MIGM COURT OF CHI-IATTISGARM : BILASPUR PETITIONER RESPONDENTS WRIT PETITIONNO. 5140 OF 2000 Janak Ram Dhake Versus TheState Barrk oflndia & Others /•7v/o Post for pronouncement of the order on 'day ofjyt' Sd/- ,'^ •Sati.sUiK..;AgBiKatFi r~ Judge 1»|M N;ll t^::;^ ILII 1-UGM COURT OF CHHATTISGARM : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.5140 OF 2000 Janak Rarn Dhake Versus The State Bank oflndia & Others (Writ Petition underArtic]e226 & 227 of the Constitution oflndia) SingleBench : Hon'ble ShriSatishK. Agnihotri, J. Present:- Shri AshTsh Shrivastava, Advocate, for the petitioner. Shri P.R. Ratankar, Advocate forthe respondents. / . ORDER - (Delivered on this /5 day of July, 2010) 1. By this petition, the petitioner seeks to ch'allenge the legality and validity of the suspension order dated 11/05/1994 (Ahnexure P/2), charge sheet dated 24/06/1994 (Annexure P/3), the orderof dismissal dated 12/12/1995 (Annexure P/5), appellate order dated 31/03/1997 (Annexure P/8) and the memo dated 08/02/2000 (Annexure P/15). 2. The indisputable facts, in nutshell, as projected by ihe petitioner, are that the petitioner was employed in the respondent bank as a Cashier-cum-Clerk and was posted at Balod branch. According to the petitioner, the trouble for the petitionerjstarted when a fictitioussavingbank account No. 74/18676 was openedon 20/12/1993 inthe name of one Ramcharan Sahu. The accountwas opened in normal course by the petitioner being.the saving bank aGGount clerk. The petitioner was unaware ofthe fact thatthesaving bank account in question was ficfitious till it was disclosed to him by the Branch Manager of the Balod branch by memo dated 27/04/1994 (Annexure P/1). On 03/01/1994 the petitioner was working at the savings bank counter posted a proper and complete in all respect credit voucher for Rs.35,024/- in account No. 74/18676. The credit voucher was duly passed by an officer of the bank who is authorized to do so and was a genuine banking transaction. On 05/01/1994 and 03/02/1994, a sum of Rs.20,000/- and -Rs.34,000/-, respectively were withdrawn from the aforesaid account by the account holder on the basis ofbalance available in the said account. On the basis of aforesaid facts, by order dated 11/05/1994 (Annexure P/2) the petitioner was placed under suspension. Thereafter, charge sheet was issued on 24/06/1994 (Annexure P/3) for allegedly posting a fraudulent entry without any genuine banking transaction and thus, exposing the bank to monetary loss due to his dereljction while discharging his duties. The charges read as under: "1) On. 3rdJan. 1994, while working as Savings Bank counter Clerk atState Bank of India, Balod Branch, you posted a fraudulent credit entry of Rs.35,024/- (Rupees Thirty five thousand twenty four only) in savings Bank accourit No. 74/18676 ofShri Ramcharan Sahu son of Shri Ramlal Sahu resident of Balod. The credit entry was unsupported by any genuine Banking transaction. Asum of Rs.20,000/- and Rs.14,000/- were wJthdrawnon.5 January 1994 and 3rd February 1994 respectively in the said account from the balance arising out of the fraudulent credit entry posted by you. Your lapse and negligence has exposed the Bank to a serious monetary loss. ^"""'"^ ^. ^^Sfc^' f, 2) Your above act is highly prejudicial to the interest of the Bank and tantamounts to gross misconduct in terrhs of para 521 (4)(j) of SastryAward read with Desai Award. You are therefore, directed to submit your explanation, if any, in writing in your defence through the Branch Manager, Balod Branch within 15 days from the date of receipt of this memorandum faiting which it will be presumed that you have no explanation to offer and the Bank will proceed further against you as deemed fit." ' In the meantime, the respondent bank also lodged a First Information Report before the police on 11/05/1994 vide Annexure P/4 against the petitioner as well as Shri K.R.D. Kamri, Branch Manager. The police submitted charge sheet before the Judicial Magistrate First Class where the case was registered as criminal case No. 1026 of 1994. The criminal charges read as ynder: "StpRT^FT ^ SrfST^pTq- -s^ Rslcll^ ^? STRft d'11^1 t t^ R'11* 20.12.93 ^FT 3.2. 94 ^ T[KT 'm^N ^e i^ ?iraT siid'lc; ir ''l^'cl'!"! W^ ^ '•TPT ^7 ^Wt ^RTT ^S ^ra- -s^ tTsrr ^wf 35,024/- w^ UFTT ? <?lf<t"i fcp ^ ^TTST BcT f^W, ^Tft f?rfST ^ WTO IT? ^RT ff^ ^T'TT ^T 3TWIT ^ f^ f^ cTg ??c>T c^ ffqtef?f ^ d4^l1'l ^ ^rrar ^w?, 's^ft f?ra?r ?? ww ^ ?T? ^? f^ ^RT ^MT T^?vff ^T •^e^Rl^ t ^F ^r sR-icft ^ wr ^r d^^i'i ^ <w? ^ ^ift 'RrfsT T^r ^T^ q^ d1*^c|4> c^ ^- 3f^ ch'l<!|s)l\1 ^ 3T-PCT' ^T gra^r •?q^r lcp ^ ^f^ 34.000/- WT^ cf5t ^fT-ft ?f t^ i;i il lli i Bl i liil s.. &•' e \s^-^/ '•'-'s's^r^'' ^ PicMrict^ sTwdSro 7?TW 'TrT f^qr aft^ ^fT cfi^ ^f o:NT ^: ?t? SPWEf t^ff fuRT^t W?T iTro^o^ro c|5t err?r 420, 488, 471 ^t 409 ^ ^ltl" The JudicialMagistrate, after trial held both the petitioner and Shri Kamri guilty ofthe offence and imposed the punishment of two years rigorous imprisonment and fine of Rs.900/- each by judgmentdated 22/01/1998 (Annexure P/6). On comptetion of enquiry, by order dated 12/12/1995 (Annexure - P/5) the petitioner was dismissed from service. Against the order of dismissal, the petitioner preferred an appeal before the respondent No. 2. Tfie said appeal was dismissed by the appellate authorityon 31/03/1997 (Annexure P/8). The contention raised by the petitioner in memo of appeal was completely over-looked and in a pre-determined manner. Against the judgment of conviction, the petitioner preferred an appeal. before the Additional Sessions Judge being criminar appeat Np. 39/1998. TheAdditional Sessions Judge after hearingthe parties acquitted the petitioner from the criminal case by judgment dated 17/02/1999 (Annexure P/10). After acquittal, the respondent bank reinstated the main accused i.e. Shri Kamri in sen/ice, but the case of petitioner has not been considered in spite of the fact that the case of the petitioner is on better footing than that of Shri Kamri. T.he petitioner preferred review appeal before the appellate authority praying for reinstatement in service. Even the petitioner filed a mercy appeal before the General Manager 'K K ^' l^ \\ 1£S 7. requesting for rejnstatement inservice. The mercy appealwas dismissed as not tenable by order dated 08/02/2000 (Annexure P/15). Thus.this petition. Shri Shrivastava, learned counsel appearing for the petitioner, would submit that the petitioner is an innocent officer and was never involved in any fraud and he has never misused his power and authority. The charges leveled against the petitioner are baseless. Shrj •Shrivastava would further submit that without following the principles of natural justice, the disciplinary enquiry has been conducted in an illegal and arbitrary manner and with mala fide intensjon only to harass the petitioner. The acfion of'the respondent bank is also arbitrary and discriminatory. The main accusedi.e. Shri Kamri was left out with lesser punishment of stoppage of few increments and was allowed to continue in sen/ice. Shri Shrivastava, would next submit that tHe petitioner, who has only complied with the order of his superior authority, was made scapegoat of punishment of dismissal, which is the harshest punishment taking away the livelihood of the petitioner, as a result of it, the petitioner and his family member are facing lot of difficulties. The mercy.appeal of the petitioner has not been entertained on false and flimsy ground, which is not at all available to the respondent bank. It suffers from bias and non-application of mind. Awarding of different punishment in identical proceeding is also discriminatory, arbitrary and shows favoritism. A double standard policy has been adopted by the respondent bank for being applied accordjng to their SBM UUUeX ULfS '-ISL|)0 LJOB3 LjllMlOUIlSlp 3JB JSBBUB|/\| l^OUBjg •e'! 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The nature of charges and their gravity was different than that of the charges leveled in respect of the petitioner. Thus, the petitioner is not entitled to any relief and the petition may be dismissed. 11. 1 have heard learned counsel appearirig for the parties, perused the pleadings and the documents appended thereto. . . 12. The petitioner, in thecase on hand, was dismissed from service not on account ofjudgment of conviction and order of sentence dated 22/01/1998 passed by the JudicialMagistrate, .^ First Class, Thereafter, the question of reinstatement after acquittal by the Court of Additional Sessions Judge by judgment dated 17/02/1999 doesnot arise. Thus, the orders passed on the basis of acquittal in Sessions Courtcannot be quashed, as the petitionerwas dismissed from the sen/ice on the basis of disciplinary enquiry i.e. before conviction or subsequent acquittal in the Criminal Courts. 13. The appellate authority, it appears, has not considered the contention of the petitioner that the relevant documents were not supplied to the petitioner in enquiry. Secondly, the appellate authority has Tailed to consider the punishment df dismissalfrom servjce as being disproportionate on the ground that the same was not raised in the appeal. 14. The suspension order dated 11/05/1994 andthe chargesheet dated 24/06/1994 have resulted into djsmissal ofthe petitioner vide order dated 12/12/1995 and subsequently confirmed Vide •< order dated 31/03/1997 passed by the appellate authority. Thus, the suspension order and the charge sheet cannot be questioned at this stage when the same have resulted into dismissal of the petitioner fromthe service. The dismissal order dated 12/12/1995 was under consideration before the appellate authority and the .appellate authority has also affirmed the same. 15. On perusal of the appellate order, it appears that the appellate authority has not considered the submission of the petitioner f ' . ' that no adequate opportunity was granted to the petitioner and further he has raised a ground in this petition that no documents on which the disciplinary enquiry was initiated was supplied tothe petitioner. On the question of punishment, the appellate authority observed that there is no request to consider the quantum of punishment awarded by the disciplinary authority being disproportionate with the conduct. 16. For the reasons mentioned hereinabove and having regardto the facts and circumstances of the case, the order dated 31/03/1997 (Annexure P/8) passed by the appellate authority is quashed and the matter is remitted back to the appellate authority for considering the appeal filed by fhe petitioner on the afo'restated grounds also, in accordance with law and further the fact that whether or not imposition of punishment of dismissal from service was disproportionate. 17. Having regard to fhe facts situation 6f the oase, as the appellate order was passed on 31/03/1997 (Annexure - P/8) and the petition has been pending in this Court for a long m K. ^N 18. period, it is expected thatthe appellate authorityshall consider and decide theappeal ofthe petitioner, in accordance with law and on its own merits, having regardto the material, factsand grounds raised by the petitioner in his appeal, as early as possible preferabiy within a period of three months from the date of receipf of a copy of this order. In the result, the writ petition is allowed to the extent indicated above. , 19. There shall be no order asto costs. Gowri Sd/- SatishK. Agnihotri Judge