PRADEEP KUMAR SINGH BAGHEL,J. - (1.) THIS special appeal is directed against the order of the learned Single Judge dated 13.12.2011, whereby the writ petition of the appellant was dismissed. The learned Single Judge has upheld the dismissal order dated 24.11.2010 of the appellant and the order of the appellate authority dated 30/31.03.2011. Learned counsel for the appellant has submitted that the appellant's services were illegally terminated and the Appellate Authority without application of mind rejected the appeal of the appellant. His writ petition has also been dismissed without adverting to various issues raised by the learned counsel for the petitioner. He has urged that on the perusal of the impugned order of learned Single Judge it is evident that the Writ petition has been dismissed only in one paragraph of the order and the rest of the order is references of the various judgements. He urged that imposing the major penalty of dismissal entails serious consequences resulting deprivation of one's livelihood. Therefore, if the order is arbitrary and illegal, it violates fundamental right under Article 21 of the Constitution also. In view of the aforesaid submissions, there were two options before us. Firstly, to ask the learned counsel for the appellant to move a recall application before the learned Single Judge as he has submitted that his submissions were not considered by the learned Single Judge, secondly to give him opportunity to address us on all the points. We opted the second option. The facts leading up to the present appeal are briefly as follows: The appellant was initially appointed in the year 1999 as driver/peon in the Union Bank of India at Tara Mandal Branch, Gorakhpur. He was deputed the work to lay the drinking water to the official as well as to lay the register and files before the officials on demand. On 26.10.2009 one Smt. Radhika Tripathi opened a SB A/c No. 1972 in the said branch. On the next day viz. 27.10.2009, she again came to the Branch and submitted an application for cheque book and ATM card. The Bank issued her ATM card. It is stated that while leaving the branch she inadvertently left the envelope containing ATM card on the table of the appellant. After few months, on 8.2.2010, her husband visited the branch and found that there were fraudulent withdrawals from her account through ATM card. The matter was immediately reported to Branch Manager. An FIR was also lodged. The details of the withdrawals are mentioned here under: Date of Withdrawal Amount 26/12/2009 Rs. 20,000/- 01/01/.2010 Rs. 20,000/- 13/01/2010 Rs. 20,000/- 14/01/2010 Rs. 10,000/- 20/01/2010 Rs. 20,000/- 30/01/2010 Rs. 8,000/-
(2.) ON receiving the said complaint, the footage of CC T.V. installed at the main door of the branch was scrutinized. The scrutiny of the footage of the CC T.V. revealed the suspicious activity of the appellant in connection with the fraudulent ATM withdrawals. The Branch Manager reported the matter to the superior authorities. The Chief Manager (P) disciplinary authority FGMO, Lucknow by his order dated 30.3.2010 appointed one M.G. Hunure, Senior Manager (P), RO, Kanpur to make the enquiry against the appellant. A charge sheet dated 30.3.2010 was issued to the appellant containing two charges. First charge was in respect of the fraudulent withdrawal of Rs. 98,000/- by misusing the ATM card issued to Smt. Radhika Tripathi and it was alleged that during interrogation he admitted having withdrawn Rs. 98,000/- from the SB A/c of Smt. Tripathi on different dates by misusing her ATM card. Further he has reimbursed/deposited the entire amount so withdrawn by him. The second charge was with respect of breach of rules of business of the Bank and instruction for running of any department. A copy of the charge sheet is on the record as Annexure-4 to the writ petition. The Bank permitted the appellant to appoint any officer to defend his case by letter dated 25.7.2010. One Sri P.C. Pandey, Joint General Secretary, UBEU and Head Cashier, Sahebganj Branch, Gorakhpur was permitted to defend him. The appellant submitted his reply dated 26.09.2010 to the charge sheet. In his reply, he vehemently denied the charges levelled against him. He took a defence that he had falsely been implicated in the matter. In fact the Branch Manager himself was involved in the fraud. He had stated that on 15.2.2010, the Branch Manager called him in his Chamber and told him that he had committed a mistake and there was no way out. He requested the appellant to save him from the said embarrassing situation, if appellant takes the responsibility of the episode and admits the guilt; the entire amount would be returned by him and he will save appellant if any action is taken against him. The appellant accepted the request of the Bank Manager and he signed some confession papers prepared by the Bank Manager (MEX-4). The Bank Manager also got two other papers signed by the appellant. On 15.2.2010 Rs. 18,000/- (MEX-5) was deposited by the Bank Manager and on 7.2.2012 he again deposited Rs. 35,000/- (MEX-6). The appellant further took the stand that from the CC T.V. Camera footage nowhere it is shown that the appellant was withdrawing the money from the machine. The appellant has been shown only talking over his cell phone at the entrance of the Bank. In fact on 26.12.2009 the brother of the appellant Jhinku Lal had died and said information was received by him while he was in the Bank. For the said reason he was making the arrangements of funeral of his brother and he was giving instructions to his family members over his cell phone and those anxious moments of the appellant were caught in the CC T.V. Camera footage. The said footage was being misapprehended by the Bank officials. And it was used as evidence against the appellant. Apart from the CC T.V. footage there was no eye witness or documentary evidence to prove that the appellant was involved in any manner in the said fraudulent act. In the disciplinary proceeding, the Management produced Branch Manager Sri O.P. Agarwal (MW-1). In his statement he submitted that on 09.02.2009 local police approached the Branch Manager and informed about the receipt of the complaint regarding withdrawal of the amount through ATM. The Branch Manager then scrutinized the CC T.V. Camera footage which was installed near the A.T.M. He had also called the Deputy Security Officer from the regional office for investigation. During investigation it was found that CC T.V. Camera installed at branch entrance has recorded suspicious movements of the appellant and it was co-related with the timing of the withdrawal of the amount from ATM. He further deposed that the appellant initially denied having withdrawn the amount from ATM. However, when he was informed about his suspicious movement of going towards ATM, which was caught by CC T.C. Footage, he admitted having withdrawn the amount and thereafter he admitted the allegation in presence of some officers and submitted the confession letter (MEX-4), agreeing to refund the amount of Rs. 98,000/-. On the same day be brought Rs. 18,000/- which he handed over to the Branch Manager with a letter (MEX-5) that balance amount of Rs. 80,000/- will be refunded within three days. The Branch Manager further deposed that recovery instalment was held in sundry account and after getting/receiving the full amount, he prepared the pay order dated 03.03.2010 (MEX-16) and handed over to the account holder with her proper acknowledgement. The appellant's defence representative cross examined the Branch Manager. In his cross examination, he stated that he had not entrusted the work of issuing ATM card to the appellant. Thus appellant had not violated any rules of the Bank. It was the duty of the accountant to issue ATM cards. The accountant had informed him that the appellant used to help him in writing the names and numbers in the register. He has further stated that SMS facility was granted to the account holder but she had given the mobile number of her father-in-law who was not conversant with SMS etc. On the inquiry with the father-in-law of the account holder, it was revealed that he had ignored the messages as he used to receive many disturbing messages from other companies. Bank Manager also stated that the confession letter given by the appellant was not under coercion/pressure. The Bank had also got examined Sri D.K. Singh, RCC who was posted in the regional office Gorakhpur, and who had made inquiry at Tara Mandal Branch. In his statement, he has deposed that during investigation, the appellant admitted having committed the mistake as he was in need of funds/money and agreed to refund the entire money and he requested the Branch Manager to forgive him being his first mistake. He also proved the confession letter (MEX-4) which was given to the Branch Manager in his presence and some other officers Sri Kulbushan, Accountant, Sri D.K. Singh, RCC Incharge Regional Officer, Gorakhpur and Captain R.K. Kushwaha, Manager (Security) Regional Officer Gorakhpur. The Bank had also cross examined Sri R.K. Kushwaha, Manager (Security) as MW-3. His statement was on the same line, as deposed by the Branch Manager and MW-3, Sri D.K. Singh. The appellant did not produce any evidence in his defence. He had only stated that prior to his posting at Tara Manda Branch from September, 2009, he was personal driver at Regional Head Office, Gorakhpur for ten years and he had sincerely and honestly worked as personal driver because of the same he was appointed as Peon/Hamal in the Bank service and posted at Tara Mandal Branch he denied charges/allegations levelled against him. In his submission he stated that the confession letter (MEX-4) taken by the Branch Manager was under pressure and at the instance of the Branch Manager.
(3.) THE Inquiry Officer in his report found that both the charges were established by deposition of the Branch Manager Sri D.K.Singh (MW-3) and the footage of the CC. T.V. Camera (MEX-15). He has also recorded a finding that the confession was made by the appellant in presence of Sri O.P. Agarwal, Branch Manager (MW-1), Sri Kulbhushan, Accountant, Sri R.K. Kushwaha, Manager (Security) Regional Officer Gorakhpur (MW-3), Sri D.K. Singh, RCC, Regional Office, Gorakhpur (MW-2). The Inquiry Officer further found that the appellant was guilty of gross misconduct i.e. committing acts prejudicial to the interest of the Bank. He was also guilty of the minor misconduct i.e. breach of rule of business of the Bank and inspection for running the department. On 1.11.2010 the disciplinary authority issued a notice to the appellant along with a copy of the inquiry report/findings dated 4.10.2010, a copy of the show cause notice is annexed as Annexure -7 to the writ petition. Appellant through his defence representative submitted his reply dated 09.11.2010. In his reply, he stated that the findings of the Inquiry Officer are perverse and the Inquiry Officer full ignored the points raised by him. Therefore, the findings are not reliable. He has also submitted that the management did not produce the complainant which has deprived the defence to cross examine the complainant. Therefore, the complaint itself is not reliable. He has also blamed that had there been proper control and supervision by the Branch Manager. He further took the plea that the ATM card has not been recovered and there is no direct evidence against the appellant. The inquiry report is based on mere suspicion and the copy of the FIR/Police complaint was not produced by the Management. Having considered the inquiry report and the reply to the show cause notice, the disciplinary authority by order dated 24.10.2010 passed order of dismissal of the appellant as he accepted the findings and the inquiry report. In its brief order the disciplinary authority rejected the plea taken by the appellant. The disciplinary authority found that the charges against the appellant of gross misconduct was proved and he imposed punishment of dismissal of appellant from the service of the Bank without notice. He also found that that charge of minor misconduct for breach of rules of the business of the Bank was also found to be proved and warning was issued against the said charge. The appellant was not found to be entitled for any pay and allowance for the period of suspension except the subsistence allowance which has already paid to him. A copy of the order of disciplinary authority dated 24.11.2010 is annexed as Annexure-9 to the writ petition. Feeling aggrieved by the order of the disciplinary authority, the appellant submitted an appeal dated 31.10.2010 to the Appellate Authority, General Manager (P & HR). The Appellate Authority by order dated 30.03.2012 rejected the appeal of the appellant. The said order was passed after giving the personal hearing to the appellant. The Appellate Authority has noted that he has reiterated what has been stated by him in his defence during the course of inquiry. The Appellate Authority was convinced that the punishment of dismissal from service of the Bank imposed on him by the disciplinary authority is co-related with the nature of the gravity of misconduct conceded by him. Therefore, he did not find any reason to interfere with the order of disciplinary authority. Accordingly, his appeal was rejected. Dissatisfied by the order of the appellate authority, the petitioner preferred the writ petition under Article 226 of Constitution of India before this Court being Writ A No. 71737 of 2011 (Kanhaiya Gaur (Gond) Vs. Union Bank of India & Others) which came to be dismissed by learned Single Judge by the impugned order dated 13.12.2011. The learned Singe Judge has dismissed the writ petition on the ground that petitioner had admitted the withdrawal of Rs. 98,000/- and subsequently reimbursed the entire amount which was illegally withdrawn by him.;