IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1132 of 2010 1. MANOJ KUMAR RAJAK S/O GANESH RAJAK R/O BACK OF MUSEUM, VIDYAPATI COLONY, P.S.- KOTWALI, DISTT.- PATNA Versus 1. THE GENERAL MANAGER, STATE BANK OF INDIA 2. ASSISTANT GENERAL MANAGER, REGION-II (DISCIPLINARY AUTHORITY) STATE BANK OF INDIA, ZONAL OFFICE- BEATSON ROAD, KHANJARPUR OFFICE, P.O. NO. 45, BHAGALPUR 3. DEPUTY GENERAL MANAGER (APPELLATE AUTHORITY) STATE BANK OF INDIA, DISCIPLINARY PROCEEDING SECTION, ZONAL OFFICE, BHAGALPUR 4. CHIEF MANAGER CUM ENQUIRY OFFICER, STATE BANK OF INDIA, PANKUR 5. THE BRANCH MANAGER, STATE BANK OF INDIA, BARHARWA BRANCH, DISTT.- SAHEBGANJ 6. THE BRANCH MANAGER, STATE BANK OF INDIA, PANKUR BRANCH, PANKUR ----------- For the petitioner : Mr. J.P.Shukla, Senior Advocate. Mr. R.K.Shukla, Advocate. For the Bank : Mr. Satya Prakash Tripathi, Advocate. ==== 4. 04.03.2010. Heard learned counsel for the petitioner and the State Bank of India (hereinafter referred to as the “Bank”) who prays for further time to file counter affidavit but in view of the two earlier indulgence granted under orders dated 15.2.2010 and 16.2.2010 this Court is not inclined to grant any further time for such purpose. 2. Petitioner is aggrieved by the order dated 4.3.2009, Annexure-14, whereunder his request letter dated 4.2.2009 to reinstate him in the service of the Bank after recalling the order dated 21.12.2004, Annexure-10 and 7.6.2005, Annexure-11 has been rejected by the Bank under order dated 04.03.2009, Annexure-14 issued under the signature of Assistant General Manager (Administration). Petitioner on the relevant date i.e. 28.08.2001 was serving as Assistant, Cash & Account at Barharwa Branch of the Bank, Rs. 10,000/- was found missing from the cash counter of the Branch, the Branch Manager having learnt about the loss directed M/S Chandra Bhushan, - 2 - Assistant, Cash and Accounts and Rajendra Prasad, another subordinate staff serving the Branch to make search in the house of the petitioner and they recovered of Rs. 10,000/- in the denomination of 100 rupee currency note from the house of the petitioner. Petitioner refuted the story of recovery of notes during conduction of departmental proceeding as according to him the missing notes were in the denomination of Rs. 10 but the recovered notes were in the denomination of rupees 100 and the allegation levelled against him that he had removed the notes from the cash counter was absolutely false. The Enquiry Officer submitted report on the basis of the confession recorded by the petitioner which the petitioner disputed as having been obtained under coercion. The story of coercion put forth by the petitioner was disbelieved by the Enquiry Officer and in appreciation of the findings recorded by the Enquiry Officer petitioner was dismissed under order dated 21.12.2004, Annexure-10. The appeal filed by him against the dismissal order also failed and was dismissed under orders dated 7th June, 2005, Annexure-11. For the same allegation of breach of trust petitioner was also prosecuted for the offence under Section 409 of the Penal Code and was convicted under judgment dated 1.9.2008 to undergo sentence of one year rigorous imprisonment with further direction to pay fine of Rs. 1,000/- in default of paying fine to undergo 10 days’ further rigorous imprisonment. The findings recorded by the Sub-Divisional Judicial Magistrate under judgment dated 1.9.2008 was challenged by the petitioner in appeal and under judgment dated 10th December, 2008, - 3 - Annexure-12 the appellate court acquitted the petitioner of the aforesaid charge of breach of trust after recording the following findings. “After hearing the learned counsels from the both sides and a careful perusal of the entire record I find that as per the written report Ext.2 that ten packets of notes of Rs. 10/- denomination were missing amounting Rs. 10,000/- in total and it is also in the second page of the same document that a packet of Rs. 100/- fell from the Cornish of the room of the accused. Hence, it is clear that the bundle recovered from the room of the accused/appellant was not the same which was missing from the Bank as the amount may be same but the denomination are entirely different. There is no explanation by the prosecution as to how the currency notes of Rs. 10/- denomination got converted into currency notes of rupees one hundred denomination. Further more, it has nowhere stated in the document of the extra-judicial confession, Ext.1, that he is making this voluntarily. There is absolutely no other cogent evidence on records to establish that this confessional statement was voluntary made with free mind and not under any coercion or deception. Ext.3 in the statement that Chandra Bhushan, the Cash Accountant-cum-Typist had deposited Rs. 7000/- vide cheque and Rs. 3000/- in cash but this document does not contain any cheque no. nor has any such cheque been exhibited. There is no independent witness of the search and seizure. It has been admitted by P.W.1, Manoj Kumar in his cross examination that he had put his signature at the instance of his manager with reading the Kshama Yachna Patra and he cannot say as to when and where this document was written. Hence, taking into consideration all these facts and circumstances and also the argument of the learned counsel for the appellant I find merit in this appeal and I do not find myself in agreement with the findings of the learned court below holding the accused/appellant guilty under Section 409 I.P.C. and convicted him and sentenced him to undergo R.I. for one year and also to pay a fine of Rs. 1,000/- in default undergo R.I. for ten days and hence, the impugned judgment and order dated 01.03.2008 is set aside and the accused/appellant acquitted and discharged - 4 - from the liability of his bail bond. The appeal stands allowed.” 3. Having been acquitted by the appellate court of the charge of breach of trust petitioner requested the Bank under letter dated 4.2.2009 to reconsider the findings recorded in the departmental proceeding as also affirmed by the appellate authority on the ground that on the same charge of breach of trust he has been acquitted by the appellate court. Aforesaid request of the petitioner has been rejected under the impugned letter dated 4.3.2009, Annexure-14. Perusal of the impugned order dated 4.3.2009 does not indicate that the authorities have considered the findings recorded by the appellate court on the basis of which he has been acquitted of the charge of breach of trust. In this connection learned counsel for the petitioner with reference to the judgment of the Hon’ble Supreme Court in the case of Capt. M. Paul Anthony Versus Bharat Gold Mines Ltd. and another, reported in (1999) 3 SCC 679 paragraph 34 which has also been reiterated in the subsequent judgment in the case of Roop Singh Negi Versus Punjab National Bank and Others, reported in (2009) 2 SCC 570 paragraphs 20 and 23 submitted that the authorities while reconsidering the matter in the light of the request of the petitioner contained in his letter dated 4.2.2009 should have considered the findings recorded in paragraph 10 of the judgment passed by the appellate court quoted above but as the aforesaid findings have not been considered by the Bank while rejecting the request of the petitioner for reinstatement under memorandum dated 4.3.2009, Annexure-14 the same is of no consequence and is fit - 5 - to be set aside. 4. Counsel for the Bank, however, opposed the prayer. He states that earlier petitioner was dismissed from service after conclusion of departmental proceeding on the basis of his own confession recorded before the Branch Manager who was also examined in the proceeding in support of confession made by the petitioner before him and in such view of the matter, the matter need not be reconsidered in the light of the findings recorded by the appellate court in paragraph 10 of Annexure-12. 5. Having heard counsel for the parties, I see substance in the submission raised by the petitioner in paragraph 3 above and set aside the order dated 3.3.2009, Annexure-14 passed by the Bank with direction to the competent authority of the Bank to reconsider the matter in the light of the findings recorded by the appellate court in paragraph 10 of the judgment dated 10.2.2008, Annexure-12 quoted above and pass fresh orders in view of the law laid down by the Hon’ble Supreme Court in the aforesaid two judgment as early as possible, in any case within a period of two months from the date of receipt/production of a copy of this order before the Assistant General Manager. 6. The writ application is, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)