JUDGMENT
Ashok Bhushan, J.
1. Heard Sri Sujeet Kumar Rai, learned Counsel for the petitioner and Sri P.S. Baghel appearing for the respondents No. 1, 2 and 3.
2. By this writ petition the petitioner has prayed for quashing the dismissal order dated 1.8.2001 issued by the respondent No. 2. A mandamus has also been sought directing the respondents to reinstate the petitioner in service with all service benefits.
3. Brief facts of the case as emerge from the pleadings of the parties are;
4. The petitioner had been working as clerk-cum-cashier in Karma Branch of Allahabad District Cooperative Bank Ltd. on allegation of making forged entries in various accounts in the branch causing embezzlement, the petitioner was placed under suspension vide order dated 14.12.1996. The charge sheet dated 24.5.1997 was served on the petitioner giving details of various accounts holders with account number, date and the amount to which extent forced entries were made in the account causing embezzlement of Rs. 7,71,722/-. Vide charge sheet the petitioner was charged that the above amount was embezzled by making fictitious and forged entries in various accounts, misappropriate the amount of the Bank and committed fraud with the account holders. The petitioner was asked to submit his reply within fifteen days. It was further stated in the charge-sheet that if the petitioner wants to produce any witness, the same can be submitted. He was asked also to inspect the documents of the Bank if he so desired. The petitioner submitted a reply dated 1.71997. In the reply the petitioner admitted that he has made entries in the accounts of various account holders though amount of which was not deposited in the Bank. He alleged that the said amount was taken by the Branch Manager himself. The petitioner in his reply further stated that he told the Branch Manager to get the record corrected and return the amount but the Branch Manager did not do so. The copy of reply has been brought on the record. He further stated in the reply that the entire responsibility is of the Branch Manager. After considering the reply of the petitioner the Enquiry Officer submitted a report dated 4.9.1997 holding the charge of embezzlement , fictitious entries, misuse of the Bank amount and committing fraud with the account holders, established. The Committee of Management of the Bank considered the reply of the petitioner and decided to issue notice to the petitioner that in case the petitioner does not deposit the embezzled amount along with interest why he be not dismissed from service , legal proceedings be taken for recovery and also a first information report be lodged. In pursuance of the resolution of the Committee of Management of the Bank a notice dated 16.12.1999 was issued to the petitioner. Notice stated that the petitioner after deposing the amount of Rs. 4, 85,297/- with interest at the rate of 18% per annum should submit an explanation as to why he be not dismissed due to having found guilty of embezzlement. He was also asked to inform as to whether he wants personal hearing or to lead any evidence or witness. It appears that the petitioner prayed for personal hearing and hearing took place by the Committee of Management on 10.3.2000 on which date the petitioner appeared before the Committee of Management of the Bank and was heard. Petitioner gave in writing on 10.3.2000 that out of the amount of Rs. 3,85,000/- due on him he will deposit Rs. 2,00,000/- within two months and the rest amount be recovered from his claims. He explained his claims as Provident Fund and gratuity. Petitioner did not deposit the amount as under taken by him on 10.3.2000. The mater was taken by the Committee of Management on 28.10.2000. The Committee of Management passed a resolution noticing that out of Rs. 3,85,000/- the petitioner has deposited only Rs. 70,0007- ; hence if he doe not deposit the balance amount within ten days he be dismissed from service. The Secretary of the Bank was authorised to take steps regarding dismissal. The resolution dated was communicated to the petitioner by letter dated 24.11.2000. He was informed by the letter that in view of the resolution dated 28.10.2000 if he does not deposit the balance amount within ten days proceedings for dismissal shall be taken. The notice stated that the last opportunity is being given to the petitioner to deposit the amount failing which the dismissal proceedings shall be completed. After receiving the letter dated 24.11.2000 the petitioner by letter dated 16.12.2000 prayed that the Bank may reconsider its decision and give one month further time for depositing the amount in pursuance of the resolution dated 28.10.2000. A letter was sent by the Secretary of the Bank to the Secretary, UP. Cooperation Institutional Service Board seeking prior approval. The Institutional Service Board gave its no objection to the dismissal of the petitioner vide letter dated 12.2.2001. After receiving the letter from the U.P. Cooperative Institutional Service Board a letter was issued by the Secretary/General Manager on 1.8.2001 dismissing the petitioner from service. In pursuance of the order dated 5.12.2006 passed in the writ petition the Bank has brought on record the resolution of the Committee of Management dated 22.10.1999 and 28.10.2000.
5. Learned Counsel for the petitioner challenging the dismissal order made following submissions:
1. that the petitioner has not been dismissed by the Committee of Management which is authority competent to pass dismissal order hence the letter dated 1.8.2001 issued by the Secretary/General Manager of the Bank is invalid and non est.
2. No enquiry has been held by the Enquiry Officer nor copy of the enquiry report was given to the petitioner before dismissing the petitioner from service. The petitioner was not given opportunity to lead evidence.
3. In awarding punishment to the petitioner, the petitioner has been discriminated since the respondent No. 4 who was also charged with the similar allegation of embezzlement has been reinstated in service with only minor punishment whereas the petitioner has been dismissed from service.
6. Learned Counsel for the petitioner placed reliance on various judgements of this Court namely, 2003 (1) U.P.E.S. C. (All.) 427, Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd.; 2003 (3) E.S.C. (All.) 1722, Mohd. Abbas Siddiqui Meerut v. District Magistrate, Meerut and Ors.; 2005 (3) E.S.C. (All.) 1715 R.K. Mehrotra v. U.P. Sahkari Sansthagat Sewa Mandal, Lucknow and Ors.; (1990 ) 3 UPLBEC 1740 Jagdish Yadav v. Senior Superintendent of Police. Azamgarh and Ors.; 2001 (4) E.S.C. (All.) 1897 Barnam Singh v. Director, Samaj Kalvan Department U.P. and Anr..
7. Sri P.S. Baghel learned Counsel for the respondents refuting the submissions of counsel for the petitioner contended that the petitioner has been dismissed by the resolution of Committee of Management who is the Appointing authority after obtaining the approval from the U.P. Copperative Institutional Service Board. The order of dismissal had been issued by the Secretary who was so authorised by the Committee of Management. He submits that full opportunity was given to the petitioner to lead evidence, inspect the documents of the Bank which was not utilised by the petitioner. The petitioner in reply to the charge sheet has admitted his charge of making fictitious entries and misappropriating the Bank money and also undertook to deposit the entire amount which clearly proves his guilt and in such situation the submissions on the ground of violation of principle of natural justice, are unfounded. He further contends that in case of embezzlement the punishment of dismissal is the punishment which is to be given to the petitioner. He submits that there is no question of discrimination in awarding punishment to respondent No. 4. Since the respondent No. 4 and the petitioner both were dealt with similarly in permitting them to get the amount deposited and reinstated. Whereas the respondent No. 4 deposited the entire amount and was reinstated but the petitioner did not do so. There was no discrimination in awarding punishment. Sri P.S. Baghel has placed reliance on the judgements of the apex Court in Union of Bank of India v. Vishwa Mohan; Zila Sahkari Kendriva Bank Marivadit v. Jagdishchandra and Ors.; Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar; Government of A.P. Representted by its Principal Secretary to Government, Home Department. Hyderabad v. B. Ashok Kumar and Judgement Today 1996 (3) S.C. 96 Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors.
8. I have considered the submissions of counsel for the parties and perused the record.
9. The first submission of the counsel for the petitioner is that the decision to dismiss the petitioner has not been taken by the Committee of Management hence the order issued by the Secretary of the District Cooperative Bank Ltd. dated 1.8.2001 is illegal and non-est. There is no dispute that the Committee of Management of the District Cooperative Bank Ltd. is the Appointing authority of the petitioner. The respondent Bank has brought on record the resolution dated 22.10.1999 as well as the resolution dated 28.10.2000 Annexure-1 and 2 to the Supplementary affidavit dated 7.1.12007 in pursuance of the order of this Court dated 5.12.2006. The said affidavit has also been replied by the petitioner. The resolution dated 22.10.1999 and 28.10.2000 have not been denied in the reply by the petitioner. By the resolution dated 22.10.1999 the Committee of Management took a decision to issue a show cause notice to the effect that in the event petitioner does not deposit the entire embezzled/misappropriated amount along with interest why he be not dismissed and proceedings be taken for recovery of amount and a first information report be lodged. In pursuance of the resolution dated 22.10.1999 show cause notice was issued to the petitioner which has been filed by the petitioner himself dated 16.12.1999 as Annexure-6 to the writ petition. Regarding the resolution dated 22.10.1999 it was mentioned in the notice that after depositing Rs. 4,85,297/- with 18% interest a reply should be given within fifteen days as to why on the charge of embezzlement he be not dismissed from service and first information report be not lodged. Petitioner appeared before the Bank after the said notice on 10.3.2000. The petitioner gave an undertaking on 10.3.2000 that out of the amount Rs. 3,85,000/- due on the petitioner, the petitioner will deposit Rs. 2,00,000/- within two months and the rest of the amount be recovered from his claims. When the petitioner did not deposit the amount as undertaken by him a resolution was passed by the Committee of Management of the Bank on 28.10.2000 noticing the fact that the petitioner had deposited only an amount of Rs. 70,000/- out of the amount of Rs. 2,85,000/- , and in case he does not deposit the amount within ten days he be dismissed from service. The resolution dated 28.10.2000 was communicated to the petitioner by notice dated 24.11.2000 which was received by the petitioner. Reply of the said notice was given by the petitioner on 16.12.2000 praying for further one month’s time. In the resolution dated 28.10.2000 the Secretary was authorised to take further steps of dismissal. Secretary wrote letter tot he U. P. Cooperative Institutional Service Board seeking approval on 12.1.2001 which approval was granted on 12.2.2001 and after receipt of the approval order was issued on 1.8.2001 mentioning all the facts communicating the dismissal of the petitioner. In view of above facts it cannot be said that the decision to dismiss the petitioner from service was not taken by the Committee of Management. The resolution dated 28.10.2000 was resolution by the Committee of Management deciding to dismiss the petitioner in case he does not deposit the amount within ten days. It is not denied that the petitioner failed to deposit the amount as directed by the Bank. The subsequent proceedings undertaken by the Secretary were consequential tot he decision of the Committee of Management dated 28.10.2000 for which he was duly authorised in the resolution dated 28.10.2000. Thus it cannot be said that the decision to dismiss the petitioner from service was not taken by the Committee of Management. The first submission of the petitioner thus cannot be accepted.
10. The second submission of the petitioner is with regard to non holding of enquiry, not giving of enquiry report and not giving opportunity to lead evidence violating the principles of natural justice. The facts of the case as noticed above indicate that the charge sheet was given tot he petitioner on 24.5.1997. The charge sheet indicated that the petitioner can lead evidence and produce his witnesses on his own expenses. He was also asked to inspect the record. The reply of the petitioner was given on 1.7.1997. Petitioner in his reply admitted having made fictitious entries in the accounts of the various account holders. He also admitted that the amount corresponding to fictitious entries was taken away by the Branch Manager. The defence of the petitioner was that he did it on asking of the Branch Manager. The enquiry report was submitted on 4.9.1997 which was considered by the Committee of Management and decision was taken by the Committee of Management on 22.10.1999 of issuing show cause notice to the petitioner. The notice dated 16.12.1999 which was issued in pursuance of the resolution dated 22.10.1999 also gave opportunity of personal hearing to the petitioner and further permitted the petitioner to give any evidence/witness including the oral evidence. Petitioner availed the personal hearing and appeared before the Committee of Management of the District Cooperative Bank Ltd. on 10.3.2000. Petitioner himself gave an undertaking on 10.3.2000 copy of which has been filed as Annexure-6 to the counter affidavit. The petitioner in the undertaking clearly and categorically wrote that he has been personally heard by the Committee of Management, he undertake to deposit Rs. 2,00,000/- out of Rs. 3,85,000/- due to him and for rest of the amount he requested it to be recovered from his claims. The proceedings dated 10.3.2000 clearly indicate that there was no challenge to the enquiry report and tot he charge that the amount has been misappropriated by the petitioner which is required to be returned back. The petitioner did not deposit the amount as undertaken and deposited only Rs. 70,000/-. Subsequently again resolution was taken on 28.10.2000 for giving only ten days time to deposit the balance failing which the petitioner was to be dismissed from service. After the resolution dated 28.10.2000 which was communicated to the petitioner by letter dated 24.11.2000 the petitioner again sent letter on 6.12.2000 in which he only prayed for one month’s further time to deposit the amount. The submission of the petitioner that he was not given proper opportunity to defend himself is belied by the proceedings which took place before the Committee of Management the disciplinary authority. The Disciplinary authority gave opportunity to the petitioner of personal 1 hearing in which hearing the petitioner undertook the liability to deposit entire amount and prayed time for depositing the amount.
11. The judgement relied by the petitioner i.e. Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation Ltd. (supra), Mohd. Abbas Siddiqui Meerut v. District Magistrate, Meerut and Ors. (supra) and R.K. Mehrotra v. U.P. Sahkari Sansthagat Sewa Mandal, Lucknow and Ors. (supra) in which it was held that the dismissal order is liable to be set aside when Enquiry Officer did not give opportunity tot he employ to produce his witness and cross-examine the witnesses. Petitioner in his reply to the charge sheet did not mention any witness which he wanted to adduce. In view of the judgements of this Court as noticed above, the holding of enquiry was must even if the employee did not adduce any evidence.
12. The next limb of submission of the petitioner was non supply of the enquiry report. In this context it is relevant to mention that in the notice dated 16.12.1999 which was given to the petitioner the enquiry report dated 4.9.1997 was mentioned. The petitioner was given opportunity of personal hearing by the said notice and was also given liberty to lead evidence including the oral evidence. The petitioner also availed personal hearing but it does not appear that he prayed for leading evidence or challenged the finding of the enquiry report rather he gave undertaking to deposit the amount. The apex Court judgement in Union of Bank of India v. Vishwa Mohan (supra) referring to the constitution Bench judgement of this Court in Managing Director, ECIL v. B. Karunakar held that non furnishing of the enquiry report should not mechanically result in setting aside the punishment and the High Court is required to apply its judicial mind and then form its opinion. In the present case the enquiry report was referred to in the show cause notice issued by the Disciplinary authority with the opportunity to lead evidence and personal hearing. There is nothing on record to come to the conclusion that the petitioner before the Disciplinary authority ever raised any objection of non supply of the enquiry report or prayed for copy of enquiry report rather he undertook to deposit the amount as mentioned in the notice which amount was found to have been misappropriated by the petitioner. Further, as noticed above, before the Committee of Management petitioner has repeatedly prayed for time to deposit the amount and has never questioned the finding of guilt. In the circumstances no prejudice can be shown to have been caused to the petitioner merely by non supply of the enquiry report. Normally by non holding of enquiry by the Enquiry Officer despite employee not asking for leading evidence, can be a ground for setting aside the dismissal order but in the present case there are valid reason not to follow that course. The reasons are; that the petitioner in his reply to the charge sheet has admitted of having made factitious entries in the accounts of various account holders. The money corresponding to fictitious entries was misappropriated which is not even denied in the reply. The defence was only that the amount was taken by Sri Rizvi, the Branch Manager. Secondly , before the Disciplinary authority after show cause notice was issued to the petitioner on the basis of the finding of guilt by the Enquiry Officer, petitioner had undertaken to deposit the amount misappropriated and had not challenged the findings of the guilt rather undertaking to deposit the amount was given on 10.3.2000. The Bank in the present case has adopted the course asking the petitioner to deposit the misappropriated amount to enable his reinstatement but even that course was not followed by the petitioner, he having failed to deposit the amount. Under these circumstances I am not inclined to exercise my discretion Under Article 226 of the Constitution to interfere with the punishment awarded to the petitioner.
13. The third submission of the counsel for the petitioner is award of disproportionate punishment to the petitioner as compared to respondent No. 4, the Branch Manager who was reinstated by awarding only minor punishment. The respondent Bank has submitted that no discrimination was practised by the Bank and there is distinguishing feature in the petitioner’s case with that of respondent No. 4 the Branch Manager. The Bank has decided to give opportunity to both i.e. the petitioner and respondent No. 4 to deposit the amount found to have been misappropriated by them and thereafter claim for reinstatement. It is on the record that the respondent No. 4 deposited the entire amount which was misappropriated by him and was reinstated whereas the petitioner having failed to deposit the amount, was dismissed. The Bank having dealt both – petitioner and respondent No. 4, similarly i.e. giving them opportunity to claim reinstatement in the event of depositing the misappropriated amount, it cannot be said that the Bank acted arbitrarily and discriminatory while dealing with his two employees i.e. the petitioner and the respondent No. 4.
14. The punishment which can be imposed on an employee is covered by regulation 84 of the U. P. Cooperative Societies Employees’ Service Regulations, 1975. The punishment includes recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the Cooperative Society by the employee’s conduct under Clause (d) and dismissal in Clause (g). The above provision entitle the authorities to recover the amount of loss from the employee as well as to dismiss him from service. One issue which however, deserve to be noticed in the present case is as to whether the Bank can be said to be justified in reinstating its employee even though misconduct of grave nature i.e. embezzlement and misappropriation is proved against the employee. The apex Court in Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors. (supra) made a very strong observation that in case of misappropriation/embezzlement there can be no other punishment than dismissal. Following was observed in paragraph 4 in the case of Municipal Committee, Bahadurgarh v. Krishnan Behari and Ors. (supra).:
4. It is obvious that the respondent has been convicted for a serious crime and it is a clear case attracting under provision(a) to Article 311(2) of the Constitution. In a case of such nature-indeed, in cases involving corruption- there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriate that is relevant. The Director had interfered with the punishment under a total misapprehension of the relevant factors to be borne in mind in such a case.
15. When charges of misappropriation/embezzlement are proved against an employee in the disciplinary enquiry it is unsafe to reinstate the said employee in Bank whereas the services in the Bank are that of trust and highest integrity and an employee who takes money from account holders which is deposited in the Bank and does not deposit the same and pocketed the amount or make fictitious entries in the account by increasing the amount in the account of the Bank, cannot be said to be person who deserves reinstatement in the Bank Service. Such action of the Bank cannot be approved by the Court. It is, however, made clear that no relief having been claimed against the reinstatement of the respondent No. 4 in the present case, his reinstatement shall not be affected by any observation made in this case. Learned Counsel for the petitioner has placed reliance on two judgements of the apex Court i.e. Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. (supra) and Barnam Singh v. Director, Samaj Kalyan Department U.P. and Anr. (supra) for the proposition that while awarding punishment the employee have to be dealt similarly. In Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. (supra) certain other employees challenged their termination which was passed without affording opportunity to them. The U.P. Public Services Tribunal had set aside the termination of certain persons on that ground. In the case of Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. (supra) the Court held that the authorities have not served any charge sheet upon the petitioner or have provided opportunity to him. Thus the Court took the view that parity is to be granted to Jagdish Yadav also. Thus in Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and Ors. (supra)the Court found the termination illegal and thus extended the parity. As noticed above both the petitioner and respondent No. 4 were given opportunity to deposit the misappropriated amount hence there was no discrimination practised.
16. The case of Barnam Singh v. Director, Samaj Kalyan Department U.P. and Anr. (supra) relied by the counsel for the petitioner is also distinguishable. In the said case a jeep was stolen, two persons , i.e. one Brijraj Singh Chaukidar and Barnam Singh Driver were proceeded with the departmental enquiry. Brijraj Singh was punched with recovery of 50% of value of the jeep and was reinstated. The petitioner was not fully exonerated and it was held that he has caused loss to the government. This Court set aside the order of termination and maintained the order of recovery. That was the case where the Court found the punishment of Barnam Singh discriminatory. As observed above, the Bank dealt with both petitioner and the respondent No. 4 similarly by giving opportunity to both of them to deposit the misappropriated amount and be reinstated which opportunity was although availed by the respondent No. 4 but not by the petitioner. The judgement in case of Barnam Singh v. Director, Samaj Kalyan Department U.P. and Anr. (supra) does not help the petitioner in any manner.
17. Since the submissions raised by the petitioner have no substance, the order of punishing authority dismissing the petitioner from service need no interference by this Court in exercise of its discretionary jurisdiction Under Article 226 of the Constitution. The writ petition lacks merit and is dismissed.