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2000 DIGILAW 907 (PAT)

Kailash Singh v. State Of Bihar

2000-07-21

R.M.PRASAD

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Judgment R.M.Prasad, J. 1. In this writ petition, the petitioner is aggrieved by the order of the Managing Director, Magadh Central Co-operative Bank Limited, Gaya, contained in Memo No. 740 dated March 4, 1995 (Annexure-1) whereby and whereunder he was dismissed from the service of the bank on holding a departmental proceeding and submission of the report by the conducting officer. 2. In short, relevant facts are that on April 11, 1989, a show- cause notice was issued to the petitioner with respect to certain irregularities committed by him during the] period, he was posted at Makhdumpur branch. In pursuance of the said show cause notice, he filed his show-cause on April 22, 1989, Later, the petitioner was served with another show-cause notice vide reference No. 105, dated July 31, 1989 by the Managing Director with respect to the charge of irregularities committed by him in the year 1987-88 in distribution of loan in Makhdumpur branch. The petitioner gave his reply on August 2, 1989. The disciplinary authority being not satisfied with the show cause placed him under suspension vide memo No. 268, dated September 21, 1989 on the charge that irregularities were committed by him in; distribution of loan. Thereafter, a departmental enquiry was initiated and the administrative officer of the bank was appointed as the inquiring officer. The petitioner was served with the charges vide memo No. 570, dated; February 15, 1990. On several occasions, the petitioner demanded orally the relevant documents from the inquiring officer but no document was supplied to him. His case is that he was not supplied with the relevant copy of the document along with the charges. However, the petitioner claims to have submitted his show cause on the basis of his memory. It is then alleged that the inquiring officer neither fixed any date of proceeding nor he sent any letter informing the petitioner about the time, date and place where he was going to commence the enquiry. It is also alleged that neither any witness was examined nor any document was produced and exhibited and thus, the entire proceeding was conducted behind the back of the petitioner without giving him any opportunity to rebut orally or documentary evidence in course of proceeding. However, enquiry report was submitted on March 24, 1994 and the disciplinary authority on consideration of the same passed the impugned order. 3. However, enquiry report was submitted on March 24, 1994 and the disciplinary authority on consideration of the same passed the impugned order. 3. It is alleged that despite demand, the petitioner was denied a copy of the enquiry report. According to the case of the petitioner, the Joint Registrar, Magadh Central Co-operative Societies had inspected the branch of the petitioner and in his inspection report, he stated that the petitioner was not guilty of any charge and accordingly, he recommended for revocation of his suspension. Thereafter, the bank revoked the suspension of the petitioner vide memo No. 388, dated September 20, 1993. It is, thus contended that if the departmental proceeding would have been conducted properly and the petitioner could have been given opportunity he would have produced the inquiry report submitted by the Joint Registrar of Co-operative Societies, Magadh Division, Gaya and he would have called him as a defence witness in the said proceeding in support of his case and in order to prove that no charge is made out against him. 4. In the counter-affidavit filed on behalf of the respondent Nos. 2 to 4 Administrator, Managing Director and the inquiring officer respectively it is stated that during the period of suspension, the petitioners head-quarters was fixed at Manpur Branch of the bank. However, later in order to facilitate the petitioner to explain the irregularities satisfactorily, respondent asked him through letter No. 172, dated August 20, 1990 directing the petitioner to stay at Makhdumpur branch. It is alleged that after finding indifferent attitude of the petitioner and on getting no information of any progress into the matter, the Managing Director issued specific order through letter No. 210, dated September 17, 1991 whereby the headquarters of the petitioner was fixed at Makhdumpur Branch for the purpose of maintaining the books of the bank and other relevant records concerning the loanee members and saving account up to date and correct. 5. However, it is the case of the respondents that ultimately the respondent No. 4 visited the place of enquiry at Makhdumpur branch on several dates. On some dates, the petitioner was present, and on some dates he absented himself to evade the completion of the enquiry. 6. hi para 19 of the counter-affidavit, it is stated that respondent No. 4 visited the branch on June 17, 1993. On some dates, the petitioner was present, and on some dates he absented himself to evade the completion of the enquiry. 6. hi para 19 of the counter-affidavit, it is stated that respondent No. 4 visited the branch on June 17, 1993. The petitioner was also present and in his presence, the Branch Manager presented the relevant documents. The record was inspected in presence of the petitioner but the irregularities, as submitted hereinbefore, were found still existing and on being asked, the petitioner failed to submit any reasonable explanation and he further evaded to co-operate with the work of enquiry being done by the said respondent No. 4. The respondent No. 4 informed the Managing Director regarding indifferent attitude and non-cooperation at the hands of the petitioner causing unnecessary delay in completing the enquiry. It is stated that he ultimately, carefully and thoroughly examined the relevant records presented by the Branch Manager and compared with the explanation submitted by the petitioner wherefrom it transpired beyond any reasonable doubt that the petitioner was guilty of committing irregularities in the books of the bank and his acts of omission and commission were mainly responsible for misappropriation of the banks fund and accordingly respondent No. 4 submitted his enquiry report dated March 24, 1994 on the basis of which the petitioner was held by the Bank authority liable to be dismissed from service. 7. It is, thus, contended that the petitioner had been given opportunity to defend but on account of indifferent attitude and non-co-operation of the petitioner the enquiry officer submitted the enquiry report. It is also asserted that the enquiry was made in presence of the petitioner and the entire document was examined before him. 8. Learned counsel for the petitioner submitted that in fact, the petitioner was completely denied of reasonable opportunity to defend in the enquiry inasmuch as neither any document, asked for, was supplied to him nor any time was fixed for enquiry and as such, according to the learned counsel for the petitioner, the impugned order is vitiated as being violative of the principles of natural justice. 9. Learned counsel for the State submitted that from the facts aforementioned, it is clear that the petitioner evaded to participate in the enquiry. 9. Learned counsel for the State submitted that from the facts aforementioned, it is clear that the petitioner evaded to participate in the enquiry. It is further submitted that despite indifferent attitude and non-co-operation of the petitioner, the petitioner was given adequate opportunity inasmuch as the respondent No. 4 inspected the documents in his presence on June 17, 1993 but he failed to explain the irregularities committed by him. In such circumstances, it cannot be said that the petitioner has been denied of ample opportunity. 10. Learned counsel for the petitioner in reply submitted that in any view of the matter, the punishment imposed on the petitioner is quite severe and excessive and not commensurate with the gravity of the charge. On this ground also, the impugned order is fit to be quashed and the matter requires to be remitted back to. the authority concerned for reconsideration. 11. Having heard learned counsel for the parties and considering the facts and circumstances, this Court finds substance in the submission of the learned counsel for the State. It is not disputed by the petitioner that he was present on June 17, 1993 when the Branch Manager presented the relevant records and that the record was inspected in his presence, yet he failed to explain the irregularities committed by him. In reply affidavit, it is only stated that he requested the conducting officer to supply the document but he was not supplied with any document. 12. Learned counsel for the petitioner, however, has failed to show that after June 17, 1993, the petitioner ever raised any grievance on the inspection of the record by the respondent No. 4 in his presence. He never raised any question that he was denied of any opportunity to look into any relevant record. The record was inspected in his presence and irregularities were also found but he did not submit any explanation in his defence to meet the said irregularities. Under the circumstances, this Court does not find that the petitioner has been denied adequate opportunity before passing of the impugned order. 13. The record was inspected in his presence and irregularities were also found but he did not submit any explanation in his defence to meet the said irregularities. Under the circumstances, this Court does not find that the petitioner has been denied adequate opportunity before passing of the impugned order. 13. However, having regard to the fact that the petitioner was not found guilty on the question of misappropriation of the banks fund himself and that he was found of only committing irregularities in the books of the account, this Court finds that the order of punishment of dismissal from service is not commensurate with the gravity of the guilt. 14. Accordingly, this Court remits the matter to the disciplinary authority, namely, Administrator-cum-District Magistrate, Gaya, for re-consideration of the case of the petitioner on the question of punishment. 15. In the result, this writ petition is accordingly disposed of. However, in the facts and circumstances of the case, there shall be no order as to costs.