Delhi High Court
Shri B.R. Sharma vs Syndicate Bank And Ors. on 20 September, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 5319/1998
% 20th September , 2013
SHRI B.R. SHARMA ..... Petitioner
Through: Petitioner in person.
Versus
SYNDICATE BANK AND ORS. ..... Respondents
Through: Mr. Jagat Arora, Advocate with Mr.
Rajat Arora, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner, who was an employee of respondent No. 1-Syndicate Bank, impugns the suspension order dated 8.9.1994 and the orders of the departmental authorities; disciplinary authority dated 6.7.1998 and appellate authority dated 31.8.1998; imposing the punishment of compulsory retirement upon the petitioner.
2. The basic facts forming the chargesheet against the petitioner were that he alongwith about 25 odd officers organized an unauthorized assembly of officers inside the premises of zonal office near the cabin of Mr. Prem WPC 5319/1998 Page 1 of 26 Maini, the then Deputy General Manager (DGM) of Delhi. At about 6.00 P.M. the petitioner along with others forcibly entered into the cabin of Mr. Maini and engaged in disorderly behavior with Mr. Maini. Even threats were given to Mr. Maini and Mr. Maini was unlawfully prevented from leaving his cabin in the office. When Mr. Maini left the office with police escort, the petitioner with his supporters, followed Mr. Maini by shouting slogans and the petitioner at that stage rushed towards car of Mr. Maini with an intention to physically assault him. The original assembly was unlawful because no permission was given to the petitioner and the other officers to come to the zonal office or to meet Mr. Maini. There are also allegations against the petitioner of abusing Mr. Maini and also physically preventing Mr. Maini from leaving his cabin in the office. Petitioner was therefore suspended vide order dated 8.9.1994. Chargesheet was issued to the petitioner on 12.10.1994. Enquiry proceedings were thereafter conducted by the enquiry officer who was appointed on 7.12.1994. Enquiry proceedings culminated with the report of the enquiry officer dated 1.5.1998 holding the petitioner guilty. Disciplinary authority passed its order dated 6.7.1998 imposing the punishment of compulsory retirement upon the petitioner and which order was upheld by the appellate authority's order dated 31.8.1998. WPC 5319/1998 Page 2 of 26
3. Before adverting to the arguments urged on behalf of the petitioner, and the response of the respondent-bank, at the outset, it is necessary to set out the scope of proceedings before a Court under Article 226 of the Constitution of India whereby orders of departmental authorities are challenged. It is settled law that this Court exercising jurisdiction under Article 226 of the Constitution of India does not sit as an Appellate Court to reappraise the evidence and findings/conclusions of the departmental authorities. This Court can only interfere if the findings of the departmental authorities are perverse or are in violation of the principles of natural justice or the orders of the departmental authorities are against the rule/law.
4. The following arguments have been urged before me on behalf of the petitioner:-
(I) Challenge to suspension
(a) Petitioner was discriminated against because only he was suspended and other officers involved in the incident dated 6.9.1994 were not suspended.
(b) Suspension order is invalid because it cannot be passed by Mr. Maini because he became a Judge in his own cause and thus rendering the suspension order illegal.WPC 5319/1998 Page 3 of 26
(c) Suspension of the petitioner continued for an unduly long period from 8.9.1994 till 4.7.1997, and suddenly it was revoked without any reason on 4.7.1997, and accordingly the entire suspension proceedings are illegal.
(II) Challenge to orders of the disciplinary authority and the appellate authority
(a) Orders are discriminatory because petitioner has been singled out for punishment and no action was taken against the other officers.
(b) No personal hearing was given by the disciplinary authority to the petitioner.
(c) By invoking the doctrine of proportionality the petitioner argues that he should not have been given the penalty of compulsory retirement in the facts of the present case. It is argued that the petitioner has subsequently applied for VRS and if the orders of the departmental authorities stand, then petitioner will not be given voluntary retirement.
5. Before I turn to the arguments urged with respect to challenge to the suspension order, it is necessary to state the law with respect to challenge to suspension orders. Law with respect to suspension is stated by the Supreme Court in the case of State of Orissa vs. Bimal Kumar Mohanty (1994) 4 SCC 126 and the relevant portion of this judgment reads as under:- WPC 5319/1998 Page 4 of 26
"It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations inputted to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or WPC 5319/1998 Page 5 of 26 contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge." (underlining added)
6. A reading of the aforesaid ratio of the Supreme Court in the case of State of Orissa (supra) shows that there are various reasons for passing of the suspension order. While one reason is that a person should not be able to interfere with the enquiry, another equally strong reason is that the guilty officer must not feel that during the pendency of enquiry proceedings he can get away with the misconduct. Courts ordinarily do not interfere with suspension orders, more so, in case such as the present where acts of indiscipline alleged with disorderly conduct which violates the office atmosphere, and in fact which actions amount to criminal offence as is stated hereinafter because petitioner was convicted by the court of the Metropolitan Magistrate as per the FIR lodged for the same actions. Suspension orders also cannot be challenged when the departmental proceedings in fact conclude against the charged officer by holding him guilty. In the present case suspension besides being an aid to completion of departmental enquiry was also with respect to the serious disorderly conduct WPC 5319/1998 Page 6 of 26 of the petitioner in the office, and which has been found against the petitioner by the enquiry officer and the departmental authorities as also the Metropolitan Magistrate. Once there is a finding of guilt against the charged official/petitioner, the suspension order merges in the orders of the departmental authorities and thereafter the same cannot be challenged.
7. On the aspect of discrimination with respect to the suspension order against the petitioner and hence the same being illegal, reliance is placed by the petitioner upon the judgment of the Supreme Court in the case of E.S. Reddi Vs. Chief Secretary, Govt. of A.P. and Anr. (1987) 3 SCC 258. In this judgment, the Supreme Court held that where various persons are charged on the basis of the same acts of corruption, then, only one person cannot be suspended and all the persons must be suspended.
In my opinion, the judgment relied upon by the petitioner cannot help the petitioner because in the present case the issue is of unlawful assembly, unlawful restraint, abusing and giving threats and other related aspects on 6.9.1994 to the DGM, Mr. Maini by the petitioner. By its very nature different sets of facts are alleged against the petitioner, and in fact found against the petitioner by the enquiry officer. There is no discrimination where different facts are stated against different persons including as to whether who has given the abuse and who has not given the WPC 5319/1998 Page 7 of 26 abuse, who has given the threat and who has not given the threat, who physically prevented Mr. Maini and unlawfully restrained him and who did not and whether some people did or all did or some people did the same acts and some people did other acts and some people did acts jointly with some other persons etc etc. Once there are different sets of facts against different sets of persons there can be no discrimination if one person is suspended and other person is not suspended. Gravity, number and type of acts of a person justifies differential treatment. In any case, in the present case the petitioner cannot contend today of discrimination against suspension because this is being done for the first time before this Court. Admittedly the petitioner made representations dated 8.10.1994 and one undated of October, 1994 against his suspension, and in both these representations, there were no challenge to the suspension order on the ground of discrimination against the petitioner. Both these representations were decided against the petitioner in terms of the order passed by the competent authority dated 10.10.1994 and the appellate authority dated 16.12.1994. These orders of the competent authority and the appellate authorities were not challenged at any point of time till the departmental proceedings concluded. Therefore, today there cannot be challenge to the suspension order on the ground of discrimination much less after the petitioner has been found to be guilty by the WPC 5319/1998 Page 8 of 26 departmental authorities. The issue of discrimination is an issue of fact cannot be raised for the first time in the petition and unless this issue of fact was specifically urged and shown at the original stage as to how all persons factually are similarly placed, and therefore they should be similarly treated, and there should be no discrimination, and has to be necessarily pleaded at the appropriate stage so that the factual defence to the same can be given and thus justification with respect to differentiation in treatment. Since petitioner did not take up the issue of discrimination against him at the relevant point of time and this issue is being urged only for the first time in this petition under Article 226 of the Constitution of India, and that too after the conclusion of the enquiry which has held him guilty, and also petitioner did not challenge the rejection of representations against the suspension order by the orders of the departmental authority and the appellate authority therefore, in my opinion, today there cannot be any valid challenge to the suspension order dated 8.9.1994.
8. The issue with respect to Mr. Maini being a Judge in his own cause and for which the judgment of the Supreme Court in the case of Arjun Chaubey Vs. Union of India and Ors. (1984) 2 SCC 578 is relied upon by the petitioner has also to be decided against the petitioner because lot of water has been flown under the bridge as stated above not only because the WPC 5319/1998 Page 9 of 26 enquiry proceedings stand concluded against the petitioner holding him guilty but also because on this ground no challenge was led by the petitioner in his representations dated 8.10.1994 and another undated of October, 1994, whereby the suspension order was challenged and also because the orders rejecting the representations against the suspension dated 10.10.1994 and 16.12.1994 became final as they were never challenged.
9. The argument urged on behalf of the petitioner that suspension order has remained in force for a long period of time and therefore the same is illegal because it violates the ratio of the Supreme Court in the case of O.P. Gupta Vs. Union of India and Ors. (1987) 4 SCC 328 is once again an argument without any merit because all that the Supreme Court observed in the case of O.P. Gupta (supra) was that if a suspension order continues for an unduly long period of time, and which was of 11 years in the aforesaid Supreme Court case, then, the suspended employee whose rights are affected by the suspension is entitled to make a representation for expeditious disposal of the departmental proceedings besides the fact that the same would show malafides of the department for keeping the enquiry unnecessarily pending for a long period of time and which was 20 years in the case before the Supreme Court. In the present case it is also to be noted that besides the suspension remaining in force for around 2 years and 10 WPC 5319/1998 Page 10 of 26 months only, there is no case set up that departmental proceedings were unduly and unnecessarily delayed by the department and which caused the petitioner grave prejudice in the period of suspension. Also, and as already stated above, departmental authorities have given the finding of guilt against the petitioner and therefore on those findings being upheld, suspension order would also be justified in the facts of the present case and thus there is no ground to claim that the suspension order was wrongly passed in the first place.
10. I may note at this stage that petitioner does not really question the continuation of the suspension order in the writ petition and the petitioner has only claimed the illegality ab initio with respect to the suspension order. I have already held that there is no justification to question the passing of the suspension order as initially passed, and therefore the challenge to the suspension order allegedly illegally continuing for a long period of time is an argument which is not only beyond the pleadings but also against the facts of the present case where it cannot be said that suspension has continued for an unduly long period of time and this has also to be taken with the fact that there are no pleadings that departmental proceedings had unnecessarily continued without the fault of the petitioner and only because of the fault of the department. The argument urged on behalf of WPC 5319/1998 Page 11 of 26 the petitioner that suspension order is void ab initio and was wrongly passed because it has continued for a long period of time is therefore misconceived and rejected.
11. Therefore, in my opinion, the argument of challenge to the suspension order dated 8.9.1994 is rejected for the aforesaid reasons and which are:
(i) No challenge was led to the suspension order in the representations of October, 1994 on the ground of discrimination.
(ii) Also, no factual grounds were pleaded at the original stage and hence cannot be allowed to be now raised as the respondent had no opportunity to rebut the facts by bringing in the necessary facts in response.
(iii) After the representations were dismissed by the appropriate authority and the appellate authority by its orders dated 10.10.1994 and 16.12.1994, these orders were not challenged and thus became final.
(iv) In the present case there is a finding of guilt against the petitioner and therefore the suspension order merges in the final orders which have been passed by the departmental authorities giving the finding of guilt against the petitioner, and at this stage therefore there cannot be challenge to the suspension order.
(v) There is no pleading of lapsing of the suspension order by a long passage of time and the challenge was led only to the illegality of the WPC 5319/1998 Page 12 of 26 suspension order since inception. Even if argument is allowed to be raised that suspension order should lapse because of a long period of time, even this argument is misconceived because suspension order has continued only for about 2 years and 10 months unlike in the case of Supreme Court cited by the petitioner wherein suspension unduly continued for 11 years and the departmental proceedings continued for 20 years. Also, there is no ground to hold the suspension order as lapsed because it is not the case of the petitioner argued before me that the departmental proceedings unnecessarily continued without any fault of the petitioner and only because of the fault of the department.
12. That takes us to the issue of challenge to the enquiry report and the consequent orders of the disciplinary authority and the appellate authority. There is no challenge led by the petitioner to any perversity in the findings of the departmental authorities. Of course, in my opinion, even if such a challenge was raised of any alleged perversity the challenge would have failed because enquiry officer in his detailed report running into 40 pages has stated all the facts, referred to the evidence of the witnesses of both the sides, analyzed the evidence and thereafter has given his valid findings and conclusions which show that the petitioner was one of the lead members of the unlawful assembly, petitioner and other officers without any WPC 5319/1998 Page 13 of 26 appointment caused unlawful assembly and thereafter marched into the cabin of DGM, Mr. Maini, unlawfully restrained Mr. Maini and police had to be ultimately called to escort Mr. Maini to his car etc etc. The following portion of the report of the enquiry officer is relevant and which undoubtedly shows that the enquiry officer was justified in arriving at the findings of facts against the petitioner:-
"ANALYSIS OF EVIDENCE :
I have carefully considered the evidence adduced and documents and written brief submitted by both the sides. What I find from the oral evidence adduced by as many as 6 witnesses for the management and an equal number for the defence is that both the sides look at the incident that occurred between 5 PM & 7 PM differently. There is however, unanimity to the extent that on 6/9/94 about 30 persons assembled in front of the DGM's cabin among whom the CSOE, DW2 to 5, and other officers were present. Evidence is also on record that MW 1 to 6 were also present either inside the DGM's cabin or have entered the place of incident at the relevant time. While management claims that the gathering of officers at 5 PM on 6/9/94 was abinitio unauthorised, the defence claims that on 5/9/94 CSOE and DW 3 had met MW 6 and had obtained his permission to come over enmasse to submit a memorandum. MW 1 to 4 have not said anything in their letters marked as MEX 1 to 4 about any meeting having been held on 5/9/94 as their letters are referring to the incident of 6/9/94. MW 6 however, has revealed an examination in chief that on 5/9/94, the CSOE and some other officers discussed with PDOS. He has denied having met the CSOE on 5/9/94. During cross examination, the defence specifically questioned MW 6 about CSOE meeting MW 6 on 5/9/94. MW 6 replied that according to him CSOE met officers in PDOS and that he does not remember meeting CSOE on 5/9/94. Through the cross examination conducted at length the defence had questioned MW 6 about the CSOE meeting him directly and indirectly but MW 6 has maintained that CSOE has met the officers working in PDOS on 5/9/94 and that he was appraised of the meeting. The WPC 5319/1998 Page 14 of 26 question whether the assembly of officer is authorised or otherwise rests on the fact whether CSOE had obtained permission from MW 6 to assemble the next day to hand over a memorandum. In the face of denial of MW 6 even having met the CSOE or DW 3 on 5/9/94, I am not inclined to accept that CSOE was permitted by MW 6 to come after office hours on the next day enmasse to submit a memorandum. On the other hand there is total unanimity among the defence witnesses that they were there on 6/9/94 on the information conveyed by DW 3 that they were to come enmasse and hand over a memorandum to MW
6. According to all the defence witnesses, this was conveyed to them by DW 3. In the circumstances, whether or not CSOE and/or DW 2 were permitted as claimed by them to enmasse submit a memorandum, in the absence of any evidence for such permission rests on the statement of MW 6. MW 6 has maintained more than once that the meeting of 5/9/94 was with the PDOS and that he had not met CSOE on 5/9/94 or permitted CSOE to come on 6/9/94. The incident explained in the article of charge relating to 5/9/94 has a bearing on what ensued on 6/9/94. The management evidence in this regard is only through MW 6 whereas the defence evidence in this regard is through the CSOE and DW 3. Though several witnesses have been examined for both the sides as regards meeting of 5/9/94, it is the word of MW 6 against that of the CSOE & DW 3. MW 6 has categorically averred that the CSOE discussed with PDOS the issue of changing of domicile of an officer Sri Ajit Singh and when PDOS did not comply with his request the CSOE reached saying that on 6/9/94 he would show his strength. According to MW 6 they were expecting a show of strength on 6/9/94 and hence as precaution, they had requested the police to be in state of alert. In the fact of this, the only reasonable conclusion that can be drawn is that there was no permission granted to the CSOE/DW 3 to come the next day enmasse to hand over the memorandum or whatever to MW 6. The chain of events on 5/9/94 and 6/9/94 also do not persuade me to believe that MW 6 would himself invite a mass deputation, that too after office hours knowing what such mass deputation usually tends to be, that too when grievance, real of fancied or an unresolved issue with a trade union of whatever hue exists. It emerges from the evidence that the said assembly of officers was unauthorised and that Sri B.R. Sharma had organised the same. The presence of association or participation of other leaders does not change the role of Sri B.R. Sharma.WPC 5319/1998 Page 15 of 26
Now let me turn to the evidence regarding the incident of 6/9/94. The number of officers was about 30. This is agreed by both the sides. The officers started assembling inside the Zonal Office outside the DGM's cabin from 5 PM onwards on 6/9/94. This is admitted by the parties. MW 4 carried the message of MW 6 to the CSOE, and the other leaders of SBOF all India as well as State is a fact accepted by both the sides. Thus the leaders and officers who gathered outside the cabin from 5 PM onwards on 6/9/94 were in no doubt as to the refusal of MW 6 to see them. MW 6 and other management witnesses too aver that MW 6 had let it be very clear that he does not wish to meet and or accept memorandum of whatever from the CSOE and other leaders who had gathered outside his cabin. The charge of the management is that the CSOE alongwith other officers forcibly entered the cabin of MW 6 and the defence evidence shows that all the officers were specifically called to assemble at Zonal Office Delhi to give a memorandum to DGM purportedly as agreed by DGM on the previous day. It is also indicated in the defence evidence that the officers who had thus gathered were annoyed at the refusal of MW 6 to meet the officers who had gathered there that too in the presence of their all India as well as state leaders. The defence evidence has more than once talked about the feelings of the officers at the reaction of MW 6. The defence evidence had made it clear that it was the officers assembled there who decided to go into DGM's cabin notwithstanding the fact that the DGM had declined to meet them. In the words of DW 3 "the members felt very annoyed as they had come as an organisation". Two points become very clear, i,e. MW 6 refused to the CSOE, other leaders and officers permission to enter his cabin and secondly that it was the CSOE and other leaders and officers who decided to nevertheless enter the DGM's cabin.
The next aspect is whether or not the CSOE create an unruly scene, indulged in disorderly/incident behaviour in front of various other persons/staff members by holding out threats and attempting to prevent MW 6 from leaving the office/cabin. Towards this, MW 1 has averred that as soon as he entered the DGM's cabin, the CSOE started shouting at MW 6, questioning the authority of MW 6. MW 3 has claimed that the CSOE barged into DGM's cabin, demanded in a high pitched voice for a time to discuss certain matters concerning officers and when MW 6 informed that if CSOE is not satisfied with the decision of Zonal Office, he could appeal to the higher authority, the CSOE & other WPC 5319/1998 Page 16 of 26 officers continued to demand discussions with MW 6. According to MW 1, they did not heed to the request of MW 6 to leave the cabin. MW 1 has stated that MW 6 has requested the officers to leave the cabin which they did not comply. MW 3 has stated that MW 6 requested CSOE and other officers to leave the cabin but they continued to demand discussions. MW 4 has averred that the CSOE and other officers gatecrashed into the cabin, CSOE started shouting at a high pitch questioning the authority of MW 6 and that the CSOE and others did not leave the cabin of MW 6 when MW 6 advised them to leave the cabin. The evidence of the defence is that as soon as they entered, MW 6 was infuriated, he shouted in unparliamentary language and he used threats. Specifying the words used by the MW 6, all the defence witnesses has cited the same words, "all of you get out of my cabin immediately or else I will see that you are arrested/put behind the bars", while the management witnesses have unanimously claimed that Sri B.R. Sharma shouted and prevented MW 6 from leaving the cabin, the defence witnesses are equally unanimous in denying the same. To arrive at a conclusion, whether or not the CSOE misbehaved and whether or not he prevented MW 6 from leaving, I have to carefully reconstruct the event in the light of the facts emerging in the evidence on record. Admittedly, 30 or so officers entered the DGM's cabin at about 6 PM and according to the evidence, the DGM left the cabin at about 7 PM. This fact has emerged from the evidence adduced from both the sides. Regarding what transpired in this one hour after the entry of the CSOE/leaders/other officers till the DGM left is also described in graphic details by both the sides, i.e. the arrival of MW 5 with the Asstt Sub Inspector and a constable CSOE and officers arguing with the police officials, exit of the Asstt Sub Inspector and return after 5-10 minutes with a police Sub Inspector, the dictation of a police complaint by MW 6 to MW 4 and finally the exit of MW 6 accompanied by police and followed by CSOE and other officers finds support wholly or for most part from the evidence adduced on behalf of both the sides. It is clear from the exhibit I A 1 and evidence of MW 3 and MW 4 that the DGM's cabin was about 300 sqft with 40% of the space occupied by the furniture, table and chairs which means approx. 180 sqft of open space. In this space MW 1, 3, 4, 5, 6, two policemen and 30 officers were present for most of the time between 6 PM and 7 PM. Evidence shows that 30 officers entered DGM's cabin and did not budge from there inspite of the orders of the MW 6. It is WPC 5319/1998 Page 17 of 26 not the case of the defence that when they entered the DGM's cabin and when MW 6 shouted at them to get out, they got out. All the defence witnesses have claimed that no sooner they entered MW 6 asked them to get out. The question therefore that remains unanswered is that why the CSOE and other offices continued to remain in DGM's cabin throughout.
The claim of the defence is that they had gone in to submit a memorandum. The management evidence does not speak of any memorandum while the defence evidence is also silent about what they did with the memorandum when they confronted MW 6 on 6/9/94. On a careful consideration of the entire evidence with reference to the timings, i.e. 6 PM to 7 PM leads me to the only inevitable conclusion that while the CSOE/other officers continued to demand a discussion without which they would not leave, MW 6 continued to maintain that he shall not discuss but would like to leave the cabin. It is on the record that MW 6 directed the officers to leave his cabin which they did not comply. In the absence of any credible evidence with regards to existence or submission of memorandum, the whole matter becomes one of the CSOE and/or officers demanding a discussion with MW 6 and not allowing him to leave. Management evidence speaks that the CSOE had declared that MW 6 will not be allowed to leave. The evidence of MW 6 which is also supported by other management witnesses contends that MW 6 had made it clear that he wished to leave the cabin and for this purpose he called MW 5 and also the police. The fact MW 5 and the police came inside DGM's cabin is again not disputed by the defence but according to management witnesses, when MW 6 tried to leave, the CSOE physically prevented MW 6 by stretching his arms across the cabin door. Evidence is also adduced that the occupants of the DGM's cabin had squatted inside the cabin and with officers squatting and/or standing around the DGM's table on all sides from 6 PM onwards till the written complaint was handed over at about 7 PM makes it very clear that whole exercise resulted in confining or detaining MW 6 from going out of this cabin. I have therefore on careful consideration of the evidence particularly the fact that the 30 or so officers remained in the cabin between 6 PM and 7 PM have to believe that this in itself coupled with the CSOE blocking the entrance with his arms stretched restricted the movements of MW 6, confining him to the cabin, and the entry and stayal of officers around his table confined him to his chair. As regards unruly WPC 5319/1998 Page 18 of 26 scene, disorderly/indecent behaviour, I have to observe that these are indeed unruly, disorderly and indecent behaviour.
Evidence is on record that after MW 6 handed over the written complaint to the police inspector at about 7 PM, the CSOE/offices made way for MW 6 to leave the cabin. The management witnesses claimed that CSOE followed MW 6 upto his car while the defence denied this. Management witnesses have also averred that the inspector held the hand of the CSOE, but for which he would have physically harmed MW 6. In this connection, MW 2 who only witnessed the incident at 7 PM has averred that when MW 6 sat in his car, the CSOE, came rushing towards the front door of the car but was pulled back by the police. The defence witnesses have not touched upon this as all of them claimed that they were in the DGM's Secretariat to hand over the memorandum. The management evidence regarding the CSOE following the MW 6 upto his car, his rushing towards the car and the CSOE being held by the police inspector has not been rebutted by the defence.
In the course of the inquiry, certain aspects have clearly emerged from the evidence of both the sides like assembling at Zonal Office on 6/9/94, refusal of permission by MW 6 to meet the CSOE/leaders/officers, all officers entering MW 6's cabin at 6 PM, all of them staying inside the cabin between 6 and 7 PM and not going out of the cabin even after MW 6's orders them to go out. The defence has introduced the element of trade union rights and privileges. The defence apparently believes that what amounts to a misconduct is not so when done by a trade union. I am not inclined to agree with this argument. Individually or collectively, an officer is an officer and a trade union of officers have all the more responsibility to conform to rule of law.
CONCLUSION The charge is a composite one and on careful consideration of all the evidence, and for the reasons discussed in the foregoing analysis of evidences, I find that the charge of the management that the CSOE contravened Regulation No. 3(2) and 3(1) of Syndicate Bank Officer Employees (Conduct) Regulations 1976 stands proved by the management. I hold accordingly."
WPC 5319/1998 Page 19 of 26
13. Let us now turn to the legal arguments which have been urged on behalf of the petitioner to challenge the orders of the departmental authorities. First argument which is urged is that the appointment of the enquiry officer was wrong because the enquiry officer was a Chief Manager working in one of the branches which were reporting to Mr. Maini, DGM and therefore there could not be fairness on the part of the enquiry officer who was a Chief Manager only.
Though factually this argument in itself would not have been valid because all the officers of branches who work under the DGM would therefore be disqualified in becoming enquiry officer and no such rule to support his case was cited on behalf of the petitioner. In any case, the fact of the matter is that admittedly the first enquiry officer was changed against whom the petitioner had a grievance and the enquiry officer who finally gave the report was a different officer against whom petitioner has no grievance. Therefore today there cannot be any valid basis to challenge the report of the enquiry officer merely because an earlier enquiry officer was allegedly biased because nothing will turn upon this aspect inasmuch as the final enquiry report has been given by a different enquiry officer and against whom no charges are leveled.
WPC 5319/1998 Page 20 of 26
14. It was next contended on behalf of the petitioner that the order of the disciplinary authority is bound to be set aside because disciplinary authority did not give any personal hearing to the petitioner. Also, it is argued that the appellate authority similarly did not give personal hearing to the petitioner and therefore the order of the appellate authority is also to be faulted for this reason.
When counsel for the petitioner was asked to show if there was any rule of the respondent-bank that the disciplinary authority was bound to give a personal hearing although the enquiry officer had given personal hearing before giving the report, it was agreed by the petitioner that there was no rule which provided for giving of personal hearing by the disciplinary authority. Also, it is not disputed by the petitioner that in the representation made to the disciplinary authority the petitioner did not ask for any personal hearing at any point of time before passing of the order by the disciplinary authority. Once that is so, surely, the disciplinary authority cannot be faulted with because it is only if a personal hearing was asked for and then the personal hearing had not been provided there would be a valid grievance, but since personal hearing was not asked for and nor was it provided as required in the rules of the bank, the disciplinary authority has hence committed no illegality in not giving any personal hearing to the WPC 5319/1998 Page 21 of 26 petitioner. This argument will also equally apply with respect to not giving of personal hearing to the petitioner at the appellate stage because there is no rule of the bank which requires giving of personal hearing at the appellate stage. Counsel for the respondent No.1-bank has rightly relied upon the judgment of the Supreme Court in the case of Oriental Bank of Commerce & Anr. Vs. R.K. Uppal (2011) 8 SCC 695 and which holds that no personal hearing need be given by the appellate authority unless there is a specific rule in this regard.
Therefore, the arguments urged by the petitioner that the orders of the departmental authorities must fail because no personal hearing had been given to the petitioner, are arguments which have no substance, and are accordingly rejected.
15. The final argument which was urged on behalf of the petitioner was that the doctrine of proportionality ought to have been employed by the departmental authorities and the petitioner should not have been visited with the punishment of compulsory retirement. In this regard, I cannot agree with the argument that petitioner should have been visited with a lesser punishment inasmuch as there cannot be more grave issues than unlawful assembly by a large number of officers of whom petitioner was one of the leaders, and also the acts of abusing and threatening and shouting in a zonal WPC 5319/1998 Page 22 of 26 office of a bank are impermissible especially when unlawful assembly has taken place in spite of denial of permission to approach the DGM on the concerned date. To the aforesaid aspects is the important aspect that there was an unlawful detention of the DGM Mr. Maini and the police had to be ultimately called with reinforcement to escort Mr. Maini out of his cabin to his car where again Mr. Maini was sought to be assaulted by the petitioner. In my opinion, the acts which are aforesaid found against the petitioner, denies him for being given the benefit of doctrine of proportionality for reduction of the punishment. In any case, it may be stated that admittedly a criminal case was filed against the petitioner on the same ground and pursuant to the FIR lodged against the petitioner and a State case being filed, petitioner was convicted by the judgment dated 14.8.2002 of the Metropolitan Magistrate and fine imposed upon the petitioner for the offence committed. This judgment has become final and the petitioner has not challenged the judgment. This judgment was passed after conclusion of the departmental proceedings and therefore I have taken note of the same as the photocopy of the same has been given to me in the course of hearing and the factual aspects of passing of the judgment and non challenge to the same are not disputed by the petitioner.
WPC 5319/1998 Page 23 of 26
Also it has to be noted that the petitioner had filed a petition WP(C) 1790/1998 challenging the order of the Departmental Authorities imposing a penalty of reduction of pay scale for a somewhat similar type of incident, and this petition had been dismissed by me just two days back on 18.9.2013. For this additional reason also petitioner cannot be allowed to invoke the doctrine of proportionality.
Therefore, I reject the argument that the petitioner should be given the benefit of doctrine of proportionality by reducing the punishment given of compulsory retirement. In fact, I may note that there is no extreme punishment of removal but the punishment is of compulsory retirement only. The argument of the petitioner based on invoking of doctrine of proportionality is misconceived and is accordingly rejected.
16. Petitioner, at one stage, sought to argue that petitioner has been wrongly discriminated because as per the counter-affidavit which is filed in this Court, the bank exonerated other officers because they gave apology letters, however, petitioner who also gave an apology letter should also have been exonerated and no proceedings against him should have been taken, however, I do not agree with the submission because as already stated above in this judgment the issue of discrimination is fact based and unless this fact based issue is urged originally in the enquiry proceedings, it is not possible WPC 5319/1998 Page 24 of 26 for the respondent No.1-bank to give its factual replies to refute the stand of the petitioner. It is not disputed that at no stage during the pendency of the proceedings before the enquiry officer, the ground of discrimination was taken up as a fact, and therefore the respondent No.1-bank had no opportunity to meet the factual position and therefore today the petitioner cannot be permitted to urge the factual ground of discrimination only because this ground was pleaded by submitting final argument before the Enquiry Officer. Surely, if a factual issue unless pleaded should not be allowed to be raised so as to take the other party by surprise because in the absence of any pleadings on such a factual issue the respondent No.1-bank had no opportunity to put up its factual stand so as to say that there is no discrimination against the petitioner on account of various facts including of petitioner being a primary ring leaders, petitioner going out of the way and personally threatening Mr. Maini which was not given by other persons, petitioner causing unlawful restraint by extending his arms to prevent Mr. Maini from leaving his cabin etc etc. The relevant portion of the enquiry report which is reproduced above shows certain illegal acts which are attributable only to the petitioner and really there could not in any case be discrimination against the petitioner. Therefore, the contention of the petitioner of discrimination by contending that he also gave an apology letter WPC 5319/1998 Page 25 of 26 and should have been exonerated is an argument which cannot be allowed to be raised simply because the respondent No.1 in its counter-affidavit has stated that other officers were exonerated because they gave apology letters. The issue having not been raised at the appropriate time cannot be allowed to be raised by the petitioner only at the stage of final arguments before the enquiry officer. This argument of the petitioner is also therefore rejected.
17. In view of the above, I do not find any merit in the petition or existence of any valid ground to set aside the suspension order or the orders of the disciplinary authorities as urged on behalf of the petitioner. The writ petition is therefore dismissed, leaving the parties to bear their own costs.
SEPTEMBER 20, 2013 VALMIKI J. MEHTA, J
godara/Ne
WPC 5319/1998 Page 26 of 26