CIVIL WRIT JURISDICTION CASE No.4196 OF 2000 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------------- Ram Vilas Singh sons of Late Shanker Singh, resident of village Ariaon, P.S. Krishna Brahm, District Buxar ---Petitioner Versus 1. The State Of Bihar 2. The Registrar, Co-operative Societies, Bihar, New Secretariat, Patna 3. The Administrator, Central Co-operative Bank Ltd., Ara, Distt. Bhojpur 4. The Managing Director, Central Co-operative Bank Ltd., Ara, Distt. Bhojpur ----------------- Respondents For The Petitioner :M/s Vidya Sagar & Bibhakar Tiwary, Advocates For The Respondent –Bank : M/s Ram Balak Mahto, Sr. Advocate & Ishwari Singh, Advocate For the State :A.C. to AAG-I P R E S E N T THE HON'BLE MR. JUSTICE V.N. SINHA V.N. Sinha,J. Petitioner at the relevant time served as Assistant Manager, In-charge Dumraon Branch of Central Co- operative Bank Limited, Ara (hereinafter referred to as the Bank). He is aggrieved by the order dated 31.12.1998, Annexure-24, whereunder he has been dismissed from service after conclusion of the departmental proceeding initiated against him pursuant to memo of charge dated 18.5.1993, Annexure-5 to this application, which was again served on him vide memo 2 dated 22.8.1996, Annexure-12 to this application. He is also aggrieved by the order dated 6.3.2002/14.6.2002 appended as Annexure-1 with the supplementary affidavit filed on behalf of the petitioner on 3.7.2003, passed by the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2, whereunder his appeal filed against the dismissal order dated 31.12.1998, Annexure- 24 has been dismissed. 2. Perusal of the memo of charge indicates that petitioner along with four other employees ,namely, Dharikshan Singh, Cashier and three Assistant Accountant serving the Branch, namely, Baijnath Singh, Virendra Singh and Styendra Singh during the period between 1.7.1989 till 30.6.1993 is alleged to have misappropriated a sum of Rs. Seventeen lacs and odd by not including the amount deposited by the different account holders in the Day-Book, Deposit Scroll, Cash Book and General Ledger maintained in the branch, although the deposit made by individual depositors was shown credited in their account. Aforesaid misappropriation was possible, as petitioner failed to 3 ensure proper maintenance of the different ledgers in the manner the ledger is required to be maintained. Petitioner at the time of annual closing is further alleged to have not taken any steps to find out the cause of difference between the amount shown in the General Ledger and the Deposit Ledger. He is also alleged to have misappropriated a sum of Rs. 1,50,000/- (One lac and fifty thousand), which was given to him as advance for raising godown of Chhatanwara Dheka Primary Agriculture Co-operative Society (hereinafter referred to as the Co-operative Society), which is incomplete. Petitioner is also alleged to have taken inadequate interest in grant and recovery of loan advance from the borrowers. The aforesaid allegations have been made with reference to audit report. Perusal of the memo of charge, however, indicates that neither any document, including audit report nor any list of witnesses is appended with the same. 3. Petitioner, having received the charge sheet without the documents and the names of witnesses, under his letter dated 13.9.1996, as contained in 4 Annexure-13 requested the Enquiry Officer in the light of the instructions contained in paragraph 3 of the charge sheet dated 22.8.1996, Annexure-12 to furnish photocopy of 13 documents, including the deposit sheet of the individual depositors whose account had become the subject matter of misappropriation, deposit scroll, Cashier day book of the dates on which deposit was not shown in the scroll, receipt voucher of the Cashier as also other documents, which were not given to the petitioner. Highlighting the fact that the documents required by him to file his written defence have not been given to him, petitioner filed his written defence on 27.3.1997, Annexure-16 disputing the contents of the memo of charge that he has defalcated any amount during the period between 1.7.1989 to 30.6.1993, asserting that the defalcation made during the said period is the act of Dharikshan Singh, Cashier, who in collusion with the Assistant Accountant, Baijnath Singh and Accountant defalcated the amount. He further pointed out that deposit scroll and Day-Book is to be filled up by the Cashier, who having accepted the 5 deposit, made the relevant credit in the account of the account holders, but in collusion with the Assistant Accountant and Accountant did not include the amount deposited in the Day-Book and the scroll and misappropriated the same. As regards the advance for raising godown, petitioner submitted that it is not his official duty to supervise the raising of the godown for the Co-operative Society, but in compliance of the direction of the General Manager, Integrated Co- operative Development Project, Ara, he had undertaken to supervise the construction of the godown, which is almost complete, except, flooring, which is not being completed on account of paucity of skilled labourers and is likely to be completed soon. 4. The Enquiry Officer, having received letter dated 13.9.1996, Annexure-13 from the petitioner calling for the photocopy of 13 documents, under letter nos. 140 dated 15.3.1997 and 178 dated 31.3.1997 requested the Bank to furnish the documents so as to enable him to confirm the contents of the written defence filed by the petitioner dated 27.3.1997, 6 Annexure-16 as also to verify the correctness or otherwise of the charges levelled against the petitioner. From the enquiry report dated 30.4.1997, Annexure-17, it is further evident that the Bank neither furnished the documents called for nor examined any witness in support of the charges levelled against the petitioner. The Enquiry Officer in his report dated 30.4.1997, Annexure-17 further stated that there is no mention in the audit report that petitioner defalcated any amount and the adverse finding recorded against the petitioner in the audit report is only on the basis of the conjecture and surmises on the part of the Auditors and having held so, petitioner was exonerated from all the charges levelled against him in the charge sheet. 5. Having received the enquiry report dated 30.4.1997, Annexure-17, the Managing Director of the Bank sought instruction from the Registrar, Co- operative Societies, Bihar, Patna, Respondent no.2 about the future course of action under letter No. 426 dated 12.6.1997, in response whereto the Registrar, Co- operative Societies, Bihar, Patna, Respondent no.2, 7 under letter dated 19.9.1997, Annexure-19 directed the Managing Director to make enquiry and fix responsibility about the failure of the authorities to produce the documents and witnesses before the Enquiry officer and granted the Managing Director three months further time to produce the witnesses before the Enquiry officer for obtaining fresh report. Before any fresh report in compliance of the direction of the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 contained in letter dated 19.9.1997, Annexure-19 could be submitted by the Enquiry Officer, petitioner moved this Court in C.W.J.C. No. 10329 of 1997, which was disposed of under orders dated 4.12.1998, Annexure-20 observing that there could not have been any occasion for the Registrar, Co- operative Societies, Bihar, Patna, Respondent no.2 to refer the matter back to the Enquiry Officer, as the Disciplinary Authority was quite competent to differ with the report of the Enquiry Officer and pass final orders and the Disciplinary Authority was directed to pass final orders within ten days from the date of 8 receipt/ production of a copy of the order dated 4.12.1998, Annexure-20, failing which the suspension of the petitioner had to be revoked. In compliance of the orders of the High Court, the Disciplinary Authority issued second show cause notice differing with the findings recorded in the enquiry report dated 30.4.1997, Annexure-17 vide memo dated 26.12.1998, Annexure-21. Perusal of the second show cause notice dated 26.12.1998, Annexure-21 itself indicates that the relevant records were not perused by the Disciplinary Authority also while he proceeded to differ with the findings recorded by the Enquiry Officer, as those records were kept at the headquarters in the custody of the Manager (Inspection) after their seizure and according to the Disciplinary Authority its production was not necessary to prove the charges levelled against the petitioner. Such fact is found noted in the opening paragraph at page 105 of the brief. Petitioner having received the second show cause notice dated 26.12.1998, Annexure-21, submitted his reply which is dated 30.12.1998, Annexure-23 reiterating the contents 9 of his earlier reply dated 27.3.1997, Annexure-16 further asserting that the charges levelled against him have not been proved as the Bank has not chosen to produce either documentary or oral evidence in support of the charges. The Disciplinary Authority in the light of the orders of this Court dated 4.12.1998, Annexure- 20 considered the second show cause reply of the petitioner dated 30.12.1998, Annexure-23 and passed order dated 30.12.1998 dismissing the petitioner from the service of the Bank, which was also approved by the Administrator of the Bank under order dated 31.12.1998, Annexure-24 to this application. C.W.J.C. No. 2908 of 1999 questioning the validity of the dismissal order dated 31.12.1998, Annexure-24 was disposed of by this Court under orders dated 8.2.2000 directing the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 to dispose of the appeal filed by the petitioner within a period of two months from the date of receipt/ production of a copy of the said order. The Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 thereafter considered the 10 Service Appeal of the petitioner, bearing No. 05 of 1999 and dismissed the same under orders dated 6.3.2002/14.6.2002, as contained in Annexure-1 to the supplementary affidavit filed on behalf of the petitioner. Perusal of the appellate order, however, indicates that the Appellate Authority considered the documents produced by the parties and concluded that during the period of defalcation i.e. 1.7.1989 till 30.6.1993, petitioner, Assistant Manager, was the In- charge of the Branch and may not have been entrusted with the duty to fill up the deposit scroll, Day/ Cash Book, but was either indifferent towards his responsibility as Assistant Manager or was in collusion with the Cashier, Assistant Accountant, Accountant of the Bank and his indifference/ collusion led to the defalcation of the amount. As regards the charge of having taken advance for construction of the godown, Appellate Authority recorded the finding that petitioner admitted before it that he had taken such advance but liability was civil in nature. 6. Learned counsel for the petitioner has assailed 11 the dismissal order dated 31.12.1998, Annexure-24 and the appellate order dated 6.3.2002/14.6.2002, Annexure-1 to the supplementary affidavit on the ground that the two orders have been passed without serving him the copies of the relevant documents called for by him under his letter dated 13.9.1996, Annexure- 13 as also in the written defence dated 27.3.1997, Annexure-16 in response whereto the Enquiry Officer in his letter Nos. 140 dated 15.3.1997 and 178 dated 31.3.1997 asked the authorities to furnish the copies of those documents to the petitioner, but the copies of those documents were never given to the petitioner so as to enable him to establish innocence and thus for failure of the authorities to ensure adequate opportunity to the petitioner to establish his innocence, aforesaid two orders be set aside and matter remitted back to the Disciplinary Authority with direction to the Bank to furnish the copies of the relevant documents which are in custody of the Manager (Inspection) at the headquarters, as is evident from page 105 of the brief and thereafter grant further liberty to the petitioner to 12 file supplementary written defence with direction to the Enquiry Officer to consider the same afresh and to submit his findings as regards the contents of memo of charge dated 22.8.1996, Annexure-12 with reference to the supplementary written defence and the documents produced by the Bank in the light of the request of the petitioner contained in letter dated 13.9.1996, Annexure-13 on the basis of which the Disciplinary Authority should take decision afresh in the matter. 7. Learned counsel further assails the two impugned orders dated 31.12.1998, Annexure-24 to this application and 6.3.2002/14.6.2002, Annexure-1 to the supplementary affidavit with reference to the judgment of this Court in the case of Jitendra Kumar Vrs. Central Bank of India & ors., reported in 2000(4) PLJR 216 and in the case of Lakhandeo Singh Vrs. Bihar State Electricity Board & ors., reported in 2000(4) PLJR 454 and submitted that the composite second show cause notice dated 26.12.1998, Annexure-21 issued to the petitioner is in teeth of the judgment of the Hon’ble Supreme Court in the case of 13 Punjab National Bank and others Vrs. Kunj Behari Misra, reported in (1998) 7 S.C.C. 84 and in the case of Managing Director, ECIL Vrs. B. Karunakar, reported in (1993) 4 S.C.C. 727, wherein the Hon’ble Supreme Court has held that while differing with the findings recorded by the Enquiry officer, Disciplinary Authority is first required to issue show cause notice giving tentative reasons for differing with the findings recorded by the Enquiry Officer thereby granting the delinquent opportunity to represent before the Disciplinary Authority records its own finding of guilt and thereafter to serve second show cause notice proposing punishment. In the instant case only one notice was served giving reasons for differing with the findings recorded by the Enquiry officer and on the said ground also the impugned dismissal order dated 31.12.1998, Annexure-24 to this application and appellate order dated 6.3.2002/14.6.2002, Annexure-1 to the supplementary affidavit be set aside. 8. Learned counsel for the Bank has opposed the submission made on behalf of the petitioner. He states, 14 with reference to the averments made in the counter affidavit, that the documents were given to the petitioner and statement to that effect has been made in the counter affidavit, as such, this Court should proceed on the basis that adequate opportunity was provided to the petitioner during the proceeding and in appreciation of the fact that petitioner, Assistant Manager has connived in defrauding the Bank of over Rs. Seventeen lacs, this Court should be slow in interfering with the matter, more particularly when the delinquent admitted his guilt before the Appellate Authority, namely, the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 that he had taken advance of Rs. One lac and fifty thousand for raising the godown for the Co-operative Society and the writ application should be dismissed. In support of such plea, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of Damoh Panna Sagar Rural Regional Bank and another Vrs. Munna Lal Jain, reported in AIR 2005 Supreme Court 584, paragraphs 13,14 and 15. 9. Having heard counsel for the parties and 15 having perused the impugned dismissal order dated 31.12.1998, Annexure-24 to this application and the appellate order dated 6.3.2002/14.6.2002, Annexure-1 to the supplementary affidavit filed on behalf of the petitioner and the enquiry report dated 30.4.1997, Annexure-17, it is evident that petitioner was neither allowed inspection of the documents called for by him under letter dated 13.9.1996, Annexure-13 nor was he given copies of those documents nor those documents were produced before the Enquiry Officer in compliance of the instruction of the Enquiry Officer contained in letter Nos. 140 dated 15.3.1997 and 178 dated 31.3.1997 referred to in the enquiry report at page 94 of the brief, as such, there is no difficulty in concluding that petitioner was not allowed adequate opportunity to defend himself of the charges levelled against him. The Managing Director of the Bank was conscious of the position that petitioner was not given adequate opportunity of defending himself by giving him copies of the documents called for under letter dated 13.9.1996, Annexure-13 and had sought 16 necessary instruction from the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 under letter no. 426 dated 12.6.1997, in response whereto, the Registrar, Co-operative Societies, Bihar, Patna, Respondent no.2 under letter dated 19.9.1997, Annexure-19 directed the Managing Director of the Bank to enquire into the circumstances in which documents and witnesses were not produced before the Enquiry officer with further direction to the Managing Director to furnish the relevant documents and witnesses before the Enquiry Officer and to obtain fresh report from him. While serving the reasons differing with the finding of the Enquiry Officer contained in notice dated 26.12.1998, Annexure-21 also the Managing Director of the Bank was conscious of the position that the relevant documents have neither been perused by the Enquiry Officer nor by him, yet he brushed aside the submission of the delinquent that he is innocent and not instrumental in defalcation of the amount from the Bank although there is no finding in the audit report that petitioner committed defalcation of 17 any amount. 10. In the light of my findings above, I set aside the impugned dismissal order dated 31.12.1998, Annexure-24 to this application and the appellate order dated 6.3.2002/14.6.2002, Annexure-1 to the supplementary affidavit filed on behalf of the petitioner and remit back the matter to the Disciplinary Authority, who should first ensure service of the relevant documents called for by the petitioner in his letter dated 13.9.1996, Annexure-13 and thereafter the Disciplinary Authority should either proceed to conduct the enquiry himself or ask the Enquiry Officer to submit fresh enquiry report, as was directed by the Registrar, Co- operative Societies, Bihar, Patna, Respondent no.2 under letter dated 19.9.1997, Annexure-19 and pass appropriate orders in accordance with law in the light of the fresh enquiry either conducted by himself or by the Enquiry Officer. During the enquiry if the authorities wish to rely on the findings recorded in the audit report referred to in the memo of charge, they are required to produce the Auditor, who submitted the 18 report for cross-examination. While conducting the enquiry, the authorities will bear in mind that the charge against the petitioner is that he in connivance with the Cashier, Dharikshan Singh, the Assistant Accountant and the Accountant defalcated the amount, but till date no action has been taken against the Assistant Accountant and the Accountant and it is only the petitioner who is being proceeded against, although he was at the end of the chain to receive the deposit, which was received by the Cashier and in the audit report finger of suspicion has been raised against many others, including the officers of the Head Office, who allowed petitioner to continue as In-charge Branch Manager for three years and did not post the Branch Manager as also did not take any action against him for his failure to take appropriate remedial measure after the annual closure although there was variance between the amount shown in the General Ledger and the Deposit Ledger. The authorities of the Bank will also consider that petitioner alone is not responsible for lack of supervision and administrative control in the Branch 19 and he alone cannot be punished for lack of administrative and supervisory control, as others in the Head Office were equally responsible for allowing the affairs in the Branch to drift to such a pass that it resulted in defalcation of Rs. Seventeen lacs and odd. During the enquiry, the authorities will also bear in mind that at the relevant time, petitioner was serving as Assistant Manager, In-charge Dumraon Branch of the Bank and ought not to have been given additional responsibility of building the godown of the Co- operative Society by the General Manager, Integrated Co-operative Development Project, Ara as the said Co- operative Society is an independent body and the branch had hardly any control over the affairs of the said Co-operative Society. In any case the godown having been completed, petitioner could not have been punished for not completing the flooring of the godown building, which was likely to be completed soon after availability of the skilled labourers required for such purpose. 11. Petitioner remained under suspension during 20 the earlier enquiry, as such, in the light of the present order as well he shall continue under suspension and the arrears of salary of the petitioner for the period prior to and after 1.1.1999 till the date of this order shall be subject to the result of the enquiry proceeding in the light of the direction of the Hon'ble Supreme Court in the case of Managing Director, ECIL Vrs. B. Karunakar (Supra). During the pendency of the enquiry, petitioner shall, however, be entitled for payment of subsistence allowance in accordance with law. The enquiry be concluded as early as possible in any case within three months from the date of receipt/ production of a copy of this order. 12. With the aforesaid observations and directions, the writ application is disposed of. (V.N. Sinha, J.) Patna High Court Dated the 22nd April, 2010 AFR(Arjun)