Vijender Jain, J.@mdashRule.
2. Petitioner was working in MM Grade/Scale 2 with the respondent/Bank. A charge-sheet was served upon the petitioner on 25th January, 1992. The same is at page 45 of the paper-book, the same is reproduced below :-
"Sh. Manjit Singh, Manager, while posted as Manager, B.O. Pedder Road, Bombay had issued Bank guarantees in favor of Asstt. Collector of Customs, Bombay, on behalf of M/s Narmada Nylon (P) Ltd., unauthorisedly and without recording them in the books of the Bank. He connived with M/s Narmada Nylon (P) Ltd. And issued unrecorded Bank guarantee for Rs.27 lacs fraudulently. He is charged for working beyond authority and for concealment of facts from Head Office and misrepresentation of facts as per statement of Allegation shown in Annexure-II.
That the above acts of Sh.Manjit Singh are acts of misconduct in terms of Punjab & Sind Bank Officer Employees'' (Conduct) Regulation, 1981, clause 3(1) and clause 3(3) specially be read with clause 24 of the said regulation. Sh.Manjit Singh is thus charged as under :
1. That Sh.Manjit Singh has failed to take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence and his acts are deemed as acts unbecoming of a Bank Officer.
2. He has failed to perform his duties as directed by the Bank and within the powers conferred on him and has acted otherwise than his best judgment."
3. An additional charge-sheet was also issued to the petitioner in relation to three other bank guarantees on 3rd June, 1992, which is also reproduced below :
"Statement of Allegations
Sh.Manjit Singh, Manager (under suspension) unauthorisedly issued Bank Guarantee as details given below during his tenure at B.C. Pedder Road, Bombay favoring Assistant Collector of Customs Bombay on behalf of M/s Narmada Nylon Pvt. Ltd. who had been maintaining a current Account No. 515 with B.O. Pedder Road, Bombay.
Sr. No. B.G. No. Date Amount Date of Court Date Order Demand Notice
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1. 25/84 20.7.84 Rs.4,61,207/- 31.10.91 27.2.91
2. 29/84 26.7.84 Rs.8,36,322/- | Not yet
3. 31/84 27.7.84 Rs.4,62,861 | invoked
Sh.Manjit Singh did not pass any voucher to this effect. No margin was obtained. Also did not receive any commission from the party for issuing the above said Bank Guarantee.
The above acts of Sh.Manjit Singh are acts of misconduct in terms of Punjab & Sind Bank Officer Employees (Conduct Regulation 1981)"
4. An inquiry was ordered on 2nd June, 1992. The petitioner was dismissed from service by order dated 2nd May, 1995 and the appeal of the petitioner was also rejected by the appellate authority on 27th September, 1996.
5. Mr. Chetan Sharma, learned counsel for the petitioner has contended that there was inordinate delay in issuing the charge-sheet as the alleged misconduct pertained to the year 1984, whereas the charge-sheet was issued on 25th January, 1992. In support of his contention, counsel for the petitioner has relied upon
6. The next point which was urged before me by Mr. Sharma was that the second charge-sheet which was issued on 3rd June, 1992 did not provide any opportunity to submit any reply. Therefore, it was contended that principle of natural justice has been violated by not affording an opportunity to the petitioner to file his statement of defense in reply to the second charge-sheet. Counsel for the petitioner has vehemently contended before me that the finding of the inquiry authority was per se bad as the inquiry authority has rejected the testimony of handwriting expert which was produced before the inquiry authority and the rejection of the expert opinion without having other expert opinion was bad in law as inquiry authority was not a handwriting expert. In support of his contention Mr. Sharma relied upon
"Dt. 28th April, 92.
From
Sh.Manjit Singh,
154, defense APARTMENTS,
ROHTAK ROAD,
BEHIND INDER ENCLAVE,
NEW DELHI 110041
To,
ZONAL MANAGER,
PUNJAB & SIND BANK,
HAMAM STREET FORT,
BOMBAY
Dear Sir,
Reg :- Charge Sheet dated 25.1.1992
As desired vide your telegram dated 18.3.92 and subsequently informed by me vide my telegram dated, 1st April, 92 I visited Zonal Office on 22nd April and meet Sh.P.S. Bains Chief Manager.
Sh. P.B. Bains told me that the original guarantee and other document are with the Regional Manager, Bombay and so adviced me to visit R. Office. Accordingly, I visited the R. Office. There I was told that Regional Manager, is out of Station & Senior Manager Sh. Varindeer Singh has gone out at the moment and is likely to back after lunch. I was adviced to come on next day i.e. 23rd April, 92. On 23rd April, 92 Mr. Varindeer Singh Senior Manager expressed his innocences about the knowledge of the where about of the original documents on the strength of which the above referred charge sheet was issued. He also expressed his ignorance about any such Inspectional from D. Authority for showing the original guarantees to me and adviced me to submit the list of Documents I intend to see to D. Authority.
I again requested him that I have come to see the documents referred in D. Authority telegram Dated 18.3.92. He again pleaded the ignorance about the original guarantees.
In the light of above facts it is submitted that necessary arrangements for the inspection of original documents be made on the strength of which charge sheet dated 25.1.92 was issued so that statement of defense may be submitted as desired vide to your letter dated 12.2.92/25th Jan.92.
Yours faithfully,
Sd/-
(MANJIT SINGH)"
7. On the basis of aforesaid letter Mr. Chetan Sharma has contended that taking aforesaid representation as statement of defense depicts non-application of mind of inquiry authority as well as disciplinary authority. Disciplinary authority has passed order of termination treating the said representation as reply to show cause notice.
8. Lastly it was contended before me by counsel for the petitioner that the order dated 27th September, 1996 rejecting the appeal of the petitioner was bad as appeal was addressed to the General Manager whereas the appeal was disposed of by the Deputy General Manager (Personnel). In support of his contention, counsel for the petitioner has relied upon The State of Punjab & Bakhtawar Singh & Ors. 1972 SLR 85.
9. On the other hand, Mr. Rajat Arora, counsel for the respondent has contended that it was a case of bank guarantee and until and unless the bank guarantee was invoked by the Custom Department, the fraud could not be detected. The respondent/Bank, for the first time, came to know about the issuance of the bank guarantee purported to have been issued on behalf of the Bank in the year 1992 and once it came to the knowledge of Bank in 1992 that certain bank guarantees have been issued on behalf of the bank in a fraudulent manner, the charge-sheet was issued with promptitude in the year 1992 itself. Therefore, it was contended before me that there is no delay in issuing the charge-sheet to the petitioner. It was contended by Mr. Arora that even if there was delay, the delay has been explained by the respondent. Refuting the argument of counsel for the petitioner, it was contended before me by Mr. Arora that inspection of documents was given to the petitioner as would be evident from the report of the inquiry authority which is at page 71 of the paper-book. The inspection could not have been given earlier as the original bank guarantees were in the possession of the Custom Department and it was only at the time when the petitioner was before the inquiry authority, the inquiry authority directed the petitioner to go for inspection to the Custom Department. Therefore, it cannot be said that no inspection of the bank guarantees was given to the petitioner. Reliance was placed by learned counsel for the respondent to the claim made in the counter affidavit particularly paragraph 3.17 which was not denied in the rejoinder affidavit by the petitioner.
10. Next it was contended that the second charge-sheet which was issued on 3rd June, 1992 was only an extension of previous charge-sheet and, Therefore, there was no need for the respondent to ask the petitioner to give any statement of defense. What was argued before me by Mr. Arora was that petitioner could not have any defense with regard to the allegation of issuance of bank guarantees and if whatever defense he had, he had submitted the same before the inquiry authority regarding previous charge-sheet containing other similar bank guarantees. Repelling the argument of counsel for the petitioner that the opinion of handwriting expert was not taken into consideration, Mr. Arora has contended that the petitioner used to sign at different places in different manner. My attention was invited to pages 50, 51, 76, 82 and 100 of the paper-book where the petitioner has signed and on the basis of the aforesaid signatures it was argued that the opinion of handwriting expert was rightly rejected by the inquiry authority as inquiry authority had other witnesses which have deposed that the signatures appearing on the said bank guarantees appeared to be of the petitioner. Therefore, it was urged that finding of the inquiry authority in this regard cannot be touched. It was contended that as per the Disciplinary Appeal Regulations of the respondent the posting of the rank in a particular zone is based on the quantum of business and the importance attached to the Branches and in the case of the petitioner it was the Zonal Manager who was the disciplinary authority irrespective of the rank. Similarly, Deputy General Manager was the appellate authority to settle the appeals as per the Regulations. In support of the above submissions, Mr. Arora cited
11. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. In view of the fact that the allegation in the charge-sheet pertained to the bank guarantees, I find force in the arguments of the respondent that it is only at the time of invocation of the bank guarantees that respondent came to know about the issuance of alleged bank guarantees on behalf of the bank. Once the respondent bank itself did not have any knowledge, it cannot be said that there was any inaction or delay on the part of the respondent in issuing a charge-sheet on the basis of said bank guarantees to the petitioner. I find no force in the argument of the petitioner that inspection of documents was not arranged by the respondent as the original documents i.e. the bank guarantees were in the possession of the Custom Department and petitioner had requested before the inquiry proceedings, he was given the inspection of the bank guarantees. Now the petitioner cannot turn around and say that as the inspection was not granted earlier, Therefore, the proceedings and the punishment inflicted thereupon him is vitiated. I also find no substance in the argument of the counsel for the petitioner that the appeal of the petitioner impugning the order of the disciplinary authority was not passed by the competent authority. However, I am not satisfied with the Explanation of the respondent as to how a representation with regard to inspection of bank guarantees which I have quoted above, could be construed as a reply to the show cause notice. The representation as stated above was dated 28th April, 1992. The letter dated 2nd June, 1992 of the respondent is at page 52 of the paper-book. The same is reproduced below :
"You were served with a charge sheet dated 25.1.92 on account of irregularities committed at B.O. Peddar Road, Bombay. Your reply dated 28.4.92 in response to said chargesheet has been found unsatisfactory. It has Therefore, been decided to hold departmental enquiry in the said case. Accordingly, in terms of clause 6(2) of Punjab & Sind Bank, Officer (Discipline & Appeal) Regulation 1981, contained in staff circular No. 1199 dated 26.11.81 Sh. Jaspal Singh, Chief Manager Z.O. Bombay has been appointed as Enquiry Officer to enquire into the matter. You are advised to attend the enquiry proceedings on the date (s) fixed by the enquiry officer.
The date, time and venue of the enquiry shall be conveyed to you by the Enquiry Officer. Further, you may take the assistance of any officer employee interims of clause 6 subclause (7) of Officer (Discipline & Appeal) Regulations 1981."
12. One fails to understand as to how the representation dated 28th April, 1992 has been construed as reply dated 28th April, 1992. The said representation dated 28th April, 1992 has been construed as a reply even by disciplinary authority, which would be seen from the order passed by the disciplinary authority which is at page 134 of the paper-book. The disciplinary authority has taken the said representation as reply and has rejected the same on the ground that same was not found satisfactory. This is a clear and glaring instance of non-application of mind by the inquiry authority as well as by the disciplinary authority.
13. Let me consider the arguments of respective parties with regard to the report of the handwriting expert. As a matter of fact, in the departmental proceedings there was no need for the inquiry authority to take into account the report of the handwriting expert because inquiry authority in departmental proceedings is supposed to act as a fact finding authority so as to come to a conclusion objectively based on material before the inquiry authority as to whether the charges against the charged officer has been established or not. Therefore, the report of the handwriting expert could have been ignored by the inquiry authority. However, if the inquiry authority has taken into consideration the report of a handwriting expert then neither the inquiry authority nor any other witnesses produced by the respondent before the inquiry authority could claim to be especially equipped with the expertise in comparing signatures. The inquiry authority fell in error while taking the expert report in consideration and rejecting the same in the absence of any report to the contrary by an expert witness. Therefore, the inquiry is vitiated on this account also. The net result of the discussion is that the impugned order dated 2.5.1995 of the termination of the services of the petitioner as well as the order dated 27th September, 1996 passed by the appellate authority are quashed. The writ petition is allowed. However, liberty is granted to the respondent if they so desire to proceed on the basis of the said charges against the petitioner in accordance with law.
14. The question of payment of back wages shall be decided after the decision of the respondent with regard to holding of inquiry and if the decision is taken to hold the inquiry, then after the conclusion of the said inquiry.
15. Writ petition stands disposed of. Rule is made absolute.
