Delhi District Court
Sh. N.D. Sharma vs Central Bank Of India on 16 November, 2018
IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No.58535/16 ( Old No. 369/2016 & 2464/11)
CNR No. DLND010085712016
Sh. N.D. Sharma
s/o Sh. Krishan Chander,
R/o 29/D, Pocket B, Sidhartha Extension,
New Delhi110014.
........Plaintiff
Vs.
Central Bank of India
Through its Chairman
(Zonal Offices)
4, Bahadur Shah Zafar Marg,
New Delhi110002
Through its Zonal Manager
..........Defendant
Date of institution : 03.10.2011
Date on which reserved for judgment : 15.11.2018
Date of decision : 16.11.2018
Decision : Dismissed
J U D G M E N T
1. The present suit for damages for harassment and defamation has
been filed by the plaintiff against the defendant.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 1/ 44
1.1 The suit was filed before Hon'ble High Court of Delhi on
03.10.2011 and in view of the notification No. 27187/DHC/Orgl. dated
24.11.2015, the same was transferred to Ld. District & Sessions Judge, New
Delhi District, Patiala House Courts vide orders dated 08.03.2016 and
thereupon assigned to this Court vide orders dated 15.07.2016.
Plaint
2. It is the case of the plaintiff that he had served the defendant
institution for 37 years from October 1962 to March 2000 faithfully,
fearlessly, honestly & honorably and on his retirement got certificate for
having served the organization with devotion, sincerity & honesty. It is
further his case that he maintained highest standards of integrity and probity
in the public service at various posts in difficult branches.
2.1 It is further his case that in 1990 he was transferred to Audit &
Inspection Department at New Delhi, a special assignment was given in 1992
of three branches i.e. Janpath, Press Area and Shahdra, Delhi and he being
Senior Auditor had pointed out serious irregularities/fraud committed by the
higher authorities in his audit report, submitted in 1993.
2.2 It is further his case that General Manager Personnel, Central
CS No. 58535/16 ND Sharma Vs. Central Bank of India 2/ 44
Office Mumbai, General Manager Zonal Office Delhi and Assistant General
Manager Personnel, Zonal Office Delhi had threatened him with disciplinary
action, if he writes about the fraud to the Ministry of Finance, Government of
India and even his resignation from service was demanded in writing.
2.3 It is further his case that defendant did not dare to initiate action
against him during service period because he was respected, honored &
trusted in the public and staff however it started scrutinizing him right from
the first day of his retirement on 31.03.2000. It is further his case that the
defendant prolonged the case, harassed him for 11 years, conducted fake ex
parte departmental enquiry against him and withheld some times 100%,
83%, 58% and 33% pension along with commutation, arrear of pension for
indefinite period and compelled him to live a subhuman existence.
2.4 It is further his case that CBI reported, in the preliminary report,
about fraud committed by Mr. Sanjanwala, Chartered Accountant of Rs. 10
crore and that Mr. N.M. Mistry, CMD allowed him to withdraw Rs. 10 crore
in cash without any security or guarantee.
2.5 It is further his case that this fraud of Rs. 10 crore was not
reported to the Board or the RBI and it was even not reflected in the annual
balance sheet of the bank. It is further his case that six reputed firms of
external auditors protected the higher authorities and CBI made it clear that
CS No. 58535/16 ND Sharma Vs. Central Bank of India 3/ 44
these Chartered Accountant turned a financial broker and such brokers are
known for their confidential proximity to the management of banks and
financial institutions. It is further his case that Mr M.S. Johar, Chartered
Accountant Director on the board of the defendant bank was arrested by CBI
for giving loan to the companies against cash.
2.6 It is further his case that CBI in their report had mentioned that
Chairman and Managing Director holds a prerogative to permit finance upto
6 crore, provided it is a secured one however CMD abused this power for his
personal interest and later on converted these bad loans into non performing
assets. It is further his case that the the preliminary report reached the then
Union Finance Minister in 1994 however no action was taken.
2.7 It is further his case that it is matter of surprise and concern that
despite Chairman and Managing Director having been caught red handed by
CBI in defrauding Rs. 10 crores, Rs. 7.84 croers and Rs. 5 crores no
punishment was awarded to them and this is a deep criminal financial
conspiracy in the nation.
2.8 It is further his case that another former CMD allowed loan
facilities of Rs. 5 crore to a fictitious firm against forged documents, put the
bank to a loss of Rs. 5 crores and this was also investigated by CBI. It is his
case that movable assets of Rs. 40 lacs from the residence of CMD and assets
CS No. 58535/16 ND Sharma Vs. Central Bank of India 4/ 44
of Rs. 10 lacs from the residence of General Manager were seized by the
CBI.
2.9 It is further his case that when he highlighted a fraud of Rs. 7.84
crore, in the account of M/s Indana Industries Ltd., Branch Office Janpath,
New Delhi, he was removed overnight from the Audit to operation and was
not allowed to complete the special assignment. It is further his case that
later on CBI arrested four senior officers in a criminal financial conspiracy
against the institution.
2.10 It is further his case that a loan of Rs. 50 lacs was sanctioned to
M/s Gupta Super Insulation sometime in 1989 & 1990 by Branch Office
Janpath New Delhi, however on his inspection the said unit was found
missing in 1993.
2.11 It is further his case that a loan of Rs. 25 lacs was given to M/s
Rajiv Alloy & Copper Industries at Branch Office Shahdara whereas the
same loan was already made by Civil Line Branch of Punjab National Bank.
2.12 It is further his case that he had made an appeal to the then
Hon'ble Prime Minister on 30.01.2003 that fraud in banks has become a fine
art and one becomes millionaire overnight whereas millions of people sleep
without food.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 5/ 44
2.13 It is further his case that on this appeal to Hon'ble Prime
Minister, the Chairman and Managing Director of defendant instructed Chief
Vigilance Officer on 25.03.2003, after three years of peaceful retirement, to
start legal proceedings against him. It is further his case that Chief Vigilance
Officer instructed Dy. General Manager Zonal Office Delhi to issue suitable
memo to him incorporating lapses, quantifying loss to the bank and call for
his explanation.
2.14 It is further his case that Sh. Dalbir Singh CMD threatened him
on 25.05.2001, through Vigilance Officer to either withdraw corruption
charges against the Management or face consequences which was done
solely to protect his predecessors. It is his case that he also instructed the
Zonal Manager Delhi vide letter No. CO/PRS/DAD/2k01665 dated
08.08.2000 to withhold the commuted amount of Rs. 2,04,950/ and arrear of
pension of Rs. 59,875/ till conclusion of Departmental Action against him.
It is further his case that a memo was issued on 18.02.2003 & charge sheet
was issued on 06.10.2003 after more than three years and exparte
departmental inquiry was concluded on 14.09.2004 announcing punishment
withholding of pension 50% for 10 years was announced on 14.11.2005 and
this was done only to protect his predecessors who were involved in
defrauding the bank.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 6/ 44
2.15 It is further his case that Central Vigilance Commission,
Ministry of Finance, Banking Division, Director of the Board, Chief
Vigilance Officer, Disciplinary authority, Appellate Authority, came together
with ulterior motive to squeeze him out of existence, only for their benefit
and to hide the fraud committed by the defendant.
2.16 It is further his case that Mr. R.P. Gupta, Regional Manager, Regional
Office (A) New Delhi had written a letter to the Zonal Manager Zonal office
New Delhi vide letter No. RO(A)/PRS/FIC/200001/629 dated 22.01.2001
however still fake exparte departmental inquiry was conducted against him.
It is his case that Mr. R.P. Gupta Regional Manager had said that the bank
has already withheld an amount of Rs. 2,11,000/ being the commutation of
the pension from which it would be apparent that there is no loss to the Bank
even assuming that act committed by him and presumed to be misconduct by
the bank, Regional Manager had certified that there was no pecuniary loss
caused to the bank by the plaintiff.
2.17 It is further his case that Sh. Surjit Singh, Dy Secretary Central
Vigilance vide letter No. 0103/BNK/35 dated 27.05.2003 office
memorandum, Sub contemplated disciplinary action against him.
2.18 It is further his case that Sh. Surjit Singh, Dy. Secretary again
reminded the defendant bank on 31.07.2003 that the bank have not
CS No. 58535/16 ND Sharma Vs. Central Bank of India 7/ 44
commented specifically anything about the allegations allegedly levelled by
Sh. Sharma that he is being harassed by the Management because of his
pointing out serious irregularities in the audit report in view of the above
observation the bank may furnish their comments to the commission
expeditiously.
2.19 It is further his case that all of a sudden on 04.09.2003 Sh. Surjit
Singh wrote that in view of the gravity of lapses attributable to Sh. N.D.
Sharma ExManager the Commission in agreement with the Bank would
advise initiation of major penalty proceeding under Pension rules against
him. The Commission would also advise the Bank to appoint their own IO
for holding departmental inquiry in this case and approach the commission
for its second stage advice in due course.
2.20 It is further his case that he had also made appeal to Mrs. Vaneeta
Roy, Secretary Banking Division on 26.06.2003 and on 23.04.2003
regarding misleading by defendant for conducting departmental action
against him vide letter F No. 10/4/17/07/IR dated 31.03.2003 also letter was
sent to Mr. Ram Muiah, Director (BOII & VIG), however they deliberately
ignored & neglected his appeal.
2.21 It is further his case that on examination of the report, the
Commission observed that the Statutory Auditor had submitted their report
CS No. 58535/16 ND Sharma Vs. Central Bank of India 8/ 44
on 26.04.2000 and it has taken about 3 years for the bank to firm up their
views with regard to the course of action to be taken against him and this is
certainly an abnormal delay on the part of the bank.
2.22 It is further his case that Sh. J.L. Tuli, Assistant General Manager also
disciplinary Authority in this case had said " in our view no fruitful purpose
will be served to continue withholding of commuted pension and as such the
same may be released since no loss is caused to the bank by him".
2.23 It is further his case that Sh. S.L. Doda, AGM Zonal Office had said
that if there is any recovery from him it comes under minor misconduct i.e.
without withholding a full fledge departmental enquiry.
2.24 It is further his case that S.C. Unihelkar, Dy. General Manager had
said disciplinary action against him can be initiated only after amendment of
Regulation 48.
2.25 It is further his case that Miss H.A. Daruwala CMD justified and
protected her predecessor Mr. Dalbir Singh in awarding punishment to him
for reduction of 50% pension for 10 years vide board minutes No.
BM/497/200506/09/2.2 Mt dated 03.10.2005 giving approvals for recovery
of pecuniary loss caused to the bank on account of the act of misconduct
committed by him during the period of service under regulation 48 of Central
CS No. 58535/16 ND Sharma Vs. Central Bank of India 9/ 44
Bank of India (Employees) Pension Regulation 1995.
2.26 It is further his case that Ministry of Finance on 10.08.2010 informed
the CVC that some of the allegations against Miss H.A. Daruwala stand
proved and CVC may advise on further course of action against the MD who
retired on 31.12.2008.
2.27 It is further his case that it was he who had made a complaint to the
commission as early as in September 2001 alleging that he was
tortured/victimized by the Management for having pointed out serious
irregularities in the audit in his report submitted in June 1993 and top
functionaries of the bank have threatened him.
2.28 It is further his case that an appeal was made to Sh. U.K. Sinha, Joint
Secretary (Ministry of Finance/Government of India Director to the Board
of Central Bank of India, North Block, New Delhi on 10.05.2005 for having
conducted exparte departmental inquiry against him on the basis of fake and
false charges, however punishment was awarded to the tune of reduction of
50% pension for 10 years.
2.29 It is further his case that Chairman and Managing Directors despite
having been caught red handed by CBI in defrauding the bank for Rs. 10
crore, Rs. 5 crore, Rs. 7.84 crore, Rs. 50 lakh and Rs. 25 lakh were not
CS No. 58535/16 ND Sharma Vs. Central Bank of India 10/ 44
punished but on the other hand though he had never put the bank a loss of
single paisa but was punished by reduction of pension of 83% for 10 years
after conducting fake exparte departmental inquiry against him. It is further
his case that defendant kept him under stress and stain for excessively very
long period of 10 years.
2.30 It is further his case that an appeal was made to then Prime Minister
of India on 12.03.2009 and to Sh. T.K.A. Nair, IAS (Retd), Principal
Secretary to the Prime Minister on 20.10.2009 and 16.04.2010 under copy to
Sh. J.S. Phaugat Under Secretary to Government of India, Ministry of
Finance but in vain.
2.31 It is further his case that defendant has created terror and fear among
the honest and innocent employees and thousands of innocent employees
either die unnoticed or deflect from their right path of honesty and truth
because of harassment by defendant. It is further his case that he had decided
to accept the challenge on behalf of all employees as defendant abused its
power and authority.
2.32 It is further his case that top management of Central Bank of India in
its affidavit filed in CM No. 8027 of 2011 Writ petition (Civil) No.
5148/2008 on page no. 2, para no. 3 confessed for having conducted fake
exparte departmental enquiry against him.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 11/ 44
2.33 It is further his case that defendant had withheld his commutation
pension of Rs. 2,04,950/ in April 2000 and arrear of pension for Rs.
59,875/ in October 2000 and released the same on 01.12.2005 with interest.
2.34 It is further his case that defendant awarded punishment against fake
exparte departmental enquiry reducing 50% pension total 83% for 10 years
on 02.11.2005 and modified pension 58% for 5 years on 14.05.2008 and also
released with interest and cost Rs. 20,000/ after the order of the Hon'ble
High Court of Delhi on 16.12.2010.
2.35 It is further his case that had there been a loss caused to the bank by
the plaintiff, the defendant would have recovered the amount but not a single
paise was recovered and this can be and must be considered guilt against the
defendant for having conducted fake exparte departmental enquiry against
him.
2.36 It is further his case that lost time is never found again and time is a
precious gift. It is further his case that defendant squandered this precious
gift of his and had these 11 years been not squandered by the defendant, he
would have handled it sacredly, economically and prudently.
2.37 It is further his case that health is the foundation of all things and
stress and strain continuous for 11 years is harmful. It is further his case that
CS No. 58535/16 ND Sharma Vs. Central Bank of India 12/ 44
defendant tortured him and PGI Chandigarh confirmed that his over all
productively has been greatly affected because of the conflict with
authorities and Dr. Sudha Jain CMO certified that he required regular
treatment because of severe reactive depression.
2.38 It is further his case that pension is a very valuable pillar of social
security to any retired person and it enables to have long terms financial
stability particularly during a vulnerable period of one's life. It is further his
case that pension is not some largess and it is matter of their right. It is
further his case that he had given his blood, sweat and tears to the
organization and need to be addressed in a very decent and dignified away.
It is further his case that an old person has not only financial problems but
also problems relating to health.
2.39 It is further his case that defendant defendant had withheld
commutation and arrear of pension for Rs. 2,04,950/ and Rs. 59,875/ for six
years without any reason or cause and punishment for reduction of 83% of
pension for 10 years was awarded on 02.11.2005 and compelled him to live
with 17% pension with family of subhuman existence.
2.40 It is further his case that Chairman and Managing Directors victimized
him, spoiled his career, ruined his health, destroyed his wealth and forced his
family members to live a subhuman existence. It is further his case that the
CS No. 58535/16 ND Sharma Vs. Central Bank of India 13/ 44
same was done to hide the fraud committed by them.
2.41 It is further his case that the Hon'ble High Court of Delhi disposed off
the writ petition no. 5148/2008 on 16.12.2010, quashed the order of
Disciplinary Authority dated 02.11.2005 and order dated 14.05.2008 passed
by the Appellate Authority. It is his case that he was awarded cost of Rs.
20,000/ and the judgment/order of the Hon'ble court has been fully
implemented by the defendant bank and full pension is being paid to him.
2.42 It is further his case that order dated 11.03.2001 in CM No. 802/2011
in writ petition (C) 5148/2008 modified the judgment to the extent that he
was entitled for the interest @ 6% per annum on the commuted amount and
arrear of pension from April 2000 till the date of release of amount.
2.43 It is further his case that he is entitled for damages and defamation for
conducting fake exparte departmental enquiry against him.
2.44 Hence the present suit.
Written Statement
3. Defendant took the preliminary objection that the plaintiff has no
cause of action to claim damages after about 14 years of the retirement on
CS No. 58535/16 ND Sharma Vs. Central Bank of India 14/ 44
31.03.2000.
3.1 It was pleaded that the plaintiff is a habitual litigant and he had filed
the various suits, writ petitions etc. on frivolous grounds only to harass the
officers of the bank which clearly indicates his vindictive mind.
3.2 It was pleaded that plaintiff had filed a suit bearing no. 1791/2000
(renumbered as suit no. 134/2003) for declaration and damages of Rs. 10 lacs
against the Bank and its two Senior Officers which was dismissed vide
judgment/Decree dated 17.02.2010.
3.3 It was further pleaded that being aggrieved with the judgmen , the
plaintiff filed a RFA No. 314/2010 before the Hon'ble High Court and the
same was dismissed on 10.01.2013.
3.4 It was further pleaded that he had filed Writ Petition no. 505/2006 for
quashing of order dated 02.11.2005 passed by the Disciplinary Authority and
the same was disposed of on 18.01.2008.
3.5 It was further pleaded that he had filed another writ petition no.
5148/2008 for full pension and quashing of order of the Appellate Authority
dated 02.11.2005 etc and the same was allowed vide judgment/order dated
16.12.2010.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 15/ 44
3.6 It was further pleaded that present suit is not maintainable in
view of the principal of res judicata as the plaintiff is guilty of agitating the
same issue again and again in various proceedings instituted by him.
3.7 It was further pleaded that all the employees irrespective of their
cadre are supposed to strictly adhere to the Rules and Regulations of the
Bank and follow Central Bank of India Officer Employees, (Conduct)
Regulations 1976. It was further pleaded that the transfer, memos and
disciplinary proceedings etc. are the incidents of service and the officers are
to discharge their duties accordingly.
3.8 It was further pleaded that plaintiff was promoted to Scale IV
and the letter dated 12.07.1997 was issued to him in which it was clearly
mentioned that he has to report as Regional Manager, Gaya by 04.08.1997
and failure to report on the stipulated date shall be deemed refusal of the
promotion, but the plaintiff did not join the office by the stipulated date of
his own. It was further pleaded that subsequently on 05.08.1997 a letter was
sent to the plaintiff informing about the same.
3.9 It was further pleaded that the plaintiff was transferred to Audit
and Inspection Department at New Delhi. It was further pleaded that action
of the plaintiff in complaining and addressing complaints to Ministry of
Finance, Govt. of India etc amounts to serious misconduct and violation of
CS No. 58535/16 ND Sharma Vs. Central Bank of India 16/ 44
conduct Rules of the Bank for which he was advised to desist from involving
in such activities.
3.10 It was further pleaded that certain irregularities were detected
after his retirement, therefore, the disciplinary action was initiated, under the
Central Bank of India (Employees') Pension Regulations, 1995, against him
and he was duly informed vide bank letter no. RO(A):PRS:DAD:2003
04:442 dated 06.10.2003. It was further pleaded that plaintiff did not submit
any reply and also willfully did not take part in the enquiry proceedings,
therefore inquiry officer had no option but to proceed exparte. It was pleaded
that the proceedings of the enquiry were sent to him and he was afforded full
opportunity to defend his case but he deliberately did not avail the same.
3.11 It was pleaded that the charge sheet was issued to the plaintiff as
he had made serious financial irregularities while working as Senior
Manager and thereafter a Departmental Enquiry was initiated against him. It
was pleaded that even the Central Vigilance Commission was of the view of
holding departmental inquiry against him.
3.12 It was further pleaded that the commuted amount of pension
was not paid in accordance with the rules on the subject and the issue has
been finally settled by the judgment/ Order dated 16.12.2010 in writ petition
(Civil) No. 5148/2008, which has been fully implemented and no payment is
CS No. 58535/16 ND Sharma Vs. Central Bank of India 17/ 44
due to the plaintiff. It was further pleaded that the plaintiff has no ground to
file the present suit for damages against the defendant as all actions against
him were taken under relevant rules and regulations of the bank.
Replication
4. In the replication, plaintiff denied the averments of the written
statement while simultaneously reiterating and reaffirming the contents of
the plaint.
Admission/denial
5. Admission/denial of the documents took place vide proceedings
dated 08.12.2014. The admitted documents of the plaintiff are Ex. P1 to P15.
Defendant did not file any document for the purpose of admission/denial.
Issues
6. On the basis of pleadings of the parties, following issues were framed
by the Hon'ble High Court of Delhi vide proceedings dated 20.01.2015:
1. Whether the plaintiff is entitled to a decree of damages, if so, to what
extent? OPP
2. Whether the present suit is hit by doctrine of res judicata in view of the
CS No. 58535/16 ND Sharma Vs. Central Bank of India 18/ 44
earlier suit no. 1791/2000 which had been filed by the plaintiff and
which was thereafter dismissed vide judgment and decree dated
17.02.2010? OPD
3. Whether the suit of the plaintiff is hit by bar of limitation? OPD
4. Whether the suit has not been properly valued for the purposes of
court fee and jurisdiction, if so, its effects? OPD
5. Relief.
Plaintiff's evidence
7. To prove his case, plaintiff examined himself as PW1 and
tendered his evidence by way of affidavit Ex. PW1/A and relied upon the
following documents:
1. Copy of order dated 16.12.2010 passed by the Hon'ble High Court of
Delhi as Ex. PW1/1.
2. Copy of reply affidavit dated 11.02.2011 filed before the Hon'ble High
Court of Delhi as Ex. PW1/2.
3. Letter issued by Sh. S. Seetharaman dated 11.10.1989 as Ex. PW1/3.
4. Copy of letter issued by Sh. S. Seetharaman dated 10.05.1988 as Ex.
PW1/4.
5. Letter dated 29.07.1997 as Ex. PW1/5.
6. Letter dated 26.06.1998 as Ex. PW1/6.
7. Letter dated 05.12.1998 as Ex. PW1/7.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 19/ 44
8. Letter dated 19.09.1998 as Ex. PW1/8.
9. Letter dated 21.04.1999 as Ex. PW1/9.
10. Appreciation Letter dated 13.07.1999 as Ex. PW1/10.
11. Appreciation certificate dated 26.09.1983 as Ex. PW1/11.
12. Cutting of newspaper dated 21.03.2014 as Ex. PW1/12.
13. Letter dated 17.08.1998 as Ex. PW1/13.
14. Letter dated 21.08.1997 as Ex. PW1/14.
15. Letter dated 27.03.2003 as Ex. PW1/15.
16. Administrative order dated 02.11.2005 as Ex. PW1/16.
17. Letter dated 14.05.2008 as Ex. PW1/17.
18. Letter to Sh. R.S. Sahoo as Ex. PW1/18.
19. Letter as was received on 24.05.2011 as Ex. PW1/19.
20. Letter dated 30.10.2002 as Ex. PW1/20.
21. Letter dated 03.02.2003 as Ex. PW1/21.
22. Office Memorandum dated 27.05.2003 as Ex. PW1/22.
23. Office Memorandum dated 04.09.2003 as Ex. PW1/23.
24. Letter dated 20.02.2003 as Ex. PW1/24.
25. Letter dated 25.06.2003 as Ex. PW1/25.
26. Letter dated 24.06.2009 as Ex. PW1/26.
27. Letter dated 24.11.2004 as Ex. PW1/27.
28. Letter dated 24.07.2009 as Ex. PW1/28.
29. Letter dated 27.03.2003 as Ex. PW1/29.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 20/ 44
Defendant's evidence
8. Defendant examined Sh. J.L. Tuli as DW1 who tendered his
evidence by way of affidavit Ex. DW1/A and replied upon the following
documents:
1. Letter dated 17.08.1998 as Ex. DW1/1.
2. Letter dated 21.08.1997 as Ex. DW1/2.
8.1 Defendant also examined Sh. Mohd. Zafar as DW2 who
tendered his evidence by way of affidavit Ex. DW2/A and he relied upon
copy of charge sheet as Ex. DW2/1.
8.2 Thereafter vide orders dated 24.09.2016 DE was closed.
Findings
9. I have heard the plaintiff as well as Ld. Counsel for the
defendant, given due consideration to the rival contentions raised at bar and
have carefully gone through the record. My issuewise finding is as under:
Issue no. 2: Whether the present suit is hit by doctrine of res judicata in view
of the earlier suit no. 1791/2000 which had been filed by the plaintiff and
which was thereafter dismissed vide judgment and decree dated 17.02.2010?
CS No. 58535/16 ND Sharma Vs. Central Bank of India 21/ 44
OPD
Issue no. 3: Whether the suit of the plaintiff is hit by bar of limitation? OPD
9.1 Plaintiff has filed the present suit seeking damages to the tune
of Rs. 1 lac for harassment and defamation. In nutshell the case of the
plaintiff is that on account of the frauds highlighted by him, as were
prevalent in the defendant bank, he was harassed for 11 long years by
conducting a false, fake, exparte & motivated inquiry against him and was
defamed. It is his case that he suffered mentally and physically on account of
the arbitrary, unethical and malafide departmental inquiry initiated against
him by the defendant. However this is not the first litigation, suit filed by the
plaintiff to seek damages towards harassment and defamation on account of
alleged fake, motivated departmental inquiry against him. As back as 2000
plaintiff had filed suit bearing no. 1791/2000 seeking a relief of declaration
& damages and a careful scrutiny of the plaint of the said suit would reveal
that plaintiff had alleged similarly against the defendant, as in the present
suit, while seeking damages to the tune of Rs. 10 lacs.
9.2 Certified copy of the plaint titled as Nilambar Datt Sharma Vs.
Central Bank of India and ors bearing suit no. 1791/2000 is on record as Ex.
PW1/DA. The relevant portion of the plaint are reproduced hereunder:
8. Thereafter, in December 1989, the plaintiff was transferred to Delhi as
Internal Auditor where, subsequently he was promoted to Scale III as Senior
Internal Auditor.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 22/ 44
10. That, the preceding averments are pointers to the factum of the
plaintiff being an upright officer devoted to the Bank's welfare from all
angles and yet, he had to undergo torturous pangs in his career because of
the machinations of Sri P.C. Goel, defendant no. 3.
10 (b) that, finding himself in hot soup, Sri P.C. Goel, Defendant no. 3,
with his influence over the Management, got the plaintiff transferred
overnight, throwing all administrative norms to the wind, by telex message,
from the Audit & Inspection Department to the Operation Branch of the
Bank and got the plaintiff posted to the much disturbed branch of the delhi
Zone, namely, Jamianagar Branch of New Delhi, in June 1993, thus
preventing the plaintiff from completing the special assignment as Senior
Internal Auditor.
(f) That, the moment Sri K. Raghuraman, the then Zonal manager of Delhi
Zone was transferred, the machinating talents of Sri P.C. Goel, defendant
No 3, became active and the present General manager of Delhi Zone, Sri
M.B. Khurjekar, who had good rapport and links with Sri P.C. Goel,
defendant No. 3, immediately on his joining as General Manager, Delhi
Zone, on July 14, 1998, issued a letter dt. August 17, 1998, threatening the
plaintiff from pursuing his representation/grievances pending with Ministry
of Finance and on his failure to adhere to the orders as asked by defendant
no. 2, he was to face disciplinary action.
15. that, defendant no. 3, thus succeeded in achieving his game plan to
finish the plaintiff through Sri N.K. Jaiswal, an arch enemy of the plaintiff
as stated above.
19. That the plaintiff has not been provided with pension despite constant
efforts in writing by him since defendant no. 2 is the head of the matter in
this regard.
22. That the plaintiff made all efforts with the Management as also the
Ministry of Finance & Banking Division, to get his rights vindicated and
grievances redressed, but the Bank authorities, by their complete silence
have denied the rights of the plaintiff.
23. That, it is relevant to mention, that on this question, the plaintiff's
representations were and are still pending with the Ministry of Finance,
Banking Division and with the Prime Minister's office as also before the
President of India and National Human Rights Commissioner.
27. that the plaintiff having thus been continuously victimized by the Bank,
has suffered damages which can run into crores but on account of his
financial predicament, he is advised to sue the defendants for a paltry sum
of Rs. 10 lakhs only and holds defendants responsible jointly and/or
severally and asserts that the defendants are liable to pay the same jointly
CS No. 58535/16 ND Sharma Vs. Central Bank of India 23/ 44
and / or severally. Mentions regarding damages suffered by the plaintiff do
already figure in the representations made by the plaintiff to the
Management and different governmental flora.
33 (b) that the plaintiff be awarded damages for a sum of Rs. 10,00,000/
and the defendants be directed to pay jointly and/or severally to the
plaintiff.
9.3 Hence highlighting the alleged harassments, victimization,
denial of promotion, non grant of pension, while leveling allegations against
the bank (defendant) and its various officials including P.C. Goel, N.K.
Jaiswal, R.A. Tripathy etc., plaintiff had sought damages to the tune of Rs.
10 lacs. However the said suit was dismissed vide judgment, decree dated
17.02.2010 while holding that the suit is barred by the law of limitation. The
certified copy of the judgment is available on record as Ex. PW1/DD. The
relevant portion of the judgment is reproduced hereunder:
7. The right to sue had accrued to the plaintiff on 12.7.97 and admittedly
suit was filed on 31.07.00. As per section 3 of Limitation Act, it is stated
that although limitation has not been set up as a defence but it is law of
limitation which states that the said suit shall be dismimssed. The entire
relief has been sought by the plaintiff in this suit upon a letter dated
12.07.97 and suit was filed on 31.07.00. Thus, at the very face of it, this suit
of the plaintiff is time barred and suit cannot be entertained in any
circumstances and has to be dismissed in view of law of limitation.
8. Thus, in view of observation made hereinabove, the plaintiff is failed to
discharge the onus to prove this preliminary issue and accordingly this
issue is answered against the plaintiff. The suit is time barred on the date of
filing of this suit.
10. In these circumstances, this suit is dismissed as time barred. Decree
sheet be prepared accordingly. File be consigned to record room.
9.4 Hence though plaintiff had sought damages in CS No.
1791/2000 however the suit was dismissed and no damages were awarded to
CS No. 58535/16 ND Sharma Vs. Central Bank of India 24/ 44
him. Plaintiff had admittedly preferred RFA No. 314/2010 against the
dismissal however the appeal was also dismissed vide judgment dated
10.01.2013. The copy of the appeal and the judgment has not been placed on
record, exhibited by either of the party however in view of the admitted
position that the appeal was dismissed against the dismissal of the suit for
damages, the present suit for damages is barred as per the principles of
resjudicta. Section 11 of the Code of Civil Procedure, 1908 reads as under:
11. Res judicata. No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally decided by such Court.
Explanation III The matter above referred to must in the former suit have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV - Any matter which might and ought to have been made ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in
issue in such suit."
9.5 In Escorts Farms ltd., previously known as Escorts Farms
(Ramgargh) Ltd. v. Commissioner, Kumaon Division, Nainital, UP, 2004
(4) SCC 281 it has been held as under:
"Doctrine in substance means that an issue or a point decided and attaining
finality should not be allowed to be reopened and reagitated twice over. The
literal meaning of rex is 'everything that may form an object of rights and includes
an object, subjectmatter or status' and res judicata literally means: a matter
adjudged; a thing judicially acted upon or decided: a thing or matter settled by
judgement.' Section 11 of CPC engrafts this doctrine with a purpose that 'a final
judgment rendered by a court of competent jurisdiction on the merits is conclusive
as to the rights of the parties and their privies, and as to them, constitutes an
absolute bar to a subsequent action involving the same claim, demand or cause of
action"
9.6 The principle of resjudicata is placed on the need of giving a
CS No. 58535/16 ND Sharma Vs. Central Bank of India 25/ 44
finality to judicial decision. What it says is that once a rest is judicata, it shall
not be adjudged again. What is to be seen is whether the matter directly and
substantially in issue was directly and substantially in issue in the former
litigation including a writ petition and had been heard & finally decided by a
competent court. If so, the principle of res judicata would apply. Once a
final judgment has been obtained by a party, he cannot canvass the same
matter over again in another action. It is a fundamental doctrine that there
must be an end to litigation. Resjudicata, it is observed in Corpus Juris, " is a
rule of universal law pervading every well regulated system of jurisprudence,
and is put upon two grounds, embodied in various maxims of the common
law' the one, public policy and necessity, which makes it to the interest of the
State that there should be an end to litigation - interest republicae ut sit finis
litium; the other, the hardship on the individual that he should be vexed twice
for the same cause - nemo debet bis vexari pro eadem causa. (Daryao and
ors Vs. State of UP and ors 1962 (1) SCR 574). Further reliance may also be
placed upon the law laid down in Mohan Lal Goenka Vs. Benoy Kishna
Mukherjee and ors 1953 (4) SCR 377, Mathura Prasad Vs. Sarjoo Jaiswal
and ors 1970 (3) SCR 830, Satyadhyan Ghosal and ors Vs. Smt. Deorajin
and anr 1960 (3) SCR 590, Forward Construction Company and ors Vs.
Municipal Corporation of Greater Bombay AIR 1986 SC 391, Ajit Mittal
Vs. Heat Exchange (P) Ltd. 2011 (1) RAJ 435 Delhi, Meva Ram and ors
Vs. Smt. Anita decided on 25.11.2011 in CM (M) No. 1034/2008 and CM
CS No. 58535/16 ND Sharma Vs. Central Bank of India 26/ 44
Nos. 12859 and 12860/2008 and P.K. Vijayan Vs. Kamalakshi Amma AIR
1994 SC 2145.
9.7 The entire basis, foundation of suit no. 1791/2000 and the
present suit is the same i.e. alleged harassment by the defendant & its
officials and the consequent damages suffered by the plaintiff. It is just that
in the present suit, pleadings plaintiff has elaborated to a greater extent,
extremely verbosely the entire factual matrix which according to him
establish that he was indeed harassed by the defendant and its officials. He
has named more officials and given additional examples of alleged
harassments and claimed larger amount towards damages as against what
was done in suit no. 1791/2000. However the foundation, the nature of
grievance remains exactly the same. But as discussed above once no
damages were awarded on account of dismissal of the suit, the present suit
for damages cannot be entertained in view of the principles of resjudicata.
9.8 As far as the limitation is concerned, suit no. 1791/2000 having
been dismissed on account of being barred by law of limitation, the present
suit which was filed after 11 years of the dismissal of said suit is obviously
hopelessly barred by the law of limitation.
9.9 As discussed above, suit no. 1791/2000 was not the only
litigation initiated by the plaintiff. Appeal against the dismissal was also
CS No. 58535/16 ND Sharma Vs. Central Bank of India 27/ 44
dismissed. Plaintiff had also preferred WP No. 599/2004 and WP No.
505/2006 and they were disposed of on 13.02.2007 and 18.01.2008
respectively. Neither the copy of writ petition nor the judgment were proved
on record, exhibited during the trial by either of the side.
9.10 Plaintiff had also preferred one writ petition bearing no.
5148/2008 which was disposed of vide judgment/order dated 16.12.2010.
Copy of the writ petition and the judgment are available on record as Ex.
PW1/2. In the writ petition while again highlighting his alleged harassment,
the vindictive nature of the defendant and its officials, the plaintiff had
sought damages from the bank for his alleged harassment, victimization and
mental torture from April 2000 onwards. Relevant portion of petition is
reproduced hereunder:
1. Where does the petitioner go when right from Top most Executive down
to Regional Manager of a Nationalized Bank with the Connivance Ministry
of Finance, Banking Division, Govt. of India and Central Vigilance
Commission had conducted Exparty Departmental Enquiry on the basis of
Fake and False charges against the Petitioner in such a manner as in case
of Fake encounter conducted by the Police against the innocent person.
2. Disciplinary Authority instead of try to detect fraud by applying his
intellectual and moral power in the manner and sequences in which it had
actually occurred. Disciplinary Authority assume the role of a judge foist
present and prove all the four false charges against the petitioner come to a
foregone conclusion about the guilt of the petitioner in a manner as his own
fancy dictate to him.
25. Case borne out of an evil design. Rules and regulation being used as a
weapons to harass and humiliate the petitioner. The most heinous and most
cruel crime of which history has record been committed under the cover of
Disciplinary Action by the Respondent for their benefit to hide the fraud,
siphon off public money in several crores of Rupees by the Respondent from CS No. 58535/16 ND Sharma Vs. Central Bank of India 28/ 44 the Bank pointed out by the petitioner in his audit report June 1993.
27. Incalculable harm will accrue to the Nation if an employee cease to speak out against the corruption at high places. Petitioner had taken the initial bold steps and fool proof methods against an exposure. Chairman and Managing Director enjoy the lending power upto Rs. 5 crores. He is not accountable and answerable to the loan sanctioned by him upto Rs. 5 crores. This loan later on become NPA (NonPerforming Assets). Hon'ble Supreme Court very much concerned about the growth of more than Rs. 1,00,000 crores of NPA of schedule Banks. For an evidence petitioner has given detail on page no. D under date and events June 1993. More evidence from the newspapers as under:
1. Top Management of Central Bank of India involved in fraud of Rs. 10 crores. A loan of Rs. 10 crores was given to an individual against security of shares of Rs. 50,000.
2. Former CMD and Top Management in CBI dragnet loan of Rs. 5 crore given to some fictitious firm against forge documents. This is the biggest scam going on in the Nation. Petitioner has pointed out this scam in June 1993 at the cost of his health, wealth and career.
30. Chairman and Managing Director after going through the appeal made to the Hon'ble Prime Minister had called the paper pertaining to the petitioner. He expressed displeasures undue delay for taking disciplinary action against the petitioner. For an evidence Central office letter number CO/PRS/Legal/200203/Misc/3583/1016 dated 25.03.2003.
31. Vigilance Department after going through appeal made to the Hon'ble Prime Minister, Assistant General Manager, (VIG) Lance department letter no. CO/VIG/200203/3502 dated Feb. 3 2003 "We observed that the member (petitioner) is persistently making allegations against the various administrative authorities of the Bank. Please arrange to issue a suitable memo in corporating all lapses commuted by him quantityfing the loss from him.
32. Ministry of finance Banking Division after going through the appeal made to Hon'ble Prime Minister had come to protect the Chairman and Managing Director with the motive to mislead the Hon'ble Prime Minister office and harass the petitioner by stating fake and false charges against the petitioner. The concerned authority in the Finance Ministry notoriously untruthful given wrong and misleading comments against the petitioner in their letter F. No. 104/17/02IR dated 31st March 2003.
35. "It is also pertinent to mention that it was Sh. N.D. Sharma who had made a complaint to the commission as early as in September 2001 alleging CS No. 58535/16 ND Sharma Vs. Central Bank of India 29/ 44 that he was torture/victimize by the Management for having pointed out the serious irregularities in the audit in his report submitted in June 1993 and top functionaries of the Bank have threatened him.
36.Central Vigilance Commission letter no. 0103/BNK/35 dated 31 July, 2003 stated that it is observed that the Bank have not commented specifically anything about the allegations allegedly leveled by Sh. Sharma that he is being harassed by the management because of his pointing out serious irregularities in the audit report. In view of the above observations, the Bank may furnish their comments to the Commission expeditiously.
Respondent was biased, malafide, intension against the petitioner. Respondents motive was vindictiveness and intimidation and decided 6 years before awarding punishment for reduction of 50% pension for 10 years and now 25% reduction of pension for 5 years as per the letter of Vigilance Department No. CO/VIG/20012002/4059 dtd 26 Feb. 2002. "You are aware that it is decided to initiate department action against the petitioner under pension regulations.
Grounds
6. Because while working as Senior Internal Auditor as an honest and humble servant of the Bank discharged the duties assigned to him.
7. Because after the report of the Petitioner Senior Internal Auditor was not liked by the Respondent as the Petitioner had unearthed the scam worth Rs. Crores and it had the involvement of Senior Most Persons including the Chairman and Directors.
8. Because as per the information of the Petitioner on the conspiracy of these senior officers the loan was given to an unit without any verification to a nonexisting institution.
Prayer
7. That the respondent be directed to compensate for harassing/victimization and mantel torture the petitioner for excessively long period from April 2000 to date.
9.11 Hence while leveling almost exactly similar allegations and claiming victimization, harassment and malafide on the part of the defendant in not releasing the pension, the plaintiff apart from the other reliefs had sought compensation from the defendant, however no such compensation CS No. 58535/16 ND Sharma Vs. Central Bank of India 30/ 44 was awarded to the plaintiff which is evident from judgment dated 16.10.2010 which is on record as Ex. PW1/1. Even this judgment i.e. Ex. PW1/1 operates as resjudicata and debars the plaintiff from seeking compensation by reagitating the same issues again in the present suit. I have no hesitation in concluding that in all the litigations, including the writ petition, initiated by the plaintiff, as discussed above, the issue raised by him is directly and substantially the same. It is well settled that principle of resjudicata equally applies to writ petitions. Reliance may be placed upon the judgment passed by the Hon'ble High Court of Delhi in LPA No. 40/2015 titled as A.K. Wadhwa Vs. Central Bank of India and ors dated 04.08.2016. Therefore in view of above discussion, issue no. 2 and 3 are decided in favour of the defendant and against the plaintiff.
Issue no. 4: Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, its effects? OPD 9.12 As far as this issue is concerned the onus to prove the same was upon the defendant however it has not been explained as to how the suit has not been valued properly for the purpose of court fee and jurisdiction. Plaintiff has claimed damages to the tune of Rs. 1 crore for harassment & defamation and valued the suit accordingly for the purpose of court fee and jurisdiction. Appropriate court fee upon the same has also been paid, affixed. Therefore this issue is decided against the defendant and in favour of the CS No. 58535/16 ND Sharma Vs. Central Bank of India 31/ 44 plaintiff.
Issue no. 1: Whether the plaintiff is entitled to a decree of damages, if so, to what extent? OPP 9.13 As far as this issue is concerned as issue no. 2 and 3 have been decided in favour of the defendant and against the plaintiff, the plaintiff is not entitled to damages. Nonetheless in addition to the discussion as above it is to be seen that undoubtedly the departmental inquiry, action was initiated against the plaintiff after his retirement however it is an admitted position that while in the service of the defendant, plaintiff had been communicating with other offices, authorities, departments of government highlighting the alleged frauds committed by the defendant and some of its officials, which action on the part of the plaintiff was against the service rules, terms and conditions of his employment. Accordingly one letter was written to the plaintiff on 17.08.1998 which is on record as Ex. PW1/13 and which reads as under: GM: 16 17 August 1998 Mr. N.D. Sharma Branch Manager Central Bank of India Jamia Nagar New Delhi.
Your attention is invited to your letter dated 15.7.98 addressed to the CS No. 58535/16 ND Sharma Vs. Central Bank of India 32/ 44 Hon'ble Finance Minister, Govt. of India.
You are as advised as under
1. In case you wish to leave the service of the bank under voluntary retirement, you should submit an unconditional letter for the same.
2. You should desist from writing to outside agency as such an action on your part is totally unwarranted and lowers the image of the Bank.
3. In case you do not adhere to the above advice, the Management will be compelled to initiate disciplinary action against you as per the rules of the Bank.
GENERAL MANAGER 9.14 Another letter was written to the plaintiff on 21.08.1997 by the Assistant General Manager which is on record as Ex. PW1/14 vide which he was advised to desist from making frivolous allegations against the bank. The letter is reproduced hereunder:
No. ZO:PRS:DAD:Misc: 9798: 442 dated 21.8.97 Shri N.D. Sharma, Senior Manager, B/o Jamia Nagar, New Delhi
We are in receipt of a copy of your representation through Regional Office "A", New Delhi dated 02nd August, 1997 wherein you had made various allegations against the Bank. The allegations made by you are baseless and do not merit any consideration. You are, therefore, advised to desist from actions which are undesirable and uncalled for. Your actions are unbecoming of a Bank Officer and in violation of Officers Service Regulations and the Disciplinary Action Rules. Kindly note that any attempt to tarnish the image of the Bank would be dealt with severely and proper action will be taken against you as per Bank's rules, which kindly note.
(D.P. Gupta) Asstt General Manager 9.15 It will also be pertinent to point out that on account of repeated, CS No. 58535/16 ND Sharma Vs. Central Bank of India 33/ 44 persistent allegations made by the plaintiff, the Assistant General Manager (Vig) had also to write to the Deputy General Manager on 03.02.2003 vide Ex. PW1/21 as under:
CO/VIG/20022003/3502 February 3, 2003
Dy. General Manager
Zonal Office
Delhi.
Reg: Shri N D Sharma, exSenior Manager (since Retired), Jamia Nagar Branch Ref: Your letter No. ZO/PRS/DAD/200203/1113 dated 04.01.2003.
On perusal of the case file, we observe that the member is persistently making allegations against the various administrative authorities of the Bank without any base/documentary evidence whatsoever, probably in utter despair and to get his terminal dues which are withheld for obvious reasons. We also observe that no memo seems to have been issued to the member calling for his explanation. If so, please arrange to issue a suitable Memo incorporating all the lapses committed by him, quantifying the loss suffered by the Bank and call for his explanation, as to why bank cannot recover the proven loss from him by invoking Pension Regulation No. 48. Upon receipt, please analyze and furnish all the required papers so as to refer the case to Central Vigilance Commission for their First Stage, advice, along with the Biodata of the member updated up to the date of superannuation with comments on malafides, interalia incorporating Pension details viz. Amount of Pension with name of Branch and Account Number. Needless to add that all the necessary papers are required to be submitted to Central Vigilance Commission while seeking their First Stage advice, as per the provisions of Special Chapter at Para No. 10.4. Please proceed accordingly and expedite furnishing the required papers, urgently.
(MS RAO) ASSTT GENERAL MANAGER (VIG) cc: PRSLEGAL Central Office Mumbai CS No. 58535/16 ND Sharma Vs. Central Bank of India 34/ 44 9.16 Various other letters were also exchanged between various departments of the bank and a memo was also issued to the plaintiff who did not respond to the same as is evident from Ex. PW1/15, Ex. PW1/20, Ex. PW1/23 etc. 9.17 Vide Ex. PW1/16 dated 02.11.2005 bearing no.
ROA/HRD/DAD/11/200506/759 the plaintiff was informed that the Disciplinary Authority vide order No. ROA/HRD/DAD/200506/758 dated 02.11.2005 awarded the penalty of "withholding of 50% of the pension for a period of 10 years on Mr. N.D. Sharma as per Central Bank of India Pension Regulation 1995" in pursuance chargesheet no. RO(A)/PRS/DAD/2003 04/443 dated 06.10.2003. Plaintiff had admittedly, for reasons best known to him, not attended the inquiry and therefore it was held exparte against him. Upon receipt of the findings of the Inquiring Authority he made the submissions on 23.09.2004 and thereafter the final order as above was passed on 02.11.2005. Plaintiff preferred an appeal on 20.11.2007 and vide order dated 14.05.2008, which is on record as Ex. PW1/17, the Appellate Authority awarded a consolidated penalty of "withholding of 25% of the pension for a period of 5 years".
9.18 Undoubtedly the writ petition as preferred by the plaintiff against the order of the Appellate Authority was allowed, the plaintiff CS No. 58535/16 ND Sharma Vs. Central Bank of India 35/ 44 exonerated of charge 4 and order dated 14.05.2008 passed by the Appellate Authority was quashed but the plaintiff was given the said relief for the reasons as mentioned in para 21 to 29 of the judgment and not because the Hon'ble High Court of Delhi believed the allegations as were leveled by the plaintiff in the said writ petition as has been exactly done in the present suit. The relevant portion reads as under:
21. I am of the considered view that when the respondent No.1 had the specific knowledge about petitioner's employment with another bank although no salary was drawn at the initial stage and the respondent did not send any response either to allow or to refuse the same within 60 days under Regulation 50(4) of the Central Bank of India (Employees) Pension Regulations, 1995 and therefore, the petitioner accepted the commercial employment. Then after the expiry of the period prescribed under Regulation 50(4) the respondent was debarred from raising the objection that petitioner did not apply for the same in the prescribed manner by filing the application. The respondent could have easily refused the permission under the said regulation. At least the respondent could have written a letter stating that any employment of the petitioner even without salary drawn is contrary to subregulations within the prescribed time of 60 days. Since there was no response, the submission of the respondents cannot be accepted.
22. It is also pertinent to mention that the memo was issued on 18.2.2003 when the respondent No.1 had the knowledge about the employment of the petitioner in the month of June 2000. The said memo was issued after almost two years and eight months and the chargesheet was issued after the expiry of three years.
23. The contention of the petitioner is that he has been harassed by the respondent bank with a motive as the petitioner had given the details and evidence against the top official of bank about their corruption. The details are mentioned in para 27 of the petition which are as under:
"1. Top Management of Central Bank of India involved in fraud of Rs.10 crores. A loan of Rs.10 crores was given to an individual against security of shares of Rs.50,000/.
2. Former CMD and Top Management in CBI dragnet loan of Rs. 5 crore given to some fictitious firm against forge documents. This is the biggest scam going on in the Nation. Petitioner has pointed out this scam in June CS No. 58535/16 ND Sharma Vs. Central Bank of India 36/ 44 1993 at the cost of his health, wealth and career."
24. He argued that due to this reason from the very first month his pension was withheld. He referred para 39 of the petition which reads as under:
"39. Respondent had started to harass the petitioner with the motive to make him starved from the very first month of the retirement of the petitioner i.e. 31.03.2000. 100% pension was withheld for three months from April,2000 to 26.06.2000. 50% pension reduced for 10 years vide their order dated 02.11.2005. 25% pension reduced for 5 years vide their order dated 14.12.2008. Commuted amount of pension was withheld for 6 years from April 2000 to November 2005. The commuted amount was Rs.2,04,950/ Appear of pension for Rs.59,875/ was withheld from October 2000 to November, 2005 without any reason or cause with the motive to imbues the petitioner with fear, worry and pessimism so that he can not have a cheerful look in his life and never to believe in the possibility of justice."
25. Without going into the merit of the allegations made by the petitioner in paras 25 to 40 of the writ petition, I am of the view that the Regulation 50(4) is a deeming provision which creates the fiction for the protection of employees from the belated approvals or rejections by the directors so that the employee must be made certain about its continuity of employment. This creates an obligation upon the directors also to approve or reject the appointment at the earnest opportunity failing which the fiction of law will operate and the same shall be deemed approval.
26. There is no res integra to the proposition that when the provision enacts the fiction in the given circumstances and if the same are satisfied, the necessary consequences that flow from the said fiction must be given full effect as if the said things are real. It is, as noted above, a deeming provision. Such a provision creates a legal fiction. As was stated by James, L.J. in Levy, Re, ex p Walton, 1881 (17) Ch.D 746:
"when a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. After ascertaining the purpose full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end it would be proper and even necessary to assume all those facts on which alone the fiction can operate.
27. When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences, but it is not that something else per Cave, J., R. Vs. Norfolk County Court 1891 (60) LJ QB 379.
28. When a statute gives a definition and then adds that certain things shall CS No. 58535/16 ND Sharma Vs. Central Bank of India 37/ 44 be `deemed' to be covered by the definition, it matters not whether without that addition the definition would have covered them or not.
29. Under these circumstances, the present writ petition is allowed and the petitioner is also exonerated for Charge No.4. Consequently, the orders dated 14.5.2008 passed by the Appellate Authority of the respondent bank imposing punishment of reduction of 25% pension for a period of five years is quashed. The petitioner shall be entitled for due amount of pension after the retirement dated 31.3.2000. The said amount shall be paid by the respondent bank to the petitioner within four weeks from today. The petitioner is also entitled for Rs.20,000/ as cost.
9.19 Though at the same time Ld. Counsel for the defendant pointed out that thought it is reflected in above judgment in para 9 as "The petitioner was exonerated for charges 1 to 3 of the charge sheet by the Appellate Authority" however the Appellate authority vide its order which is on record as Ex. PW1/17 did not exonerate the plaintiff for charges no. 1 to 3. Nonetheless once order dated 14.05.2008 was quashed by the Hon'ble High Court of Delhi, the contention of Ld. Counsel for the defendant have no bearing, significance whatsoever.
9.20 Though the plaintiff had levelled so many allegations against the bank & its officials including CMD, Regional Manager, Chartered accountant, Chief Vigilance Officer, Disciplinary Authority etc. and in fact a careful scrutiny of the plaint would reveal that he had not spared any government authority, department including the CVC, Ministry of finance etc. however apart from leveling bald allegations against the banks and its various officials the plaintiff did not bring any material on record to CS No. 58535/16 ND Sharma Vs. Central Bank of India 38/ 44 substantial his claims that indeed bank and its officials had committed fraud, siphoned public money, taken illegal gratifications and when he highlighted the above, all the officials, as discussed above, connived with each other and started harassing him. In the plaint specific allegations have been leveled against one Sh. M.S. Johar (Chartered Accountant), Sh. Dalbir Singh (CMD), Ms. H.A. Daruwala (CMD), Sh. R.P. Gupta (Regional Manager) etc. however none of these officials have been arrayed as a party to the present suit. Plaintiff has not bothered to prove the alleged frauds, misdeeds committed by those officials or that the action initiated against him after the retirement was indeed motivated on account of the alleged frauds, misdeed of these officials highlighted by him. In fact in the initial suit i.e. CS No. 1791/2000 (Ex. PW1/DA) plaintiff had arrayed Mr. M.B. Surjekar and Mr. P.C. Goel as defendants, apart from the bank however in the present suit none of the said officials have been impleaded as a party. In the absence of any proof that the inquiry, as conducted against him, was motivated no question arises of the plaintiff being entitled to damages.
9.21 Not only the plaintiff could not prove the alleged frauds, misdeeds committed by the bank and its officials but once he admittedly was corresponding with various other authorities including the Prime Minister's office and the Ministry of Finance (vide Ex. PW1/DF, Ex. PW1/DG, Ex. P3, letters dated 21.09.1999, 17.08.1999 and 09.08.1997) coupled with the fact that he admittedly did not avail the promotion benefit, pursuant to letter CS No. 58535/16 ND Sharma Vs. Central Bank of India 39/ 44 dated 12.07.1997, by not joining the posting as was directed, the same goes to a greater extent to prove that the plaintiff had been not heeding to the directions of his superiors, employer and rather had been acting contrary of the terms and conditions of his employment, service, conduct rules, Central Bank of India Officer Employees (Conduct) Regulations 1976 and Central Bank of India (Employees) Pension Regulations 1995, which are on record as Ex. PW1/DB and PW1/DE respectively.
9.22 At this stage it will be pertinent to highlight that while disposing of the writ petition vide judgment Ex. PW1/1 and considering exactly the similar allegations of the plaintiff as in the present suit the Hon'ble High Court of Delhi observed in para 25 as " without going into the merits of the allegations made by the petitioner in paras 25 to 40 of the writ petition", therefore no observation was made by the Hon'ble High Court of Delhi upon the merits or demerits of the claims of the plaintiff regarding the alleged harassment by the defendant or its officials and therefore the judgment Ex. PW1/1 did not give any fresh cause of action to the plaintiff as there is nothing in the judgment to even remotely suggests that the Hon'ble High Court of Delhi believed or found merits in the contentions, allegations of the plaintiff.
9.23 Undoubtedly pension was withheld but the same was subsequently released to him and even the interest was awarded on the CS No. 58535/16 ND Sharma Vs. Central Bank of India 40/ 44 pension which was belatedly released. The interest was awarded vide order dated 11.03.2011 passed in CM No. 802/2011 in WP No. 5148/2008 i.e. Ex. P2. In fact all pensionary, retiral benefits were duly awarded to the plaintiff and as such he did not suffer from any loss or damage. At this stage, it will be relevant to highlight the answers given by the plaintiff (PW1) during his cross examination which are reproduced hereunder: It is correct that I have filed one suit against the defendant bank in the year 2000. Vol. It was in respect to my promotion. It is correct that that I have claimed Rs. 10.0 lacs as damages from the defendant bank in the said suit. It is correct that the said suit was dismissed on 17.02.2010. Vol. It was dismissed on account of limitation. It is correct that the appeal against the said dismissal order and SLP against the dismissal of the appeal was also dismissed. It is correct that the earlier suit was filed by me after my retirement. It is wrong to suggest that I have pleaded the irregularites of the defendant bank as pleaded by me in the present suit in the earlier suit also.
It is correct that Ex.PW1/DA is the copy of the plaint filed by me in the year 2000. It is correct that I have received entire retirement benefits along with interest and cost from the defendant bank in the writ petition bearing no. 5148/2008 filed by me..........It is correct that I have filed the present suit after gap of 11 years from the day of superannuation. Vol. But I have filed the present suit after the disposal of the writ petition bearing no. 5148/2008 on 16.12.2010.
It is correct that there is no mentioning of earlier suit in the present suit....... It is correct that Ex. PW1/DB is the original conduct rules. Vol. The said rules are not applicable to me being pensioner. I was bound by the conduct rules Ex. PW1/DB during my regular job with the defendant bank before my retirement. It is correct that during my job, I was bound to maintain secrecy of the defendant bank regarding any confidential matter of the bank. It is correct that as per clause 12 of conduct rules Ex.PW1/DB the political or outside influence was not allowed in the matter pertainig to the job of the bank.
I have not written any letter to Prime Minister of India or Finance Minister or any other authorities in respect to discliplinary proceedings initiated by the defendant bank against me. Vol. The said letters have been written to inform the said authorities about the fraud committed by the higher official of the defenedant bank.
It is correct that during my tenure the defendant bank has advised me by writing letters not to write any letter to outside authorities.......It is correct that I have recevied letter Ex.PW1/14.
It is correct that being Sr. Auditor I was fact finding authority and not fault CS No. 58535/16 ND Sharma Vs. Central Bank of India 41/ 44 finding authority.
It is correct that when I was employee of the bank, I was expected to observe prescribed norms and discipline. At this stage, learned defence counsel has shown Central Bank of India (Employees) Pension Regulations, 1995 to the witness and he has admitted that the same is applicable on him after retirement. The same is exhibited as Ex. PW1/DA.
It is correct that regulation 46(2) of Ex.PW1/DE permits the bank to withhold gratuity against a retired employee. Vol. same is not applicable to me. It is correct that for commutation of pension also Ex.PW1/DE is applicable.
9.24 The relevant portion of cross examination of DW1 is reproduced hereunder: Ques. Whether there was any disciplinary action against the plaintiff vide Ex.DW1/1 and Ex.DW1/2 till his retirement?
Ans. The plaintiff was cautioned through various memos for desisting from such actions but plaintiff did not improve. It was as per Ex.DW1/2 and Ex.DW1/2 but disciplinary inquiry till the retirement of plaintiff was not held.
The plaintiff was served with the letter dated 17.08.1998 vide Ex.DW1/1 and Ex.DFW1/2 thereby he was advised to desist from writing to outside agencies "as such an action on your part is totally unwarranted"
It is wrong to suggest that Ex.DW1/1 and Ex.DW1/2 are the threatening letters. These letters are the advisory letters.
The Central Bank of India employee pension regulations,1995 are applicable to the employees.
9.25 As far as defamation is concerned no evidence was led by the plaintiff that he was indeed defamed and that he is entitled to be compensated, awarded damages for being defamed by the defendant or its officials. The communications which have been brought on record are not at all defamatory. There is nothing defamatory whatsoever in the communications, letters, inquiry etc. concerning the plaintiff and nothing at all to infer that the same were sent with an intention or were motivated to CS No. 58535/16 ND Sharma Vs. Central Bank of India 42/ 44 lower, diminish the reputation of the plaintiff or to malign, harm his image before any third party, authority etc. From none of the documents, as relied upon by the plaintiff, can any defamatory or slanderous word or statement be culled out. Plaintiff also could not file any other communication, letter etc. he might have received from any of his relative, friends or any other authority intimating, informing the plaintiff that they had received any communication, letter etc. from the defendant or any of its official containing any allegations, defamatory imputations against the plaintiff which might have had the effect of lowering his reputation in the eyes of those relatives, friends, authorities etc. Similarly no evidence was brought on record and nothing was proved to the extent that on account of any such defamatory, slanderous imputations his reputation had been diminished. This was sine quo non for the plaintiff to prove, before he could claim that he was defamed or that he suffered damages, loss on account of defamatory, slanderous statement, words used against him by the defendant or its officials. Once he failed to do so no case of defamation and the consequent damages can be entertained.
9.26 Accordingly, issue no. 1 is decided against the plaintiff and in favour of the defendant.
Relief CS No. 58535/16 ND Sharma Vs. Central Bank of India 43/ 44
10. As issue no. 1 has been decided against the plaintiff and issue no. 2 and 3 have been decided in favour of the defendant, the plaintiff is not entitled to any relief. Suit of the plaintiff is liable to be dismissed. I order accordingly.
11. Decree sheet be prepared accordingly.
12. File be consigned to record room after necessary compliance.
Announced in the open court (Gaurav Rao)
on 16th November 2018 ADJ02 & Waqf Tribunal /
New Delhi District,
Patiala House Courts, Delhi.
CS No. 58535/16 ND Sharma Vs. Central Bank of India 44/ 44