The Jind Central Cooperative Bank Limited vs The Registrar, Cooperative Societies and Others

V.K. Bali, J.—The challenge herein is to the order Annexure F-8 dated August 2, 1983, vide which the Appellate Authority, Deputy Registrar, Cooperative Societies, Karnal, in an appeal preferred by Prabhu Ram respondent No.3 herein set aside order Annexure P-5 dated November 20, 1982, and permitted the said respondent to continue in service without any break even though he was not to get any pay during the period he remained absent as also to pay the amount regarding which the award had been passed against him.

Brief facts of the case reveal that respondent Prabhu Ram who is Secretary, Kaloda Kalan Cooperative Credit and service Society was proceeded departmentally on some serious irregularities involving embezzlement of the funds of society which according to the department was a gross misconduct/negligence on his part. He was placed under suspension vide order dated 13.10.1980 and was served with charge- sheet vide office order dated 15.1.1981. The charges against him were that he has embezzled huge amount of several societies, was negligent in his duties and also absented himself from duty. He failed to file any reply within the stipulated period to the show-cause notice and therefore, enquiry was entrusted to one Shri Udmi Ram, Development Officer who was appointed as Enquiry Officer. The Enquiry Officer after affording full opportunity to respondent Prabhu Ram submitted his report holding therein that respondent Prabhu Ram was guilty of having embezzled an amount of Rs. 51,946/- from the funds of Kaloda Kalan Cooperative Society as also that he was negligent in performing his duties as also that he was absent from duty as also that he violated the rules. After the enquiry report was submitted, the matter came up for consideration before the Board of Administrators in its meeting held on August 23, 1982. The Board was of the view that the charges against Prabhu Ram were of grave and serious nature and therefore, vide resolution No. 3 dated 23.8.1982, he was issued with another show-cause notice wherein termination of services was proposed. Respondent Prabhu Ram submitted reply and was asked to appeal in person before the Board of Administrators on October 25, 1982, as desired by him. After considering his reply the Board of Administrators found the same as unsatisfactory and decided that his services should be terminated with immediate effect. This order which was agitated by Prabhu ram in appeal culminated into impugned order Annexure P-8.

Learned counsel appearing for the petitioner vehemently contends that respondent Prabhu Ram was Secretary of the Society and in the very nature of his job, he was entrusted with various amounts from time to time. He was holding an office of trust. On an earlier occasion as well he was found to have embezzled the amount of another cooperative society and in a departmental proceedings he was found guilty of the same and was awarded punishment of stoppage of two increments with cumulative effect. The said order has been placed on record Annexure P-2. That apart, the learned counsel further contends the Appellate Authority has also arrived at a conclusion that respondent Prabhu Ram had embezzled the amount even though not to the extent as held by the disciplinary authority and yet reinstated him on the sole ground that he had deposited the amount. The learned Counsel further contends that while setting aside the order of the disciplinary authority, the appellate authority did not at all take into consideration that respondent Prabhu Ram was held guilty of other charges i.e. absenting from duty and negligence in performing his duties. With a view to appreciate the contention of the learned counsel it is worthwhile to reproduce the relevant portion of the order which reads thus:-

"After hearing both the parties the appellant was asked to submit the copies of all the awards. He has filed nine copies of the awards in my office and after perusal of the same it was found that nine cases of arbitration were prepared against the appellant which were of valued Rs. 47 thousand and the arbitrator has given the award against the appellant for a sum of Rs. 17073.00 and according to the certificate filed by the Secretary of the society and the report of the Sub Inspector the appellant has deposited Rs. 24812.90 and there is no amount outstanding against him. I have perused the charge-sheet and order and found that there are some other charges against the appellant then that of charge of embezzlement of Rs. 51948.00. The main charge is that of embezzlement but according to the award the whole amount is not recoverable from the appellant the awarded amount has also been deposited by the appellant. The inquiry officer has not provided him full opportunity. Had he allowed him due opportunity the amount reported was sure to be lesser as has been held by the arbitrator in his awards. The Enquiry Officer has relied upon the photostat copies of receipts whereas he was supposed to examine the original receipts. Therefore I think that the appellant has deposited the amount and the bank should not punish him to this extent. If the appellant has not entered the amount in the record of the society after recovering the same from the members and he has deposited the same now then for this minor mistake he should not be penalised so much, one opportunity might be given to him so that he could deposit this amount otherwise disciplinary action would have been taken against him.

Therefore after hearing the case and a perusal of the record I came to the conclusion that the appellant has deposited all the amount according to the awards and at the time of inquiry he was not provided with full opportunity. Therefore I hereby order the respondent bank to keep the appellant in service and set aside the order passed by the bank on 20.11.1982. There will be no break in the service of the appellant but the appellant will not be paid anything for the period he remained absent. It is further ordered that the appellant will be liable for any amount given in the award or found due in the order passed in appeal.

The decision of the case is given today the 2nd August, 1983 and both the parties are to be informed.

Perusal of the extracted portion of the order would, thus, reveal that the Appellate Authority permitted Prabhu Ram to bring on record or to otherwise show the arbitration awards according to which the amount payable by him was not Rs. 47,000/- but was Rs. 17,073/-. It was further observed that Prabhu Ram had deposited an amount of Rs. 24,812/- and there was no amount outstanding against him. This Court is of the considered view that findings of fact arrived at by the disciplinary authority could not be dealt with on the basis of the arbitration award by the appellate authority. The arbitration awards arrived at were on the basis of the evidence recorded in the said proceedings whereas the finding of guilt was recorded against Prabhu ram respondent on the basis of the evidence led during the enquiry proceedings. It would have been altogether a different matter if Prabhu Ram was able to make some dent on the findings recorded by the enquiry officer which were confirmed by the disciplinary authority on the basis of evidence led before the enquiry officer but surely the conclusion arrived at in the arbitration case on the basis of the evidence led in that case could not be taken into consideration while holding Prabhu Ram guilty of embezzlement to the tune or less than the amount mentioned in the charge-sheet. Be that as it may, fact remains that even if arbitration award was to be taken into consideration by the Appellate Authority. Prabhu Ram had yet embezzled an amount of Rs. 17073/-. The mere fact that he had deposited the amount after he was held guilty or when arbitration awards were passed against him could not possibly dilute the charges levelled against him. It is not understandable as to from where and on what basis the Appellate Authority returned a finding that Enquiry Officer had not provided full opportunity to Prabhu Ram. It may be mentioned that at every stage Prabhu Ram was associated with the enquiry or in any case he was asked to associate with the same. There is considerable merit in the contention of the learned counsel that while reinstating Prabhu Ram in service the Appellate Authority did not take into consideration other charges which stood proved against Prabhu Ram. Looked from any angle, therefore, the order passed by the Deputy Registrar, Cooperative Societies deserves to be set aside and the one passed by the disciplinary authority requires to be restored. So ordered. No order as to costs.

Before I part with this judgment, I would like to mention that this case was al- most concluded yesterday and the arrival of the Counsel representing Prabhu Ram was awaited for the whole day so that the Counsel may make himself available. The case was even though shown part heard and was fixed for today the counsel representing respondent Prabhu Ram has chosen not to appear even today.