G. C. Tandon v. Central Bank of India — 1991 DIGILAW 958 (ALL)

JUDGMENT S.C. Varma, J. - The petitioner is aggrieved by the order of dismissal dated 19.2.1987 awarded by the punishing authority which has been modified by the appellate authority by order dated 13.2.1988 into an order of removal from service. 2. The main grounds on which the aforesaid action has been assailed in the present proceedings under Article 226 of the constitution is that the petitioner has not been afforded adequate opportunity by denying the right to cross-examine the deposit or on whose statement the present action has culminated. The second ground is that the statutory rules require a prior show cause notice of the proposed punishment and thirdly the case of the petitioner as set up on the basis of the version of the account holder and the witnesses who had deposed in favour thereof has not at all been considered by the Enquiring Officer and the punishing authority. 3. For an incident which took place on 11.3.1985 when the petitioner was working as Head Cashier at the Central Bank of India, Reoti, District Ballia, the petitioner has been found to have illegally misappropriated the deposit of Rs. 200/ - made by one depositor Sri Daresh Pandey. According to the depositor, he submitted a duly filled voucher for the deposit of Rs. 200/ - in his account to the petitioner who affixed his initial and the seal of the bank both on the counterfoil and the voucher and accepted, Rs. 200/ - in two notes of Rs. 100/ - denomination. The petitioner thereafter returned the counterfoil and the voucher to the depositor for making entries. The depositor then submitted the counterfoil along with the voucher to the Accountant who, after making necessary entry in the pass book returned, the counterfoil. It appears the petitioner did not make entry in the Bank's cash Register and the Scroll of deposits in absence of the voucher and at the time he submitted the cash account. He did not account for the excess money. On the other hand, he made necessary alteration in the cash receipt book to adjust the amount. 4. The petitioner was served with a charge-sheet dated 11.9.1985 in accordance with the Central Bank of India Officers, Employees conduct regulations, 1976 containing the charge that the petitioner misappropriated Rs. He did not account for the excess money. On the other hand, he made necessary alteration in the cash receipt book to adjust the amount. 4. The petitioner was served with a charge-sheet dated 11.9.1985 in accordance with the Central Bank of India Officers, Employees conduct regulations, 1976 containing the charge that the petitioner misappropriated Rs. 200/ - deposited by an account holder by not accounting the said amount in the Banks cash receipt book and by adjusting the cash account. 5. The petitioner submitted a detailed reply and disputed the charge by setting up his defence version. It may be noted that the petitioner at the stage of preliminary enquiry when a show cause notice was served, had taken a different stand and had accepted the mistake that he could not make the necessary entry in the Scroll as the voucher on which Rs. 200/ - was deposited was not before him and it was on this account, the excess amount could not be correctly shown. 6. For consideration of the argument of denial of reasonable opportunity to the petitioner by not producing the account holder for cross examination whether it amounts to denial of opportunity in contravention of the statutory rules. From the report of the Enquiring Officer (Annexure 4) it is clear that the account holder was not produced by the Bank although he was mentioned as a witness. However, the statement of the complainant Sri Daresh Pandey has been relied upon as also the counterfoil indicating the receipt of Rs. 200/ - has also been brought on record on behalf of the Bank. It is established that the petitioner had asked for producing the depositor as a witness and for cross examination in respect of the statement given by him which has been relied on behalf of the bank. The reply to this request is contained in the report of the Enquiring Officer which is mentioned hereinunder: The MW1 is an outsider, so he cannot be pressed to come forward for a witness. Had be been an employee of the Bank, he could have been produced by all means. 7. The petitioner had also contended that the statement of the depositor dated 11.3.1985 marked as MEK-4 could not be relied as the witness had not been produced. Had be been an employee of the Bank, he could have been produced by all means. 7. The petitioner had also contended that the statement of the depositor dated 11.3.1985 marked as MEK-4 could not be relied as the witness had not been produced. This had been repelled by the Enquiring Officer merely by stating that if for the reason for which reliance could not be placed on the document MEX-4, than for the same reason on the non-production of the witness, reliance on another statement of the account holder which was subsequently filed and relied by the petitioner as DEX15 also cannot be relied. In my opinion, this may be a ground for not considering the subsequent statement of the account holder contained in DEX15, but it would not establish that the statement of the account holder contained in MEX4 was not taken into consideration or what not relied upon by the Enquiring Officer in establishing the charge against the petitioner. This is further established by the statement recorded in the Enquiry Report quoted below: Further in support of his charge with the help of his witness MW3 MR has argued that the fact of Rs. 200/ - deposit has been confirmed by the account holder during the course of his meeting with the MW3, who has visited Reoti Branch for preliminary investigation in this matter. 8. The Enquiring Officer further to establish the charge has relied on the document which came from the custody of the depositor and unless they have relied on the statement of the depositor Sri Daresh Pandey and the counterfoil in his possession, there may have been some infirmity in the establishment of the charge. The enquiring officer explained the placing of reliance on these documents in the following manner: To refute the charge, it is argued by the defence that MEX6 is the property of the account holder and how the MR has produced the same. When the complainant Sri Daresh Pandey through his statement (MEX4) informs the Bank about the incident, collection of counter and production by the MR is not correct. 9. When the complainant Sri Daresh Pandey through his statement (MEX4) informs the Bank about the incident, collection of counter and production by the MR is not correct. 9. With this material on record and the implicit reliance placed by the prosecution on the statement of Daresh Pandey, it is fully established that the statement of Sri Daresh Pandey was fully taken into consideration and placed reliance for establishing the charge by the Enquiring Officer and for these reasons, the argument of the learned Counsel for the respondent cannot be accepted that no reliance was placed on the statement of the complainant Sri Daresh Pandey and he was not necessary to be produced for cross examination. The explanation of the Enquiring Officer that he is a depositor and cannot be compelled to appear as a witness for cross examination is also not correct and for this reason the delinquent officer should not be denied the opportunity of elucidating the correct fact and version in support of his defence by cross examining the witness. There is nothing on the record to establish that the Bank made any effort to obtain the presence of the depositor except a letter from Sri G.D. Tandon, the Accountant to the Management's representation which has been filed as Annexure CA5 to the counter affidavit in which he has informed that he contacted Sri Daresh Pandey who refused to appear before the enquiry due to unavoidable reasons. In my opinion, this alone was not sufficient to procure the presence of the witness. 10. Considering all these facts and circumstances, I am fully satisfied that the Management of the Bank has relied on a material i.e. the statement of the depositor being the complainant. The delinquent officer has been denied the opportunity to cross-examine him and this denial of opportunity vitiates the entire enquiry proceedings as also the ultimate punishment awarded to him. It may be that on the basis of admissions and other documents on record the Enquiring Officer may have treated it to be a mistake and not an act to misappropriate the amount, but after placing reliance on the specific statement of the complainant and the counter foil which came from his possession, the charge has been held to be fully proved. In these circumstances, it leaves not no room for doubt that the petitioner should have been given an opportunity to furnish his defence by cross-examination of the complainant, the depositor. 11. Denial of opportunity to cross examine the complainant or a witness whose statement has been relied upon to establish the charge would amount to denial of reasonable opportunity to defend. The State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086 and Town Area Committee, Jalalabad Vs. Jagdish Prasad and Others, AIR 1978 SC 1407 . 12. As regards the second argument of the petitioner, there is no force. The Regulations were produced before me and I did not find any provision for opportunity to show cause with regard to the proposed punishment. 13. The third argument of the petitioner that the Enquiring Officer had not considered the defence version in which the subsequent statement of the depositor which was proved by the witnesses marked as DX-15, could be ignored, as this version in absence of the person i.e. the complainant himself cannot be accepted. IN my opinion, the Enquiring Officer had not committed any mistake in not considering this statement which appeared to be an after thought and was not convincing and fully established, in absence of the complainant himself. The contention of the petitioner has been noticed in the Enquiry Report but it was disallowed for correct and good reasons. 14. For awarding the punishment of dismissal, the authority has also to keep in view the spirit behind the statutory regulations and the nature of the charge and decree of the offence. The question of doctrine of proportionality in the matter of awarding punishment was considered in Ranjit Thakur Vs. Union of India (UOI) and Others, AIR 1987 SC 2386 , and it was held as under: The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Bhagat Ram Vs. State of Himachal Pradesh and Others, AIR 1983 SC 454 , the Supreme Court held as under: It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. 15. Applying the aforesaid principle of law laid down by the Supreme Court, in the present case, it seems very unusual that an employee who has put in more than 20 years of service would commit mistake of misappropriation of Rs. 200/ - Although the petitioner was working on an important post of Chief Cashier, but considering the facts and circumstances on account of which the incident occurred, it may be that the petitioner, without realising the gravity of the consequences, did not furnish the correct facts and did not bring to the notice of the authorities the excess amount of cash in his possession. The petitioner having accepted his lapse and having deposited the money, the punishment of dismissal from service in these days would be too harsh and disproportionate to the gravity of the misconduct. 16. For the aforesaid reasons and in the interest of justice, I am inclined to allow the petition. The order of removal from service as passed by the appellate authority by order dated 13.2.1988 is quashed. The petitioner is liable to be reinstated and should be treated in continuous service and would also be entitled to the emoluments which would accrue to him. There would be no order as to costs.