LPA No. 1663 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1663 of 2010 (O&M) Date of Decision: 04.08.2011 Harbans Lal ..Appellant Versus Bank of India and others ..Respondents CORAM: HON'BLE MR. JUSTICE M.M.KUMAR, HON'BLE MR. JUSTICE ARVIND KUMAR, Present : Mr. H.C.Arora, Advocate, for the appellant. Mr. KPS Dhillon, Advocate, for the respondents. 1. Whether to be referred to the Reporters or not ? 2. Whether the judgment should be reported in the Digest? **** M.M.KUMAR, .J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 18.02.2010 rendered by the learned Single Judge holding that the appellant has been rightly dismissed from service as he is found guilty of embezzlement and misappropriation in a regular departmental inquiry. A detailed reference has been made to the inquiry report. The fact that a copy of the inquiry report was not served on the appellant has also been taken into account by the learned Single Judge. It has come on record that the appellant was served with a charge-sheet dated 10.02.1992 (Annexure P-1). He has admitted his guilt in a written communication dated 16.09.1991 sent to the Chief Manager, Bank of India, Hall Bazar, Amritsar (Annexure P-2). There is a categorical confession and admission made in that communication. It would be profitable to read LPA No. 1663 of 2010 (O&M) [2] the communication which reads as under:- “ I want to confess that Mr. Mohan Lal c/o Smt. Kamla Devi came in the bank on 1.5.1991 for depositing the money of ` 11,000/- in the a/c of Miss Madhu Vermani & Mrs. Kamla Vermani S/B A/c No. 24433. I gave him bogus receipt without actually depositing the above amount in the bank. I kept that amount with me for my own use and then he came again on 8 th May, 1991 for getting the entry done in the pass book of the captioned a/c. I took the counterfoil issued earlier to him, destroyed the same and gave him another bogus counterfoil receipt for Rs. 11,000/- but again I did not deposit the above amount in the account. I took the pass book from him and kept it with me with updating the same. Once or twice Shri Mohan Lal again visited the bank and contacted me for getting the pass book back duly completed but I kept it with me. On 3rd or 4th of August, Shri Mohan Lal again came to me and I suggested him to get fixed deposit made for Rs. 10000/- each in the name of his wife and his own name, by withdrawing the amount from the above SB a/c. He agreed to it and I gave him DBD a/c opening form alongwith the deposit slips and two withdrawls for the signatures of his wife Mrs. Kamla Vermani in whose name the above a/c stands alongwith his daughter Miss Madhu Vermani. On 5th August Mr. Mohan Lal came to me and told me that his wife was away and as such he could not get his signature. Since she came back home next day, I accompanied Shri Mohan Lal to his house for getting the necessary signatures on the two a/c opening forms, two pay in slips and two withdrawls. I took the papers from Shri Mohan Lal and kept the same in my possession alongwith the pass book. On 23rd of August, 1991, I filled one of the bank withdrawl duly signed by Mrs. Kamla Vermani at the front as well as the back for Rs. 16,000/- and withdrew the money after signing the withdrawl at the back in token of having receipt LPA No. 1663 of 2010 (O&M) [3] the amount. I did not pass on this amount withdrawn by me to the depositor and kept the amount for my own use. On 14.9.1991 Shri Mohan Lal again contacted me for taking delivery of DBD's for Rs.10000/- each along with the pass book. I did not deliver the DBD's as well as pass book. Today on 16.9.1991 Shri Mohan Lal reported the matter to you. Immediately after the matter was reported, I deposited Rs. 27,000/- in the captioned a/c to make good the loss to the customer by way of two paying slips of Rs. 11,000/- and Rs. 16,000/-. This amount of Rs. 27,000/- which I deposited immediately belonged to Shri Subhash Chander a/c No. 8389 who had come to the bank in the morning to deposit Rs. 65,000/- in his above a/c. I issued him the counterfoil for Rs. 65,000/- while accepting the cash, but the voucher which I later handed over to you at 11.30. The voucher was not scrolled and it bears my signature for Rs. 65,000/- with the payment stamp marked over it instead of receipt stamp. Since this transaction was not vested, then, I kept the balance amount Rs. 38,000/-with the bank in the drawer after depositing Rs. 27,000/- in a/c No. 24433 of Miss. Madhu Vermani and Mrs. Kamla Vermani. On surprise check at 11.30 A.M. by Shri R.K.Behl Rs. 38,000/- cash was found excess. This amount was deposited in the Sundry deposit, immediately. To make up the loss of Shri Subhash Chander a/c No. 8389, I deposited Rs. 27,000/- from my own sources. As such, I compensated both the a/c holders in full and there is no loss to the customer as well as the bank. [emphasis added]. This is the first time that I have misutilised the customer/bank's funds and never in the past I have done this wrong by mistake. Since I have compensated the loss of the customer and also I have confessed my guilt, I humbly request you to please pardon me for this act. I assure you I will never do in my future. This statement is made by me without any fear or pressure. LPA No. 1663 of 2010 (O&M) [4] I hope you take this matter sympathetically and forgive me. Thanking you, Yours faithfully, Sd/-Harbans Lal 16.9.1991.” 2. The bank did not feel content with his confession and served upon him statement of allegations and charge-sheet, then a regular departmental inquiry was conducted and he was found guilty of all the charges. The findings are well based and are supported by evidence in addition to confessional statement. There is ample supporting evidence in addition to confession of the appellant to sustain all the three charges and the supplementary charge. 3. The controversy which has arisen in this case is based on a show cause notice for proposed punishment (Annexure P-4). It has been urged that no notice was given inviting comments on the findings recorded by the Inquiry Officer nor a copy of the inquiry report was furnished. The form of notice is not in accordance with the requirement of rules. However, the punishment of dismissal has been imposed which was upheld by the learned Single Judge. 4. We have heard the learned counsel for the parties. 5. In the departmental proceedings held against the appellant, opportunity of hearing was granted and whole evidence against him was brought on record by following principles of natural justice. The confessional statement made by the appellant is not the sole piece of evidence but it has been supported by Sukhbir Singh (PW5) and V.K.Dhir (PW6) who have appeared before the inquiry Officer. The documents produced by the complainant Mohan Lal have been duly proved by I.S.Dosanjh (PW1). Likewise, a number of other LPA No. 1663 of 2010 (O&M) [5] witnesses have deposed before the inquiry Officer and a large number of documents have also been produced. Accordingly, the appellant has been found guilty of embezzlement after holding an inquiry in accordance with the procedure laid down in the Rules. A show cause notice thereafter was issued by the Punishing Authority but the show cause notice was confined to imposition of penalties only. The appellant did not prefer to give any reply to the show cause notice but was still given an opportunity of personal hearing. Accordingly, the Disciplinary Authority maintained the punishment of dismissal. 6. Mr. H.C.Arora, learned counsel for the appellant has submitted that a copy of the inquiry report was never supplied and there was no opportunity granted to seek the comments of the appellant on the findings recorded by the inquiry Officer. Learned counsel has maintained that once a substantive right to explain the findings has been taken then it must be presumed to have prejudiced the rights of the appellant. Learned counsel for the appellant has further argued that it is a case of no evidence because complainant has not been produced. 7. Having heard the learned counsel for the parties we are of the considered view that the opinion expressed by the learned Single Judge does not suffer from any legal infirmity warranting interference of this Court. The appellant has confessed in writing by addressing a letter to the Chief Manager, Bank of India, Hall Bazar, Amritsar. In the aforesaid letter he has admitted embezzlement of various amounts including that of the complainant. He also accepted that he issued bogus receipt to the complainant. Before the inquiry Officer LPA No. 1663 of 2010 (O&M) [6] confession made by the appellant has been given due weightage inasmuch as it has been corroborated in material particulars by oral and documentary evidence. Therefore, no challenge could be made to the findings recorded by the inquiry Officer. In the peculiar facts and circumstances of this case and in the face of the confessional statement made by the appellant we are unable to understand how the appellant has suffered a prejudice at the hands of the respondents. We cannot subscribe to the view that only one of the complainant has been produced before the inquiry Officer and therefore the inquiry is vitiated. The proof of the prejudice which might constitute a ground for granting relief to the appellant is totally missing. On the contrary, not only the principles of natural justice have been followed at the stage of holding of inquiry but the appellant was also granted personal hearing. Merely because a copy of the inquiry report was not sent to the appellant would not vitiate the proceedings. 8. The learned Single Judge on the issue of prejudice has rightly cited a number of judgments of Hon'ble the Supreme Court. In para No. 9 of the judgment, the learned Single Judge has concluded that non-supply of inquiry report before confirming the evidence of the inquiry Officer and furnishing a copy of the same only with the final show cause would not violate the principles of natural justice unless prejudice is shown. In that regard, reliance has been placed on Union of India V. Mohd.Ramzan Khan 1991(1) SCC 588 and Managing Director, ECIL, Hyderabad and others V. B.Karunakar 1993(4) SCC 727. In both the cases, the principle of law laid down is that if no prejudice is caused on account of non- LPA No. 1663 of 2010 (O&M) [7] supply of the inquiry report then matter does not need to be reopened. In Karunakar's case, the following observation has been made by Their Lordships of Hon'ble the Supreme Court:- “It is clear that though supply of report of the Inquiry Officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show “prejudice”. Unless he is able to show that non supply of report of the Inquiry Officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down.” 9. The prejudice for non-supply of the inquiry report has to be shown and on the aforesaid principle it cannot be assumed in the present case that any prejudice was suffered by the appellant particularly when he has himself confessed the acts of issuance of bogus receipts and misappropriation. There is thus no merit in the appeal. The same does not warrant admission. Dismissed. (M.M.KUMAR) JUDGE (ARVIND KUMAR) 04.08.2011 JUDGE 'ravinder'