JUDGMENT
V.K. Bali, J.
1. Petitioner takes exception to order dated 2.1.2002. Annexure P-8 vide which he has been asked to deposit the amount lost by him, failing which it shall be deducted from his salary.
2. The facts, as projected in the petition, reveal that petitioner recovered an amount of Rs. 52,000/- from the loanee numbers of the Society and could not deposit the said amount in the Bank. It is his case that he could not deposit the amount in the bank on account of the fact that 13th January, 2001 was a holiday being Saturday and January 14, 2001 was Sunday, once again a holiday. On January 15, 2001 when he was going to deposit the amount in the Bank on his bicycle, on the way, as unidentified person put a piece of cloth in the chain of his cycle. When petitioner was trying to remove the piece of cloth from the chain of his cycle, the said tin-identified person took away the bag containing the amount of Rs.52,000/- from the basket of the cycle and ran away. Petitioner made a complaint to the SHO, Police Station City Jind on 15.1.2002, on the basis of which an FIR was registered on 15.1.2002 and it is further his case that investigation in the aforesaid incident is going on.
3. It is pleaded and so argued by learned counsel for the petitioner that no charge-sheet was served upon the petitioner and no enquiry has been conducted or initiated
against him. So much so, no opportunity of hearing was even granted to the petitioner by the respondents and that being so, impugned order’. Annexure P-8, needs to be set aside being against the principles of natural justice and rule of audi-alteram-partem. It is also the contention of learned counsel that the said order is violative of provisions of the rule 28 of the Haryana State Central Cooperative Bank’s Staff Service (Common Cadre) Rules, 1975. Rule 28(a) of the said rules reads thus:-
“28(a) No penalty shall be imposed on any employee unless the charge or charges on which it is proposed to take disciplinary action against him, have been communicated to him in writing and he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him/her.”
4. After hearing learned counsel for the petitioner and examining the records of the case, we find no merit in either of the contentions of learned counsel as noted above. The present is not a case where a penalty might have been imposed upon the petitioner on the basis of some allegations or charges against him. Naturally, when the employer might decide to take disciplinary action against a delinquent, with a proposed punishment, a proper procedure has to be followed. In the present case, however, it is the case of petitioner himself that he has not deposited money in the bank that he had collected from the loanees. It is, thus, not a case where the department might have made allegations against the petitioner which may need a probe and finding of guilt before any punishment could be inflicted. The principles of natural justice of hearing the petitioner would also not apply as it is the petitioner, who is admitting loss of money. As to whether petitioner collected the money and did not deliberately deposit or as to whether petitioner lost it in the manner, as alleged by him, is a question of fact. Surely, such a disputed question should not normally be gone into by this Court in its writ jurisdiction under Article 226 of the Constitution of India. Petitioner, if may so like, should wait for the investigation of case and claim the amount that might be deducted from his wages/salary on establishing his innocence or may even otherwise prove that it is his stand of having lost the money in the way and manner suggested by him which is correct and not the version of department that he intentionally did not deposit the same.
5. Reliance placed by learned counsel for the petitioner on judgment of Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and Ors., A.I.R. 1967 S.C. 1269 and a Division Bench judgment of this Court in Baljeet Singh and Ors. v. State of Haryana and Ors., 1998(1) R.S.J. 651 is wholly misplaced. Insofar as judgment of Supreme Court in Dr. Binapani Dei’s case (supra) is concerned, same pertains to an order of compulsory retirement based upon certain disputed date of birth and petitioner was not given report of Enquiry Officer, who had conducted the enquiry in the matter. It is in the circumstances aforesaid that it was held that order was violative of principles of natural justice. Insofar DB judgment in Baljeet Singh’s case (supra) is concerned, the facts of the said case reveal that as employees of the Irrigation Department the petitioners had been maintaining and cultivating the land of the Central Rest Houses without entering into any lease agreement with the department. The trees and their produce standing on the land of the Canal Rest Houses were being annually auctioned by the government. Vide Annexure P-3, the Executive Engineer issued a circular for conveying the decision of the General Manager (Projects), Irrigation Department, requiring all persons to deposit their dues pending against them on account of cultivation charges. Inasmuch as petitioners did not pay the charges, an order was issued to recover the amount from their salaries and it was the grievance of the petitioners that respondents had started making recovery without following the principles of natural justice. The respondents sought to justify the recovery from pay of petitioners on the ground that they had been cultivating the government land without paying dues. It was conceded before the learned Division Bench by the Deputy Advocate General, appearing on behalf of the State that no notice or opportunity of hearing was given to the petitioners before steps for recovery of the outstanding dues from the salary of petitioners were initiated and it
is on this admission of the learned State counsel that it was observed by the Division Bench that “it was not necessary for us to go into the tenability of the rival submissions made at the bar on the merits of the recovery sought to be made by the respondents. In our opinion, the ends of justice would be met by restraining the respondents from making recovery from the salaries of the petitioners without giving action oriented notice and opportunity of hearing to the petitioners”.
6. Besides the fact that judgment aforesaid came on concession of the learned State counsel, the facts in Baljeet Singh’s case (supra) have no parity with the facts of the case in hand. In the case aforesaid, it could well be pleaded by the petitioners that they had already made payment or that they were unable to do so for some reasons which may ultimately be justifiable. In the present case, admittedly the petitioner did not deposit the amount. He is said to have lost it as someone forcibly snatched from him. That, as mentioned above, would be a question of fact which petitioner alone has to prove and, as already indicated above, on proof of the same, he may ask for the return of the amount that might have been recovered from his wages.
With the observations made above, this petition is dismissed.
Sd/-Amar Dutt, J.