After passing of the impugned order & Ors. v. Bharat Gold Mines Ltd. and Ano & Ors.

After passing of the impugned order, the appellant again approached this Court by way of writ petition challenging the finding of misconduct. The matter was considered by the learned Single Judge and it was held that the finding arr ived at by the enquiry officer was not perverse nor acquittal in criminal procee dings was a bar to proceed with the departmental proceedings. Learned Single Jud ge observed: (cid:28)9. I have considered the rival submission made by the parties and also perused the materials available before me and the evidence adduced during the department al proceedings by the authority. As indicated above, four witnesses were examine d by the disciplinary authority to prove the case against the petitioner. Thus P .W. 1,Sri N.R.Choudhury proved the withdrawal of Rs.30,000/- and Rs. 24,000/- fr om the SB A/c No.11/1451 which were taken by the petitioner which supports from Scroll No. Exbt. P Ex.24 and proved by the bank. The recovery of the incriminati ng documents from the petitioner’s house was also proved. Regarding opening of t he account in the name of Satish Talukdar, Ext P Ex. 51 was proved and regarding verification of the introducer’s signature in the account in the form P.W.1 sta ted that as the petitioner who was a staff of the Branch took keen interest in o pening of the account introducing as known to him and signature is genuine and o n that ground he did not further verify it. Similarly, P.W.2, Manindra Kaman who was the paying cashier of the branc 10. h during the relevant time proved Exbts. 26 and 28 regarding the payment of Rs.2 0,000/- and Rs.15,000/- on 23.7.92 and 26.6.93. He also stated that these two pa yments were made to Sri Pranab Thakuria, an employee of the bank. He further pro ved Exbts. 11 and 12 which were self-cheque drawn by Satish Talukdar. He further stated that the amount was paid to Thakuria as he already paid it to the holder of the amount from his account in question. He further proved that he paid an a mount of Rs.20,000/- and Rs.15,000/- pertaining to the fictitious account of the petitioner on request made by him and this fact has been stated in para 2 of th e Exbt.57. He also proved Exbt. 30 which is the bank payment register dated 24.7 .92 wherein the name of the petitioner was shown as the person who received the amount. In cross-examination he reiterated that he has written the name of the p etitioner in Exbt 56 whom the amount was paid without anybody’s instruction.

#11. P.W.3 Sri Jogeswar Gogoi also proved Pex.20 and Pex. 21 and the relevant entries contained therein. During the cross-examination, this witness was confi rmed. He made certain statements under Section 161 Cr.P.C. before the police in the criminal case to which he replied to be false.

#12. P.W. 4 Sri. K.C. Das proved the copy of the draft paid as advised. He al so proved Pex 16,18,19, 48,49,50 and 53 produced by the Manager. He further prov ed the seized documents vide seizure list as per Pex.54 and Pex.31 which is the copy of the leaf of cheque book issue register where the relevant entry contains . The handwriting contained there is similar to that of the petitioner which is Pex.09. He further stated that though the petitioner has not proved his initials in the vouchers or record, it is quite evident that he is directly involved in fraudulently withdrawing of Rs.98,000/- from the S.B.A/c No.11/1451.

#13. On the basis of the proved documents and statements of the witnesses, th e Enquiry Officer regarding the Charge No.1 found that involvement of the petiti oner in opening of the fictitious account in the name of Sri Satish Talukdar cou ld not be conclusively proved but the other part of the allegations of Charge No .1 was found to be proved by the Enquiry Officer.

#14. Regarding Charge No.2 the Enquiry Officer found that vide seizure list P ex.54 and Pex.3, it is seen that the petitioner used some of these articles ment ioned therein in conducting fraud in opening the account in the name of Satish T alukdar and this finding was arrived at on the basis of Pex.48, 49 and 50 and pa yment of Rs.30,000/-, 24,000/-,15,000/-, 20,000/- and 9,000/- were made to the p etitioner which has been confirmed by the P.W. 1 and 2. So far the Charge No.3 i s concerned, the Enquiry Officer, on the basis of the proved documents and other materials available on record that the incriminating documents as mentioned in Pex. 54 including Token No.116 of the State Bank of India and one Draft Advice o f Draft No.0/686849 and one Account Payee Paid Draft bearing No.748425 dated 6.5 .92 were recovered from the residence of the petitioner and he was found to have used all these materials for withdrawal of the amount of Rs.98,310/- in the nam e of Sri Satish Talukdar. It is also found that the Bank Draft found in the cust ody of the petitioner was used in the fraudulent transaction. On such finding th e Enquiry Officer proved the charges as indicated above. Although Mr. Chakrabort y tried to persuade me to appreciate the evidence of P.Ws to the effect that the findings arrived at by the Enquiry Officer was a wrong findings and mis-interpr eted what has been stated by the P.Ws. In my considered opinion, writ court is n ot entitled to re-appreciate and/or re-assess the evidence adduced during the de partmental proceedings. (cid:29)

#6. We have heard learned counsel for the parties and perused the record.

#7. Learned counsel for the appellant submitted that some of the witnesses, who appeared in criminal proceedings, were also produced in the departmental pro ceedings. In such a situation, the Enquiry Officer was not justified in coming t o a conclusion different from that arrived at by the criminal court. Referring t o the findings of the criminal court, it was submitted that PW 2, Manindra Kaman was not able to prove the signature on the letter written by Sri Pranab Thakuri a to the Branch Manager of the Bank. The said Pranab Thakuria claimed to have ma de payment to the appellant. He was not examined in departmental enquiry.

#8. in support of his submission:- Learned counsel for the appellant has relied on the following judgments

#4. Kuldeep Singh v. Commissioner of Police & Ors., (1999) 2 SCC 10. Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. and Ano., (1999) 3 SCC 679. G.M.Tank v. State of Gujarat & Ano., AIR 2006 SC 2129 Roop Singh Negi vs. Punjab National Bank & Ors.,(2009) 2 SCC 570.

#9. Learned counsel for the Bank supported the impugned judgment and submitt ed that the standard of proof required in a criminal case was different from the standard of proof required in a departmental proceeding and thus, the findings recorded by the criminal court were not binding in departmental proceedings. He relied on the following judgments: 1. Senior Supdt. Of Post Offices, Pathananthitta &

#2. Ors. vs.A Gopalan, AIR 1999 SC 1514. State Bank of India & Ano. Vs. Bela Bagchi & Ors., AIR 2005 SC 3272.

#10. We have considered the rival submissions. Question for consideration is whether learned Single Judge was justified in holding that the findings recorded by the Enquiry Officer were not perverse. In our view, the answer has to be in the affirmative. It is well settled that the provisions of Evidence Act are not strictly 11. applicable to departmental proceedings nor the charges are required to be establ ished by the standard of proof of a criminal charge. If there is evidence justif ying the conclusion that the charges are proved, the Writ Court is not to re-app reciate the evidence and sit in appeal over the findings recorded in a departmen tal enquiry. It is not a case where the appellant has not been given reasonable opportunity of being heard. The appellant was given opportunity to meet the char ges, to cross-examine the witnesses and to rebut the finding recorded by the Enq uiry Officer. Evidence was taken in his presence. Four witnesses were examined. PW 1, Sri NR Choudhury proved the withdrawal of the amount by the appellant from the fake account. He also proved the opening of the fake account by the appella nt. PW 2, Manindra Kaman, Cashier, at the relevant time, also proved two of the payments made to the appellant while two other payments were made to Pranab Thak uria. PW 3, Sri Jogeswar Gogoi proved the relevant entries in the account.PW 4, Sri K.C.Das proved the copy of the fake bank draft which was credited to the fak e account and also the cheque book of the said account used by the appellant. He also proved handwriting of the appellant. There is, thus, enough evidence on re cord to establish the misconduct of the appellant. In the face of such categoric al evidence, the finding of the Enquiry Officer could not be held to be perverse . The judgments relied upon by the learned counsel for the appellant are d 12. istinguishable. In Kuldeep Singh, the charge against the delinquent was that whi le working as Constable in Police Station, he illegally kept the money given by the factory owner for payment to the labour. Relevant witnesses, including the c omplainant, were not examined. The charge was held to be proved on the basis of previous statement of the witnesses. The complainant was examined as DW to suppo rt the case of the delinquent that no payment was made. Thus, the judgment turne d on peculiar facts and circumstances of the case and no universal principle of law was laid down which may be applicable to this case.In Capt. M. Paul Anthony, the delinquent was a Security Officer in a Government Undertaking and the charg e against him was of theft. He was acquitted of the said charge by the criminal court. The enquiry conducted was held to be vitiated by non-payment subsistence allowance ( para 33) . The criminal court found that the police witnesses to the recovery of incriminating materials were unreliable and in the context of the s aid facts and circumstances, it was observed that the distinction which was usua lly made in departmental proceedings and criminal proceedings was not applicable . The situation in the present case is different. In G. M. Tank, the alleg ation was of accumulation of excess income beyond known sources. The delinquent was acquitted of the charges of corruption by Court. It was found that there was no iota of evidence of illegal accumulation of income in departmental enquiry ( para 29). The said judgment is thus, in a different fact situation.In Roop Singh Negi, the charge was of loss of bank draft book. It was noted in paragraph 14 o f the judgment that only evidence collected during investigation by the Investig ating Officer could not be deemed to be the evidence in the departmental proceed ings. No witness was examined in the departmental proceedings. Thus, the said ju dgment is distinguishable.

#13. It is well settled that if the findings of the Enquiry Officer are based on evidence, the same cannot be questioned in a Writ Court. Learned Single Judg e has rightly relied upon the judgments of the Hon’ble Supreme Court in Govt. of AP and Ors. vs. Mohd. Nasurullah Khan ( 2006) 2 SCC 373, Union of India v. Sard ar Bahadur, (1972) 2 SCR 218, Union of India v. Parma Nanda (1989) 2 SCC 177, Un ion of Bank of India v. Vishwa Mohan, (1998) 4 SCC 310, Chairman and Managing Di rector, United Commercial Bank and Ors. v. PC Kakkar, (2003) 4 SCC 364, Regional Manager, UP SRTC, Etawah & Ors. v. Hoti Lal and Ano., (2003) 3 SCC 605, Cholan Roadways Ltd vs. G Thiragnanasambandam, (2005) 3 SCC 241 and T.N.C.S. Corpn. Ltd and Ors. vs. K. Meerabai, (2006) 2 SCC 255. Judgments relied on by the learned counsel for appellant also support the same view.

#14. aken by learned Single Judge. The appeal is dismissed. In view of above, we do not find any ground to interfere with the view t