Kamlesh Sharma, J.
1. The petitioner is working as an officer JMS - I with the respondent-bank. He has filed the above writ petition for quashing the impugned order dated November 3, 1993 (Annexure P-9) whereby after holding departmental disciplinary proceedings, he was awarded major penalty of removal from bank's service with immediate effect, and order dated June 27, 1994 (Annexure P-12) whereby his appeal against the order of his removal from bank's service was rejected. Since the operation of these impugned orders remained stayed during the pendency of the writ petition, the petitioner continues to be in service.
2. On the allegations against the petitioner that while working as Branch Manager, Durlaghat during the period from July 15, 1982 to April 2, 1986, he advanced loan of Rs. 20,000/- to nonexistent borrowers in fictitious names, he was convicted and sentenced in a criminal case under Sections 420, 120-B, 465,467, 468 and 477-A, I.P.C. read with Section 5(2) of the Prevention of Corruption Act by the Sessions Judge, Solan vide judgment dated November 25, 1991, on the basis of which notice to show cause dated January 27, 1992 for his dismissal from bank service w. e. f. the date of his conviction was served upon the petitioner, which he had challenged in C.W. P. No. 86 of 1992. On the statement of learned Counsel appearing for the respondent-bank that the petitioner will be given personal hearing in the proceedings initiated by the notice to show cause, the said writ petition was disposed of on May 6, 1992 with liberty reserved to the petitioner to move this Court for subsequent cause of action. Thereafter when the representation of the petitioner was rejected by the General Manager (Personnel) vide Telex dated November 25, 1992 with direction to Zonal Manager, Shimla to proceed with passing of final orders, the petitioner filed another writ petition No. 942 of 1992, in which by interim order dated December 8, 1992 which was confirmed on August 17, 1993, the respondent bank was restrained from dispensing with the services of the petitioner, with the result the final order dated December 2, 1992, which by then was not served upon the petitioner, remained suspended. Keeping this in view the writ petition was allowed and the impugned order dated December 2, 1992 dismissing the petitioner from the bank service was quashed by judgment dated November 12, 1998.
3. Simultaneously, for the same charges disciplinary proceedings were also started against the petitioner and after holding departmental enquiry the petitioner was removed from bank service by order dated November 3, 1993 (Annexure P-9) by holding the petitioner guilty of advancing loan to a non-existent borrower in fictitious name of Bhagat Ram son of Surat Ram and thus acted fraudulently, misused his position as Manager and failed to discharge his duties honestly and to the satisfaction of the Bank. The appeal of the petitioner against the order of termination was also dismissed by the Appellate Authority vide order dated June 27, 1994 (Annexure P-12). Hence, the present writ petition.
4. This Court had heard learned counsel for the parties and gone through the record. The learned counsel for the petitioner has urged only two points during the course of his arguments. The first point is that despite demand by the petitioner the documents relied upon by the respondent bank to substantiate its charges were not supplied to him, as a result of which reasonable opportunity to defend himself was defined to the petitioner, which has vitiated the enquiry report forming basis of the impugned order of termination. But after going through the pleadings of the parties and the enquiry file we find this argument as misconceived. It is correct that on receipt of charge-sheet dated February 14, 1992 the petitioner vide his letter dated February 26, 1992 did ask for permission to visit Darlaghat Branch to inspect the relevant documents/ records to enable him to file his written statement, in reply to which he was told by the Divisional Manager (I) of the respondent bank that as spelt out in the memorandum of charge-sheet, he was required to submit his explanation basing on the information available with him and the opportunity to inspect the documents/records will be made available to him during the course of enquiry by the Enquiry Officer.
5. Thereafter, in the first hearing held by the Enquiry Officer on March 24, 1992, as the petitioner failed to appear before him, the documents produced by the Presenting Officer to substantiate the charges were ordered to be sent to the petitioner to enable him to prepare his defence before the next date of hearing. Accordingly, the Enquiry Officer vide his letter dated March 24, 1992 set a copy of the proceedings dated March 24, 1992 along with copies of 14 documents (ME-1 to ME-14) submitted by the Presiding Officer with directions that if he desired to verify the original records at Darlaghat Branch the same would be got done by shifting the venue of inquiry. On the next date of hearing held on April 13, 1992, the statement of allegations and articles of charges were read out to the petitioner by the Inquiry Officer for the purpose of his acceptance or denial. The petitioner accepted that he sanctioned and disbursed the loan of Rs. 10,000 to Shri Bhagat Ram, son of Surat Ram and not to Shri Bhagat Ram, son of Sant Ram, as stated in the statement of allegations and articles of charges, and also an amount of Rs. 5,000/- to Shri Rakesh Kumar, son of R.S. Hans but denied the rest of the statement of allegations and articles of charge. It was recorded in the proceedings that the petitioner was already supplied the documents which are relied upon by the respondent- bank to substantiate the charge-sheet and the petitioner was required to submit his list of documents/witnesses and name of his Defence Assistant on or before the next date of hearing fixed on April 20, 1992 which was adjourned on April 30, 1992 and thereafter to May 12, 1992 at the request of the petitioner.
6. In the meantime, corrigendum dated April 30, 1992 was issued that the name of Bhagat Ram, son of Sant Ram-mentioned in the charge-sheet, may be read as Bhagat Ram, son of Surat Ram, which fact was noticed in the proceedings on May 12, 1992. A copy of the list of documents given by the petitioner was passed on to the Presenting Officer for arranging production thereof and the hearing was adjourned to June 5, 1992 for production of documents and completion of evidence. As per the proceedings held on June 5, 1992, the Presenting Officer submitted three more additional documents ME-15 to ME-17 and closed his evidence by stating that he did not intend to produce any evidence before the inquiry. Out of six documents demanded by the petitioner vide his letter dated May 4, 1992, four documents were produced by the Presenting Officer and a copy of legal notice to Rakesh Kumar and the acknowledgment thereof, which could not be produced as these were not found in the records of Darlaghat Branch of the respondent-bank, attention was drawn to the statement of loan account of Rakesh Kumar ME-14 in which an amount of Rs. 24.75 was debited as legal notice expenses. Another document, a letter written to Darlaghat Branch of the respondent-bank by Rakesh Kumar and his father R.S. Hans was also not produced. We may notice that the demand of the document made by the petitioner in his letter dated May 4, 1992 pertained to the charge in respect of loan to a non-existent borrower in the fictitious name of Rakesh Kumar, which was not held proved as per the inquiry report, which was also accepted by the Disciplinary Authority absolving the petitioner of the said charge.
7. Further inquiry was held on June 23, 1992 when the petitioner submitted two documents DE-5 and DE-6 but failed to produce any witness out of the six witnesses mentioned in his list of witnesses. At his request, the hearing was adjourned to June 30, 1992 for production of his witnesses as a last opportunity. The documents submitted by the petitioner were a letter dated May 17, 1991 addressed to Rakesh Kumar in respect of his loan account and certificate dated June 8, 1992 from Pardhan, Gram Panchayat, Anandpur. On June 30, 1992, the statement of one witness Karam Chand Thakur was recorded and the defence of the petitioner was closed as he failed to produce other five witnesses. Accordingly, the petitioner was directed to submit his defence statement before July 11, 1992 and the Presenting Officer his written brief before July 20, 1992. Therefore, from the perusal of the inquiry proceedings, it is clear that after the receipt of 14 documents the petitioner never made demand of any other document or inspection of record in respect of charge of advancing loan of Rs. 10,000/- in the fictitious name of Bhagat Ram, son of Surat Ram, for which he has been held guilty and punished and no fault can be found with the inquiry report on this count.
8. The second submission made by the learned Counsel for the petitioner is that the only evidence produced on behalf of the respondent-bank were the documents ME-1 to ME-17, which were not proved during the inquiry by producing their authors, which would have afforded an opportunity to the petitioner to cross-examine them in order to show that these were not worthy of credence. The argument appears to be attractive but found without any substance in view of the procedure prescribed for imposing major penalties under Regulation 6 of United Commercial Bank Officer Employees' (Conduct) Regulations, 1976 (hereinafter called the Regulations), Reference to Sub-regulation (13) of Regulation 6 is relevant. It is:-
'On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority shall be examined by the Presenting Officer. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the officer employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross-examined, but not on a new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.'
9. The perusal of this provision clearly shows that it is for the Presenting Officer to produce oral and documentary evidence in respect of articles of charge and if any witness is produced and examined by the Presenting Officer, an opportunity is given to the delinquent employee to cross-examine that witness. It is not necessary that the documents produced by the Presenting Officer should be proved by producing and examining the authors thereof or by any other method. The same procedure is given under Sub-regulation 16 of Regulation 6 for the defence evidence. Above all, at no point of time, the petitioner objected to the procedure of producing and examining evidence before the Inquiry Officer or to the Disciplinary, Authority. If he wanted to cross- examine the authors of these documents, he could make a specific prayer in this regard, which he has failed to do. On the other hand, the petitioner has also relied upon documents DE- 5 and DE-6 without producing their authors. Therefore, in these facts and circumstances on record, the petitioner cannot be permitted to challenge the inquiry report on the ground that his defence was in any manner prejudiced by the procedure followed by the Inquiry Officer.
10. In this view of the matter, we are not inclined to interfere with the findings of tine Inquiry Officer on the basis of which the petitioner has been held guilty of alleged misconduct. The judgment of the Supreme Court in Jagdish Prasad Saxena v. The State of Madhya Bharat (now Madhya Pradesh) (1963-I-LLJ-325) (SC), cited by the learned Counsel for the petitioner is of no assistance, as in that case the learned Judges had come to the conclusion that no proper departmental inquiry affording reasonable opportunity to meet the allegations contained in the charge-sheet was afforded to the delinquent officer. Similarly, the judgment in S. Parthasarthi v. State of Andhra Pradesh, (1973-H-LLJ-473) (SC), is not relevant to the ease in hand as in the case before the learned Judges of the Supreme Court, it was found that inquiry was conducted by a biased officer, which vitiated the order of punishment passed on the basis of such inquiry.
11. Coming to the last submission made on behalf of the learned Counsel for the petitioner that the punishment of dismissal is disproportionate to the misconduct proved against the petitioner, we may refer to the latest judgments of the Supreme Court. In Punjab State Civil Supplies Corporation Ltd. Chandigarh and Ors. v. Narinder Singh Nidrosh, (1997-II-LLJ-370) (SC), the learned Judges of the Supreme Court have held that in view of the settled legal position that Disciplinary Authority, on the basis of the magnitude of the misconduct, is empowered to impose punishment appropriate to the situation. The High Court was not justified in interfering with the punishment of reversion imposed upon the delinquent before them for the proved misconduct of misappropriation/embezzlement of wheat by an Inspector of Punjab State Civil Supplies Corporation. It was further observed that the nature of punishment depends upon the magnitude of the misconduct and since the misconduct in question was a grave one, the punishment of reversion itself being a very very lenient one, the High Court was wholly incorrect in reducing the punishment, which was not at all warranted in law.
12. In State of Tripura and Ors. v. Priyabandhu Chakraborthy, 1997 (11) SCC 405, the learned Judges of the Supreme Court converted the penalty of dismissal into the penalty of compulsory retirement with further rider that arrears of pension from the date of passing of the order of dismissal till the date of judgment will not be paid to the delinquent keeping in view that he had put nearly 33 years of service on the date when the order of dismissal was passed. Similarly in State of Orissa and Ors. v. Kshetrabasi Mohanti and Ors. (1998-III-LLJ (Suppl)-612) (SC), the punishment of withholding the promotion for a certain period was upheld for the misconduct of temporary misappropriation, even though the amounts of misappropriation were not large. The learned Judges observed, 'If the punishment meted out to the delinquent is commensurate with the nature of misconduct it is not for the Court to sit in judgment to alter the punishment. It is only in those rare cases where the punishment is so disproportionate to the misconduct that it would shock the conscience of the Court that the Court would exercise its jurisdiction to alter the punishment if the rules or law permitted.'
13. In view of these guidelines, it is true that in all disciplinary matters the punishment has to be moderated having regard to the nature of the charge proved, the total length of service and past record of the delinquent in the department. Once the charge is proved and if it is a charge Which can validly attract a punishment provided by law, the quantum of punishment awarded by the Disciplinary Authority is not justiciable and it is not open to this Court in its extra-ordinary jurisdiction to substitute its own notion of what the punishment should be, except perhaps in a case where it is so patently harsh as to shock its sense of justice and reasonableness. In view of these guidelines, though the punishment of termination from bank service is not shockingly harsh in view of the nature of the misconduct proved against the petitioner, who is holding a responsible post of Manager in a nationalised bank, yet in the totality of facts and circumstances on record, more specifically, that the petitioner has faced, firstly, criminal charge and thereafter, the departmental proceedings for the last about 10 years and has put in service of 28 years, the ends of justice will be duly served if the order of termination is converted into compulsory retirement with, immediate effect in view of the fact that he continues to be in service as a result of stay of the order of termination by this Court. The writ petition is disposed of in these terms. There is no order as to costs.