Delhi High Court
B.R. Sharma vs Syndicate Bank & Ors. on 14 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.02.2011
+ RSA No.129/2004
B.R. SHARMA ...........Appellant
Through: In person.
Versus
SYNDICATE BANK & ORS. ..........Respondents.
Through: Mr.Jagat Arora, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
29.1.2004 which has affirmed the finding of the trial judge dated
16.11.1999 whereby the suit filed by the plaintiff seeking
declaration and mandatory injunction that his penalty order dated
28.12.1992 be declared null and void had been dismissed.
2. Plaintiff B.R. Sharma was posted as an Assistant Manager in
the Nirman Vihar Branch of the Syndicate Bank. Allegation against
him was that on 12.7.1991 he had committed misconduct in as
much as on that day he misbehaved and manhandled an official of
the Zonal Office namely Mr.V.S.N.Shobhnan in front of the staff
members. Enquiry was initiated against the plaintiff. The plaintiff
had participated in the enquiry. On behalf of the department two
witnesses namely Mr.V.S.N. Shobhnan , the Deputy D.M. and
Mr. Satynaraina, Chief Manager of the Nirman Vihar Branch of the
bank had been examined. The plaintiff who was the delinquent
official had examined four witnesses on his behalf. In view of the
oral and documentary evidence led before the Enquiry Officer, the
Enquiry Officer had held that the charges of misconduct stood
proved against the delinquent. The penalty of reduction of three
increments was imposed upon him. This order of the Disciplinary
Authority was affirmed in appeal. The present suit was
accordingly filed.
3. The contention of the appellant/plaintiff is that there has
been a violation of the principles of natural justice and inadmissible
evidence had been relied upon by Enquiry Officer while ignoring
the admissible evidence. His contention is that there was seven
documents which have been exhibited by the department of which
the first two documents establish the case of the delinquent that on
the fateful day i.e. on 12.7.1991 he was in attendance in the
Nirman Vihar Branch and he had not moved out of the Branch. He
could not have been gone to Zonal Office at Bhagwan Dass Road,
to commit the alleged misconduct; this has not been appreciated by
the Enquiry Officer in its correct perspective; there has been a
violation of principles of natural justice.
4. This contention had been denied by the defendant. The trial
judge on these pleadings had framed six issues. Issue no.3,4 and 5
are relevant; they reads as follows:
".............
3.Whether this court can re-appreciate the evidence
already recorded by the departmental authority?OPD
4.Whether the pltff. is entitled to grant relief of declaration
as claimed?OPP
5.Whether the pltf. Is entitled to decree of mandatory
injunction as prayed?
.................."
5. The Trial Judge was of the view that the Civil Court is not an
appellate court and cannot re-appreciate and re-examine the
evidence which has been led before the Enquiry Officer. Relying
upon various authorities and case laws cited before the trial judge
the suit of the plaintiff had been dismissed.
6. This finding of the trial judge was affirmed in appeal.
7. This is a second appeal. On behalf of the appellant (who is
appearing in person) reliance has been placed upon 2009 I AD (SC)
239 Narendra Gopal Vidyarthi Vs. Rajat Vidyarthi to support his
submission that High Court can entertain a second appeal if a
substantial question of law arises for its consideration; a finding
may give rise to a substantial question of law if the finding is based
on no evidence or its is based on inadmissible evidence or evidence
has been taken into account which was never there. There is no
dispute to this proposition.
8. Applying the test as aforestated the case of the appellant has
to be examined as to whether a substantial question of law had in
fact arisen or not.
9. Before the Enquiry Officer, the victim namely
Mr.V.S.N.Shobhnan had come into witness box. The second
witness; Satynaraina was also an independent witness, he was an
eye-witness; both of them have admitted the case of the
department that the appellant had committed a misconduct and
manhandled V.S.N.Sobhnan. The cross-examination of this witness
has also been highlighted in the impugned judgment. It is noted in
the impugned judgment that no cross-examination had been
effected of either of these two witnesses on the ground that had
deposed falsely and against the interest of the appellant/delinquent
because of any bias or prejudice or any other anterior purpose.
These eye-witnesses had been rightly relied upon by the Enquiry
Officer to return a finding of guilt against the appellant. The
attendance register dated 12.7.1991 had established that the
appellant was in attendance in the office on the said date. The
Movement Register of the said date had been produced by the
department; the impugned judgment had noted that according to
the normal practice in government offices only outsiders visiting
office are monitored and record qua them is kept and not for the
insiders.
10. These fact findings call for no interference. This is a second
appellate Court; unless or until a perversity has been pointed out,
interference on facts is not permitted. The submission of the
learned counsel for the appellant that inadmissible evidence has
been relied upon has neither been substantiated nor is it borne out
from the record. Enquiry officer had relied upon the testimony of
eyewitnesses to return a finding of guilt against the appellant.
The question of malafides, non-adherence to the principles of
natural justice had been dealt with by the two fact finding Courts
below; this contention of the appellant had been rejected. No
prejudice had been pointed out.
11. The findings of the Enquiry Officer/disciplinary authority had
been affirmed by the Appellate Body. It is settled proposition that
the trial judge in civil proceedings cannot sit in appeal over the
findings of the Enquiry Officer/Disciplinary Authority and assume
the role of an Appellate Body. The impugned judgment had rightly
noted that no interference is called for in the finding of the Enquiry
Officer which has been affirmed by the Appellate Body.
12. The substantial questions of law have been formulated on
page 2 of the appeal.
"i. Whether non-examining of any of the eye-witnesses to the alleged
incident would be a ground for quashing the Charge Sheet, enquiry
proceeding, disciplinary authority proceeding and Appellate authority
proceeding? If the answer is yes, then the entire proceedings of the
respondents against the appellant are liable to be quashed.
ii. Whether the Hon'ble appellate court was right in shifting the onus
of proving the charge of the respondents bank on the Appellant/employee
and not on the respondents?
iii. Whether it is possible that a person can be at two places at one
time?
iv. Whether in a departmental enquiry if it is proved and admitted
that the evidence of witnesses as provided by the employee/appellant
have gone unrebutted, even then employee/appellant could be hold guilty
of the charges and the same would not amount to violation of Principle of
Natural justice?
v. Whether the charges against the employee stands proved in the
departmental enquiry even though all the documents produced in the
enquiry by the respondents, do not support the charges as framed by the
respondents/management?
vi. Whether there can be two different yard stick for evaluating the
management/respondents evidences and the charge-sheeted
employee/appellant evidences?
13. Perusal of the same shows that they are all fact based.
Finding of the fact as already noted unless perverse cannot be
interfered with. No such perversity has been pointed out.
14. No substantial question of law has arisen. Appeal is
dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY, 14, 2011
nandan
