ORDER
Munishwar Nath Bhandari, J.
1. By this writ petition, petitioner has challenged mainly the order of dismissal dated 12.04.2003 (Annexure 14) and also the order dated 21.02.2004 (Annexure 17), by which the Departmental appeal preferred by the petitioner was rejected.
2. Facts relevant to the present writ petition are that the petitioner was served with a charge-sheet dated 25.09.2001, levelling following allegations against the petitioner:
Statement of Allegations:
1. In the S.B. A/c. No. 3111, you in connivance with Kishore Singh Parihar, the then Manager of B/O Kotra, deliberately and knowingly afforded debit of Rs. 1,70,000/- (Rs. One lakh seventy thousand only) without obtaining any voucher and fraudulently misappropriated the amount deposited by the account holder and defrauded the Bank for your personal financial gain and exposed the Bank to serious financial risk.
Accordingly, entries are available in respective books and registers as follows:
(a) There is a debit entry of Rs. 1,70,000/- only in the S.B. A/c. No. 3111 of Shri Ghanshyam Lal Sharma S/o. Shri Gangaram Sharma R/o. Bikarni at the ledger folio 35/1. The balance in the account which was Rs. 1,71,001/- on 16.03.2001 came down to Rs. 1,001/- on 25.04.2001.
(b) a payment of Rs. 1,70,000/- is shown in the payment side of Receipt of Payment Book on 25.04.2001 and your signature is available on it alongwith signature of Shri Kishore Singh Parihar, then Manager of Kotra Branch.
(c) a payment of Rs. 1,70,000/- is shown in the payment side of Day Book under S.B. head for S.B. A/c. No. 3111 of Shri Ghanshyam Lal Sharma. Your signature is available on the Day Book dated 25.04.2001 alongwith signature of Shri Kishore Singh Parihar, the then Manager of Kotra Branch.
(d) this debit entry of Rs. 1,70,000/- has also been reflected in Cash Balance Book on 25.04.2001 wherein the payment of Rs. 1,70,000/- is incorporated and final balance is recorded under your signature along with signature of Shri Kishore Singh Parihar, the then Manager of B/O Kotra.
(e) No voucher/withdrawal from Shri Ganshyam Lal Sharma S.B. Account No. 3111 holder for the above mentioned withdrawal of Rs. 1,70,000/- is available with other vouchers of dated 25.04.2001 in the branch record. Saving Bank account (No. 3111) holder Shri Ghanshyam Lal Sharma, in his written statement clarified that neither he withdrew the amount of Rs. 1,70,000/- from his S.B. account nor he produced any withdrawal form in the branch for payment on dated 25.04.2001.
2. In the demand loan account No. 265, you in connivance with Shri Kishore Singh Parihar, the then Manager, B/O. Kotra have deliberately and knowingly shown disbursement of Rs. 70,000/- without obtaining loan documents and security and misappropriated the money, defrauded the bank for your personal financial gain. On 05.09.2000 you have shown disbursement of Rs. 70,000/- (Rs. Seventy thousand only) in the loan ledger in the name of Shri Shantilal Javeria against deposit receipt No. 036124 dated 08.04.97 for Rs. 50,000/- issued in the joint names of Smt. Shanta Bai and Shri Shanti Lal Javeria. The said P.O. No. 0280611 dated 05.09.2000 for Rs. 70,000/- as mentioned in the demand loan ledger a/c No. 265 is also not available with the other vouchers of the date. Whereas the said deposit receipt No. 036124 was already pledged to the Bank under demand loan account No. 257 and is available with relevant documents of demand loan a/c. No. 257. Accordingly, entries are available on respective books/registers:
(a) An amount of Rs.70,000/- is shown as disbursed to Shri Shanti Lal Jaqveria through pay order No. 0280611 at debit side in the demand loan A/c. No. 265 at ledger folio No. 132 on 05.09.2000. You have made the entry of said disbursement in the demand loan ledger folio No. 132. The said ledger folio is signed by Shri Kishore Singh Parihar the then Manager B/O Kotra.
(b) At the page No. 44 of Receipt and Payment Book, a payment of Rs.70,000/- is shown on 05.09.2000 in the payment column. That page is duly signed by you as well as then Manager Shri Kishore Singh Parihar.
(c) The payment of Rs. 70,000/- is also shown on 05.09.2000 in the day book on payment side under demand loan head. That page is duly signed by you as well as Shri Kishore Singh Parihar, then manager of the Branch.
(d) The pay order No. 0280611 through which the said loan was disbursed to Shri Shanti Lal Javeria is not available with the other vouchers of dated 05.09.2000 of the branch.
Shri Shantilal Javaria, under whose name the said loan is shown as disbursed, clarified in his written statement that he had availed only only one loan of Rs. 30,000/- on 23.05.2000 and pledged his deposit receipt No. 036124 under demand loan A/c. No. 257. He has not availed loan of Rs. 70,000/- on dated 05.09.2000.
3. Pursuant to the charges aforesaid, an Inquiry Officer was appointed to inquire upon the charges. The Inquiry Officer conducted the inquiry and, thereafter, submitted the inquiry report finding charges to be proved, hence order of dismissal from service was passed.
4. Petitioner challenging the inquiry report, submitted that despite of his meeting with an accident, the Inquiry Officer insisted for his presence in the inquiry which was nothing but an effort not to provide a proper opportunity of hearing. It is further contended that during the course of inquiry, the petitioner demanded various relevant documents. But, then, those documents were not supplied to the petitioner and inquiry was then concluded, which clearly shows that a proper opportunity of hearing was not given to the petitioner, more so when even the petitioner prayed for calling of certain witnesses relevant to the matter, but the Inquiry Officer failed to pass any order on the request of the petitioner. It was lastly urged that the petitioner was not even provided time to submit a proper representation pursuant to the notice given by the respondents as the legal adviser from whom the petitioner was to seek advise was unwell. Therefore, the petitioner was compelled to submit his representation without giving a proper opportunity.
5. The further contention of the petitioner is that even the impugned order was passed without considering all the relevant facts as otherwise explained by him in his representation which is placed as Annexure-8 to the writ petition, therefore, the whole exercise of the respondents remains without proper consideration of the relevant facts, so mentioned in the representation (Annexure-8) dated 10.09.2002. The contention of the petitioner is that even the deficiencies, as are being pointed in the charge-sheet, were taken out only after transfer of the petitioner and for this reason also, there remains a suspicion as necessary deficiencies may be a creation of someone working against the petitioner. It was lastly contended that apart from all other grounds, the main ground for setting aside the order of dismissal further remains that in regard to the same charges, an FIR was also lodged. Pursuant to filing of the FIR, a criminal trial was initiated against the petitioner on one and the same charges having common witnesses and material. Therein, the petitioner was acquitted, thus, in view of the finding recorded in the judgment passed by the Court in the criminal case, the respondents were not competent to record different findings. Hence, even on the ground of acquittal, the order of dismissal deserves to be set aside. To support the contention lastly urged, the learned Counsel for the petitioner cited the following Judgments:
G.M. Tank v. State of Gujarat.
2005 (8) RDD 3332 UOI v. Naman Singh.
2002 (4) WLC (Raj.) 49 Dhanna Ram v. RSRTC.
2008 (1) WLN (Raj.) 153 Bahadur Ram v. State.
Jasbeer Singh v. Punjab & Sind Bank & Ors.
1998 (1) WLC (Raj.) 1 RSRTC v. Gopal Singh.
The prayer of the petitioner is thus, in view of the grounds narrated above, the order of dismissal deserves to be set aside so as the order passed in appeal.
6. Learned Counsel for the respondents, on the other hand, submits that the grounds so raised by the petitioner to challenge the fairness of the inquiry are erroneous, inasmuch as there exists no deficiency in the inquiry. Referring to the first argument regarding non-accommodation of petitioner by the Inquiry Officer for grant of time in the inquiry proceedings due to accident, the learned Counsel for the petitioner submitted that if the proceeding of inquiry at Annexure R/1 is looked into, then it would become clear that the petitioner was given due accommodation as the matter was deferred on his request, but then, the petitioner’s effort throughout remained to delay the proceedings, therefore, it was urged that the contention of the petitioner regarding non-accommodation of the petitioner by the Inquiry Officer is not correct.
7. The second argument pertaining to non-supply of documents is also answered by the learned Counsel for the respondents by stating that the petitioner has never denied to call for any document and there is nothing on record to show that the petitioner’s prayer, in that regard, was declined by the Inquiry Officer. Same way, even the contention regarding non-summoning of witnesses is again a fact not borne out from the record. It is urged that there is nothing on record to show that Inquiry Officer ever refused to summon the witnesses, rather no such request was made by the petitioner and same way, while reply to the writ petition was to be given by the petitioner, he was given sufficient time. Thus, the ground urged for seeking legal advise is not correct.
8. Coming to other aspects raised by the petitioner, learned Counsel for the respondent submits that the representation of the petitioner at Annexure-8 was well considered, rather the Inquiry Officer recorded his finding based on the evidence produced by the delinquent employee, as well as by the Management and from the perusal of the inquiry report itself, things become clear that every aspect of the matter was properly looked into. So far as the ground regarding issuance of the charge-sheet, after transfer of the petitioner, it is submitted that the charge-sheet was framed immediately after knowing about the irregularities of the petitioner and that too, after prima facie investigation. Thus, merely for the reason of transfer of the petitioner from one place to another, it cannot be said that even if deficiency exists against the petitioner, the necessary charge-sheet should not have been served after his transfer. It was lastly urged that sofar as acquittal of the petitioner is concerned, that was also considered by the competent authority while passing the order at Annexure 14, therefore, the plea raised by the petitioner that in view of his acquittal, the order of dismissal should not have been passed, is not legally sustainable. According to the learned Counsel for the respondent, not only the standard of proof required in a criminal case is quite different than in the inquiry and then much depends on the material placed before the Court and the Inquiry Officer. Hence, merely for the reason that the petitioner was acquitted, it cannot be accepted that the order of dismissal should not have been passed by the bank. While referring to the judgment passed by the Court in a criminal case, it was specifically urged by the learned Counsel for respondent that even the Court had passed an order to the effect that looking to the seriousness of the allegations, the respondent should take proper administrative action in the matter. Therefore, not only that a proper opportunity of hearing was given to the petitioner, but the fact further remains is that only on account of acquittal in a criminal case, the disciplinary inquiry cannot be closed and the Management cannot be restrained to pass an order of dismissal, even if the material before the Inquiry Officer proves the guilt of the delinquent employee. To support his contention on the aforesaid issue and also on the issue that looking to the seriousness of the charges, the respondents cannot even repose confidence in the petitioner, following judgments have been referred by the learned Counsel for the respondents:
2005 (3) SCC 254
2005 (7) SCC 435
2006 SCW 680
2006 (6) SCC 187
AIR 1992 SC 1981
2004 (6) SCC 482
2004 (8) SCC 200
2006 (2) SCC 255.
9. Learned Counsel for the petitioner, in rejoinder, submits that even if one of the complainants Ghanshyam Lal had submitted an affidavit in favour of the petitioner, hence ignorance of the said affidavit by the respondents, was not otherwise proper. Therefore, after reiterating all the arguments, it was urged that the order of dismissal, as well as the order in appeal should be quashed and set aside.
10. I have considered the rival submissions of both the learned Counsel for the parties and perused the entire record, as well as the judgments cited on the issue.
11. First considering the facts pertaining to fairness of inquiry, I have gone through the order-sheet of the inquiry and find that the petitioner was given full opportunity to defend his case, inasmuch as, the inquiry officer adjourned the matter on an application moved by the petitioner showing his problem due to accident. However, it seems to be the effort of the petitioner to delay the inquiry. The petitioner, having participated in the inquiry, it cannot be said that due accommodation was not provided to the petitioner.
12. So far as the allegations of non-supply of document and non-calling of witnesses are concerned, there is nothing on record to substantiate such an argument. In view of the above, the ground aforesaid has been taken without any factual basis, therefore, only, while submitting arguments in rejoinder, learned Counsel for the petitioner could not press this argument. The last argument regarding fairness in the action of the respondents pertains to non-grant of time for submission of his representation after conclusion of inquiry. It is urged that due to sickness of the legal adviser of the petitioner, time was prayed for submission of representation, but, then, the petitioner was not given a reasonable opportunity on that count. Perusal of the record shows that the petitioner had made detailed representation and it is only, thereafter that necessary order was passed by the respondents. Thus, the petitioner could not show any effect on the proceedings on the ground raised above. It is not a case where petitioner could not make a representation, rather pursuant to the notice, petitioner did make a representation, hence, the last ground raised in regard to the fairness of action of the respondents cannot be accepted.
13. The further contention of the learned Counsel for the petitioner was in reference to Annexure-8, wherein the petitioner had made a detailed representation. According to the petitioner, respondents failed to consider all relevant facts mentioned in Annexure-8 and even respondents further failed to consider that deficiencies as pointed out in the charge-sheet were pointed out when petitioner was not working in the Branch concerned due to his transfer. Perusal of Annexure-7 and the impugned order reveals that competent authority had considered relevant aspects of the matter as raised in Annexture-8, thus the argument of the petitioner is not found proved to say that respondents have not considered the representation made by the petitioner. The further ground raised by the petitioner for pointing out deficiencies after his transfer, cannot be accepted. In fact, illegality and irregularity in working amounting to misconduct can be traced out at any point of time. Thus, merely for the reason that the petitioner was transferred elsewhere, his misconduct for past period cannot come to an end. Thus, both the aforesaid grounds raised by the leaned counsel for the petitioner cannot be accepted.
14. The next issue raised by the learned Counsel for the petitioner is that the petitioner was acquitted in the criminal case which was containing the same charges, as well as the having same witnesses, thus, in view of several judgments of the Hon’ble Apex Court and this Court, cited during the course of arguments, the order of dismissal deserves to be quashed and set aside.
15. On the other hand, learned Counsel for the respondents submitted that the material before the Inquiry Officer and in the criminal case was not the same. The perusal of the statements of the witnesses in two proceedings are different thus conclusions were drawn by the inquiry officer based on convincing material available to prove the charge in the inquiry. Therefore, there exists difference of material before the Court and before the disciplinary authority, it cannot be held that only on the ground of acquittal, one should be discharged from the charges.
16. To appreciate the aforesaid issue, it is necessary to look into the judgments cited by both the learned Counsels. In the case of G.M. Tank v. State of Gujarat , the Hon’ble Apex Court held that if there is a case of no evidence and there is no iota of evidence against the delinquent employee to hold him guilty then, it would be unjust and unfair to record finding of proof in the departmental inquiry, more so when the employee is otherwise acquitted in the criminal proceedings. The Hon’ble Apex Court has drawn its conclusion in para 31 of the judgment which is then reproduced hereunder:
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by he appellant deserves to be allowed.
17. A bare perusal of reasoning given in the aforesaid case is that the evidence in departmental, as well as criminal proceedings were same without any iota of difference. However, in the present matter, perusal of the statement of the witnesses, as discussed in the inquiry report, shows that there was difference in the statements of witnesses and perusal of the inquiry report shows that finding given therein has been recorded, based on material which was then different than of the criminal proceedings. To clarify this position, it is necessary to state that if in criminal case, a witness become hostile and does not depose his statement truly, then, in absence of necessary evidence, a person can be acquitted, but, then the same witness makes a clear statement to prove the charge in the departmental inquiry, then relying on the statement of such witnesses, if conclusions are drawn by the Inquiry Officer , it cannot be said that the Inquiry Officer could not have arrived at a different finding than in the judicial proceeding. The judgment of the aforesaid case applies only when the material for the departmental inquiry and the criminal proceedings is exactly the same, i.e., no iota of difference of material between the two proceedings.
18. The next judgment relied upon by the learned Counsel for the petitioner is Union of India and Ors. v. Naman Singh 2005 (8) RCC 3332. The aforesaid case was again decided by a Division Bench of this Court on is own facts as otherwise decided by the Hon’ble Apex Court in G.M. Tank (Supra). The Division Bench in the case of Union of India v. Naman Singh (Supra), however, held that the acquittal in criminal case ipso facto will not result in exoneration of an employee from departmental inquiry. The case in hand, contains though statements of same witnesses, but, then their statements are substantially different in the two proceedings. Thus, merely for the reason of acquittal of the petitioner, for want of evidence, beyond doubt, it cannot be said that even if required material was supplied in the departmental inquiry to prove the charge, then also, same should be ignored.
19. Learned Counsel for the petitioner further referred another judgment of this Court in Dhanna Ram v. R.S.R.T.C. and Ors. 2002 (4) WLC (Raj.) 49. The decision given therein, was again based on its own facts of the case, therefore, the judgment referred to above cannot be applied to this case. The petitioner has further referred three more judgments reported in 2008 (1) WLN (Raj.) 153 Bahadur Ram v. State and Ors.; , Jasbir Singh v. Punjab & Sind Bank and Ors. and 1998 (1) WLC (Raj) 1 R.S.R.T.C. v. Gopal Singh. The judgments aforesaid reiterate the same legal position, as has been discussed in the other judgment.
20. Learned Counsel for the respondents, on the other hand, referred the judgment of the Apex Court in the case of Divisional Controller, KSRTC (NWKRTC) v. A.I. Mane . The judgment aforesaid is regarding scope of judicial review of disciplinary proceedings and loss of confidence. Thus, the decision above, is not on the issue of consequence of acquittal in criminal case, though the judgments may provide some assistance on the issue of loss of confidence in the employee. The another judgment referred by the learned Counsel is State of Rajasthan v. B.K. Meena and Ors. 1996 SCC (L & S) 1455. In the aforesaid judgment, the Hon’ble Apex Court held thus:
17. There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whiter the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed.
21. The next judgment referred is Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh and Anr. and other judgments, cited during the course of arguments, reiterate the same legal position.
22. The perusal of the record herein shows that the material placed before the Inquiry Officer, as well as in the criminal proceedings, is not the same and in view of this itself, the ground and plea of the delinquent employee deserves to be rejected. In all the judgments cited by the learned Counsel for the petitioner, the criminal case and departmental proceedings were based on exactly same material or, in other words, there was no iota of difference in the material used by the Inquiry Officer and the criminal proceedings. It cannot be held that due to acquittal in the criminal case, the departmental enquiry against the petitioner should have been resulted in exoneration.
23. It now remains the issue as to whether punishment is disproportionate, so as to call for interference by this Court. Looking to the gravity of the charges, order of dismissal, so passed against the petitioner, cannot be said to be disproportionate, more so Bank working needs trust and looking to the charges, Bank has lost its confidence in the petitioner.
24. In view of the above discussion, I do not find any merit in this writ petition. The same is dismissed.