S.S. Chauhan, J. - (1.) THE present petition has been filed for quashing the dismissal order dated 3rd September, 1986 and the order passed by the appellate authority dated 9th February, 1987.
(2.) THE facts in brief are that the petitioner was appointed on the post of Clerk with the State Bank of India (for short "the Bank"). The petitioner while working on the cash counter of the of the Main Branch of the Bank at Lakhimpur Kheri, on 13th December, 1983 made payment in respect of one cheque issued by Sri Munnan Ali of Rs. 4,500/ -, which was got encashed by one Kasahat Ali. The said cheque was bearer cheque with the indication "Self" or "Bearer" without any specific name mentioned therein. In the later part of the day Munnan Ali raised a complaint that he was issued token No. 41 but he has not been given payment though he was holding the same. On the cheque, token No. 58 was mentioned while he was holding token No. 41. Munnan Ali happened to be real account holder. The petitioner was suspended on 3rd January, 1984 and a charge sheet was issued to the petitioner on 20th July, 1984. The petitioner was charged of misappropriating the said amount of the cheque. The petitioner submitted his reply and denied the charges. The enquiry proceeded against the petitioner and he demanded cross -examination of Munnan Ali but Munnan Ali was never brought for cross -examination by him. During the course of enquiry, it was found that a written statement has been sent by Munnan Ali which was not in his own hand writing but was only signed by him and the said statement has been relied upon by the petitioner. On the said statement, names of two witnesses viz. Raseed Khan and Kallan Ali have also been mentioned. It is stated that the petitioner did not get any opportunity to cross -examine them. A show cause notice was issued to the petitioner on 24th July, 1986. The petitioner replied to the show cause notice and denied the allegations. Thereafter an order of dismissal was passed against the petitioner on 3rd September, 1986. The petitioner preferred an appeal against the aforesaid dismissal order. The appellate authority proceeded to dismiss the appeal vide order dated 9th February, 1987 modifying the order of dismissal to an order of discharge while agreeing with the finding recorded by the punishing authority. Hence this writ petition. Learned Counsel for the petitioner has submitted by filing written argument that the charge was never proved before the enquiry officer and the documents sought to be relied upon were never proved by any of the witnesses and even the hand writing expert was not produced before the enquiry officer to prove the hand writing expert report which has been made the basis of dismissal. It has also been submitted that various other persons who were identically situated and they have committed fraud in some of the cases have been reinstated or have been dismissed one day before the date of retirement. He has argued with much stress that Munnan Ali was never produced before the enquiry officer although his statement has been relied upon by the Bank.
(3.) LEARNED Counsel for the Bank, on the other hand, has submitted that considering the impact of paragraph 521 (10) (c) of the Sastry Award the appellate authority took a lenient view and discharged the petitioner from service saving him from future disqualification of seeking employment. It has been submitted that misconduct of the petitioner was of gross type and, therefore, he was discharged from service giving him opportunity to seek alternative employment and he was paid one month's salary and other allowances in lieu of notice. The said discharge can be passed where it is found that the evidence was insufficient to sustain the charge and where the Bank does not for some reason or the other think it expedient to retain the employee in question any longer in the service. Discharge in such circumstances would not be deemed to amount to disciplinary action.;