Sunil Ambwani, J. - (1.) The petitioner was appointed as Assistant Cashier in Feeder Balancing Dairy, Ram Nagar, district Varanasi. on 30.12.1980 and was serving as permanent Assistant Cashier in the department. On 24.1.1989, when he went to deposit the money amounting to Rs. 2,96,000 in three bags in Oriental Bank of Commerce, Nichi Bagh, district Varanasi, it is alleged that some miscreants pushed the petitioner due to which the petitioner fell down and some miscreants snatched the bag which contained Rs. 87,0OO. The General Manager, Sri B.K. Tiwari was informed on phone to lodge the first information report about the incident. A charge-sheet dated 2.7.1990 was issued to the petitioner with the allegation that on 14.1.1989. when he went to deposit Rs. 2,96,000 in the vehicle of the institution No. GRM 9922 with Oriental Bank of Commerce. Nichi Bagh, Varanasi, according to delinquent employee, some one pushed film on which he fell down holding three cash bags out of which one bag containing Rs. 87,000 was snatched on account of which the institution suffered loss of Rs. 87,000 and from this, it appears that the delinquent employee has caused negligence in performance of the duties and failed to discharge duties which is a serious indiscipline and serious misconduct. An inquiry was conducted, in which the petitioner submitted his reply. Upon inquiry, an inquiry report was submitted which has been annexed as Annexure-6 to the counter-affidavit. In this inquiry. Gunman Sri Gulab Das Keshari did not appear. His written statement, however, was supported by Sri B. K. Tlwart, General Manager of the Bank, Sri Lal Ji Singh, Accountant and Sri B.K. Kundu, an officer of Oriental Bank of Commerce, Nichi Bagh, Varanasi. The Inquiry Officer observed that the gunman Sri Gulab Das Keshari, who was employed through a security agency, did not appear as he had left the security agency. The Inquiry Officer also found the fact that the petitioner was carrying three bags was not supported by affidavit of Sri C.L. Tiwari, Chief Assistant (Sales), Bhola Singh, Telex Operator, Hari Ram, Cleaner and Sri Ram Lal, Driver of the vehicle. In effect, the defence of the petitioner that he was carrying three bags and was pushed, upon which he fell and the third bag was snatched by some miscreants, was not believed. On the report of the Inquiry Officer, the petitioner was dismissed from service by order of Managing Director of the Bank dated 31.12.1990 which is the subject-matter of the challenge of this writ petition.
(2.) A supplementary-affidavit has been filed by the petitioner Ram Surat Ram along with stay application stating that the charge-sheet was submitted in pursuance of the F.I.R. in Crime Case No. 12 of 1989 under Section 406, I.P.C. In the trial Sri B. K. Tiwari, General Manager of the Bank, Sri Gulab Das Kesharl, Gunman, Sri V.K. Kundu was examined as P.W. 1 to P.W. 4. The petitioner examined Sri Kamlesh Kumar as D.W. 1. The Court of Judicial Magistrate. Ist Class. Varanasi, acquitted the petitioner with the finding, after assessment of evidence, that the petitioner had fallen down on the channel gate of the Bank where the money was looted away. The gunman, Gulab Das Kesharl deposed that he was with the petitioner until the General Manager came on the spot and supported the defence version that the petitioner had fallen down and the money was taken away. Documentary evidence was also taken into evidence in which stealing of Rs. 87.000 was reported. The Magistrate also believed the defence of the petitioner who deposed that after he fell down, 2-3 persons took the bundle of notes and ran away and other persons were chasing them. The Magistrate recorded a finding that from the evidence, the incident as alleged by the defence appears to have happened and the embezzlement is not proved. He further recorded a finding to the effect that the accused did not take such precaution as were expected from him, in that if he had taken money in box it could not have been stolen. In the end, he was acquitted on the charge of Section 406. I.P.C.
(3.) I have heard Ms. Suman Sirohi for the petitioner and Sri G.D. Misra for the respondents. The respondent has firstly taken a preliminary objection that the petitioner is a 'workman', and that he has an alternative remedy to challenge the order by way of raising an industrial dispute under U.P. Industrial Disputes Act, 1947. The writ petition was filed in the year 1992. A counter-affidavit was called. Thereafter counter and rejoinder affidavits have been exchanged and the parties also exchanged supplementary affidavits. The matter is governed by U.P. Co-operative Employees Regulations, 1975 and has been pending in this Court for the last nine years. It is, therefore, Just and proper to hear the matter on its merits.;