MOTIUR RAHMAN Vs. UNITED COMMERCIAL BANK

JUDGEMENT

(1.) The validity of the disciplinary proceeding initiated against the writ petitioner by a charge memo dated 29.9.2000 and a notice dated 12.4.2001 asking the writ petitioner to show cause against the proposed penalty after holding the writ petitioner guilty of the charges brought is the subject matter of challenge in the present proceeding.

(2.) The facts on which the instant challenge is founded, may be recited very briefly. The petitioner who was at the relevant point of time working as a Clerk-cum-Assistant Cashier at Dobok Branch of the respondent-Bank was chragesheeted by a charge memo dated 29.9.2000. The essence of the charges brought against the writ petitioner is that while the writ petitioner was employed in the aforesaid capacity in the concerned Branch of the respondent-Bank, against receipt of different amounts in cash deposited by the customers of the Bank, the writ petitioner had signed and affixed the seal of the Bank on the counterfoils of pay-in-slips and had also updated the Pass Books of the concerned customers without however, reflecting the aforesaid deposits in the Ledgers of the Bank. Such illegalities, it was alleged, were committed by the writ petitioner in respect of a large number of accounts the details of which as well as the particulars of the account-holders were mentioned in the charge memo dated 29.9.2000. The petitioner submitted his reply to the aforesaid charge memo on 1.12.2000 and the explanations furnished not having been found to be satisfactory by the respondent bank, an Enquiry Officer was appointed to make an enquiry into the alleged charges levelled. The Enquiry Officer, after being so appointed, issued notice dated 12.12.2000 to the petitioner asking the petitioner to appear before him on the date fixed for enquiry. In the meantime, a F.I.R. dated 11.1.2001 was filed by the Bank authority alleging commission of criminal offences in respect of various acts mentioned in the charge memo dated 29.9.2000. on the basis of the aforesaid F.I.R. Rangia Police Station Case No.137 2001 was registered against the writ petitioner under Sections 409/467 of the Indian Penal Code. The writ petitioner by a communication dated 29.1.2001 requested the Enquiry Officer to defer the enquiry proceeding as the facts on which the disciplinary proceedings was initiated were same and similar to the facts on the basis of which the criminal proceeding was lodged. However, it appears that the Enquiry Officer proceeded further in the disciplinary proceeding against the writ petitioner requesting the writ petitioner from time to time to participate therein. On 23.3.2001, the writ petitioner reiterated his prayer for deferment of the disciplinary proceeding by submitting a written request to the disciplinary authority. However, nothing appears to have materialised from the request by the writ petitioner for deferment of the disciplinary proceeding and in fact, the enquiry was completed exparte on 20.3.2001. The Enquiry Officer submitted his report which was adverse to the writ petitioner. Acting on the basis of the Enquiry Officer's report, the disciplinary authority found the writ petitioner to be guilty of the charges levelled and on that basis, issued the communication dated 12.4.2001 informing the petitioner that he has been found guilty of the charges levelled and asking him to show cause against the proposed penalty of dismissal from service. It may be noticed at this stage that the report of enquiry was furnished to the writ petitioner for the first time along with the aforesaid notice dated 12.4.2001. Aggrieved, the instant writ petitioner has been filed.

(3.) Mr. B.K.Sharma, learned Sr. Counsel appearing on behalf of the writ petitioner in a short and precise argument has sought to fortify the challenge made in the writ petition on two principal grounds. Firstly it is contended by the learned counsel that as the disciplinary proceeding as well as criminal case have been initiated on identical facts, having regard to the law laid down by the Apex Court, in the facts of the present case, it was desirable that the disciplinary proceeding should have been deferred till the conclusion of the criminal case as prayed for by the writ petitioner before the Enquiry Officer as well as before the disciplinary authority. It is argued that the continuation of the disciplinary proceeding would have seriously prejudiced the writ petitioner in his defence in the criminal case and, therefore, the writ petitioner was compelled to stay away from the aforesaid proceeding which came to be concluded exparte. Mr. Sharma has pressed into service a decision of the Apex Court in the case of Capt. M.Paul Anthony -vs- Bharat Gold Mines Ltd. and another, reported in AIR 1999 SC 1416 in support of the above contention. The second limb of the arguments advanced on behalf of the petitioner is that in the instant case, the report of the Enquiry Officer was furnished to the writ petitioner along with the notice dated 12.4.2001 asking the writ petitioner to show cause against the proposed penalty. It is argued that in the aforesaid notice dated 12.4.2001, the disciplinary authority had already recorded its conclusion that the petitioner is guilty of the charges levelled against him. Mr. Sharma contends that an opportunity to persuade the disciplinary authority not to accept the report of enquiry and not to proceed further on that basis is an integral part of the doctrine of reasonable opportunity to which the writ petitioner is entitled. The report of enquiry has to be furnished at a stage where the disciplinary authority is yet to make up its mind. The doctrine of reasonable opportunity having been breached by the actions of the disciplinary authority, the notice dated 12.4.2001 holding the petitioner to be guilty of the charges levelled is illegal, contends Mr. Sharma, learned counsel appearing on behalf of the writ petitioner. Mr. Sharma has placed reliance on an Apex Court judgment in the case of Managing Director, ECIL, Hyderabad and others -vs- B.Karunakar and others, reported in (1993) 4 SCC 727 in this regard. The third argument raised on behalf of the writ petitioner is that the facts and events on account of which the writ petitioner was compelled to stay away from the enquiry and the proceedings-in-enquiry was held exparte, would call for appropriate interference by this Court with the enquiry held and the findings recorded therein.