the gun licence to his na me. 20. The fact of the matter is that the petitioner not only transferred the l icence to his name but also kept the gun to himself for long four years on his t ransfer to Bhopal. Instead of depositing the same to the Bank authority, he had deposited the same with a Arms dealer. Not only that in the above quoted communi cations, he did not even remotely indicate that the gun belonged to the Bank. Ev erything was done in his personal capacity as if the gun belonged to him. 21. All the above aspects of the matter have been duly taken note of in the departmental proceeding and the Inquiry officer in his elaborate report has deal t with each and every aspects of the matter. He has meticulously discussed the e vidence on record and recorded his findings. 22. As recorded in the enquiry report, the petitioner got the approval for t ransferring the Bank’s revolver in his personal name in contradiction to his own observation in MEX-14 where he had recommended that the gun licence should be issued by designation in place of individual Branch Manager . It has rightly bee n recorded in the enquiry report that the petitioner did not apply the same rule to himself. In this connection, the particular findings recorded in the report are quoted below :- It is quite surprising that the CSO did not apply the same rule to himself whic h he wanted to be applied on the branch. A perusal of the gun license issued to the CSO MEx-23 indicates that it was issu ed on 29.12.1995 in his personal name and had his residential address on it. The re was no mention of his designation or the name of the Bank. The validity perio d for the purchase of the weapon was mentioned therein as 28/3/1996, which was s ubsequently extended to 28/6/1996. There is no evidence that if the CSO wanted t o purchase a weapon, he obtained any quotations from any of the Arms dealers in Gujrat or else where. This indicates that after acquiring the license, CSO had n o intention of purchasing the weapon. The license has the endorsement reading as under Inspected the one .32 bore revolver no. 60696 Webley & Scott. It found correcte d on date 17/6/1996 - signed police inspector- License branch . The entry of Banks revolver in the personal gun license of the CSO reads as unde r :- Entered the description of one .32 bore revolver no. 60696 Webley Scott purchas ed from Shri branch manager, Union Bank of India, Kanpith Branch, Surat City li cense No. 191/676 vide C.P. Surat City letter no. LB/Hathiyas/wastu/632/740, 836 /96 dated 4/96 . The above endorsement is very distressing as according to it the revolver was pu rchased by the CSO from the Branch Manager, Union Bank of India, Kanpith Branch, which amounts to fraud on the part of the CSO as the revolver was not sold to h im. Although the documents, if any, connected with the sale aspect or otherwise of the revolver to the CSO have not come on record of the inquiry, the needle of suspicion points to submission of forged sale documents of the revolver by the CSO to police authorities, otherwise the endorsement would not be made the way i t has been made. It for a moment we take it that Shri Roy forgot to take any step during the abov e-mentioned period of full one month, at least he could have taken steps during his visit to Ahmedabad in November, 1996, when he deposited the said revolver wi th M/s. Bandookwala on 26.11.1999 (MEx-3) and that too without referring it to o r / and taking approval from it’s legitimate owner for which no documentary evid ence is held on records at any level with Bank (Kanpith Branch / ZO Ahmedabad /C O Mumbai). Also, Shri Roy