KANHAIYA GAUR Vs. UNION BANK OF INDIA

JUDGEMENT

(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:

(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 Radhika Tripathi and it was alleged that during interrogation he admitted having withdrawn Rs. 98,000/- from the SB A/c of Smt.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.

(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.