JUDGMENT
Vineet Saran, J.
1. The petitioner was a Clerk-cum-Cashier in the respondent-Bareilly Kshetriya Gramin Bank. On 1.5.2003, a charge-sheet was issued to the petitioner by the disciplinary authority levelling two charges against him which related to some incidents on 5.7.1999 and 7/9.3.2000. The petitioner submitted his reply to the charge-sheet. The Enquiry Officer submitted the enquiry report on 22.8.2003, which was forwarded to the petitioner on 11.9.2003 for his comments, which were given by him on 26.9.2003. On 10.11.2003, the disciplinary authority issued a notice to the petitioner to show cause as to why, on the basis of the findings of the enquiry report, he should not be dismissed from the services of the Bank. A detailed reply was filed by the petitioner on 25.11.2003. By the impugned’ Order dated 12.1.2004, the disciplinary authority, accepting the report and the findings of the Enquiry Officer and holding the petitioner guilty of the charges, passed an Order dismissing him from service. As provided under the Service Regulations of the Bank, an appeal was filed by the petitioner before the Board of Directors on 2.2.2004, which has also been dismissed on 27.5.2004. Aggrieved by the aforesaid orders dated 12.1.2004 and 27.5.2004, the petitioner has filed this writ petition.
2. I have heard Sri Anjani Kumar Mishra, learned counsel appearing for the petitioner as well as Sri R. B. Sahai, learned counsel appearing for the respondent-Bank and have perused the record.
3. The English translation of the two charges levelled against the petitioner are as follows :
“1. Shri Vijay Kumar, Clerk/Cashier, Branch Barsia, accepted a sum of Rs. 12,445 from debtor Shri Ram Pal son of Godhan Lal resident of village Barsia on 5.7.1999, towards payment into his loan account No. 0467 but did not enter the same in the Bank ledger and embezzled the same.
2. Shri Vijay Kumar, Clerk/Cashier received Rs., 4,545 (Bank Loan) and Rs. 455 (Collection charges) from Shri Maksur All Khan son of Shri Wahid Khan, resident of village Rasaya Khanpur for depositing the same in loan account No. 0517 on 7.3.2000 but deposited the same on 9.3.2000 and in this way temporarily embezzled Rs. 5,000 [Rs. 4,545 Bank loan and Rs. 445 collection charges).
4. With regard to the first charge, which relates to alleged embezzlement of Rs. 12,445 of the bank on 5.7.1999, it has been submitted that for the same charge of embezzlement, one Rajendra Pratap Singh, the then Branch Manager of the bank was also charge-sheeted on 27.11.2001, along with several other charges against him for having committed financial , irregularities. Annexure-9 to the writ petition is the charge-sheet dated 27.12.2001 submitted in the case of Rajendra Pratap Singh. The details of the embezzlement of an amount of Rs. 72,000 has been given in the enclosure annexed with the ‘said charge-sheet. At Serial No. 6, mention of embezzlement of Rs. 12,445 in respect of the account of the loanee Ram Pal son of Godhan Lal has been made. It is the categorical case of the petitioner (which has not been denied by the respondents) that the said Rajendra Pratap Singh admitted his guilt of embezzlement of the said amount of Rs. 12,445 relating to account of one Ram Pal, besides having committed the other financial irregularities also. After admitting his guilt, the said Rajendra Pratap Singh deposited the amount alleged to have been embezzled by him. After enquiry, he had been found guilty of the charges and has already been dismissed from the services of the bank in the year 2002 itself. As such it has been submitted that the petitioner could not be charged for embezzlement of the same amount for which the said Rajendra Pratap Singh had been charged of and had been found guilty. It has been categorically stated that neither the Enquiry Officer nor the disciplinary authority and not even the appellate authority before whom the said explanation had been given, (which are all on record) have considered the same while submitting the report or while imposing punishment or while deciding the appeal of the petitioner. On being asked, Sri Sahai, learned counsel for the respondent could not point out from the enquiry report or the orders of the disciplinary authority or the appellate authority as to where such explanation given by. the petitioner had been considered.
5. The second charge relates to temporary embezzlement of amount of Rs. 5,000 said to have been accepted by the petitioner from one Sri Mansoor Ali Khan on 7.3.2000 and deposited, not on the same day but, on 9.3.2000.. It is not the case of the Bank that because of the same the Bank suffered any loss. The explanation of the petitioner is that the said amount had to be deposited through the Collection Amin and since the loanee had given it to the petitioner in the evening on 7.3.2000 for being deposited (for which no bank receipt had been given by the petitioner) and had been kept by him only as a custodian, and information of the same had been sent to the Collection Amin and the same was deposited through him immediately on 9.3.2000, when the Collection Amin was available. The said explanation has also not been considered by any of the authorities. Learned counsel for the respondents has not been able to show from the enquiry report or the orders passed by the disciplinary authority or the appellate authority, that before passing the impugned orders, such explanation of the petitioner had been taken into account.
6. I have also perused the impugned orders wherein such explanation regarding both the charges have neither been noticed nor considered before imposing the ultimate penalty of dismissal from service. With regard to the first charge, the same relates to the year 1999, and in between, in the year 2001, another person who was the Branch Manager, had already been charged for embezzlement of the same amount, and had been found guilty after he had admitted charges, and the amount is said to have been deposited, and he has already been dismissed from service after enquiry in the year 2002. In such view of the matter, in my opinion, the same charge could not have been levelled against the petitioner, nor could he have been found guilty of the same, especially without even considering such explanation having been given by the petitioner before the Enquiry Officer as well as the disciplinary authority.
7. As regards the second charge also, in my view, it is not the case where the petitioner could be held guilty of temporary embezzlement of an amount of\Rs. 5,000 for a period of two days, especially without considering and taking Into account the explanation of the petitioner, which appears to be quite valid and sound. Had it been the case where the petitioner had misappropriated the money and on being caught in doing so, he was made to deposit the said amount, the matter would have been different. Here is the case where it has not been denied that the amount was to be deposited through the Collection Amin, who was not available on the date when the account-holder had handed over the money to the petitioner. It Is also not the case of the bank that the petitioner could have directly deposited the said amount. Thus, the explanation of the petitioner which has not been considered by the authorities concerned), for the delay in depositing the said amount in the bank, appears to be justified.
8. Although this Court normally does not interfere with the findings of fact arrived at by the administrative authorities, but in the present case, considering that the findings have been arrived at without considering the explanation of the petitioner and without application of mind, this Court is constrained to interfere with such finding. The respondent-authorities have failed to take into account the relevant material before arriving at a finding holding the petitioner guilty of the charges. In view of the above, I do not find that in the facts and circumstances of this case, the petitioner could have been held guilty of any of the two charges levelled against him.
9. Learned, counsel for the respondent has placed reliance on a decision of the Apex Court rendered in the case of State Bank of India v. T.J. Paul, JT 1999 (3) SC 385, in support of his contention that the employees of the banking institutions should perform duties with utmost integrity and any lapses on their part could result in the punishment of dismissal. It is true that utmost integrity has to be maintained by the employees of financial Institutions, as the business of banking is principally based on trust, and in case if such integrity is not. maintained by the employees of banking and financial Institutions/such Institutions would not be able to function. In the present case the respondents have not been able to show as to how the interest of the bank was adversely affected or that the petitioner lacked Integrity because of his conduct. As regards the first charge, in view of another person having been found guilty of the same, much prior to the issuance of the notice to the petitioner, the petitioner could not again be held guilty of the same charge. As regards the second charge no financial loss had been caused to the respondent-bank. No motive could be attributed to the petitioner for 2 days delay in depositing the amount, which was for a valid reason. In the given circumstances, the amount had been received by the petitioner from the loanee on behalf of the Collection Amin, through whom the money was to be deposited, and not on behalf of the bank, which is alleging temporary embezzlement of its amount.
10. The Apex Court in the case of Kailash Nath Gupta v. Enquiry Officer, (R.K. Rai), Allahabad Bank, 2003 (2) AWC 1509 (SC) : 2003 (2) SCCD 463 : JT 2003 (3) SC 322, has held that “power of Interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-consideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded.” In the present case, there Is nothing to indicate that the appellant had embezzled any money or had committed any act of fraud. No loss could even be said to have been committed to the bank. The orders had been passed with considering the explanation of the petitioner. The appellate authority has not even passed reasoned orders while disposing of the appeal of the petitioner.
11. A Division Bench of this Court in the case of Amar Singh Rathor v. State of U.P., (1995) 3 UPLBEC 1581 has held that “removing a person from service without considering his reply, which is submitted in response to the show-cause notice is an arbitrary action. It amounts to condemning a person on certain charges without taking into consideration his version. Such an Order has to be declared as unfair, unreasonable and arbitrary.”
12. In the case of Anil Kumar v. Presiding Officer, AIR 1985 SC 1121, the Apex Court, while allowing the appeal of the terminated employee, held that “it is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural Justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy.”
13. In view of the above, I am of the opinion that this would be a fit case where this Court should interfere even with the quantum of punishment which has been awarded. Since I have already held that the petitioner could not have been held guilty of the two charges which had been levelled against him, the Impugned orders passed by the respondent authorities dismissing the petitioner from the services of the Bank are liable to be set aside.
14. This writ petition is. accordingly, allowed. The orders dated 12.1.2004 and 27.5.2004 passed by the Chairman of the Bank and the Board of Directors of the Bank respectively are both quashed. The petitioner shall be entitled to all consequential benefits. No Order as to costs.