(1.) This writ petition is directed against the order dated 3-12-1979 passed by the Deputy General Manager, Calcutta Regional Office, Industrial Development Bank of India against the petitioner since modified by the Appellate Authority in terms of the resolution of the Executive Committee taken in its 225th meeting on 27th March, 1982.
(2.) The petitioner is a Deputy Manager (Technical) of the Industrial Development Bank of India which is a statutory corporation created by the Industrial Development Bank of India Act, 1964. It appears that some time in February, 1976, an explanation was called for from the petitioner in respect of certain allegations made against the petitioner and the petitioner was directed to reply within a specified time. The petitioner submitted his reply, but it appears that the Bank administration was not satisfied with the said explanation of the petitioner and a charge-sheet was issued sometime in April, 1976 against the petitioner by the said Bank. An enquiry was held in the disciplinary proceeding initiated by the Bank on the basis of the charge-sheet issued to the petitioner and ultimately the enquiry proceeding was concluded sometime in January, 1978. It appears that the Disciplinary Authority did not agree with the view expressed by the Enquiry Officer and the petitioner was served with a second show cause notice sometime in September, 1979 and the petitioner replied to the said second show cause notice inter alia contending that the allegations made against the petitioner were baseless and frivolous and the same had not been proved. It appears that the Disciplinary Authority by its order dated 3-12-1979 dismissed the petitioner from service. The petitioner thereafter preferred an appeal before the Board of Directors of the Bank. As the Disciplinary Authority failed to conclude the said disciplinary proceeding within reasonable time the petitioner had moved a writ petition before this Court whereupon a Rule being Civil Rule No. 9452 (w) of 1979 was issued. The Disciplinary Authority thereafter passed the said order of dismissal against the petitioner and the Appellate Authority also disposed of the appeal by an order on 23rd July, 1980 and it appears that the Appellate Authority reduced the penalty of dismissal to stoppage of promotion till 31st July, 1981 and the period between date of dismissal and the reinstatement was treated to be spent on duty by the petitioner. The petitioner thereafter moved another writ petition before this Court challenging the appellate order passed in the said disciplinary proceeding and a Rule being Civil Rule No. 8725 (w) of 1980 was issued on the said writ application of the petitioner. The said Rule was disposed of on 2-11-1981 inter alia on the finding that the Appellate Authority had not disposed of the appeal properly and from the cryptic order passed by the Appellate Authority it did not appear that the Appellate Authority had adverted to the contentions raised by the petitioner in the Memorandum of Appeal. It was, therefore, directed in the said Rule that the Appellate Authority would reconsider the appeal in accordance with law and the Appellate Authority was directed to advert to the contentions made by the petitioner in the Memorandum of Appeal and to give reasons for the decisions to be taken by the Appellate Authority. As the Appeal Court was directed to consider the case afresh on merits, this Court did not consider the contentions raised by the petitioner in the said writ proceeding. It appears that for certain difficulties, the appeal could not be disposed of within four months from the date of disposal of the said Civil Rule No. 8725 (w) of 1980 as directed by this Court and the attention of the Court was drawn to the difficulties in disposing of the appeal earlier. Ultimately, the said appeal was disposed of and the Appellate Authority gave elaborate reasons for its decision after adverting to various contentions raised in the Memorandum of Appeal. The Appellate Authority, however, maintained the earlier decision of the Appellate Authority namely reduction of the punishment of dismissal to the punishment of stoppage of increment for some time. Against the said subsequent decision of the Appellate Authority, the instant writ petition has been moved by the petitioner.
(3.) Mr. Sengupta, the learned Counsel, appearing for the petitioner has contended that the disciplinary proceeding being vitiated by serious irregularities in conducting the disciplinary proceeding and relying on inadmissible and extraneous evidences, no action can be taken in the said disciplinary proceeding itself and the entire proceeding is vitiated. As such the orders of punishment passed either by Disciplinary Authority and by the Appellate Authority are of no consequences and the entire proceeding should, therefore, be quashed including the. said orders of punishment. Mr. Sengupta has contended that both the Disciplinary Authority and the Appellate Authority had considered a statement made by one of the employees of M/s. Traco Carbide Limited before the Judicial Magistrate under S. 164 of the Criminal P. C. Mr. Sengupta has contended that without affording the petitioner an opportunity to cross-examine the person making the statement under S. 164 Criminal P. C, it was not open to the Disciplinary Authority and/or the Appellate Authority to take any note of the said statement and the decisions of the Disciplinary Authority and the Appellate Authority are vitiated by basing the decision on consideration of the said statement under S. 164, Criminal P. C. Mr. Sengupta has contended that Mr. N. Chatterjee, an employee of M/s. Traco Carbide Ltd. made a statement before the Magistrate under S. 164, Criminal P. C. It appears that he also lodged a diary and he also made a statement before the C. B. I. Mr. Sengupta contends that the said statements are contradictory. He has also contended that a statement under S. 164, Criminal P. C. cannot be used as a substantive piece of evidence but it may be used to confront a witness making inconsistant statement in a trial for the purpose of showing that the evidence of the said witness was false. He contends that statement made under S. 164, Criminal P. C. cannot be accepted as true in the criminal proceeding itself. For this contention Mr. Sengupta has referred to a decision of the Patna High Court made in the case of Dhaneswar Thakur V/s. State, 1958 AIR(Pat) 412. He has also relied on a decision of the Privy Council made in the case of Brij Bhusan Singh V/s. King Emperor, 1946 AIR(PC) 38 and another decision of the Privy Council made in the case of Mamand v. King Emperor, 1946 AIR(PC) 45. Mr. Sengupta also contends that it was alleged against the petitioner that he had taken financial assistance from the Traco Carbide Ltd. with whop the Bank had dealings and the petitioner, as an officer, had to give a report in connection with a proposal for the financial assistance sought for by the said M/s. Traco Carbide Ltd. from the Bank. Mr. Sengupta has submitted that in his report the petitioner did not make any favourable recommendation for the said Traco Carbide Ltd. He has also submitted that the Disciplinary Authority and the Appellate Authority have proceeded on the footing that the petitioner has accepted a financial assistance from the said M/s. Traco Carbide Ltd. in the matter of his stay with the family members in a Kalimpong HoteL The petitioner's definite case was that as the petitioner became acquainted with some of the officers of the said M/s. Traco Carbide Ltd. in course of his dealings as an officer of the Bank he made a personal request to one of such officers of the said M/s. Traco Carbide Ltd. to assist him in the matter of booking an accommodation at a reasonable cost in Kalimpong. As a matter of fact, as a friendly gesture an officer of the said Traco Carbide Ltd., namely, the said Sri N. Chatterjee collected the money kept by the petitioner with one of his senior colleagues in the Bank namely Sri Parekh and sent the money of the petitioner on behalf of the petitioner to the hotel at Kalimpong and the money order coupons and the balance money had been returned to the said senior colleague of the petitioner by the said Sri Chatterjee and the fact of collection of the said money from the petitioner's senior colleague and remittance of the same for the petitioner to the Proprietress of the Hotel at Kalimpong were noted in a letter of Sri Chatterjee addressed to the petitioner and left with Sri Parekh. The petitioner in support of his defence filed the said letter and the money order coupons. The said Sri Chatterjee was not examined and the said senior colleague of the petitioner, namely, Sri Parekh was also not examined by the Bank in the disciplinary proceeding. Mr. Sengupta has, therefore, contended that in the absence of any evidence to disprove the contents of the letter of said Sri N. Chatterjee, the petitioner's case remains unshaken. He has also contended that no direct evidence was laid to show that money was actually remitted by the Company for booking reservation for the petitioner in the Kalimpong Hotel. He has also contended that by examining certain other witnesses and referring to some documents including the account books of M/s. Traco Carbide Ltd., the department tried to establish that the money was actually withdrawn from the said M/s. Traco Carbide Ltd. for the purpose of reservation of the accommodation of the petitioner in the said Kalimpong. Hotel. Mr. Sengupta has contended that admittedly there was some interpolation or overwriting in the account book of M/s. Traco Carbide Ltd. and the"re is no evidence to show that the money alleged to have been withdrawn from the Company's account had been actually sent by a money order by the Company. He submits that even assuming that one or two designing officers of M/s. Traco Carbide Ltd. had withdrawn certain sum from the company's account in the name of the petitioner it cannot be held that the petitioner is guilty of taking financial assistance from the said M/s. Traco Carbide Ltd. He submits that it is also probable that although petitioner had in fact advanced the booking charge as noted in the said letter of Sri Chatterjee, some officers of the Traco Carbide had misappropriated the Company's fund in the name of the petitioner and the petitioner cannot be held responsible for such activities of the employees of M/s. Traco Carbide. In this connection Mr. Sengupta has referred to a decision made in the case of Thota Palli Radhakrishna Murthy V/s. Divisional Manager, United India Insurance Co. Ltd.,1982 LabIC 1745 (Andh Pra). In the said case, the delinquent officer was charged of filing a false medical bill certified by a doctor. But the said doctor was not produced for proving the falsity of the medical bill. It has been held in the said decision that although technical rules of evidence are not applicable in departmental proceeding, hearsay evidence about the statement made by the doctor before other persons cannot be accepted. Mr. Sengupta has also cited a decision of the Gujarat High Court made in the case of State of Bombay V/s. R. M. Patel, 1961 AIR(Guj) 130. In the said decision a wandering camelman's statement taken by the Anti Corruption Department in Broach jail was sought to be relied on without producing the camelman on the ground of his non-availability. It has been held by the Gujarat High Court in the said decision that camelman's statement cannot be relied without producing him for cross- examination. Mr. Sengupta has contended that in the instant case, the persons who actually remitted the money on behalf of the Company had not been examined and even Sri Parekh who was a senior officer of the Bank had also not been examined to prove the falsity of the petitioner's defence. As such, it must be held that the remittance of the money from the Company's account to the Kalimpong Hotel has not been proved and in the absence of such proof, the entire case against the petitioner is bound to fail. Mr. Sengupta has also contended that one Sri A. P. Mitra of M/s. Traco Carbide Ltd. was also examined by the C.B.I. and the statement of Sri Mitra was relied on without giving the petitioner any opportunity of being heard. He has also submitted that Sri Mitra's statement related to the entries in the cash book of the Traco Carbide Ltd. concerning the hotel reservation in Kalimpong. The said Sri Mitra was examined after conclusion of the examination of witnesses in the said disciplinary proceeding despite objections raised by the petitioner. Mr. Sengupta has also contended that another employee of M/s. Traco Carbide Ltd., namely, Sri Ashok Ghosh, has deposed to the effect that when the expense for alleged hotel reservation was noted against Sri Chatterjee of M/s. Traco Carbide Ltd. the said Sri Chatterjee must have confirmed the said expenses. But that part of the evidence of Sri Ghosh was not considered either by the Appellate Authority. He submits that if the said evidence of Sri Ashok Ghosh is taken into consideration it will be quite clear that if Sri Chatterjee has drawn a sum in his own account then that amount concerns him and not the petitioner for the alleged reservation of his accommodation by the Company. Mr. Sengupta has also contended that most unjustly and illegally the D. S. P., C. B. I. participated in the enquiry proceeding and his presence had influenced the witnesses who could not give fair and correct evidence. He has also submitted that as a matter of fact the C. B. I. Officer had met the proprietress of the Kalimpong Hotel just on the eve of her examination in the proceeding only to influence her to give a cooked up evidence and the very purpose of a fair trial has been defeated by such illegal and unfair action. Mr. Sengupta has also contended that the department was under an obligation to prove the allegations made against the petitioner about taking financial assistance in the matter of his hotel reservation at Kalimpong. There was no direct evidence about taking of such financial assistance by the petitioner. Some circumstantial evidences were sought to be led but those circumstantial evidences were not at all sufficient to prove the allegations against the petitioner. Some of the evidences were inadmissible and some were irrelevant. Mr. Sengupta contends that if from the circumstantial evidences no irresistible conclusion can be drawn about taking of financial assistance by the petitioner from M/s. Traco Carbide Ltd., the prosecution case is bound to fail. Mr. Sengupta has also contended that the petitioner produced the money order coupons by which the money was sent on behalf of the petitioner to the Kalimpong Hotel. If the Company had sent the said money for reserving the accommodation of the petitioner the said money order coupons should have been in the custody of the company. There is no explanation as to how the petitioner could possess such money order coupons. It has not been stated by anybody that the money order coupons were in the Company's custody and thereafter handed over to the petitioner. Mr. Sengupta has contended that the Disciplinary Authority proceeded on the footing that the address given by the petitioner in the Hotel Register at Kalimpong cannot be found in Calcutta. But there is no such evidence that the address given by the petitioner in the Hotel Register was a fictitious address. In this connection, Mr. Sengupta has referred to a decision of this Court made in the case of Golam Mahiuddin V/s. State of West Bengal, 1964 AIR(Cal) 503 for the purpose of showing that circumstances must be such that only one inference was possible from such circumstances. Mr. Sengupta has contended that according to the evidence adduced in the proceeding the Cashier of Messrs. Traco Carbide Ltd. Sri Roy Chowdhury was entrusted with the money for remittance to Kalimpong Hotel but the said Sri Roy Chowdhury was not examined to show that the said money had in fact been remitted by the company. The money order coupons were also not with the Company and as aforesaid the petitioner produced the same Mr. Sengupta has contended that the Disciplinary Authority tried to bypass the said inherent lacuna by observing that as there were other overwhelming evidences, non-examination of Sri Roy Chowdhury did not make any difference. But the said observation of the Disciplinary Authority is devoid of any substance. The actual remittance of the money has got to be proved because such remittance of money by the Company is the sheet-anchor of the entire case made against the petitioner.;