P.S. Asopa, J.
1. The petitioner in writ petition No. 7212/1993 Rambabu, at the relevant time, was working as Field Supervisor whereas the petitioner in writ petition No. 2385/1998 Prabhu Dayal Gupta was working as Manager and eight charges of misappropriation were levelled against him, out of which one charge/allegation No. 8 was identical to the sole charge against Rambabu, petitioner in Writ Petition No. 7212/1993. The petitioner Ram Babu Thathera has challenged the punishment order dated 31.1.1992 whereby he has been punished with stoppage of five annual grade increments with cumulative effect and Appellate Authority's order dated 13.8.1993 whereby appeal preferred by him was dismissed. Further on the basis of the reasoning given in the said punishment order dated 31.1.1992 of Ram Babu Thathera, in Writ Petition No. 2385/1998 petitioner P.D. Gupta has been exonerated of allegation No. 8 and he was punished in respect of another allegation No. 1 with stoppage of one annual grade increment with cumulative effect vide order dated 13.2.1999, which was challenged by way of amendment in the writ petition and the same was allowed. On account of the aforesaid common charge/allegation, both the writ petitions were tagged and heard together.
Facts of Rambabu Thathera's case (Writ petition No. 7212/1993)
2. While working as Field Supervisor, the petitioner was served with the charge sheet on 16.5.1990 levelling the charge that he committed certain acts which amounted to misconduct under Regulation 19 and 30 of the Jaipur Nagaur Aanchalik Gramin Bank (Staff) Service Regulations, 1981 (Amended 1982)(in short 'the Regulations) and the petitioner failed to serve the bank honestly and faithfully so much so that while working as Field Supervisor, he prepared a false pre-sanction report dated 19.6.1986 in respect of Smt. Shanti Devi w/o Cheetarmal Balai (Loan Account No. 1441) as borrower and got the loan sanctioned for Rs. 1600/- on 21.6.1986 in favour of the said borrower on the blank loan documents and pocketed the amount. The loan amount with interest was deposited on 30.9.1987 by Shri Thathera through Bajrang Lal S/o Shri Mohan Singh. Thus, the petitioner has violated/contravened Regulation 19 and 30 of the Regulations. The allegations upon which the above article of charge is based, have been given with the statement of allegations. In the statement of allegations main allegation is that Shri Thathera obtained thumb impression of Smt. Shanti Devi on the blank loan documents, debit vouchers and later on filled in/prepared the same in her name without conducting pre/post inspection visit. The loan amount of Rs. 1600/- was not paid either to borrower or to the reported seller. Middle part of statement of allegation is with regard to collusion of the petitioner with Shri P.D. Gupta in sanctioning and disbursing the loan to the alleged reported seller. Last part of the allegation is with regard to depositing the same by the petitioner through Shri Bajrang Lal Sarpanch on 30.9.87.
3. The petitioner filed reply to the charge sheet and denied the allegation and further submitted that in respect of the same incident of sanction and disbursement of bogus loan in the name of fictitious borrower, CBI has conducted an enquiry for the offence under Section 420, 467, 477A IPC read with Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act against the Branch Manager P.D. Gupta. During the course of investigation, the petitioner was also made co-accused, but negative final report was filed against all of them and the CBI has suggested the Bank to conduct the departmental enquiry. The petitioner was placed under suspension vide order dated 9.6.1988 and after two years, aforesaid charge sheet was served on 16.5.1990. During the course of enquiry, the petitioner has protested against the appointment of CBI Inspector as a Presenting Officer, but when the Bank declined to change him, the petitioner made a request for assistance of an Advocate as defence nominee. The said request was declined on 22.12.1990. Then again the petitioner made another request for appointment of Shri Mahesh Mishra as defence nominee on the ground that the Presenting Officer is well versed with the legal aspect of the matter and the petitioner being a simple Field Supervisor would not be able to defend himself, but the said request was also declined on 10.1.1991.
4. The petitioner has further stated that since CBI Inspector was well versed with the legal technicalities and was further having experience in investigating and presenting the case, but the petitioner, who was simply a Field Supervisor was not having such kind of experience, therefore, declining request for appointment of Advocate as defence nominee and alternatively Mahesh Mishra, an employee of SBBJ, has seriously prejudiced his defence. The petitioner has also stated in the writ petition that he demanded at least 19 documents and only 6 documents have been supplied, which has resulted in denial of reasonable opportunity. The petitioner has nothing to do with sanction and disbursement of loan. Otherwise also, Ramavtar Singh was not produced as witness, so it cannot be concluded that no amount for sale of Baan Moonj was received by him. The petitioner has also submitted that the enquiry officer has given a finding that no false report was prepared by the petitioner and subsequently, it has come on record that other loan papers e.g. affidavit of Smt. Shanti Devi and receipts bears counter signature of the then Manager of the Branch of the Bank P.D. Gupta, but the same neither bear any signature of the petitioner nor they were in his hand writing, but still the said aspect has not been considered and wrong presumption has been drawn by the disciplinary authority against the petitioner on the basis of wrong fact that the amount has been deposited by him with the further mention of the fact that unless someone has taken the loan, he will not deposit the same. Thus, the findings of the enquiry officer and disciplinary authority are perverse. Lastly, it was submitted that when one of the charges levelled against P.D. Gupta is identical to the petitioner then there was no reason to conduct two parallel enquiries and throw the entire burden on the petitioner and further after punishing him, Shri P.D. Gupta has been exonerated on the same charge by placing reliance on punishment order dated 31.1.1992, although the loan papers were signed by him, sanctioned by him and disbursed by him.
5. The Bank has filed reply to the writ petition of Rambabu Thathera and stated that there was grave misconduct on the part of the petitioner in preparing false pre-sanction report in regard to disbursement of loan. It was stated in the charge sheet that the petitioner in collusion with Shri P.D. Gupta obtained signature of Shri Ramavtar Singh, a reported seller on the reverse of the Manager's cheque in token of having received the amount from the Bank against the goods (Baan Moonj) sold to Smt. Shanti Devi. It was further stated in the charge sheet that Smt. Shanti Devi neither obtained any loan from the Bank nor purchased Baan Moonj and simple deposit of money at the later stage does not dilute the allegation of misconduct or misappropriation. The request of the petitioner to permit him to engage an Advocate as a defence representative was turned down in accordance with Regulation No. 30(3) of the Regulations. It is also stated that relevant documents were supplied to him and non-supply of irrelevant documents has not caused any prejudice to the petitioner. The findings of the enquiry officer are based on record and as per finding, the charge is proved. The punishment order has rightly been passed and the appeal has rightly been dismissed. An objection has also been taken that this Court under Article 226 of the Constitution of India has limited scope of judicial review of the orders passed by the disciplinary authority as well as appellate authority.
6. The submission of counsel for the petitioner in Rambabu Thathera's case is that when the Bank decided to continue the CBI Inspector as Presenting Officer, who was well versed with the investigation/enquiry proceedings then there was no justification for declining the request of the petitioner for appointment of an Advocate as defence nominee vide order dated 22.12.1990 and subsequent request of allowing Mahesh Mishra, an employee of SBBJ as defence nominee, which was made by the petitioner as he was not acquainted with the procedure of the enquiry being a Field Supervisor, who can be equated with layman in such matter. Further submission of counsel for the petitioner is that denial of 13 documents has seriously prejudiced his defence, therefore, entire enquiry proceedings are vitiated. It is also submitted that entire charge consists of following parts:
1. Application of loan made by Smt. Shanti Devi for purchase of Baan Moonj on 13.6.1986 for which false pre-sanction report dated 19.6.1986 in favour of Smt. Shanti Devi as borrower was given by the petitioner in his capacity as Field Supervisor.
R.B. Thathera - petitioner in collusion with P.D. Gupta the then Manager of the Bank obtained signature of Shri Ramavtar Singh, a reported seller on the reverse of the Manager's cheque in token of having received the amount from the Bank against the goods (Baan Moonj) sold to Smt. Shanti Devi and Shri Ramavtar Singh has also denied to have sold any article to Smt. Shanti Devi as well as receipt of payment.
3. The said loan amount with interest was reported to have been deposited on 30.9.1987 in the Bank by Shri Rambabu Thathera through Shri Bajrang Lal S/o Mohan Singh, Sarpanch of village Bilwari.
7. The further submission of petitioner Rambabu Thathera is that the enquiry officer has held that no false pre-sanction report was prepared by the petitioner and further it has come on record that the papers were signed, loan was sanctioned and disbursed by Shri P.D. Gupta and the said amount was deposited by Smt. Shanti Devi on 30.9.1987 in the Bank, therefore, there was no reason to presume that it was deposited by R.B. Thathera or at the instance of R.B. Thathera. Thus, he was not responsible for the aforesaid alleged fictitious transaction of Rs. 1600/-, Counsel for R.B. Thathera has further submitted that the loan papers were signed by P.D. Gupta and loan was sanctioned and disbursed by him, therefore, in case P.D. Gupta has been absolved of his liability then the petitioner R.B. Thathera cannot be held liable for the charge levelled against him as his role was limited to the extent of preparation of pre-sanction report, which was held to be not false.
8. The submission of counsel for the Bank is that on account of not providing the defence nominee an outsider employee and further by not providing 13 irrelevant documents, no prejudice has been caused to the petitioner. It is a case of grave misconduct and the petitioner was rightly held liable for the entire fictitious transaction of Rs. 1600/- to Smt. Shanti Devi. Counsel has also submitted that power of judicial review under Article 226 of the Constitution is limited in an departmental enquiry case.
Facts of P.D. Gupta's case (writ petition No. 2385/1998)
9. The writ petition filed by P.D. Gupta initially in the year 1998 was against the charge sheet dated 30.5.1990 and continuation o the enquiry proceedings even after his retirement on 31.5.1996. Subsequently, when during the pendency of the writ petition, the punishment order was passed on 13.2.1992, an amendment application was filed and the said punishment order was also challenged. The application for amendment was allowed. In the charge sheet dated 30.5.1990 as many as 8 statement of allegations are there, which have been differently numbered in the article of charge, but in the proceedings subsequent thereto, the statement of allegations has been referred as charge, therefore, the same numbers are also taken in this writ petition for convenience. As per statement of allegation, the charge No. 8 is identical to the charge levelled against R.B. Thathera, of which P.D. Gupta has been exonerated by quoting the extract of punishment order dated 31.1.1992 and he has been held guilty only of statement of allegation No. 1 and has been punished with stoppage of one annual grade increment with cumulative effect after his retirement vide order dated 13.2.1999. Challenge by the petition is only with regard to the legal issues i.e. enquiry by junior officer, continuation of enquiry after retirement and enquiry proceeding and finding on charge No. 1 on the ground that initiation of enquiry by the junior officer is illegal and the same cannot be continued after retirement as there is no provision in the Regulations for holding the enquiry after retirement.
10. Reply of the Bank is that the enquiry officer Devaram Choudhary was working as Manager Scale 11 which is higher than the Manager Scale I of the petitioner, therefore, the said ground is wholly misconceived, but its reply is silent on the issue as to under which provision the enquiry was continued after his retirement. Although, it is stated in the writ petition that the enquiry officer submitted its report on 20.5.1996 and the petitioner retired in the same month on 31.5.1996, therefore, the aforesaid question is now confined to the fact whether after conclusion of the enquiry before retirement any punishment order can be imposed after retirement.
11. 1 have gone through the record of the case and further considered rival submission of the parties.
12. Before proceeding further, the relevant Regulation No. 30 of the Regulations and its sub-rules are quoted as under:
30.(1) Without prejudice to the provisions of other regulations, an officer or employee who commits a breach of these regulations or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the Bank or in conflict with its instructions or who commits a breach of discipline or is guilty of any other act of misconduct, shall be liable to the following penalties-
(a) reprimand;
(b) delay or stoppage of increments or promotion;
(c) degradation to a lower post or grade or to a lower stage in his incremental scale.
(d) recovery from pay of the whole or part of any pecuniary loss caused to the Bank by the officer or employee;
(e) Removal from service which shall not be a disqualification for future employment.
(f) dismissal.
(2) No officer or employee shall be subject to the penalties referred to in Clause (b), (c), (d), (e) or (f) of Sub-regulation (1) except by an order in writing signed by the Chairman and no such order shall be passed without the charge being formulated in writing and given to the said officer or employee so that he shall have reasonable opportunity to answer them in writing or in person, as,he prefers and in the latter case his defence shall be taken down in writing and read to him:
Provided...writing.
(3) The inquiry under this regulation and the procedure with the exception of the final order, may be delegated in case the person against whom proceedings are taken is an officer to (any officer senior to such officer) and in the case of an employee to any officer. For purposes of the inquiry, the officer or employees may not engage a legal practitioner.
13. It would be useful to quote the duties of Field Supervisor and duties of Branch Manager in the matter of sanction and recovery of loan as produced by the respondents during the course of arguments as well as the sole charge of Rambabu Thathera along with statement of allegations and relevant extract of charge and allegation No. 8 of P.D. Gupta.
14. The relevant duties of Field Assistant/Field Supervisor at S. No. 3(iii), (iv) & (vii) are as follows:
3. Without prejudice to the generality of the duties indicated above, a Field Assistant/Field supervisor shall perform the following duties and work in specific:
(i) ...
(ii) ...
(iii) To prepare and submit to the branch manager assessment and viability reports in respect to each proposal for loan/advance.
(iv) To scrutinize and process the proposals for loans and advances and to assist the branch manager in submitting the same to head office for information, approval, sanction as required.
(v) ...
(vi) ...
(vii) To prepare vouchers, write-up account books, prepare statements and periodical returns, and do other routine work as may be necessary for the smooth working of the branch.
15. The relevant duties of Branch Manager at S. No. 2 (ii) are as follows:
2. Without prejudice to the generality of supervision and management of the branch, the Manager of the branch is required to perform the undernoted duties, work and functions in specific:
(i) ....
(ii)(a) To prepare Loans/Advances proposals whether to be sanctioned under his discretionary power as and when vested in him or by higher authority (taking into account the purpose of advance, viability of the scheme, as well as of the borrowers, etc.)
(b) Terms and conditions for the issue of sanction including the repayment of the loans and advances may be suitably fixed keeping in view rules and guidelines of the Bank.
(c) Attempt should be made to have personal rapport with the borrowers to facilitate recovery of advances.
16. The articles of charge and statement of allegations levelled against Rambabu Thathera vide charge sheet dated 16.5.1990 are as follows:
Articles of Charges
Shri R.B. Thathera while working as Field Supervisor at Bairath (Viratnagar) Branch of the Bank, committed certain acts which amount to misconduct under Regulation 19 and 30 of the Jaipur Nagaur Aanchalik Gramin Bank (Staff) Service Regulation 1981 (amended 1982).
Mr. Thathera failed to serve the Bank honestly and faithfully. So much so while working as Field Supervisor, he prepared false presanction report dated 19.6.86 in respect of Smt. Shanti Devi W/o Shri Cheetar-mal Balai (Loan Account No. 1441) as borrower and got the loan sanctioned for Rs. 1600/- on 21.6.1986 in favour of the said borrower on the blank loan documents and pocketed the amount. The loan amount with interest was deposited on 30.9.1987 by Shri Thathera through Shri Bajrang Lal S/o Shri Mohan Singh.
Mr. Thathera thus violated/contravened Regulation 19 and 30 of the Jaipur Nagaur Aanchalik Gramin Bank (Staff) Service Regulations 1981 (amended 1982). The allegations upon which the above articles of charge are based are given in the statement of allegations.
Statement Of Allegations
Shri R.B. Thathera while working as Field Supervisor of Bairath (Vi-ratnagar) branch of the Bank during the year 1986 committed act (s) of misconduct, particulars whereof are given hereunder:
Smt. Shanti Devi W/o Shri Cheetermal Balai an illiterate lady, applied for a loan for purchase of 'Baan Moonj' on 13.6.86. A loan of Rs. 1600/- is reported to have been sanctioned to Smt. Shanti Devi on 21.6.1986 Mr. Thathera obtained thumb impression of Smt. Shanti Devi on the blank loan documents, debit voucher(s) and later on filled in/prepared the same in her name without conducting pre/post inspection visit. The loan amount of Rs. 1600/- has been shown disbursed in the loan ledger and Bank records whereas no such amount was paid either to the borrower or to the reported seller.
Shri R.B. Thathera in collusion with Shri P.D. Gupta, the then Manager of the Bank, obtained signature of Shri Ramavtar Singh, a reported seller, on the reverse of the Manager's cheque in token of having received the amount from the Bank against the goods (Baan Moonj) sold to Smt. Shanti Devi but the amount of the said cheque was not paid to him. It is reported that Smt. Shanti Devi neither obtained any loan from the Bank nor purchased Baan Moonj from Shri Ramavtar Singh. Shri Ramavtar Singh had also denied to have sold any article to Smt. Shanti Devi. Shri Ramavtar Singh reported to have put his signature on the reverse of the Manager's cheque for the loan amount at the instance/on inducement of Shri Ram Babu Thathera and Shri P.D. Gupta but no payment was made to Shri Ramavtar Singh.
The said loan amount with interest is reported to have been deposited on 30.9.1987 in the Bank by Shri Ram Babu Thathera through Shri Bajrang Lal s/o Shri Mohan Singh, Sarpanch of village Beelwari.
The aforesaid act (s) of Shri R.B. Thathera are unbecoming of Bank's Officer and he has committed fraud with the Bank's funds.
17. The relevant extract of articles of charge and sole allegation No. 8 against P.D. Gupta are as follows:
Relevant extract of articles of charge:
II. Mr. P.D. Gupta did not discharge his duties with integrity, lie prepared false pre-sanction/spot inspection reports on the borrowers and he manoevered health certificates of animals shows to have been purchased in the following cases and also fraudulently pocketed the amount of loans sanctioned as per details given in the statement of allegations:
7. Smt. Shanti Devi W/o Cheetarmal Balai, Loan A/c No. 14-11, (Rs. 1600/-)
Allegation No. 8
'8. On 13.6.1986 Smt. Shanti Devi W/o Cheetar Mai Balai on illiterate lady, applied for purchase of 'Baan Moonj' Mr. P.D. Gupta sanctioned a loan of Rs. 1600/- to Smt. Shanti Devi on 21.6.86. The loan amount is shown disbursed on 26.8.1986 by a Manager's cheque in favour of Mr. Ramavtar Singh, a reported seller, whereas no such amount was paid either lo the borrower or to the reported seller.
Shri P.D. Gupta in collusion with Shri R,B. Thathera, the then Field Supervisor of the Branch, obtained signature of Shri Ramavtar Singh, reported seller, on the reverse of the Manager's Cheque in token of having received the amount from the Bank against the goods (Baan Moonj) sold to Smt. Shanti Devi, but the amount of the said cheque was not paid to him. It is reported that Smt. Shanti Devi neither obtained any loan from Shri Ramavtar Singh. Her thumb impression (KTIs) were obtained on blank documents by Shri P.D. Gupta in collusion with Shri R.B. Thathera.
Shri Ramavtar Singh, reported seller, has also denied to have sold any article to Smt. Shanti Devi. He reported to have put his signature on the reverse of the Manager's cheque at the instance/on inducement of Shri P.D. Gupta and Shri R.B. Thathera but no payment was made to him (Shri Ramavtar Singh).
18. A bare perusal of the aforesaid charge allegation of both the petitioners would reveal that the same are identical in respect of which common evidence was required to be led, but the Bank has committed procedural illegality in initiating separate enquiry and has further committed illegality in relying on the punishment orderof R.B. Thathera, dated 31.1.1992 incase of P.D. Gupta, who was also responsible for sanction of loan, terms and conditions of loan and to make attempt for recovery of the loan amount as per duty No. 2 (ii)(b) & (c) and in exonerating him from the said charge contrary to well established principle of avoiding conflicting views in case delinquents are involved in same incident/misconduct.
Consideration of submission in Rambabu Thathera's case
19. Submission of counsel for Rambabu Thathera is that CBI Inspector was continued as Presenting Officer despite objection. Since the CBI Inspector was well versed with the procedure of investigation and enquiry, therefore, the petitioner has a corresponding right to be defended by an Advocate, which was denied on the ground of Sub-rule 30(3), but the Bank has not been able to show under which provision of law, an outsider that too a CBI Inspector was appointed as the Presenting Officer. Even if an Advocate was not permissible then also he was entitled for a defence nominee of equivalent qualification and there appears to be no reason to deny the assistance of Mahesh Mishra. In my view, counter submission of the Bank that no prejudice has been caused, is not tenable as layman cannot be equated with the legally trained person and as such there has been violation of principles of natural justice.
20. As regard other submission of non-supply of 13 documents, the petitioner has not been able to establish the relevancy of the same and the Bank has also not relied on the same, therefore, there is no substance in this submission.
21. I am conscious that law is well settled with regard lo departmental enquiry and punishment, which can only be quashed in case there is a procedural illegality which caused prejudice to the delinquent and resulted in violation of reasonable opportunity of being defended and further finding is based on no evidence or the same is perverse. In the instant case, reasonable opportunity was denied to the petitioner when against the appointment of CBI Inspector as Presenting Officer, who is an outsider and well acquainted with the procedure of investigation and enquiry, the petitioner was not even allowed to be defended by an outsider employee. Further, in this case one of the delinquents P.D. Gupta was exonerated on the basis of reasoning given by the disciplinary authority, although the charge was proved against R.B. Thathera wherein one of the charge against P.D. Gupta was that R.B. Thathera in collusion with P.D. Gupta got sanctioned the loan, but still P.D. Gupta, has been exonerated on the basis of reasoning given by the disciplinary authority, which is not permissible because in case charges are identical then joint enquiry is to be conducted and if not identical then separate enquiry is to be initiated and record of one enquiry cannot be relied in another enquiry. Otherwise also, the Supreme Court as well as this Court has considered the uneven treatment on the identical charges and in case of Bharat Ram Meena v. State of Rajasthan and Ors. 2002 (2) RLR 655 it as been held that whether matter is of civil or criminal nature, so far as the parity is concerned, the Courts have always favoured even standards and have discarded the application of uneven standards in similar or identical cases. Uneven treatment is not at all palatable to the judicial conscience of the Court.
The relevant part of para 27 and complete para 28 of the said judgment are as follows:
27... Hindyatullah, C.J. - This appeal has been admitted only the question of sentence by this Court in somewhat unusual circumstances. Two members of the Police Armed Constabulary who had joined very recently and who were only trainee recruits, wished to go to their village and applied for leave on the ground that their wives were ill. This was their defence. The finding is that they did not apply but deserted their post and therefore committed an offence under Section 6(a) of the LLP. Pradeshik Armed Constabulary Act, 1948. The prosecution case had been accepted that they deserted service. Unfortunately the two cases were tried before two different Sessions Judges. Although the offences were the same, the defences were also the same and the facts were absolutely the same, the sentences passed on their conviction were widely different. The present appellant received 7 years' rigorous imprisonment and the other accused was sentenced to 4 years' rigorous imprisonment. They both appealed and unfortunately again, the appeals came before different Judges in the High Court. One learned Judge reduced the sentence of 7 years' to 4 years' and the other learned Judge reduced the sentence of 4 years' to three months. This shows how the question of sentences awarded in a crime may be viewed differently by different Judges, a problem which has never been solved satisfactorily so far. However, the two cases being identical, it looks somewhat odd that one of the accused should be sentenced to 4 years' imprisonment while another who committed the identical offence and in the like circumstances should be sentenced to three months' imprisonment, we must do something to make the punishment even in these two cases. We are told that the appellant in this case has undergone imprisonment for nearly ten months and we think it would be enough to say that the appropriate sentence in his case is the period of imprisonment already undergone by him. The appeal is allowed to this extent.
28. it is therefore clear whether the matter is of a civil or criminal nature - so far as the parity is concerned, courts have always favoured even standards and have discarded the application of uneven standards in similar or identical cases. Uneven treatment is not at all palatable to the judicial conscience of the Court.
22. The matter can be remanded back to conduct enquiry from the stage of defence nominee, but 13 years have passed and another similarly situated delinquent has been exonerated on the basis of reasoning given by disciplinary authority in punishment order in Rambabu Thathera's case. Otherwise also, remand after long lapse of 13 years may result in denial of reasonable opportunity of being defended on account of non-availability of the witnesses and even if available then he/she may not remember the incident of the year 1987, therefore, 1 think it proper to consider whether finding of holding the sole charge proved against R.B. Thathera is perverse or not on the basis of material on record.
23. The memorandum of allegations, rules and duties of both the petitioners have already been reproduced hereinabove but before consideration of the memo of allegations, findings and conclusions of the Enquiry Officer as well as consideration of the same by the Disciplinary Authority while passing the punishment order, it would be worthwhile to reproduce findings and conclusions of the Enquiry Officer as well as consideration thereof by the Disciplinary Authority, for the limited purpose to see whether the same are perverse or based on no evidence. The extract of enquiry report in which paras are not numbered and findings with reference to page number and part of charge of photocopy of the enquiry report in the subsequent paras are reproduced hereunder.
24. On the allegation of taking thumb impression byRam Babu Thathera, in the statement of MW-8 P.D. Gupta, it has been stated that the thumb impression was taken by P.D. Gupta. Relevant part of page 7 of the photocopy of enquiry report is as follows:
cSd i{k ds xokg ,e MCyw 8 us vius c;kuks es Lohdkj fd;k fd _.k nLrkostks ij vuwBk fu'kkuh ds ikl vkj-Vh-vkbZ- muds ,eMCyw&8 ds }kjk vafdr dh xbZ gS bu rF;ks dh iqf'V fofHkUu xokgks us vius c;kuks es djh gSA
vr% Li'V gS fd vuwBk fu'kkuh jke ckcw BBsjk }kjk izkIr ugh dh x;h Fkh A
25. It is surprising that P.D. Gupta is delinquent in respect of the same charge but still he has been examined as management witness PW-8 from the bank side which clearly reveal the intention of the Bank to help him.
26. Finding on the allegation of giving money to Smt. Shanti Devi for depositing it is in favour of Ram Babu on account of his posting in different branch i.e. Kanota Branch. The relevant part of page 11 of photocopy of enquiry report is as follows:
vr% Li'V gS fd fxj/kkjh us 'kkfUr nsoh ds c;kuks dh iqf'V djh gS o uk gj vius c;kuks es cSad ds izLrqfr vf/kdkjh }kjk izLrqr fd;s x;s fyf[kr rdksZ es vafdr fd;s x;s rF;ks dk mYys[k fd;k x;k gSA vr% izLrqfr vf/kdkjh }kjk iSjk &2 ersa vafdr fd;s x;s rF; xyr o cscqfu;kn gSA jkeckcw BBsjk ekg flrEcj 87 es dkusrk 'kk[kk esa Fks tgka mudh mifLFkfr dkuksrk 'kk[kk ds mifLFkr jkfTkLVj ekg flrEcj 87 es vafdr gSA vr% ;g nLrkost izekf.kr rF; gS fd jke ckcw BBsjk flrEcj 87 es u rks fcyokM+h x;s vkSj uk gh jke ckcw us fxj/kkjh ctjax ;k fdlh vU; dks dksbZ jkf'k 'kkfUr nsoh dks _.k [kkrk la[;k % 1441 tek djkus dks gh nh A
27. Finding on the allegation is that Ram Babu has filled the loan form and asked the loanee Smt. Shanti Devi to put her thumb impression, which is also admitted by MW-8 P.D. Gupta. The relevant part of page 13 & 14 of photocopy of enquiry report is as follows:
,XftfoV ,e&2] 4] 5 Hkh ih-M+h- xqIrk ,e MCye& 8 us Loa; us Hkjk tkuk Lohdkj fd;k gSA tkap dk;Zokgh jftLVj Ik`-la- 47 dk vfUre iSjk blh izdkj ,XftfoV ,e&3 es vkjBh vkbZ 'kkfUr o fodzsrk dk irk Hkh Jh ih-Mh- xqIrk }kjk Hkjk tkuk Lohdkj fd;k gSA tkap dk;Zokgh jftLVj Ik`a la- 47 bl izdkj ,XftfoV ,e&1 ls 5 rd lHkh nLrkost Jh Ikh-Mh- xqIrk ,e MCye&8 us Hkjk tkuk Lohdkj fd;k gS vkSj bu lHkh nLrkostks ij 'kkfUr nsoh dh vuwBk fu'kkuh ds ikl es vkjVhvkbZ 'kkfUr ,e MCye&8 dh gLrfyfi es fy[kk gqvk gSA
bu rF;ks dh iqf'V cSad i{k ds xokg ,e MCye&5 o 6 us Hkh djh gS rFkk cpko i{k ds xokg vuhy dqekj xks;y us Hkh bu rF;ks dks izekf.kr fd;k gS A bl izdkj ctjax flag ds c;ku dh jkeckcw BBsjk }kjk 'kkfUr dh vuqBk fu'kkuh [kkyh QkeksZ ij yxok;h x;h Fkh o QkeksZ jke ckcw Hkjs x;s Fks A rF;ks ds foijhr o cscqfu;kn gS A D;ksfd jke ckcw BBsjk ,XftfoV ,e 27 ds vuqlkj fnukad 13-6-86 dks cSd ds iz/kku dk;Zky; es Fks A vkSj ,e MCye&6 ?ku';ke nkl xks;y ds vuqlkj _.k vkosnu i= 13-8-86 dks gh Hkjk x;k Fkk A
28. Finding on the allegation that Rambabu gave money to be deposited in the loan account is in favour of Ram Babu and the same has been further held to be baseless, untrue and imaginative. The relevant part of page 15 of photocopy of enquiry report is as follows:
vr% Li'V gS fd cSd ds izLrqfr vf/kdkj us vius fyf[kr rdksZ iSjk&3 es xyr o euxUr rF; vafdr fd;s gS jkeckcw BBsjk }kjk 'kkfUr dh vuqBk fu'kkuh yxok;h xbZ o uk gh _.k [kkrs es jkf'k tek djkus ds fy, fdlh dks nh A vr% jke ckcw BBsjk ij yxk;s x;s vkjksi cscqfu;kn] vlR; o dkYifud gSA
29. Detailed finding on the aforesaid allegation is also in favour of Ram Babu. The relevant part of page 26 of photocopy of enquiry report is as follows:
jkeckcw BBsjk fojkVuxj es {ks= i;Zos{kd in ij 'kk[kk O;oLFkkid ds v/khu dk;Zjr Fks vkSj ekSdk fujh{k.k djuk {ks= i;Zos{kd dh M~;wVh dk ,d fgLlk gksrk gS] vr% jkeckcw BBsjk }kjk 'kk[kk O;oLFkkid ds vkns'k ls Jherh 'kkfUr nsoh dk ekSdk fujh{k.k fd;k x;k Fkk A ftldh iqf'V es _.k Lohd`fr ls iwoZ fujh{k.k fjiksZV ,e 6 ij gLrk{kj fd;s FksA _.k djkj Jh ih-Mh- xqIrk }kjk Hkjk x;k Fkk A o ml ij Jherh 'kkfUr nsoh dh vuqBk fu'kkuh Hkh ih-Mh- xqIrk us gh izkIr dh Fkh vkSj vuwBk fu'kkuh ds ikl vkj Vh vkbZ 'kkfUr vafdr fd;k Fkk A Jh jkeckcw BBsjk }kjk _.k djkj ,XftfoV ,e&5 dh tkap djh Fkh vkSj mldh iq'Bh es vius gLrk{kj dj fn;s Fks A ,slk jkeckcw BBsjk }kjk 'kk[kk O;oLFkkidj Jh ih-Mh- xqIrk ds vkns'k ls 'kk[kk dh dk;Z dh lkekU; ijEijk ds rgr gh fd;k x;k FkkA Jh ih-Mh- xqIrk us _.k djkj dks Hkjk tkuk vkSj vkjVhvkbZ 'kkfUr fy[kk tkuk Lohdkj Hkh fd;k gSA vr% Li'V gS fd jke ckcw BBsjk dks fdlh Hkh izdkj dksbZ feyhHkxr Jh Ikh-Mh- xqIrk ls ugh Fkh A vkSj uk gh Jh xks;y ,e MCye&6 us vius c;kuks es bl rF; dh iqf'V djh gSA
vr% Jh ?ku';kenkl xks;y ,eMCyw&6 ds c;kuks ls izekf.kr gS fd jke ckcw BBsjk ij vkjksi i= fnukad 16-5-90 ds ek/;e ls yxk;s x;s vkjksi fujk/kkj o vlR; gS bldh iqf'V tkap dk;Zokgh ds nkSjku izLrqr fd;s x;s nLrkost o vU; xokgks ds c;kuks ls Hkh gks tkrk gSA
30. Finding on the allegation of sanction and distribution of loan by P.D. Gupta MW-8 mentioned at page 55 of photocopy of enquiry report is as follows:
vr% Li'V gS fd _.k i=koyh _.k [kkrk la- 1441 Jh Ikh-Mh- xqIrk }kjk gh rS;kj dh x;h Fkh A vkSj ml ij vuqBk fu'kkuh Hkh Jh ih-Mh- xqIrk }kjk gh izkIr gks x;h Fkh A Jh ih-Mh- xqIrk }kjk Jherh 'kkfUr nsoh dks _.k Lohdkj fd;k x;k Fkk A vkSj forj.k fd;k x;k Fkk A Jh ih-Mh- xqIrk dk ;g dFku bu rF;ks dk Li'V izek.k gSA
_.k i=koyh cSad ds fu;ekuqlkj rS;kj dj eSustj psd }kjk fodzsrk dks Hkqxrku djus ds vkns'k dSf'k;j dks fn;s x;s Fks A tkap dk;Zokgh jftLVj Ik`a la- 49
;g _.k forj.k fnukad 26-8-86 dks fd;k x;k Fkk tkap dk;Zokgh jftLVj Ik`a la- 50
31. The clear facts which came on record of enquiry at page 51 of photocopy of enquiry report are as follows:
cSad ds izLrqfr vf/kdkjh o vkjksfir vf/kdkjh Jh BBsjk ds fyf[kr rdksZ o nLrkostks ds voyksdu ds Ik'pkr bl lEcU/k es fuEu rF; Li'V gksrs gS %&
1- fd fujh{k.k fjiksZV Jh BBsjk iw.kZ:Ik ls cSad fu;eks ds vuqlkj o lEcfU/kr ekSds dk fujh{k.k dj nh x;h gSA tSlk fd cSad Ik{k ds xokg Jh vks-ih- xqIrk ,e MCyw&5 o cSad ds nLrkost ,e&6] ,e 18 o ,e 22 ds voyksdu ls Li'V gSA
2- Jh vks-ih- xqIrk dh dksbZ fyf[kr f'kdk;r iwoZ es Jh erh 'kkfUr nsoh ds _.k [kkrs ds lEcU/k es izkIr ugh gqbZ gSA
3- ysfdu Jh xqIrk ds c;kuks ds vk/kkj ij Jh BBsjk }kjk tks ckr ,XftfoV ,e&9 eSustj pSd ua- 66020 fnukad 26-8-86 ds Hkqxrku ds lEcU/k es dgh xbZ gS og ekU; ugh gSA pwafd Jh xqIrk }kjk lkekU; izfdz;k ds vUrZxr gh gksus okyh dk;Zokgh ds vuqlkj bldk Hkqxrku jke vorkj flag dks gksuk crk;k gSA tcfd bl ekeys es fo'ks'k es tgka vU; nLrkost xokg vkfn ;g izekf.kr djrs gks fd tc dz; dh dk;Zokgh gks ,d QthZ dk;Zokgh gS o fodzsrk ds LFkku ij ,XftfoV ,e&3 ij fd;s x;s gLrk{kj gh eSustj pSd ,XftfoV ,e&9 ds ihNs fd;s x;s gLrk{kjks ls fHkUu gSA o bu gLrk{kjks dks izekf.kr djus okyk O;fDr ctjaxk flag ,e MCyw&3 ;g izekf.kr djrk gks fd Hkqxrku jke vorkj flag dks ugh fd;k x;k rks Li'Vr% Hkqxrku ugh fd;s tkus dh iqf'V gksuk gS A vkSj ;g iqf'V vkSj vf/kd cyoku gks tkrh gS ;fn vU; xokg vFkZkr ,e MCyw& 1] 2] 3] 4 vkSj 7 ;g c;ku djrs gks fd Jherh 'kkfUr nsoh dks ck.kZ ewta izkIrh ugh gqvk rks leLRk dh xbZ dz; dh dk;Zokgh rFkkdfFkr fodzsrk dks fd;k x;k Hkqxrku lafnX/k gks tkrk gSA gkykafd cSad i{k ds vU; xokg ftues Jh ih-Mh- xqIrk ,e MCyw&8 o Jh ?ku';ke nkl xks;y ,e MCyw 6 us nksuks us gh Hkqxrku dh dk;Zokgh dks iqf'V djrs gq, bl eSustj pSd dh jkf'k jkevorkj flag dks Hkqxrku djus dh ckr dh gS ysfdu mDr nksuks xokgks ds c;ku Hkqxrku ds lEcU/k es blfy, ekU; ugh gS fd os nksuks Hkh bl ?kVuk dze ls tqM+s gq, gksus ds lkFk O;fDrxr :i ls izHkkfor gksrs gSA o bl izdkj nksuks gh xokg bufMisUMsUV Lora= ugh gS o bUVsLVsMfoVuslh gS A vr% muds }kjk Hkqxrku lEcU/kh fn;s x;s c;ku vU; ckrks ds cyoku :i ls fo|eku gksrs gq, ekU; ugh gSA
32. Other facts which are clear from the statements of MW-7 Shri Ramchandra and MW-8 P.D. Gupta at page 52 of photocopy of enquiry report are as follows:
1& Jh jkepUnz us vius c;kuks es Jh fxj/kkjh ,e MCyw&2 ds ckjs es ftdz ugh fd;k x;k vkSj ugh mUgksus fxj/kkjh ds c;ku gh nkSjku ri'khl ntZ fd;s A
2& eSustj pSd ds ihNs ,XftfoV ,e&9 ctjax flag ds lkeus djok;s o ctjax flag us mlds gLrk{kj dks izekf.kr fd;k ysfdu jkevorkj dks o 'kkfUr nsoh dks _.k jkf'k dk iSlk ugh fn;k x;k A
3& ,eMCyw&7 jke vorkj flag dks tkap ds nkSjku ,Xtkfeu ugh dj ldk A D;ksfd mldk irk ekywe ugh gks ldk Fkk A og QkSth vkneh gS o u gh ck.k ewat cspus dk dk;Z djrk gSA vkSj ugh mlus 'kkfUr nsoh dks ck.k ewat cspk gSA vr% Li'V gS fd 'kkfUr nsoh dks u rks iSlk feyk vkSj u gh ck.k ewat feyk A
4& Jh jkepUnz }kjk eksgu flag ,e MCyw&4 o Jh ctjax flag ,e MCyw&3 ds c;kuks dh iqf'V gksuk ugh ik;k gS vFkkZr tks c;ku mUgksus nkSjku ri'khl fn;s Fks mudks mUgksus ,e MCyw&4 us udkjk FkkA
5& Jh ih-Mh- xqIrk ,e MCyw&8 }kjk jke ckcw BBsjk dh Lohd`fr iwoZ fujh{k.k fjiksZV ,XftfoV ,e&6 ds vk/kkj ij Jherh 'kkfUr nsoh dks _.k Lohd`r fd;k o Jh Ikh-Mh- xqIrk us fofHkUu nLrkostks ij Jh jke ckcw BBsjk dh gLrfyfi@Mfuf';y gLrk{kj igpkuus fd, o muds ,e MCyw&8 }kjk _.k i=ks ,XftfoV ,e&4 ,e 5@2] ,e&7] ,e&8 o ,e&9 rS;kj fd;s Hkjs x;s@vuqBk fu'kkuh ij vkjVhvkbZ 'kkfUr nsoh vafdr gksuk ik;k x;k A
voyksdu o Jh ih-Mh- xqIrk ,e MCyw 8 o vU; xokgks ds c;ku ls ;g Li'V gS fd _.k i=koyh Jh ih-Mh- xqIrk o jke ckcw BBsjk }kjk rS;kj dh xbZ A
33. The conclusions drawn by the Enquiry Officer at page 55 & 56 of photocopy of enquiry report are as follows:
1- Jh BBsjk }kjk vkjksfir vf/kdkjh }kjk _.k Lohd`r iwoZ fujh{k.k fjiksZV ,XftfoV ,e&6 >wBh ugh gSA
2& _.k lEcU/kh nLrkost ftues _.k vkosnu i= ,XftfoV ,e&1 fnukad 13-6-86 dks Jh BBsjk }kjk ugh Hkjk x;k gSA ysfdu vU; nLrkost ftues ,XftfoV ,e&2 'kiFk ?kks'k.kk i= o ,XftfoV ,e&3 jlhn i= Jh BBsjk }kjk o muds ns[kjs[k es Hkjs x;s gS o budh tkudkjh o budk fl/kk lEcU/k Hkh jgk gSA
3& Jh erh 'kkfUr nsoh dks u rks ok.k ewat gh cSd _.k jkf'k ls izkIr gqvk gS ,oa uk gh Jherh 'kkfUr dks _.k jkf'k dk iSlk gh izkIr gqvk gSA
4& _.k dh dk;Zokgh QthZ rjhds ls lEiUu dh x;h gS rFkkdfFkr fodzsrk Jh jkevorkj flag tks fd QkSTk es ukSdjh djrk gS dks dksbZ iSlk izkIr ugh gqvk gS A
5& ,XftfoV ,e&3 jlhns i= ij fodzsrk ds gLrk{kj eSustj pSd ,XftfoV ,e&9 ds ihNs fd;s x;s gLrk{kj fHkUu gksus ls ;g izekf.kr gksrk gS fd dfFkr fodzsrk dks Hkqxrku gh ugh gqvk o ;s Hkqxrku fdldks gqvk lafnX/k gS A D;ksfd eSustj pSd ds ihNs Hkh gq, gLrk{kj okys dks Hkqxrku blfy, ugh gqvk fd ctjax ,e MCyw&8 ftUgksus ;g gLrk{kj eSustj pSd ds ihNs izekf.kr fd;s gS ds vuqlkj Hkh mls gLrk{kj drkZ dks Hkqxrku ugh fn;k x;k gSA
6- leLr dk;Zokgh vFkkZr _.k Lohd`fr ls ysdj _.k forj.k rd dh es Jh ih-Mh- xqIrk o Jh jkeckcw BBsjk dh vyx vyx Lfkkuks ij fHkUu&fHkUu; Hkwfedk jgh gS tks fd tkap fjiksZV es o nLrkostks es Li'V gSA bl lanHkZ es xokgks ds c;kukr Hkh bldh iqf'V djrs gSA
7& Jh erh 'kkfUr nsoh }kjk cSad es tkdj iSlk tek djok dj _.k [kkrk cUn djuk ik;k x;k gS ysfdu ifjfLFkfro'k ;g Li'V gS fd Jh erh 'kkfUr nsoh dks iSlk fdlh vU; O;fDr }kjk fn;k tkdj ;s dk;Zokgh iwoZ es dh xbZ o _.k [kkrk cUn fd;k x;k A
8& xokgks ds c;kuks ,e- MCyw 1] 2] 3] 4 ls ;g bafxr gksrk gS fd ;g iSlk vkjksfir vf/kdkjh Jh BBsjk }kjk dfFkr _.kh Jherh 'kkfUr nsoh dks fn;k ysfdu buds c;kuks es gYdk lk fojks/kkHkkl iw.kZ gSA
vr% Jh BBsjk ds fo:) yxk;k x;k vkjksi fl) gS A
34. A bare perusal of memorandum of allegations and enquiry report would reveal that first part of allegation so far it relates to preparation of false pre-sanction report, sanction and disbursement of loan by R.B. Thathera is not proved. To be more specific, it has been mentioned in second part of statement of allegations that the petitioner in collusion with P.D. Gupta the then Manager of the Bank obtained the signature of Ramavtar Singh, a reported seller on the reverse of the Bank's cheque in token of having received the amount from the Bank is also not proved against R.B. Thathera from the record of the enquiry. The charge against the petitioner is that he has deposited the amount through Bajrang Lal whereas evidence is that the amount was deposited by Smt. Shanti Devi, who was accompanied by Shri Girdhari, therefore, no presumption can be drawn that the person, who has played role in depositing the amount is responsible for sanction. From the enquiry, it is also revealed that Ramavtar Singh was not produced and further the amount was deposited by Smt. Shanti Devi, may be at persuasion of some Bank officer and others will not make him responsible for sanction and distribution of loan, therefore, presumption drawn by the disciplinary authority is wholly illegal. Thus, conclusions are contrary to the findings given after consideration of the statements and documents as consideration of the statements and documents as reproduced hereinabove. As stated above, there is no evidence to prove all the three parts of the charge as well as statement of allegation levelled against R.B. Thathera, conclusions are contrary to the evidence, therefore, the finding is perverse.
35. A bare perusal of the aforesaid allegations and findings would reveal that conclusions No. 3 to 8 are contrary to the findings based on evidence. The said conclusions No. 3 to 8 are also perverse being contrary to the evidence referred hereinabove. Even if the conclusions No. 1 to 8 are taken on their face value then also as per conclusions No. 1, 2 & 8, charge read with statement of allegation regarding preparation of false report, taking thumb impression of Smt. Shanti Devi, further taking signature of Ramavtar Singh, reported seller on the reverse of Manager's cheque and deposit of amount through Bajrang Lal wherein enquiry officer has held who have deposited the amount there is a contradiction, are not proved. It is surprising that still the said charge has been held to be fully proved, which is nothing but perversity, therefore, conclusions No. 3 to 8 are quashed being contrary to the findings and the charge is not proved for the aforesaid reasons.
Consideration of submission in P.D. Gupta's case
36. As indicated above, in the present case, the sole charge against Rambabu and the statement of allegation No. 8 against PD Gupta MW-8 is identical but still no joint enquiry was conducted and the enquiry against P.D. Gupta was deliberately delayed. The said exercise resulted in punishment of R.B. Thathera and on the basis of some reasoning given by the disciplinary authority P.D. Gupta was exonerated of the charge, which is not legal as indicated above. In case charge proved by the enquiry officer in R.B. Thathera is considered as it is then also middle part of the charge of enquiry report of R.B. Thathera's case of collusion with P.D. Gupta has been held to be proved, therefore, P.D. Gupta could not have been exonerated. Since the finding on allegation No. 8 of P.D. Gupta, which is identical to sole charge of Ram Babu is not under challenge and R.B. Thathera has also been exonerated, therefore, this issue requires no further consideration.
37. P.D. Gupta retired on 31.5.1996 and the enquiry was completed and enquiry officer submitted its report on 20.5.1996 before retirement, therefore, present case is of the nature where enquiry is not initiated after retirement. In my view in case enquiry is completed before retirement then certainly the disciplinary authority has a right to impose the punishment. As regard other issue qua con ducting the enquiry by the junior officer Shri Devaram Choudhary, who was changed enquiry officer and conducted major part of the enquiry, was not junior to the petitioner, therefore, there is no substance in this argument.
Result of Rambabu Thathera's case
38. The writ petition is allowed. The conclusions No. 3 to 8 resulting in proving the sole charge against R.B. Thathera are quashed. Resultantly, the punishment order passed by the disciplinary authority dated 31.1.1992 and the order passed by the appellate authority dated 13.8.1993 are quashed and the petitioner is entitled to all consequential benefits.
Result in P.D. Gupta's case
39. In view of above, the writ petition is dismissed.