Delhi District Court
Sandeep Mehta vs The State Bank Of India on 26 August, 2021
Sandeep Mehta v. State Bank of India & Ors.
IN THE COURT OF HELLY FUR KAUR: CIVIL JUDGE08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO. : 596547/16 (OLD NO. : 677/17)
CNR NO.DLCT030002772005
In the matter of :
Sandeep Mehta
S/o Sh. K.K. Mehta
R/o H. No.1775, Sector4
Urban Estate, Gurgaon. ...PLAINTIFF
VERSUS
1. The State Bank of India
Through its Managing Director
Head Office: Parliament Street
New Delhi - 110 001.
2. The Dy. General Manager
State Bank of India
Zonal Office: NBCC Palace
Pragti Vihar Bhisham Pitama Marg
New Delhi - 110 003.
3. The Asstt. General Manager
State Bank of India
Zonal Office: NBCC Palace
Pragti Vihar Bhisham Pitama Marg
New Delhi - 110 003.
4. The Chief Manager
State Bank of India
Service Branch
Chander Lok Building 2nd Floor
Janpath, New Delhi - 110 001. ...DEFENDANTS
Digitally
CS No. : 596547/16 (old No. : 677/17) HELLY
signed by
HELLY
FUR KAUR
Pg 1 of 73
FUR Date:
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Date of institution : 07.03.2005
Date of judgment : 26.08.2021
SUIT FOR DECLARATION WITH CONSEQUENTIAL RELIEF OF
MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the suit filed by the plaintiff for declaration with consequential relief of mandatory injunction. BRIEF FACTS OF THE PLAINT:
2. The facts necessary to dispose of the present suit as alleged by the plaintiff are that the plaintiff was appointed to the post of Clerk w.e.f. 06.01.1986 on regular basis at the Service Branch, New Delhi of the defendant No.1 Bank. The defendant No.4 was the immediate controlling authority of the plaintiff and the defendant No.3 was the disciplinary authority of the plaintiff, while the defendant No.2 was the Appellate Authority as functionaries under the defendant No.1 Bank. That the plaintiff rendered blotless and commendable service to the defendant No.1 Bank at its various branches from time to time and was posted at Service Branch, New Delhi under the defendant No.4 during the year 1993 till 28.09.1995. In the year 1993, the plaintiff had been working under defendant No.4. No public dealing of customers was made in the said Branch and work of clearing of cheques issued on different Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 2 of 73 FUR KAUR FUR Date:
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branches of the bank and other auxiliary work was done in three shifts viz morning, general shift and evening shift. The work of clearing of cheques was entrusted to Shri K.K. Anand Clerk by the Branch Manager and it was his duty to deal with MICR Sheets, cheques received from Reserve Bank of India Delhi. His work was further checked by Manager Incharge. The plaintiff was entrusted with auxiliary duties in the morning shift and was not on clearing of cheques duty. However, in case of rush of work, with Shri K.K. Anand, Clerk, the Branch Manager, desired the other clerks and the plaintiff to help and assist him for early clearance of the cheques/work. It is also pertinent to submit that on the impugned dates i.e. 05.08.1993, 23.08.1993 and 09.10.1993, the plaintiff was not directed either by the Branch Manager or by K.K. Anand Clerk to help in the clearance of the cheques and MICR Sheets. Therefore, the plaintiff cannot be made liable for any discrepancies occurred in the Branch on the aforesaid dates. The concerned Officer in the Branch checked all entries made in MICR Sheets with the relevant cheques as per details given in the said sheets and after his checking, the sheets went to the Daftri/Record Keeper for keeping their records in his custody. Thus, it was Shri K. K. Anand Clerk whose duty was to do the work of clearance of the cheques and attending the MICR Sheets. The defendant No.3 vide its order dated 28.09.1995 placed the plaintiff Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 3 of 73 FUR KAUR FUR Date:
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under suspension w.e.f. 28.09.1995 illegally, unlawfully and arbitrarily and without affording any opportunity to explain his position. That the plaintiff was placed under suspension on 28.09.1995 without obtaining the Preliminary Investigation Report, which was submitted on 14.10.1995 by Shri Jwahar Sharma and Shri S.P. Rajan of the defendant No.1 Bank and the statement of their witnesses, thus obviously were obtained under pressure tailored to suit the motives of the defendant No.3 to make the plaintiff a scape goat by falsely implicating and to save the prime suspects in the case. That the plaintiff vide letter dated 13.10.1995 requested the defendants No.3 for revocation of the suspension. Thereafter, legal notice dated 08.03.1996 was got issued by the plaintiff to the defendant No.3 demanding payment of the subsistence amount and salary for the month of January, 1996 and February, 1996. The defendant No.4 replied to the said legal notice and assured the payment. That the defendants No.1 to 4 failed and neglected to issue any charge sheet against the plaintiff till 15.07.1997 and kept the plaintiff under suspension in a illegal and unlawful manner and against the norms of disciplinary matters. Consequently, the plaintiff vide letter dated 07.07.1997 requested the defendant No.3 and 4 of the defendant No.1 Bank to revoke the illegal and unlawful suspension. The defendant No.3 vide its letter No.AGMI/ADV/5721 dated 15.07.1997 served Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 4 of 73 FUR KAUR FUR Date:
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upon the Plaintiff on 21.07.1997 revoked the suspension of the Plaintiff. Thus, the plaintiff was directed to report for duty to the office of defendant No.2 from where the plaintiff was directed to join duties at Hauz Khas, New Delhi. That the defendant No.3 vide its letter No.AGMI/Staff/5647 dated 12.07.1997 called for explanation of the plaintiff. The plaintiff gave written explanation to the false and unfounded charges leveled against the plaintiff by the defendant No.3. That the defendants were duly aware that all the payments due to the Bank from the drawer of the cheques alleged in the charge sheet were already recovered from the respective drawers of the cheques by the respective branches at Industrial Finance, New Delhi and Parliament Street Branch, New Delhi of the defendant No.1 Bank, who were liable to recover the dues. That the Industrial Finance Branch of the defendant No.1 Bank, who was liable to recover the interest against cheque No.449553 mentioned in the charge sheet recovered the interest on 11.09.1995 and 19.12.1995 with a gap of more than three months which otherwise ought to have been recovered on 11.09.1995 itself. Furthermore, that although, the above factum of receipt of the dues of the bank from the drawer of the cheques were fully known to the defendants No.1 to 3 and no loss having been caused to the defendant No.1 Bank in any manner yet the defendants placed the plaintiff under suspension on 28.09.1995 and issued HELLY CS No. : 596547/16 (old No. : 677/17) FUR KAUR Pg 5 of 73 Digitally signed by HELLY FUR KAUR Date: 2021.08.26 16:36:47 +0530 Sandeep Mehta v. State Bank of India & Ors.
charge sheet dated 24.11.1999 on the false and unfounded allegations in an illegal, unlawful and arbitrary manner. It is also averred that this factum of recovery of the aforesaid amounts by the defendant No.1 Bank was certified by the Assistant General Manager of State Bank of Patiala Industrial Finance Branch, New Delhi to the Presenting Officer. The said letter dated 01.12.2000 issued by the A.G.M. State Bank of Patiala Industrial Finance Branch was placed and proved on the records of the Departmental enquiry at its very outset. The following charges were levelled against the plaintiff by the defendants vide charge sheet dated 24.11.1999:
1. While Posted at our New Delhi Service branch from 13.03.1993 to 27.09.1995, you are alleged to have committed certain acts of misconduct for which you are served with the following charge Sheet:
a) On 05.08.1993, while you were doing the work of morning clearing, one cheque bearing No.881902 of Rs.70,25,104/ issued by Bhushan Steel & Strips Ltd. was not sent to the Indl. Finance (N. Delhi) branch. Manually the number of of instruments were also altered to read as 59 as against 60 and the amount was reduced to Rs.39,63,421.54/ whereas the record at Service branch i.e. RBI MICR was unchanged. On 10.11.93 the missing Cheque No.881902 dated 05.08.93 amounting Rs.70,25,104/ was presented and added in the MICR Sheet of Indl. Finance Branch whereas the MICR Sheet of Service branch was unchanged, which caused substantial intt. loss to the bank.
b) On 23.08.93 while you were doing the work of morning clearing, one instrument i.e. Cheque No.855882 of Rs.2.20 Crore issued by M/S Gianda Mal Chiranji Lal Pvt. Ltd. was removed by you from the clearing sent to Parliament Street, New Delhi Branch. The total number of cheques and total amount of clearing sent to Parliament Street, New Delhi Branch was reduced accordingly which caused loss to the bank.
Digitally signed by HELLY HELLY CS No. : 596547/16 (old No. : 677/17) FUR FUR KAUR Pg 6 of 73 Date:
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c) On 09.10.93 one cheque bearing No.449553 of Rs.2.45 Crore issued by M/s Archana Steels Pvt. Ltd. (Presently Bhushan Metalic Ltd.) was removed from the clearing instrument of Indl. Finance N. Delhi Branch and manual alterations were made in the MICR Sheet of the said branch whereas the record at Service Branch was not changed which caused loss to the bank.
2. You were instrumental in removal of branch record i.e. MICR sheet RBI dated 04.08.93, 08.10.93 and 21.08.93.
3. You opened more than one accounts at different branches of the bank without obtaining prior permission of the competent authority. These accounts were not conducted properly and a number of unusual transactions were put through in these accounts. The details of accounts so opened and the transactions of unusual nature are given in annexure sheet I to VI. Your above acts amount to gross misconduct in terms of para 19.5 of Bipartite Settlement dated 19.10.66 read with the provisions of Sastry/Desai Award and subsequent Settlements and render you liable for disciplinary action.
It is thereafter, averred that the plaintiff vide letter dated 17.12.1999 requested the defendant No.3 to supply the photocopies of certain documents referred to and relied upon by the defendant No.3 in support of the charges levelled against the plaintiff vide the charge sheet dated 24.11.1999. The defendant No.3 vide its letter dated AGM I/Staff/LRS/22307 dated 23.12.1999 declined to supply the documents requisitioned by the plaintiff and directed the plaintiff to submit his explanation to the charge sheet. Consequently, the reasonable opportunity Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 7 of 73 FUR Date:
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of defence was denied since the beginning of the case to the plaintiff by the defendant No.3, which was brought to the notice of defendant No.3 by the plaintiff by his letter dated 03.01.2000. However, the plaintiff in these compelling circumstances vide letter dated 15.02.2000 gave appropriate reply to the false and frivolous charges leveled against the plaintiff. The plaintiff in his reply dated 15.02.2000 refuted the charges and submitted to the defendant No.3 that the plaintiff has not done any alleged misconduct within the scope and meaning of Rule 19.5 (a). It was thereafter only that the defendant No.3 vide its letter No.AGMl/Staff/CS/LRS/27677 dated 02.03.2000, as a corrigendum to the charge and so the charge under Rule 19.5 (a) originally leveled in the charge sheet was modified to be read as Rule 19.5 (a) and 19.5 (j) instead of 19.5 (a). That the defendant No.3 as functionary under the defendant No.1 and 2 constituted Departmental enquiry and Shri Arun Kumar, Chief Manager as enquiry Authority and Shri K.L. Babbar, MMGSIII, Manager CAD Janpath as Presenting Officer on behalf of the Disciplinary authority in the enquiry proceedings vide letter dated AGMI/Staff/S4/2155 dated 28.04.2000. That the defendants illegally and unlawfully and malafidely in an arbitrary manner did not grant annual increments to the plaintiff due on 01.01.1999 and 01.01.2000. Consequently, the plaintiff was compelled to file a civil suit against the HELLY CS No. : 596547/16 (old No. : 677/17) FUR KAUR Pg 8 of 73 Digitally signed by HELLY FUR KAUR Date: 2021.08.26 16:37:16 +0530 Sandeep Mehta v. State Bank of India & Ors.
defendants titled as Sandeep Mehta v. State Bank of Patiala & Ors. which was decreed in favour of the Plaintiff by the Ld. Court of Shri Ishwar Dutt Sharma, Civil Judge, Gurgaon (Haryana), vide its exparte judgment and decree dated 02.11.2000 with costs and interest on the decreetal amount. Thus, it was only after the passing of the decree by the said Civil Court, the Defendants made the payment of sum of Rs.15,285.27/ towards arrears of annual increments and Rs.2264.75/ towards costs. That although Shri K.K. Anand Clerk and Shri Devinder Singh Clerk were prime suspects coupled with lapses of supervision for reconciliation of the quarterly reports by Shri P.C. Chaudhary, then Manager of the Service Branch, as per guidelines of the Defendant No.1 Bank as per the preliminary investigation reports of Shri Jawahar Sharma, Manager yet the Plaintiff was made a scape goat and was falsely implicated in the case due to the collusion of the abovesaid officials Shri K.K. Anand and Devinder Singh with the Manager Shri P.C. Chaudhary. That the Plaintiff submitted written briefs to the enquiry Officer vide letter dated 22.03.2001 whereby the Plaintiff categorically and pointedly brought to the notice of the Inquiring Authority that as per oral and documentary evidence on the record of the enquiry no charge is proved in any manner against the Plaintiff yet the enquiry Authority willfully ignored the same and arrived at wrong conclusions and gave findings contrary to Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 9 of 73 FUR KAUR FUR Date:
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the records of the enquiry in respect of the charges framed against the Plaintiff to the Defendant No.3. That although there was absolutely no oral or documentary proof on the record of the enquiry proving the handwriting of the Plaintiff in respect of the transactions as alleged in the charge sheet issued against the Plaintiff by the Defendant No.1 to 3 yet the enquiry Authority arrived at false conclusions and the Defendants No.3 and 4 in an illegal and unlawful manner without application of the Judicious mind in a true and impartial and reasonable manner accepted and acted upon the enquiry Report. That on 16.04.2001, the enquiry Officer Shri Arun Kumar submitted his enquiry report to the defendant No.3, but the Defendant No.3 after five months sent the copy of the enquiry Report to the plaintiff vide letter No.AGMI/Staff/CS/11159 dated 18.09.2001 issued by Defendant No.3 to the Plaintiff. The Plaintiff made written submissions vide letter dated 09.10.2001 against the findings of the enquiry Authority to the Defendant No.3 stating therein in detail that the conclusion arrived at by the Ld. enquiry Authority were contrary to the record and the Plaintiff has been falsely implicated in the case for no fault attributable to the Plaintiff in any manner whatsoever. The defendant No.3 on 09.10.2001 itself issued show cause notice to the plaintiff vide its letter No.AGMI/StaffCS/12023 dated 09.10.2001. It is the allegation of plaintiff that obviously, it transpires that the Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 10 of 73 FUR KAUR FUR Date:
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defendant No.3 was bent upon, had preconceived judgments and was biased against the Plaintiff, so jumped to the conclusions imposed the impugned punishment of removal from service and the Disciplinary proceedings were a mere ritualistic formality. It is also submitted that although the Plaintiff was entitled to opportunity of personal hearing by the Defendant No.3 upto 19.10.2001 yet the Defendant No.3 in an illegal, unlawful, arbitrary and bent upon manner issued impugned punishment order vide order No.AGMI/StaffCS/12432 dated 17.10.2001 imposed the punishment of removal from the Bank service with immediate effect in terms of Clause 19.6 (b) of Bipartite Settlement dated 19.10.1996 as amended upto date read with the provisions of Sastri/Desai Awards and subsequent settlements of Bipartite Settlement dated 14.02.1995 and also punishment of treating the period of suspension from 28.09.1995 to 21.07.1997 as period not spent on duty. That the Plaintiff preferred an appeal dated 30.10.2001 to the Defendant No.2 against the impugned punishment imposed by the Defendant No.3. Thereafter, the Plaintiff made a written request to the Defendant No.2 for the grant of personal hearing. The Defendant No.2 Vide letter No.DGM/DAC/1086 dated 23.11.2001 fixed the date of personal hearing on 17.12.2001 at 3:00 P.M. in Zonal Office, New Delhi, but the same was changed to 20.12.2001 at 3:00 P.M. vide letter Digitally CS No. : 596547/16 (old No. : 677/17) signed by Pg 11 of 73 HELLY HELLY FUR KAUR FUR Date:
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No.DGM/DAC/1164 dated 12.12.2001. The Defendant No.2 vide its letter No.DGM/DAC/70 dated 13.01.2002 without passing a reasoned and speaking order on the grounds raised in the appeal preferred by the Plaintiff simplicitor upheld the impugned punishment of removal from service imposed by Defendant No.3 vide its order dated 17.10.2001, by merely making reference to the letter dated 17.11.2001 and taking into consideration matters extraneous to the grounds of appeal dated 30.10.2001 and the case as well, in an illegal, unlawful and arbitrary manner. That the impugned punishment of removal from service and treating the period of suspension from 29.09.1995 to 21.07.1997 as period not spent in duty by the Defendant No.3 vide order dated 17.10.2001 and upheld by the Defendant No.2 in an arbitrary and bent upon manner are not sustainable on facts and law and the same are liable to be set aside and quashed. That on 28.01.2002, the plaintiff filed a civil suit titled as Sandeep Mehta v. State Bank of Patiala and Ors. at Gurgaon, seeking declaration of the impugned punishment of removal of service and treating the period of suspension as not spent on duty as illegal and unlawful with consequential relief of reinstatement in th service of the Defendant No.1 Bank with continuity of service and all other service benefits accruing therefrom. The Ld. Trial Court of Smt. Raj Gupta, Additional Civil Judge, (Senior Division) CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 12 of 73 HELLY HELLY FUR KAUR FUR Date:
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Gurgaon vide order dated 07.05.2004 while disposing of the application under Order 7 Rule 10 r/w Section 151 C.P.C. filed by the Defendant No.1 Bank arrived at conclusions that the suit of the Plaintiff could not be entertained and decided by the said court for want of territorial jurisdiction and accordingly ordered the plaint to be returned for presentation before the competent court of Territorial Jurisdiction within 60 days from the date of the order. (Deleted some portion) In the appeal against the said order, the Ld. Appellate Court vide its order dated 01.06.2004 granted the stay of operation of the impugned order the dated 07.05.2004 during the pendency of the abovesaid appeal. The Appellate Court of Shri N.P. Dewett, Additional District Judge, Gurgaon vide its order dated 19.01.2005 dismissed the appeal filed by the Plaintiff and upheld the order dated 07.05.2004 passed by the court of Smt. Raj Rani, Civil Judge, Gurgaon. Thus, the present suit is filed before this Hon'ble court, with following reliefs in prayer clause:
That a decree of declaration may be passed to the effect that the impugned order of removal of the plaintiff from the services of the defendant bank issued by the defendant No.3 vide its letter No.12432 dated 17.10.2001 and order No.DGM/DAC/70 dated 13.01.2002 passed by defendant No.2 are illegal, unlawful, arbitrary, null and void, malafide and against the principles of natural justice, equity and good conscious and are not binding on the plaintiff on the plaintiff on the grounds fully detailed and described in the plaint and the same are liable to be set aside and the plaintiff is entitled to be taken back on duty in service of the bank with continuity of Digitally CS No. : 596547/16 (old No. : 677/17) Pg 13 of 73 signed by HELLY HELLY FUR KAUR FUR Date:
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service and all back wages together with mandatory injunction directing the defendants No.1 to 3 to immediately take back the plaintiff in service to the bank with all consequential service benefits may kindly be passed in favour of the plaintiff and against the defendants with costs.
WRITTEN STATEMENT OF DEFENDANTS:
3. On the other hand, defendants filed their written statement controverting the claim of the plaintiff. By way of preliminary objections, it is averred that the suit is liable to be dismissed outrightly as the jurisdiction of the civil court is impliedly barred in the cases like the present one where the alternative efficacious remedy under the provisions of the Industrial Disputes Act is available to the plaintiffs in view of judgment titled Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad (AIR 2002 SC 997). Further that the court has no pecuniary jurisdiction as the plaintiff in the garb of declaration to the effect that he is entitled to be taken back on duty in service of the defendant back with continuity of service and all back wages and mandatory injunction to the effect that the defendants be directed to immediately take back the plaintiff in service of the bank with all consequential service benefits, is in fact claiming the arrears of his salary and other service benefits since the time of imposition of penalty of "removal from bank's services" vide order dated 17.10.2000, till the date of filing of the present suit, and thereafter also. It is thus submitted that if the said Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 14 of 73 FUR Date:
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alleged arrears of salary and other service benefits till date of filing of the suit are calculated in terms of money, the total amount claimed by the plaintiff will be beyond the pecuniary jurisdiction of this Hon'ble court.
4. It is also the contention of the defendants that the suit is undervalued, not maintainable in present form and bad for nonjoinder of necessary parties. Furthermore, that suit is barred by provision of Specific Relief Act and liable to be dismissed as plaintiff has not come with clean hands.
5. In reply on merits; averment of plaintiff that he has rendered blotless service is denied and it is submitted that there were often complaints against the plaintiff for which he was warned. Further that, while it is true that the Service Branch, New Delhi, of the defendant bank was no supposed to have any public dealing with any customer, however, the representatives of the corporate customers of defendant bank used to come to the Service Branch to see the plaintiff. In reply to the allegation of the plaintiff that the work of clearing of cheques was entrusted to Sh. K. K. Anand, Clerk, it is submitted that the plaintiff and the other clerk Mr. Devinder Singh were assisting him in the clearing of the cheques. It is submitted that besides Sh. K. K. Anand, and the plaintiff himself and the aforesaid Sh. Devinder Singh were responsible for the said job. Therefore, the allegation of the plaintiff Digitally signed by HELLY HELLY CS No. : 596547/16 (old No. : 677/17) FUR FUR KAUR Pg 15 of 73 Date:
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that on 05.08.1993, 23.08.1993 and 09.10.1993, plaintiff did perform duty was not directed either by the Branch Manager or by K.K. Anand, Clerk.
6. The rest of the allegations regarding the acts of omission and commission for which the plaintiff was suspended and ultimately dismissed from service were the issues before the Enquiry Office and the same were proved during the Departmental Enquiry and the said allegations against the defendants in the plaint have been denied. The plaintiff was placed under suspension under the service rules applicable to him and after consideration of the whole situation with regard to the suspected acts of omission and commission by the plaintiff, the Management of the defendant bank found that his suspension was in the best interest of the organization as a whole.
7. In reply to para 3, it is submitted that as already stated by the plaintiff himself, the management informed him in reply to his legal notice that his subsistence salary as applicable to a suspended employee of the defendant bank for the months of January, 1996 to February, 1996 had been inadvertently not released and assured him that the same would be paid to him regularly. The Management issued the chargesheet to the plaintiff only after getting the whole matter thoroughly investigated and after giving the plaintiff an opportunity to explain his version. It is not denied that the suspension of the plaintiff was revoked vide letter dated 15.07.1997 as the Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY Pg 16 of 73 FUR KAUR FUR Date:
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Management thought it proper to do so in the interest of defendant bank under the facts and circumstances of the case and the plaintiff was directed to report for duty to the office of the defendant No.2 from where he was directed to join duties at Huaz Khas, New Delhi, Branch of the defendant Bank. The charges were fully founded and were later on proved in the enquiry proceeding. It is not denied that on discovery of the conspiracies and acts of fraud committed by the plaintiff on the defendant bank in connivance with the vested interests, the defendant bank was able recover all the payments due to the defendant bank from the drawers of the cheques in question. However, this does not mitigate the acts of fraud and cheating of the defendant bank by the plaintiff and his acts of gross misconduct as an employee of the defendant bank, and he was rightly put under suspension and issued chargesheet for his illegal and criminal acts of cheating, breach of trust and fraud on the defendant bank. The charge sheet was issued to the plaintiff after a preliminary investigation got conducted by the Management of the defendant bank and the acts of gross misconduct by the plaintiff during the course of his duties on the subject dates were prima facie proved.
8. The allegations in para 10 have been denied. It is denied that Sh. K.K. Anand, Clerk and Sh. Davinder Singh, Clerk were the prime suspects Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 17 of 73 FUR Date:
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coupled with the lapses of supervision for reconciliation of the quarterly reports by Sh. P.C. Chaudhary or that the plaintiff was made a scape goat and was falsely implicated in the case due to the collusion of the aforesaid officials, as alleged. It is submitted that the matter had been got thoroughly investigated by the Management and it was only after the plaintiff was found to be the person responsible for the acts and omission and commission in respect of the matter, the plaintiff was chargesheeted. It is further submitted that the charges in the chargesheet were fully proved during the departmental enquiry against the plaintiff in which the plaintiff fully participated. The allegation that the enquiry authority willfully ignored the written briefs submitted by the plaintiff and arrived at wrong conclusions and gave findings contrary to the records of the enquiry in respect that the enquiry Officer had very had very clearly gone through the briefs submitted by the plaintiff and gave his impartial report after full consideration of the submissions made by the plaintiff to him.
9. The allegation in para 12 that there was no oral or documentary proof on the record of the enquiry proving the handwriting of the plaintiff in respect of the transactions mentioned in the chargesheet but sill the enquiry Authority arrived at false conclusions or that the defendants No.3 & 4 in an illegal and unlawful manner without application of the judicious mind in a true and Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 18 of 73 FUR Date:
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impartial and reasonable manner accepted and acted upon the enquiry Report, as alleged is wrong and denied. It is submitted that the enquiry report was unbiased, wellfounded and reasoned, and the Management did not do anything wrong in accepting the enquiry report and acting on the same. The plaintiff is put to strict proof of his allegations to the contrary.
10. It is submitted that though the Management had sent the copy of the findings of the Enquiry Officer to the plaintiff vide its letter No. AGM I/staff/CS/11159 of 1892001 and had asked him to make any submissions in regard to the findings with 7 days of the receipt of that letter, yet the plaintiff made his submission only vide his letter dated 9102001, i.e. much after the stipulated time, but his submissions were duly considered by the Disciplinary Authority and since there was no substance in his submissions, the Disciplinary Authority had no option but to issue to the plaintiff a notice dated 9102001 asking him to show cause within 10 days from the receipt of that letter as to why the proposed punishment may not be imposed upon him. The Management gave further liberty to the plaintiff to the plaintiff to state his defence in person along with his representative, if any, on any working day within the said period of 10 days in his office, which opportunity was also availed by the plaintiff. It is submitted that though the Disciplinary Authority was not bound to consider the submissions made by the plaintiff Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 19 of 73 FUR KAUR FUR Date:
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vide his letter dated 09.10.2001 i.e. much after the expiry of the deadline of 10 days from the date of receipt of his letter of 18.09.2001, yet he gave full consideration to the same and when he did not find any substance in the same, he issued the show cause letter to the plaintiff.
11. The following observations of the Appellate Authority while disposing of the appeal of the plaintiff vide letter dated 1312002 are worth quoting, which would clearly show that the plaintiff did not avail of the opportunity of personal hearing before the final order was issued and he cannot blame the Management for that now: "I also find that your Disciplinary Authority had given you the opportunity of personal hearing vide show cause notice dated 9102001 but, while replying to the show cause notice on 10.10.2001, you did not exercise this option. On the other hand, you tendered an application of leave on 910 2001 and did not attend duty from 10th to 12th October, 2001. From 13th Oct. Onwards you absented yourself from duty. Extension of leave was sought only on 16102001 and upto 20102001, i.e. for the exact period of notice given to you in the show cause notice. Thus, you made an attempt to avoid service of final order. Under such circumstances, I find the action of your Disciplinary Authority in serving final order on you on 17102001 at you Gurgaon address as justified and hence bonafide."
Digitally
signed by
HELLY HELLY
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12. It is submitted that the only new grounds made by the plaintiff in the above appeal were (I) that the punishing authority being biased and prejudiced against him appointed an enquiry Officer to hold a departmental enquiry against him and the enquiry officer being the subordinate to the punishing authority danced to the tune of the punishing authority and concluded his findings against him without appreciating the substantive evidence allegedly led by the plaintiff, and (b) that the orders of removal of service served on him had been issued without granting him any personal hearing. The appellate authority did not find merit in these grounds and rejected both these grounds vide his wellreasoned and speaking orders. The appellate authority had also fully gone through the other submissions made by the plaintiff in the appeal and after applying his mind dispassionately to the entire gamut of facts, did not find it a fit case for interfering in the penalty awarded to the plaintiff after completing due procedure as is required for such cases, and had upheld the penalty. Further, defendant has denied all grounds mentioned by plaintiff in para 16. Besides this defendant has alleged that plaintiff deliberately filed prior suit in Gurgaon Court despite knowing that it had no jurisdiction. Accordingly, it is submitted that prayer clause of the plaint is wrong, misconceived and denied. The suit is liable to be dismissed on merits and in view of the preliminary objections raised in Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY FUR Pg 21 of 73 KAUR FUR Date:
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the written statement. It is therefore, most humbly prayed that the present suit may kindly be dismissed with heavy costs against the plaintiff and in favour of the defendants.
REPLICATION:
13. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiffs in the plaint. It is averred that the cause of action arises out of the common and general law as the defendant bank has not framed any certified employment standing orders/rules under Industrial Employment (Standing Orders) Act, 1946. Thus the plaintiff is entitled to choose the forum of civil court as per parameters of law laid down in the above said judgment of the Hon'ble Supreme Court of India. It is further submitted that the relief of declaration is the substantive relief being sought by the plaintiff and the same has been properly valued for the purposes of court fee and jurisdiction. So far as the consequential relief is concerned the same is not an independent of declaration as a substantive relief but directly flows from the declaration of illegality of the orders of termination passed by the defendant bank. The service benefits of various natures are not capable of being valued at the stage for which reason the defendant bank has not been able to furnish any objective standards as well in the present Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 22 of 73 FUR Date:
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application and the written statement filed by the bank. It is further submitted that the term "any property" and valuation of the suit has been defined and cash stands excluded from the said term as per principle of law laid down in Head Note (iii) and (iv) in the case law reported as (1978) 14(1) DLT 8 Full Bench Delhi tilted as "Mahant Purshottam Dass and Ors. v. Har Narain & ors." The plaintiff further relies upon the case law reported as AIR 1983 Delhi 323 titled as Gobind Gopal & Ors. v. Banwari Lal. Thus, in the circumstances it is submitted that the suit has been properly valued for the purposes of court fee and jurisdiction. It is further submitted that in any case the Hon'ble Court arrives at a conclusion that the suit is beyond the pecuniary jurisdiction of this Hon'ble Court the same is curable under Section 11 of the Suit Valuation Act.
14. Issues for trial were framed by Ld. Predecessor on 18.01.2012 and thereafter additional issues were framed on 19.01.2013. Therefore, issues for trial are as follows :
ISSUES:
15. From the pleadings of the parties, following issues were framed vide order dated 19.01.2013.
1. Whether the plaintiff is entitled for decree of declaration as prayed for? OPD.
Digitally
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2. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP.
3. Whether the suit is bad for non joinder of the necessary party? OPD.
4. Whether the suit is not maintainable in the present form? OPD.
5. Whether the jurisdiction of the civil court is barred in respect of the present suit?
OPP.
6. Whether the present suit is within limitation? OPD.
7. Whether the plaintiff has paid the requisite court fee? OPD.
8. Whether this court has the pecuniary jurisdiction to try the present suit? OPD.
9. Whether the suit is barred under the provisions of the Specific Relief Act? OPD.
10. Relief.
PLAINTIFF'S EVIDENCE:
16. In order to prove his case, plaintiff examined following witnesses:
PW1 Sh. Sandeep Mehta tendered his affidavit bearing his signatures at points A and B which was exhibited as Ex. P1. He relied upon the following documents i.e. Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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a) Ex.PW1/1 letter dated 17.10.2001 from bank in original.
b) Ex.PW1/2 original bank letter dated 13.01.2002.
c) Ex.PW1/3 original bank letter dated 28.09.1995.
d) Ex.PW1/4 photocopy of joint preliminary investigation report.
e) Ex.PW1/5 letter dated 13.10.1995 from Sanjeev Mehta, plaintiff.
f) Ex.PW1/6 photocopy of legal notice dated 08/03/96 from Sh. K. K. Mehta, Adv for plaintiff.
g) Ex. PW1/7, original letter dated 15.03.1996 from bank.
h) Ex. PW1/8 original letter dated 07.07.1997 from plaintiff.
i) Ex. PW1/9 original letter dated 15/07/97 from bank.
j) Ex. PW1/10 original letter dated 07.08.1997 from bank.
k) Ex. PW1/11original letter dated 12.07.1997.
l) Ex. PW1/12 original letter from plaintiff to bank.
m) Ex. PW1/13 photocopy of letter dated 01.03.2000 from bank.
n) Ex. PW1/14 and Ex. PW1/15 original two debit slips dated 12.09.1995.
o) Ex. PW1/16 Original letter dated 24.11.1999 from bank.
p) Ex. PW1/17 Photocopy of letter dated 17.12.1999 from plaintiff to bank.
q) Ex. PW1/18 Original letter dated 23.12.1999.
r) Ex. PW1/19 Photocopy of letter dated 03.01.2000 from plaintiff to bank.
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s) Ex. PW1/20 Record copy of letter dated 15.02.2000 from plaintiff to bank.
t) Ex. PW1/21 Original letter dated 02.03.2000 from bank. u) Ex. PW1/22 and PW1/23 Extract of pages 66 and 67 of bipartite settlement.
v) Ex. PW1/24 original letter dated 28.04.2000 from bank. w) Ex. PW1/25 Original certified copy of judgment and decree dated 02.11.2000.
x) Ex. PW1/26 Original enquiry proceeding from page 321 to 441 (colly). y) Ex. PW1/27 Written briefs dated 22.03.2001 from plaintiff. z) Ex. PW1/28 Original letter dated 11.09.2001 from bank to plaintiff. aa)Ex. PW1/29 Record copy of letter dated 09.10.2001 from plaintiff to bank.
ab) Ex. PW1/30 Original showcause notice dated 09.10.2001 from bank. ac) Ex. PW1/31 Reply dated 10.10.2001 from plaintiff to bank. ad) Ex. PW1/32 Appeal dated 30/10/01 from plaintiff to bank. ae) Ex. PW1/33 Record copy of letter dated 17.11.2001 from plaintiff to bank.
af) 32.Ex. PW1/34 Original letter dated 23.11.201 from bank. ag) Ex. PW1/35 Photocopy of letter dated 11.09.2000 from bank.
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ah) Ex. PW1/36 Photocopy of guidelines of bank dated 10.06.1986. ai) Ex. PW1/37 Bank circular dated 19.01.1998. aj) Ex. PW1/38 Bank circular dated 29.12.1998. ak) Ex. PW1/39 Circular dated 15.01.1999.
al) Ex. PW1/40 Affidavit of Sh. K. K. Mehta, father of plaintiff. am) Ex. PW1/41 Original certified copy of plaint of suit No.31/2000 filed by the plaintiff at Gurgaon court.
an) Ex. PW1/42 Original certified copy of order dated 07/05/04 in said suit at Gurgaon.
ao) Ex. PW1/43 Certified copy of order dated 19.01.2005 passed by Sh. M.P. Dewett, Ld. ADJ, Gurgaon in appeal No.51/04. Ex.PW1/4, Ex.PW1/6, Ex.PW1/3 to Ex.PW1/15, Ex.PW1/17, Ex.PW1/19, Ex.PW/120, Ex.PW1/31, Ex.PW1/35 to Ex.PW1/40 objected to as to mode of proof by Ld. Counsel for the defendants.
PW2 Sh. Parveen Kush tendered his affidavit of examination in chief which is Ex.PW2/A. He was duly cross examined and discharged. PW3 Sh. Lekhraj Maurya, Dy. Manager, State Bank of Patiala was a summoned witness who brought a letter dated 08.02.2016 duly signed by Chief Manager stating therein that the summoned record is destroyed/ not traceable being more than 10 years old which was exhibited as Ex.PW3/1.
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FUR KAUR
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PW4 Sh. Vinod Kohli, Single Window Operator, State Bank of Patiala, Commercial Branch was also a summoned witness who brought a letter dated 08.02.2016 duly signed by Chief Manager stating therein that the summoned record is destroyed/ nottraceable being more than 10 years old which was exhibited as Ex.PW4/1.
PW5 Hoshiyar Singh, Manager, Accounts, was also a summoned witness who brought a letter dated 15.02.2016 duly signed by Chief Manager stating therein that the summoned record is destroyed/ nottraceable being more than 10 years old which was exhibited as Ex.PW5/1. DEFENDANT'S EVIDENCE:
17. On the other hand, defendants to prove their case, examined following witnesses: DW1 Sh. Azad Singh, Manager, Service Branch, State Bank of Patiala, tendered his affidavit of evidence which is Ex.DW1/A. He relied upon following documents:
a) Ex.DW1/1 is the extract from the book published by H.P.J. Kapoor namely Bank Awards Edition 1995, notification of Ministry of Labour dated 26.03.1963, page No.142146, item No.520 to 524 wherein procedure for taking disciplinary action is detailed under Section III.
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b) Ex.DW1/2 is the extract from the same book from item no.559 to 561 is Chapter No. 31 dealing with item no. 34 "Standing Orders".
c) Ex.DW1/3 is the extract from the book Bipartite Settlements Between Banks and their Workmen published by M/s Rama Publications Edition 2015 regarding memorandum of settlement dated 19.10.1966 between certain banking Companies and their Workmen regarding punishment which may be given to an employee on being found guilty of gross misconduct.
d) Ex.DW1/4 is the extract from the same book Bipartite Settlements at page No.465, Memorandum of Settlement dated 14.02.1995 between the Managements of 56 'A' Class Banks and their workmen. He also relied upon the documents already exhibited in plaintiff's evidence as mentioned in his affidavit. He was duly cross examined and discharged.
18. Written arguments were filed by both the sides along with citations. I have gone through the same and also heard oral arguments and given thoughtful consideration to the record perused.
19. Issue No.6 was decided by Ld. Predecessor as preliminary objection in favour of plaintiff. Remaining issue wise findings as follows:
First, I shall take up issue No.5 pertaining to jurisdiction.
Digitally
signed by
HELLY HELLY
FUR KAUR
FUR Date:
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ISSUE NO.5 Whether the jurisdiction of civil court is barred in respect of the present suit? (OPP).
20. At the outset, it is to be mentioned that the onus of this issue was put upon the plaintiff however, in the opinion of this court, the one who challenges the jurisdiction has to prove the fact and not otherwise. Accordingly, the onus of this issue is deemed to be upon defendant and the accidental error is hereby rectified to this effect.
21. In the written statement, defendant has taken a preliminary objection that jurisdiction of civil court is impliedly barred in the present suit due to the efficacious remedy available under Industrial Dispute Act 1947. It is further averred that plaintiff is a workman within the meaning of the definition given under Industrial Disputes Act. For this purpose, in the written statement itself, defendant has relied upon judgment of Hon'ble Supreme Court of India in "Chandrakant Tukaram Nikam v/s. Municipal Corporation of Ahmedabad" AIR 2002 SC 997. In written submissions filed on behalf of defendant bank, defendant has further relied upon "Premier Automobiles Limited: Automatic Electric Private Limited v. Kamlekar Shantaram Wadke of Bombay" 1975 AIR(SC) 2238; Rajasthan State Road Transport Corporation & Another v. Krishan Kant etc. AIR 1995 Supreme court 1715; Rajasthan State Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 30 of 73 FUR KAUR FUR Date:
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Road Transport Corporation & Ors. V. Zakir Hussain (2005) 7 SCC 447; Rajasthan SRTC & Ors vs. Khadarmal; R.L Moria v. ChairmancumManaging Director & Ors. 2011(1) LLJ 48.
22. On the other hand, plaintiff in his written submissions has relied upon Rajasthan SRTC & Ors vs. Mohar Singh 2008 IX AD (S.C.) 31. During oral arguments, plaintiff cited; Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa JT 2009 (2) SC 423. In the replication, plaintiff has cited Rajasthan State Road transport corporation and Anr v. Krishan Kant etc 1995 (20) SLR 784.
23. First of all it is not disputed by the plaintiff that he is covered under the definition of workmen under Industrial Disputes Act nor there is any dispute as to application of Industrial Disputes Act,1947. Therefore, the issue remains whether a suit claiming declaration that a dismissal order of a clerk by the Bank being admittedly employer and workmen under the Industrial Dispute Act is void, can be filed in a civil court or can only be challenged in the Industrial Tribunal created under the said Act.
24. Relevant to say, it is the allegation of the plaintiff that the chargesheet was provided after unreasonable delay and also that he was not provided with the documents relied upon by Enquiry Officer. Further that enquiry authority Digitally signed by HELLY HELLY CS No. : 596547/16 (old No. : 677/17) FUR FUR KAUR Date:
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arrived at conclusion without oral or documentary evidence as to handwriting of plaintiff in respect of alleged transactions. For this purpose, plaintiff has annexed various documents. It is also averred that the show cause notice for punishment was issued without considering the written submissions to the findings of the enquiry Officer. It was argued by the Ld. Counsel that these allegations ultimately indicate violation of principles of natural justice. On the other hand, defendant has tried to establish that plaintiff was a workman and defendant is an Industry and only Industrial Tribunal has jurisdiction over such matters when the violation of regulations under the said Act is alleged. It has been argued that plaintiff has admitted in the cross examination that the procedure stipulated in the Sastri Award and other settlements relating to the award staff of the defendant bank was followed and that the said Award is applicable to the plaintiff. Further that plaintiff admitted that he properly attended the enquiry and cross examined all the witnesses. Therefore, it is prayed that there was no violation of Principles of Natural Justice and the remedy can be availed only under the Act and not before Civil court. For this purpose, defendant has also examined DW1 and brought on record Ex.DW1/1, Ex.DW1/2, Ex.DW1/3, Ex.DW1/4 which are the Awards, Settlements between Banks and Workmen and Standing Orders followed while dismissing the plaintiff.
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25. Significantly, plaintiff has not disputed the abovesaid documents relied upon by the defendant, however, it is the submission of the plaintiff that these do not bar jurisdiction of civil court.
26. Without delving further, it is relevant to take note of the law on the point of jurisdiction in such matters. I have also gone through all the citations relied upon by both the sides.
27. Rajasthan State Road Transport Corporation v Bal Mukund Bairwa JT 2009 (2) SC 423, is the latest judgment which has taken into account all the earlier landmark judgments on the legal question involved herein. It is compelling to refer to following extract of the judgment for the present question of jurisdiction especially focusing on Section 9 of CPC:
The jurisdiction of the Civil Court in terms of the aforementioned provision is a plenary one. The provision relating to bar to entertain a suit must therefore be laid down by a statute either expressly or by necessary implication. An employee charged with grave acts of misconduct must be held to be entitled to a fair hearing in the departmental proceeding. The common law principles of natural justice must also be complied with. Rules laid down in the statutory rules indisputably should be followed....
{See also Roop Singh Negi vs. Punjab National Bank [2009 (1) SCALE 284]} Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 33 of 73 FUR Date:
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expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication.
28. Further, Hon'ble Court in the above judgment referred to law laid down in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & Ors. (1976) 1 SCC 496, in following terms:
"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be."
29. Ultimately, it was held in this landmark judgment:
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23. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan State Road Transport Corporation & Ors. vs. Mohar Singh [(2008) 5 SCC 542]. The question as to whether the civil court's jurisdiction is barred or not must be determined having regard to the fact of each case.
If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court's jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court's jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction...
When there is a doubt as to whether civil court has jurisdiction to try a suit or not, the courts shall raise a presumption that it has such jurisdiction.
29. An assumption on the part of this Court that all such cases would fall only under the Industrial Disputes Act or sister laws and, thus, the jurisdiction of the civil court would be barred, in our opinion, may not be the correct interpretation of Premier Automobiles Ltd. (supra) which Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 35 of 73 FUR KAUR FUR Date:
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being a threeJudge Bench judgment and having followed Dhulabhai (supra), which is a Constitution Bench judgment, is binding on us."
30. It is significant to mention that the above referred judgment passed in Bal Mukund Bairwa (Supra) has taken into account previous judgments of Rajasthan State Road Corporation v. Krishan Kant (1995) 5 SCC 75 and Rajasthan State Road Corporation v. Khadarmal (2006) 1 SCC 59 as well. Further that Premier Automobiles Ltd. V. Kamlakar Shanta Ram & Ors. AIR 1975 SC 2238 and Krishna Kant (Supra) were passed prior to the judgment relied upon by the defendant in Chandrakant Tukaram Nikam v. Muncipal Corporation of Ahmedbad AIR 2002 SC 997 and all the three are of bench of same strength.
31. The above stated legal position has been reiterated recently by Hon'ble Supreme Court in South Delhi Municipal Corporation & Anr. V. M/s Today Homes and Infrastructure Pvt. Ltd. & Anr. Civil Appeal Nos.63776378 of 2019.
32. It becomes clear that it is only when the right asserted by the plaintiff arises solely out of the Special Act or the rules/orders framed under it, the jurisdiction of Civil court will be barred and not if the same also arises out of violation of rights existing under common law.
Digitally
signed by
HELLY HELLY
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FUR KAUR
Date:
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33. In view of the settled law as reflected in the above judgments, It would be prudent to decide the question of jurisdiction by taking into account the nature of right and relief claimed by the plaintiff. Prima facie, plaintiff has alleged unfair departmental enquiry suggesting violation of principles of natural justice. At the cost of repetition, it may be stated that defendant has tried to establish that the procedure mentioned in Shastri Award and the Settlements entered into under Industrial Disputes Act has been properly followed. Needless to say, as far as principles of natural justice is concerned, violation of the same (if so) anyways gives right to the plaintiff to approach civil court. Accordingly, without delving further into the allegations of the plaintiff, the significant question remains is, if application of Awards, Settlement etc. under Industrial Disputes Act bars jurisdiction of civil courts.
34. For this purpose, extract from the star document relied upon by the defendant Ex.DW1/1 Shastri Award is relevant:
(10) The procedure in such cases shall be as follows: An employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that he may wish to tender in his defence. He shall be permitted to appear before the officer conducting the enquiry, to crossexamine any witness on whose evidence the charge rests and to examine witnesses and produce other evidence in his defence. He shall also be permitted to be defended by a Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY FUR HELLY FUR KAUR Pg 37 of 73 Date:
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representative of a registered union of bank employees or, with the bank's permission, by a lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him. Pending such enquiry he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension: and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances etc.. In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist, the misconduct may be condoned and in case such misconduct is of the "gross" type he may be merely discharged, with or without notice or on payment of a month's pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.
35. From the above noted extract, it can be deduced that the procedure mentioned is just a reflection of principles of natural justice. Therefore, the allegations of the plaintiff per se and the remedy availed is not the one solely arising out of Industrial Disputes Act,1947. In the opinion of the court, there is just overlapping of the rights which gives the plaintiff an option to either approach civil court or the Tribunal under the Act. Moreover, as HELLY FUR KAUR CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 38 of 73 HELLY FUR KAUR Date: 2021.08.26 16:42:06 +0530 Sandeep Mehta v. State Bank of India & Ors.
reiterated by Hon'ble Supreme Court in the above referred judgments, in case of any doubt, court has to presume in favour of its jurisdiction.
36. In view of the above observations, this issue is decided in favour of the plaintiff and against the defendants.
ISSUES NO.7 & 8 Whether the plaintiff has paid the requisite court fee? OPD. Whether this court has the pecuniary jurisdiction to try the present suit? OPD.
37. Both the issues are taken up together being interrelated. Pecuniary jurisdiction as well as court fees involve question of valuation for the purpose of jurisdiction and court fees respectively. In the present suit, plaintiff has claimed following reliefs:
That a decree of declaration may be passed to the effect that the impugned order of removal of the plaintiff from the services of the defendant bank issued by the defendant No.3 vide its letter No.12432 dated 17.10.2001 and order No.DGM/DAC/70 dated 13.01.2002 passed by defendant No.2 are illegal, unlawful, arbitrary, null and void, malafide and against the principles of natural justice, equity and good conscious and are not binding on the plaintiff on the plaintiff on the grounds fully detailed and described in the plaint and the same are liable to be set aside and the plaintiff is entitled to be taken back on duty in service of the bank with continuity of service and all back wages.
Mandatory injunction directing the defendants No.1 to 3 to immediately take back the plaintiff in service to the bank with all consequential service benefits may kindly be passed in favour of the plaintiff and against the defendants with costs.
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38. For the purpose of declaration with consequential relief involved herein, Section 7(iv)(c) of Court fees Act 1870 becomes relevant which gives discretion to the plaintiff to value the suit for the purpose of court fees. It is pertinent to mention that as per Section 8 of Suits Valuation Act, in suits for declaration covered under section 7(iv), the valuation for the purpose of Court fees and Jurisdiction is the same. However, the same is subject to section 9 of the Act which empowers High Courts to lay down rules for valuation of such suits. Apposite to mention, the rules framed by Hon'ble Delhi High Court under the said section do not direct valuation in case of declaration other than related to property or decrees or documents securing money or other property having value. Now, the question arises that whether the consequential relief would amount to property. If so, second proviso to Section 7(iv)(c) added by way of Court Fees (Punjab Amendment Act)1953 as applicable to Delhi provides that the valuation shall not be less than the value of the property calculated in manner provided by clause (v). At this juncture, considering that relief claimed is consequential relief of back wages, it would be quintessential to advert to judgment of Hon'ble Delhi High Court in Govind Gopal and Ors. Vs. Banwari Lal AIR 1983 Del 323 as relied upon by Ld. Counsel for plaintiff. In the said case, the relief claimed by the plaintiff was that the nomination for two post office accounts CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 40 of 73 HELLY HELLY FUR KAUR FUR Date:
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in favour of defendants be declared illegal and the amount of Rs. 23668/ lying in credit of the account be credited to the plaintiffs. In light of the said facts, following extract would assume relevance:
Thus, the present suit is a suit for declaration with consequential relief under section 7(iv)(c) of the Act. The dispute however arises about the application of second proviso to section 7(iv)(c) of the Act. According to this proviso the value of the property involved in suits under section 7(iv)(c) of the Act is to be calculated in the manner provided for by clause (v) of section 7 of the Act. Section 7(v) provides for determination of the value with respect to certain properties. Those properties are lands, houses and garden. In the instant case the property in dispute is the amount lying in the Post Office. This property is not one of the properties referred to in section 7(v) of the Act. Thus, the method of calculation of the value of the property as mentioned in section 7(v) of the Act would not be applicable to determine the value of properly in dispute in the present case. Nothing has been provided in section 7(v) of the Act to determine the value of the property of the nature as in the present case. It must therefore, be held that the plaintiffs have a discretion to put their own valuation on the relief for purposes of court fees. Thus, under section 7(v)(c) of the Act the value of the suit for purposes of court fees would be Rs.330.00. Under section 8 of the Suits Valuation Act, the value of the suit for purposes of jurisdiction would be the same as has been determined for purposes of court fees.
39. The above excerpt clears the air that in case of such consequential reliefs which do not qualify as property in terms of Section 7(iv) and (v), the Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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valuation for the purpose of court fees and jurisdiction can be fixed by plaintiff at his own discretion.
40. In the instant suit, the plaintiff has valued the suit at Rs.200/ accordingly, the suit is within jurisdiction of this court. Court fees of Rs.13/ has been paid which is appropriate.
41. In view of the observations made herein above, this issue is decided in favour of the plaintiff and against the defendants. ISSUE NO.9 Whether the suit is barred under the provisions of Specific Relief Act.? (OPD).
42. At the outset, it is to be mentioned that defendant has merely averred that the suit is barred by Specific Relief Act, 1963 without specifying the basis of the same. I take liberty to refer to written final submissions filed by the defendant for this purpose. Even in the submissions, this aspect has not been emphasized enough. However, it is noticed that defendant has brought two aspects by way of cross examination of PW1 and defendant evidence. First that plaintiff has not produced appointment letter showing terms and conditions of service suggesting that the same have not been violated. Further, defendant has exhibited Settlements between Employers and workmen Ex.DW1/3 and Ex.DW1/4 showing the punishment that may be given to an employee on being found guilty of gross misconduct.
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Besides this nothing has been averred or argued by the defendant regarding the present issue. Nevertheless, I shall take note of Section 14 of Specific Relief Act, 1963 (as it stood before amendment of 2018) as per which contract of service could not be specifically enforced, as a general rule. At this point, it would be indispensable to take note of the settled law on this point. In Sirsi Municipality v. Cecelia Kom Francis Tellis 1973 AIR 855, in which following was reiterated:
The cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by a suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of founding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the Law of Specific Relief Act. The second type of cases of master and servant arises under Industrial Law. Under that branch of law, a servant who is wrongfully dismissed may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific. Relief Act which does not provide for reinstatement of a servant.
The third category of cases of master and servant arises in regard to the servant in the employment of the State or of Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY Pg 43 of 73 FUR KAUR FUR Date:
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other public or local authorities orbodies created under statute.
Termination or dismissal of what is described as a pure contract of master and servant is not declared to be a nullity however wrongful or illegal it may be. The reason is that dismissal in breach of contract is remedied by damages. In the case of servant of the State or of local authorities or statutory bodies, courts have declared in appropriate cases the dismissal to be invalid if the dismissal is contrary to rules of natural justice or if the dismissal is in violation 'of the provisions of the statute. Apart from the intervention of statute there would not be a declaration of nullity in the case of termination or dismissal of a servant of the State or of other local authorities or statutory bodies.
The courts keep the State and the public authorities within the limits of their statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements Or grounds which are not sanctioned or supported by statute the courts may exercise jurisdiction to declare the actof dismissal to be a nullity.
43. It is not disputed that Banking industry is an Industry and it might have contractual relationship with its workmen, however at the same time, State Bank of India is a Statutory Body created under State Bank of India Act, 1955 which brings the case within the ambit of third category mentioned in the above extract. This is being said so as defendant has not categorically alleged that merely a contract was involved in the termination of the plaintiff. Rather, it is notable that defendant has kept on emphasizing that plaintiff Digitally signed by HELLY HELLY CS No. : 596547/16 (old No. : 677/17) FUR FUR KAUR Date:
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has not brought on record the appointment letter, however despite the burden of this issue being on defendant, defendant has also not brought on record the contract entered into with the plaintiff as such. In the opinion of the court, as observed in the Issue No.5 when principles of natural justice or, Awards/settlements being a reflection of the same are involved, it cannot be said that the present suit is merely enforcement of contract. Accordingly, in the opinion of the court, defendant has failed to discharge burden of this issue.
44. Hence, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO.3 Whether the suit is bad for nonjoinder of the necessary party? (OPD)
45. Defendant has merely objected in the written statement that suit of the plaintiff is bad for nonjoinder of necessary parties. However, it is a vague averment without any further elaboration. Further, nothing has been brought on record to substantiate the same. Notably, the written submissions of the defendant are also based upon issues No.1, 2, 5 and 9 only. Therefore, defendant has failed to discharge the onus to prove the issue.
46. Hence, this issue is decided in favour of plaintiff and against the defendants.
Digitally
signed by
HELLY HELLY
FUR KAUR
FUR Date:
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ISSUE NO.4 Whether the suit is not maintainable in the present form? (OPD)
47. This issue is apparently based on preliminary objection raised in the written statement that the suit is not maintainable in the present form. Akin to issue No.3, defendant has not elaborated the said averment nor has brought anything on record by way of evidence to support the objection.
48. In view of same, it can be said that defendant has failed to discharge the burden of the same.
49. Hence, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO.1 Whether the plaintiff is entitled for decree of declaration as prayed for? (OPD)
50. Before proceeding further with the findings on the present issue, it may be mentioned that onus of the present issue has been put upon the defendant, however, from perusal of record it can be said that the onus must have been upon the plaintiff as under the present issue, the main relief of the plaint has to be adjudicated. Accordingly, the said accidental error is hereby rectified to this effect.
51. It is a settled law that though a Civil court can declare a departmental enquiry as void yet it cannot reappreciate the evidence as a court of Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 46 of 73 FUR Date:
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appeal. It is also trite to say that the standard of proof in departmental inquiries is of preponderance of probabilities. However, at the same time, the Court can apply the test of a reasonable and prudent man in ascertaining legality of proceedings and is also empowered to check adherence to principles of natural justice. While saying this, I rely upon ruling in Bank Of India And Anr vs Degala Suryanarayana 1999 5 SCC 762 wherein it was held:
"Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings. The Court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority."
52. The above extract also guides me on the point that findings of the Enquiry officer should be objective and based on evidence and not on conjectures and surmises.
Digitally
signed by
HELLY HELLY
CS No. : 596547/16 (old No. : 677/17) FUR
FUR KAUR
Date: Pg 47 of 73
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53. Further, in State Of Haryana And Anr. vs Rattan Singh AIR 1977 SC 1512, it was held:
It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. Ail materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded.
The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept.
54. Further, I would fortify the abovesaid dimension of law with another judgment of Hon'ble Supreme Court passed in M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88. Relevant excerpt from the judgment is as follows:
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Although the charges in departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasijudicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
55. To get a holistic view of the legal take of the superior courts in this arena of law, I deem it prudent to refer to a judgment of Hon'ble Supreme Court in Narinder Mohan Arya vs United India Insurance Co. Ltd. & Ors 2006 (4) SCC in which it was held that despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. Further it was elaborated that in a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, should keep in mind the following:
The enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry.
In a domestic enquiry fairness in the procedure is a part of the principles of natural justice.
Digitally
signed by
HELLY HELLY
CS No. : 596547/16 (old No. : 677/17) FUR
FUR KAUR
Date:
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Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis.
The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal.
Suspicion or presumption cannot take the place of proof even in a domestic enquiry.
56. The above snippet sufficiently clarifies that fairness, objectivity and principles of natural justice are star characteristics of a departmental enquiry. Now on these lines, I shall adjudicate the issue in hand. The judgment relied upon by defendant in written submissions titled R.L. Moria v. Chairman cum Managing Director, National Aviation Company shall also be kept under consideration while proceeding further.
57. First and foremost, I shall refer to the time line of the whole sequence of preliminary investigation and enquiry. The alleged misconduct for which the plaintiff was proceeded against is said to have happened on 05.08.1993, 23.08.1993 and 09.10.1993. As per Ex.PW1/3, he was placed under suspension on 28.09.1995 and photocopy of Joint Investigation report dated 14.10.1995 Ex.PW1/4 was prepared by Sh. Jawahar Sharma, Manager (Vigilance). Relevant to mention here that a bare perusal of the Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 50 of 73 FUR Date:
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report reveals that the Manager (Vigilance) fixed accountability of several employees of the Bank including the plaintiff and Sh. K.K. Anand (Clerk) and Sh Davinder Singh (Clerk) who were also involved in cheque clearing work. As per Ex.PW1/8, plaintiff wrote a letter to the AGM and Zonal officer on 07.07.1997 stating that he was under suspension for nearly one year and five months and has not been called upon to explain. Further that despite lapse of 18 months no charge sheet has been served to him. He thereby prayed reinstatement. On 12.07.1997, the defendant No.3 issued a letter Ex.PW1/11 to plaintiff seeking explanation of lapses and deficiencies which was replied by the plaintiff vide Ex.PW1/12. However, on 15.07.1997, letter of revocation of suspension was issued by Defendant No.3 which is Ex.PW1/9 subsequent to which plaintiff joined back duty on 08.09.1997 at Hauz Khas Branch in pursuance of order dated 22.07.1997. Thereafter, after about 2 years and 4 months, chargesheet was issued on 24.11.1999 which is Ex.PW1/16 reply to which was submitted by the plaintiff on 15.02.2000. Pertinent to mention that the plaintiff asked for copies of related documents from the defendants which was denied however it was mentioned in the reply Ex.PW1/18 that the same may be perused for one day only at the concerned branch. After submissions of the plaintiff to the chargesheet though without supply of documents Ex.PW1/19, CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 51 of 73 HELLY HELLY FUR KAUR FUR Date:
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departmental enquiry was ordered on April 28, 2000 by way of letter Ex PW1/24. Notably, the detailed Enquiry Report pertains to 16.04.2001 however as per Ex.PW1/28, the same was served upon the plaintiff on 18.09.2001. Thereafter, plaintiff filed his submissions Ex.PW1/29 to the same on 09.10.2001 and relevant to take note that the show cause notice was issued on 09.10.2001 as to why proposed punishment of Removal from service may not be imposed. Finally, after reply of the plaintiff Ex.PW1/31, he was removed from service by an Order of Punishment Ex.PW1/1 on 17.10.2001.
58. It has been alleged by the plaintiff that the he was not supplied with the copies of documents with the chargesheet. The said fact is admitted and proved from Ex.PW1/18. The question arises if nonsupply of documents relied upon by employer for charges leads to violation of principles of natural justice. It is apposite to take note of judgment in State Bank of Patiala v. S.K. Sharma 1996 AIR 1669; wherein Hon'ble Supreme court referred to Regulation 68 of State Bank of Patiala (Officer's) Service Regulations. As per the regulation, though copies of statement of witnesses have to be supplied but the delinquent employee does not have a right to copy of documents rather only inspection and taking notes. Relevant to say, Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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the plaintiff herein was originally employee of State Bank of Patiala only.
Hon'ble Supreme Court further held:
"The position can be stated in the following words: Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available. (2) Even among procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available. (s) In respect of procedural provisions other than of a fundamental nature the theory of substantial compliance would be available....
Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively."
59. In this backdrop, it is notable that plaintiff has himself placed on record the documents showing that he was given one day to inspect the documents at the concerned branch. Further, E.PW1/19 and Ex.PW1/20 show that plaintiff kept insisting on supply of copies and nowhere does he aver that he availed the opportunity of inspecting the documents at the Branch. Accordingly, in view of the above cited law, the rule was substantially complied with by the defendant by giving an opportunity of inspection and Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 53 of 73 FUR Date:
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particularly this aspect alone did not lead to violation of principle of natural justice. Otherwise also, plaintiff has admitted in the cross examination that he was allowed to cross examine the witnesses and had filed the replies to all the correspondence of the defendant.
60. Nevertheless, certain circumstances are not ignorable. For instance, for two years the plaintiff was kept under suspension and suddenly after his letter dated 07.07.1997, he was taken back on 15.07.1997 by mere mentioning that his case has been considered afresh. Contrastingly, in between these dates, explanation for lapses and deficiencies was also sought in which serious allegations were leveled against him. Further that he was allowed to work as any other employee from 22.07.1997 till the date of removal i.e., 17.10.2001 despite allegations of heavy loss to the bank due to his fraud. Besides, the chargesheet was prepared in November 1999 i.e., after about 4 years from revelation of fraud. In the written statement, defendants have denied that defendants failed and neglected to issue chargesheet till 15.07.1997 and submitted that management issued chargesheet to the plaintiff only after getting the whole matter investigated and giving plaintiff an opportunity of being heard. At this point, it is notable that the investigation report of Manager (Vigilance) is dated 14.10.1995. As stated earlier, it is only in July 1997 after plaintiff sent a letter dated 07.07.1997 to Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 54 of 73 FUR KAUR FUR Date:
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the defendant, on 15.07.1997 he was asked to explain lapses and deficiencies. Nowhere has it been averred nor anything has been brought on record regarding the period between October, 1995 and July, 1997 nor from July, 1997 till November, 1999 when charge sheet was issued. More so, the Enquiry report was served on the plaintiff after a lapse of 5months of preparation and signatures. The said occurrences cannot be taken without a pinch of salt, especially when an employee has been removed from service as a result of the enquiry.
61. It would be befitting to refer to State of Andhra Pradesh Vs. N. Radhakrishnan 1998 (4) SCC 154, wherein it was held by Hon'ble Supreme Court of India that though it is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings, whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. It was further held that the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 55 of 73 FUR Date:
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particularly when delay is abnormal and there is no explanation for the delay.
62. The Hon'ble went on to say that the delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. Further that in considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. Lastly, it was held that delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
63. Having taken into account the delay in the proceedings and other factors, it is significant to refer further to the Enquiry report Ex.PW1/28 as the same is the basis of the Show cause notice Ex.PW1/30 dated 09.10.2001 and the ultimate impugned Disciplinary Action Ex.PW1/1 taken on 17.10.2001. Relevant extract of the disciplinary action reads as "This is with reference to the chargesheet dated 24.11.1999 & its corrigendum dated 02.03.2000, the CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 56 of 73 HELLY HELLY FUR KAUR FUR Date:
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findings of the enquiry officer dated 16.04.2001 and your replies dated 09.10.2001 and 10.10.2001 to the findings of the enquiry report and show cause notice respectively. I have gone through the charges mentioned in the charge sheet and the findings of the enquiry in relation thereto as well as other relevant facts and records." Similarly, while issuing show cause notice also, enquiry report was the main document relied upon. Meaning thereby that Enquiry report becomes the fulcrum of the case.
64. This court is mindful of the settled law as referred above that the evidence cannot be reappreciated or weighed again by a civil court nor can the reasoning be question merely because two views are possible. Bearing this in mind, without delving into evidence and testimonies as such, relevant portions of merely the findings of the Enquiry Officer are being emphasized upon. Prior to that it would be beneficial to recapitulate the allegations against the plaintiff in the chargesheet. It is the allegation of defendant in the chargesheet that plaintiff removed three cheques from the MICR sheets of Industrial Finance Branch as well as Parliament Street Branch of defendant No.1. Further that he altered relative branch records. Now, an extract from assessment reads as under:
"Sh. K.K. Gandhi (DW2) stated that the EPA is presently working with him at Hauz Khas, New Delhi Branch and he knows handwriting of the EPA. He Digitally CS No. : 596547/16 (old No. : 677/17) Pg 57 of 73 signed by HELLY HELLY FUR KAUR FUR Date:
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perused exhibit P6 (i), P6(ii), P6(iii) and P6(iv) which are photocopies of route register and stated that these do not appear to have been written in the writing of EPA. Similarly, exhibits P9(i), P9(ii) and P9(iii) do not bear any writing of EPA. He further perused exhibit P14(i), P14(ii) and p14(iii) and stated that manual entries made in the clearing sheet of Service Branch for Rs.70,25,104/, Rs.70,25,104/ and Rs.2,25,00,000/ do not appear to be in the hand of the EPA.
In cross examination, he confirmed that the handwriting of a person never changes. He further stated that he is not providing the services of handwriting expert as he had no technical qualification of document examination."
"K.C. Baria (DW6) confirmed that the manual entry of Rs.70,25,104.00 on exhibit P14(i) does not appear to be in the hand of EPA. After perusing exhibits P14(ii) and P14(iii), he stated that he could not comment on the writing of entries of Rs. 70,25,104.00 and Rs. 2,45,00,000 because it bears overwriting."
65. The findings of the Enquiry officer on the basis of assessment reads as follows:
"It is also confirmed by PW8 and PW9 that manual alteration made on the clearing sent to Industrial Finance, New Delhi was in the Hand of EPA. But from the perusal of exhibit P14(2), it is not possible to comment on the handwriting of any particularly person, as it has immense overwriting, which is also confirmed by defence witness DW6.
I am giving more reliance on the deposition of PW1, who investigated into the matter in detail, PW8 and PW9, who had worked at the material time with the EPA and knows his handwriting better. The only defence witness Shri K.K. Gandhi (DW2) had emphasized that the manual alterations/additions made in the clearing sheet sent to Industrial Branch, New Delhi and Parliament Street, New Delhi branch was not in the hand of EPA and other defence witness Sh. S.S. Kochhar (DW5) had not even deposed on this subject despite the fact that he was also working in the Service Branch, New Delhi at the material time. The defence witness, Sh. K.C. Barlia (DW6) deposed that he could not comment on the writing of EPA as it bears overwriting. DW6 was not working with EPA at material CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 58 of 73 HELLY HELLY FUR KAUR FUR Date:
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time but is working at present with EPA. Moreover PW9 had recognized the handwriting of EPA on the DN Register at the time of investigation from the original record, as such more reliance is being given to deposition of PW9 as regards to the handwriting on the alteration/additions made on 05.08.93, 23.08.93 and 09.10.93 in his statement to the investigating officer. "
In his cross examination, PW1 (Jawahar Sharma) stated that the branch record should have been in the custody of Record Keeper as per instructions of the Bank. He further stated that he did not ask the Record/keeper Daftri whether the EPA had ever asked about those particular three MICR sheets of Industrial Finance Branch and Parliament Street branch because the same was not felt. Shri Devinder Singh (PW9) stated that when the fraudulent transactions were detected at the branch, the EPA on telephone told him that the RBI sheets have been removed from the record and as such Bank cannot do anything."
66. On the basis of above assessment and findings, Enquiry Officer finally observed:
"It is established that though there is no documentary evidence to corroborate that the alteration/addition made in the MICR Sheets sent to Industrial Finance Branch and Parliament Street, New Delhi Branches on 05.08.1993, 23.08.1993 and 09.10.1993 yet circumstantially it is established that these were in the hand of the EPA. Some circumstantial evidences are as follows:
The EPA told Shri Anand that Bhushan Group of Industries will employ the person who will be terminated due to involvement in this fraud, (confirmed by PW8 in his statement exhibit P8(i)).
The EPA threatened on 13.09.1995 and 14.09.1995 the then Branch Manager that he will uncover the bad deeds if he tried to either name Mr. Sandeep or some others e.g. Mr. Kamal Anand etc. He also threatened Shri Devinder Singh in the presence of the then Branch Manager Shri Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 59 of 73 FUR Date:
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Chaudhary as reported by Mr. Anand. It is mentioned at Page 7 of exhibit P17.
The EPA started the morning clearing work before shri Anand and Shri Devinder Singh arrived and even finished most of the clearing work, as confirmed by PW9.
As per investigation report, exhibit P17 (page 8), Shri Chaudhary, the then Branch Manager reported that the EPA had pressurized him for assigning the duty of high value clearing."
67. Now, I shall pause here and reflect back on the findings of Enquiry officer with a caution in mind to not to revisit evidence or question the reasoning of the Enquiry officer beyond the permissible extent i.e., on the touchstone of fairness, objectivity and reasonableness. From meticulous and thoughtful consideration of the above findings, following can be deduced:
1) The Enquiry officer has concluded findings regarding the charge No.1
(a), (b), (c) by summarizing circumstantial evidence and while clearly stating that no documentary evidence is available. The major reliance of Enquiry officer is upon statements of PW8 and PW9 (witness number in the enquiry) i.e., Sh. K.K. Anand and Sh. Devinder Singh. It is clear from record that these witnesses were main suspects of the alleged fraud. It is an admitted fact that Sh. K.K. Anand was assigned with the duty of cheque clearing and Sh. Devinder and the Plaintiff assisted him.
Needless to say, that suspects would naturally have tendency to save CS No. : 596547/16 (old No. : 677/17) Pg 60 of 73 Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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themselves and make all endeavors to throw the blame at others. Rule of prudence would demand caution in reliance on the statements without corroboration. Moreover, admittedly Sh. K.K. Anand was the person Incharge of cheque clearing work and as per the statement relied upon by Enquiry Officer, he was told by the plaintiff that if anybody is terminated due to fraud, he would get a job at Bhushan Industries. Strangely, Enquiry Officer blindly relied upon a person who despite having a clue of alleged fraud in relation to his own work did not act against it.
2) Aspect of handwriting has not at all been referred to in the final reference to circumstantial evidence. Even otherwise, it is the finding of the officer himself that there was overwriting on the alleged documents involved and he could not comment on handwriting. Further, merely by perusing the report, it is clear that Enquiry has placed reliance upon deposition of PW1(Investigating Officer Sh. Jawahar Sharma) as he investigated the matter and mentioned in the report that staff members said that it was the handwriting of the plaintiff. However, there is a specific reference to only PW8 and PW9 who had mentioned that the alleged documents bear handwriting of the plaintiff. On the other hand, Enquiry officer discredited the statement of DW2 and DW6 who Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 61 of 73 FUR KAUR FUR Date:
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deposed that the same were not in the handwriting of the plaintiff herein on the basis that former is not an expert and latter did not work with the plaintiff at material time. Moreover, Enquiry officer has stated that PW9 confirmed handwriting of plaintiff after tallying from DN register before the investigating officer. However no such fact is mentioned in the report of investigating officer Ex.PW1/4. Clearly, the suspects and the persons involved in the same work on the day when alleged frauds were committed, were believed on the aspect of handwriting and others giving statement in favor of the plaintiff were disbelieved despite both being bank employees and not experts. In fact, assistance of a handwriting expert was not taken at any stage despite the same being suggested so by Manager (Vigilance) at the stage of investigation to the controller.
3) Another circumstance relied upon by Enquiry officer is that plaintiff threatened the branch manager Sh. P.S. Chaudhary that their bad deeds would be revealed. Evidently, the same was just a statement of Sh. K.K. Anand and has not been said so by the Branch manager. However, the Branch manager stated that plaintiff pressurized him for assigning high value clearing work. It is difficult to believe that a person holding a post of a Branch manager would give in to the pressure of a person of rank of clerk.
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4) Meaning thereby, no other evidence except the statements of PW8 and PW9 in the enquiry has been relied upon in the ultimate findings referred above.
68. In the considered opinion of this court, if the test of reasonable man is applied, the above derivations would be sufficient to question the fairness and objectivity of the enquiry. The circumstances mentioned by the Enquiry officer while arriving at decision would not have been relied upon by a reasonable prudent man to culminate into dismissal of an employee. Certainly, the standard of burden of proof in departmental inquiries is of preponderance of probabilities however at the same time, it is not deniable that the burden is upon the department and not on the delinquent employee. The authority cannot proceed on conjectures, assumptions and surmises. The observations made herein above reflect that the statements of the PWs and especially the other suspects were treated to be true in all respects and the contentions and statements of the plaintiff and his witnesses were discredited by the Enquiry officer. This approach ultimately suggests that the Enquiry officer proceeded on presumption and the burden was imposed upon the delinquent employee to prove his innocence. Discrediting evidence produced by the plaintiff on a ground which was not equally applied to the witnesses produced by the department, directly Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 63 of 73 FUR KAUR FUR Date:
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strikes on fairness & rationality and points fingers towards preconceived notions and surmises.
69. Since evidence has not been reappreciated and revisited being a Civil Court, no observations are being made on the guilt of the plaintiff in the alleged fraud, nonetheless it is concluded that conspicuously the enquiry could not fulfill the test of fairness, reasonableness and objectivity.
70. Pertinent here to say, in the show cause notice Ex.PW1/3, Disciplinary authority stated to have considered the findings of enquiry officer as well as the submissions of the plaintiff. However, reasoning therein does not reflect consideration of actual defense raised by the plaintiff rather it is very selective. It only refers to the defense of the plaintiff qua his relations with Sh. K.K Anand and Sh. Devinder Singh and aspect of duty of record keeper and like. Nowhere does it mention about the other submissions of plaintiff which were filed elaborately. The plaintiff, in his written submissions Ex.PW1/29, has repeatedly emphasized the statements of the witnesses recorded during the enquiry regarding handwriting and role of Sh. K.K Anand and Sh. Devinder Singh in the cheque clearing work. The Disciplinary authority seems to have completely turn a blind eye to all the crucial aspects of Enquiry report as well as submissions of the plaintiff. An order seeking show cause from an employee for removal from services can Digitally CS No. : 596547/16 (old No. : 677/17) HELLY signed by HELLY Pg 64 of 73 FUR KAUR FUR Date:
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reasonably be expected to be fair and clear with respect to the considerations involved. In the present case, it does not seem so.
71. I shall also indispensably mention that it has come on record during testimony of PW3, PW4 and PW5 that summoned record related to the enquiry in question has been destroyed or is nontraceable being more than 10 years old. These witnesses were called upon to produce MICR sheets and staff registers of the 3 alleged dates from different branches of the Bank on an application for summoning of record filed by the plaintiff. It is noticeable that the charge No.2 of the charge sheet is that the plaintiff removed the Branch record i.e., RBI MICR sheets of the said three alleged dates. However, Ex.PW3/1, Ex.PW4/1 and Ex.PW5/1 nowhere mention any such fact nor the said fact has been argued at any stage by defendant rather it is stated in the abovesaid Ex.PW3/1 that the record is presumed to be destroyed. Apart from MICR sheets, the staff registers would have been very much pertinent as it is the allegation of the plaintiff that he never worked for cheque clearing with Sh. K.K. Anand on the alleged dates. These circumstances make this court more apprehensive about the fairness adopted during the enquiry especially when plaintiff has also alleged that only photocopies of the documents formed part of the enquiry and he was not supplied with those also. Ex.PW1/26 also corroborates the fact that Digitally signed by CS No. : 596547/16 (old No. : 677/17) HELLY HELLY FUR KAUR Pg 65 of 73 FUR Date:
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attested copies were filed during enquiry and not the originals. Moreover, it cannot be reasonably expected from any organization to destroy the record related to a matter which is subjudice before a court of law.
72. As far as Charges of maintaining more than one bank account is concerned, the Enquiry officer has referred to Bank's Book of Instructions (Chapter A1 (5), para 1.18). It is the finding of the Officer that the plaintiff had been maintaining savings bank accounts at various branches where he was never posted even, without the permission of controlling authority. In this respect, three things are required to be mentioned. First, the referred Bank's book of instructions has not come on record. Even the defendant has not filed the documents that were the basis of Enquiry. Secondly, it has come on record that otherwise an employee can maintain joint account with wife\or family members. Thirdly, nothing has come on record which would show the consequences of violation of Bank's Book of Instructions. However, the charge No.3 of the chargesheet clubs this fact of saving bank accounts with the allegation that these accounts were not conducted properly and a number of unusual transactions were put through in these accounts. In the findings, the Enquiry Officer has observed that father of the plaintiff (DW4 in the enquiry) deposed that he used to give handsome amount to the EPA to deposit the same in S.B. Accounts for his livelihood.
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Categorically, it has been agreed by the Officer that DW4 can give certain amounts for livelihood of plaintiff. But at the same time, it has been mentioned that the amount was being used in share business. As regards the share business, it has come in record in the report itself that there is no prohibition in investing in shares in primary market. The documents showing transactions in shares have not been brought on record to show the nature of shares nor the same is reflected in the enquiry report. Accordingly, the enquiry seems to be flawed even in this respect.
73. Taking all the facts and circumstances together as discussed above, more particularly delay in and the manner of enquiry proceedings and hollow findings of Enquiry Officer and reliance of disciplinary authority on the same without due consideration of the defence of plaintiff, the order dated 17.10.2001 of defendant No.3 vide letter No.12432 & consequent order No.DGM/DAC/70 dated 13.01.2002 of defendant No.2 culminating out of departmental enquiry and appeal respectively, are hereby declared null and void, on account of lack of fairness, objectivity and reasonableness.
74. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Digitally
signed by
HELLY HELLY
FUR KAUR
FUR Date:
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Sandeep Mehta v. State Bank of India & Ors.
ISSUE NO.2 Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? (OPP).
75. Plaintiff has prayed for mandatory injunction to direct the Defendants No.1 to 3 to immediately take back the plaintiff in service of the Bank with all the consequential services benefits.
76. In view of the findings given under issue No.1 above, defendant No.1 is directed to take back plaintiff into service. Nonetheless, as far as consequential benefits and back wages are concerned, it is pertinent to advert to the precedents set and observations made by Superior Courts. In fact, few of them have been relied upon by the plaintiff himself.
77. In Mr. K.C. Sharma v. BSES Yamuna Power Limited, LPA No.646/2013 it was observed:
"...Setting aside of the orders cannot in law mean that automatically the benefit of the orders not existing can be given to the charged official inasmuch as by setting aside of the orders on the technical ground of non compliance with the principles of natural justice, there is no immediate finding that the charged official is not guilty. This issue of guilt or otherwise will be finally decided on the order now being passed afresh by the disciplinary authority and the appellate authority. Also, in exercise of my jurisdiction under Article 226 of the Constitution of India, I am entitled to pass orders so as to ensure that justice is served and not that technicality overwrites justice."
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78. In Ramesh Kumar vs Union Of India & Ors., civil appeal No.811/2007 Hon'ble Supreme Court while reiterating that normal rule is 'no work no pay', held that in appropriate cases a court of law may take into account all the facts in entirety and pass an appropriate order in consonance of law.
79. At this juncture, it is very significant to note the following excerpt from U.P. State Brassware Corpn. Ltd. & Anr. vs Udai Narain Pandey JG 2005 (10) SC 344:
Before adverting to the decisions relied upon by the learned counsel for the parties, we may observe that although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the court realizing that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/ or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.
No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic.
80. Significant to note another dimension of the aspect of consequential benefits as observed in J.K. Synthetics v. K.P. Agrawal & Anr. Civil appeal No.7657/2004, Hon'ble Supreme Court observed:
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There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed.
81. From the above judgments, it transpires that grant of consequential benefits and back wages is discretion of court which has to be exercised taking into account facts and circumstances of each case and it is not an automatic result of reinstatement. It is indispensable to say that one of the factors to be considered is that the employee was not gainfully employed anywhere else during the intervening period. To get a clarity regarding onus of proof of this fact, I shall take aid of following judgments.
82. In Kendriya Vidyalaya Sangathan vs S.C. Sharma AIR 2005 SC 768, it was held:
16. ....When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim.
In the instant case, the respondent had neither pleaded nor placed any material in that regard.
Digitally
CS No. : 596547/16 (old No. : 677/17) HELLY
signed by
HELLY Pg 70 of 73
FUR KAUR
FUR Date:
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83. In U.P. State Brassware Corpn. Ltd. (supra), it was held that it is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Indian Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
84. On perusal of record, it is revealed that nothing has been mentioned in the plaint regarding the fact of nonemployment from the period when the plaintiff was terminated till today. It is also noticed that in the affidavit of evidence, as a closing sentence, plaintiff has deposed that the defendant be directed to immediately take back plaintiff into service with all the consequential benefits as the deponent remained idle and not employed under any person or company, firm or authority. However, apparently the manner in which the fact is included in the affidavit, the same went unnoticed. In this regard, firstly, the fact is beyond pleadings of the plaintiff and secondly, even if the first consideration is ignored for a moment, it is must to say that as the fact was never pleaded, defendant can be said to have been deprived of fair chance to rebut the same. While saying this, it is borne in mind that mandatory injunction is an equitable relief and plaintiff is under obligation to bring equity in his favour. Besides the above stealthy CS No. : 596547/16 (old No. : 677/17) Digitally signed by Pg 71 of 73 HELLY HELLY FUR KAUR FUR Date:
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statement in the affidavit, nothing has been brought on record in this respect. In the circumstances mentioned above, it is not safe to deduce and conclude on part of a court of law that plaintiff was never employed anywhere during this period. More so, since while declaring the enquiry as null and void, no observation on guilt of the plaintiff has been made, it is not deemed fit to grant all the back wages and complete consequential benefits.
85. Consequently, plaintiff is directed to be reinstated in service without entitlement to arrears of back wages. Further, considering the circumstances, though it is not deemed fit to grant all consequential benefits, nonetheless, he is held entitled for fixation of pay, allowances and increments on notional basis for the period before reinstatement subject to rules/regulations of defendant No.1. It is again made clear that payment of arrears is not being directed herein. Concluding hereby, it is also directed that the interregnum period shall be counted as continuity of service, solely for the purpose of pensionary benefits which shall accrue on superannuation.
RELIEF
86. In view of the discussion on issues herein above, the suit of the plaintiff is decreed and the order dated 17.10.2001 of defendant No.3 vide letter CS No. : 596547/16 (old No. : 677/17) Pg 72 of 73 Digitally signed by HELLY HELLY FUR KAUR FUR Date:
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No.12432 & consequent order No.DGM/DAC/70 dated 13.01.2002 of defendant No.2 culminating out of departmental enquiry and appeal, respectively, are hereby declared null and void. As a sequel, plaintiff is ordered to be reinstated in service with fixation of pay, allowances and increments on notional basis for the period before reinstatement subject to rules/regulations of defendant No.1 without arrears of back wages. Further, it is ordered that the interregnum period shall be counted as continuity of service, solely for the purpose of pensionary benefits which shall accrue on superannuation. No other consequential benefits are granted.
87. Decree sheet be prepared accordingly.
88. No order as to costs.
89. File be consigned to Record Room, after due compliance. Digitally signed
HELLY by HELLY FUR
KAUR
FUR Date:
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Announced in the open court
(through virtual mode) (HELLY FUR KAUR)
On 26.08.2021 Civil Judge - 08 (Central)/Delhi
CS No. : 596547/16 (old No. : 677/17) Pg 73 of 73