Ashok Bhushan - (1.) -Heard Sri Sujeet Kumar Rai, learned counsel for the petitioner and Sri P. S. Baghel appearing for the respondent Nos. 1, 2 and 3.
(2.) BY this writ petition the petitioner has prayed for quashing the dismissal order dated 1.8.2001 issued by the respondent No. 2. A mandamus has also been sought directing the respondents to reinstate the petitioner in service with all service benefits. Brief facts of the case as emerge from the pleadings of the parties are : The petitioner had been working as clerk-cum-cashier in Karma Branch of Allahabad District Cooperative Bank Ltd., on allegation of making forged entries in various accounts in the branch causing embezzlement, the petitioner was placed under suspension vide order dated 14.12.1996. The charge-sheet dated 24.5.1997, was served on the petitioner giving details of various accounts holders with account number, date and the amount to which extent forged entries were made in the account causing embezzlement of Rs. 7,71,722. Vide charge-sheet the petitioner was charged that the above amount was embezzled by making fictitious and forged entries in various accounts, misappropriate the amount of the Bank and committed fraud with the account holders. The petitioner was asked to submit his reply within fifteen days. It was further stated in the charge-sheet that if the petitioner wants to produce any witness, the same can be submitted. He was asked also to inspect the documents of the Bank if he so desired. The petitioner submitted a reply dated 1.7.1997. In the reply the petitioner admitted that he has made entries in the accounts of various account holders though amount of which was not deposited in the Bank. He alleged that the said amount was taken by the Branch Manager himself. The petitioner in his reply further stated that he told the Branch Manager to get the record corrected and return the amount but the Branch Manager did not do so. The copy of reply has been brought on the record. He further stated in the reply that the entire responsibility is of the Branch Manager. After considering the reply of the petitioner the Enquiry Officer submitted a report dated 4.9.1997, holding the charge of embezzlement, fictitious entries, misuse of the Bank amount and committing fraud with the account holders, established. The Committee of Management of the Bank considered the reply of the petitioner and decided to issue notice to the petitioner that in case the petitioner does not deposit the embezzled among alongwith interest why he be not dismissed from service, legal proceedings be taken for recovery and also a first information report be lodged. In pursuance of the resolution of the Committee of Management of the Bank a notice dated 16.12.1999, was issued to the petitioner. Notice stated that the petitioner after depositing the amount of Rs. 4,85,297 with interest at the rate of 18% per annum should submit an explanation as to why he be not dismissed due to having found guilty of embezzlement. He was also asked to inform as to whether he wants personal hearing or to lead any evidence or witness. It appears that the petitioner prayed for personal hearing and hearing took place by the Committee of Management on 10.3.2000 on which date the petitioner appeared before the Committee of Management of the Bank and was heard. Petitioner gave in writing on 10.3.2000 that out of the amount of Rs. 3,85,000 due on him he will deposit Rs. 2,00,000 within two months and the rest amount be recovered from his claims. He explained his claims as Provident Fund and gratuity. Petitioner did not deposit the amount as undertaken by him on 10.3.2000. The matter was taken by the Committee of Management on 28.10.2000. The Committee of Management passed a resolution noticing that out of Rs. 3,85,000 the petitioner has deposited only Rs. 70,000 ; hence if he does not deposit the balance amount within ten days he be dismissed from service. The Secretary of the Bank was authorised to take steps regarding dismissal. The resolution dated was communicated to the petitioner by letter dated 24.11.2000. He was informed by the letter that in view of the resolution dated 28.10.2000, if he does not deposit the balance amount within ten days proceedings for dismissal shall be taken. The notice stated that the last opportunity is being given to the petitioner to deposit the amount failing which the dismissal proceedings shall be completed. After receiving the letter dated 24.11.2000, the petitioner by letter dated 16.12.2000, prayed that the Bank may reconsider its decision and give one month further time for depositing the amount in pursuance of the resolution dated 28.10.2000. A letter was sent by the Secretary of the Bank to the Secretary, U. P. Cooperation Institutional Service Board seeking prior approval. The Institutional Service Board gave its no objection to the dismissal of the petitioner vide letter dated 12.2.2001. After receiving the letter from the U. P. Cooperative Institutional Service Board a letter was issued by the Secretary/General Manager on 1.8.2001, dismissing the petitioner from service. In pursuance of the order dated 5.12.2006, passed in the writ petition the Bank has brought on record the resolution of the Committee of Management dated 22.10.1999 and 28.10.2000. Learned counsel for the petitioner challenging the dismissal order made following submissions : 1. That the petitioner has not been dismissed by the Committee of Management which is authority competent to pass dismissal order hence the letter dated 1.8.2001, issued by the Secretary/ General Manager of the Bank is invalid and non est ; 2. No enquiry has been held by the Enquiry Officer nor copy of the enquiry report was given to the petitioner before dismissing the petitioner from service. The petitioner was not given opportunity to lead evidence ; 3.In awarding punishment to the petitioner, the petitioner has been discriminated since the respondent No. 4 who was also charged with the similar allegation of embezzlement has been reinstated in service with only minor punishment whereas the petitioner has been dismissed from service.
(3.) LEARNED counsel for the petitioner placed reliance on various judgments of this Court namely, Radhey Kant Khare v. U. P. Cooperative Sugar Factories Federation Ltd., 2003 (1) UPESC (All) 427 : 2003 (1) AWC 704 ; Mohd. Abbas Siddiqui, Meerut v. District Magistrate, Meerut and others, 2003 (3) ESC 1722 (All) : 2003 (6) AWC 2.24 (NOC) ; R. K. Mehrotra v. U. P. Sahkari Sansthagat Sewa Mandal, Lucknow and others, 2005 (3) ESC 1715 (All) : 2005 (4) AWC 3624 ; Jagdish Yadav v. Senior Superintendent of Police, Azamgarh and others, (1990) 3 UPLBEC 1740 : 1990 (2) AWC 1044 ; Barnam Singh v. Director, Samaj Kalyan Department U. P. and another, 2001 (4) ESC 1897 (All). Sri P. S. Baghel, learned counsel for the respondents refuting the submissions of counsel for the petitioner contended that the petitioner has been dismissed by the resolution of Committee of Management who is the appointing authority after obtaining the approval from the U. P. Cooperative Institutional Service Board. The order of dismissal had been issued by the Secretary who was so authorised by the Committee of Management. He submits that full opportunity was given to the petitioner to lead evidence, inspect the documents of the Bank which was not utilised by the petitioner. The petitioner in reply to the charge-sheet has admitted his charge of making fictitious entries and misappropriating the Bank money and also undertook to deposit the entire amount which clearly proves his guilt and in such situation the submissions on the ground of violation of principle of natural justice, are unfounded. He further contends that in case of embezzlement the punishment of dismissal is the punishment which is to be given to the petitioner. He submits that there is no question of discrimination in awarding punishment to respondent No. 4. Since the respondent No. 4 and the petitioner both were dealt with similarly in permitting them to get the amount deposited and reinstated. Whereas the respondent No. 4 deposited the entire amount and was reinstated but the petitioner did not do so. There was no discrimination in awarding punishment. Sri P.S. Baghel has placed reliance on the judgments of the Apex Court in Union of Bank of India v. Vishwa Mohan, (1998) 4 SCC 310 ; Zila Sahkari Kendriya Bank Mariyadit v. Jagdishchandra and others, (2001) 3 SCC 332 ; Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar, (2003) 4 SCC 364 ; Government of A.P. Represented by its Principal Secretary to Government, Home Department, Hyederabad v. B. Ashok Kumar, (1997) 5 SCC 478 and Municipal Committee, Bahadurgarh v. Krishnan Behari and others, JT 1996 (3) SC 96.;