Shri B.R. Sharma vs Syndicate Bank And Ors.
2013 Latest Caselaw 5435 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.484/1997

%                                                      25th November, 2013

SHRI B.R. SHARMA                                       ..... Petitioner
                          Through:       Petitioner in person.


                          Versus


SYNDICATE BANK AND ORS.                                    ...Respondents

                 Through:                Mr. Jagat Arora, Advocate with Mr.
                                         Rajat Arora, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner impugns the orders passed

by the departmental authorities; the disciplinary authority dated 24.6.1995

and the appellate authority dated 9.2.1996; imposing the punishment on the

petitioner of reduction in basic pay by three stages in the time scale of pay.

2. The facts of the case are that petitioner was issued a charge-

sheet dated 18.11.1992, inter alia raising two charges against the petitioner.

First was of not relieving an employee posted at the extension counter at

the DTC Patpar Ganj back to the parent branch at Nirman Vihar, New

Delhi and secondly of assaulting Sh. G.R. Shenoy, Manager of the Nirman

Vihar Branch when he came to the branch on 6.11.1992 besides abusing

him in very grave language with relation to his sister. Petitioner pleaded

not guilty to the charge-sheet and therefore departmental proceedings were

initiated against him. Before the enquiry officer, management/bank led

evidence of two witnesses. Petitioner cross-examined these witnesses.

Petitioner however did not step into the witness box and depose. Petitioner

also did not lead the evidence of any of his witnesses. Enquiry officer

thereafter gave his detailed report dated 2.8.1994 holding the petitioner

guilty. This report of the enquiry officer has been accepted by the

disciplinary authority and the appellate authority and petitioner was

imposed the punishment of reduction of pay scale in three stages in the

time scale of pay.

3. Before I advert to the arguments urged on behalf of the

petitioner, the scope of hearing in a petition under Article 226 of the

Constitution of India which challenges the departmental proceedings needs

to be set out. Orders of the departmental authorities can be challenged on

the ground of either the findings being perverse or the same being in

violation of principles of natural justice or the findings being against the

rules of the organization/law. It is settled law that this Court does not sit as

an Appellate Court to reappraise the findings of facts and conclusions of

the departmental authorities.

4. On behalf of the petitioner, the following arguments are urged

before this Court:-

(i) On more or less same set of charges petitioner had filed a

criminal complaint against Sh. G.R. Shenoy for defamation and petitioner

had been successful in getting conviction of the said Sh. G.R. Shenoy in

terms of the judgment dated 27.6.1995 passed in the case titled as B.R.

Sharma Vs. G.R. Shenoy by Sh. Ashwani Kumar Sarpal, Metropolitan

Magistrate, Karkardooma Courts, Shahdara, Delhi and therefore it is

argued that on the basis of this judgment itself the charge-sheet must fail.

(ii) Petitioner had led evidence and the enquiry officer is not

justified in holding that petitioner did not lead evidence inasmuch as

petitioner did give his statement of defence and which he said can be read

as evidence.

(iii) In terms of Rule 6(16) of the Syndicate Bank Officer

Employees'(Discipline & Appeal) Regulations, 1976 petitioner was bound

to have been questioned by the enquiry officer with respect to

circumstances appearing against him in evidence so that the petitioner

could explain those circumstances however since the procedure of this

regulation was not followed, the orders passed by the departmental

authorities are bad and are to be set aside.

5. So far as the first argument urged that the judgment of the

criminal court is enough to dismiss the charge-sheet against the petitioner,

I may state that this argument cannot stand because of two reasons. First is

that there is no law that a judgment in a criminal case will operate as res

judicata in a civil case. I asked the petitioner, who very passionately

argued his case in person, to give me the judgment that a decision of a

criminal court operates as res judicata in the civil case, however, petitioner

who is an Advocate conceded that he could not find out any such

judgment. I may state that I am also not aware of any judgment which

holds that decision in a criminal case operates as res judicata for civil case.

I may also state that the requirements so far as a civil case is concerned

would be different, and may possibly arise including with respect to

interpretation of the relevant disciplinary proceedings rules as to whether

or not there is a major or minor misconduct or whether and if so what is

the penalty to be imposed and which aspects would not be aspects in the

criminal case and therefore it is doubtful that there would be any judgment

holding that decision of the criminal case would operate as res judicata in

the civil departmental proceedings case. Secondly in the said

charge-sheet dated 18.11.1992 besides the charge of assault against Sh.

G.R. Shenoy there was another charge on the petitioner of not relieving the

attendant posted at the Extension Counter, DTC Patpar Ganj back to the

principal/parent branch at Nirman Vihar and which was not an issue in the

criminal case. Therefore this aspect would not have been decided in the

criminal case and therefore the same is another reason not to hold the

judgment of the Metropolitan Magistrate dated 27.6.1995 as res judicata

so far as the departmental/disciplinary proceedings are concerned. The

first argument urged on behalf of the petitioner is therefore rejected.

6. The second argument turns upon the language of the relevant

provisions of the 1976 Regulations and therefore I reproduce those sub-

regulations 13 to 17 of Regulation 6 as under:-

"Rule 6(13) On the date fixed for the inquiry, the oral and documentary evidence by which the Article of Charge are proposed to be proved, shall be produced by or on behalf of the Disciplinary Authority. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the Officer Employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross-examined, but not on a new matter without the leave of the Inquiry Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit.

(14) Before the close of the case, in support of the charges, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the Chargesheet or may itself call for new evidence or recall or re-examine any witness. In such case, the Officer Employee shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-

examine a witness who has been so summoned. The Inquiring Authority may also allow the Officer Employee to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.

(15) When the case in support of the Charges is closed, the Officer Employee may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Officer Employee shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. (16) The evidence on behalf of the Officer Employee shall then be produced. The Officer Employee may examine himself in his own behalf, if he so prefers. The witnesses produced by the Officer Employee shall then be examined by the Officer Employee and may be cross-examined by the Presenting Officer. The Officer Employee shall be entitled to re-examine any of his witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the Inquiring Authority.

(17) The Inquiring Authority may, after the Officer Employee closes his evidence, and shall, if the Officer Employee has not got himself examined, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Officer Employee to explain any circumstances appearing in the evidence against him."

7. A reading of the aforesaid rules shows that the statement

which is recorded of the charged official under sub-Rule 15 is a statement

in the nature of a written statement. Either the charged official can file a

written statement which is already typed or he can make an oral statement

which is taken as a statement of defence. However, a pleading which is a

statement of defence cannot be and is not deposition in the eye of law.

This is made clear by sub-Rule 16 which specifically provides that after the

management closes its evidence, then, the charged official will produce his

evidence. The charged official can examine himself and also lead evidence

of his witnesses who will depose on his behalf, and who would after their

examination-in-chief be cross-examined by the presenting officer on behalf

of the management. A reading of the order passed by the enquiry officer

shows that petitioner kept on insisting that his statement under sub-Rule 15

be treated as evidence and the enquiry officer after hearing submissions of

the management/presenting officer held that statement of defence in the

nature of pleading cannot be treated as a deposition, but the petitioner in

spite of the same chose not to lead evidence by stepping into the witness

box or calling other witnesses. Once that is the factual position, in my

opinion, it is not possible for this Court to hold that a pleading should be

taken as evidence and even if no evidence is led pleadings can be a

substitute for evidence. I accordingly reject the argument urged on behalf

of the petitioner that a statement of defence in the nature of pleading can be

read as deposition/evidence.

8. The third argument urged on behalf of the petitioner of the

enquiry officer not questioning him with respect to circumstances

appearing against him has to be rejected for three reasons. First reason is

that if procedure stated in sub-Rule 17 was not followed by the enquiry

officer, the petitioner at that stage itself should have objected and insisted

in the enquiry officer following the procedure of sub-Rule 17. This was

not done. Not only that, petitioner did not raise this issue at the time of

arguments before the enquiry officer. Therefore this argument has to be

rejected because if the petitioner would have raised this objection at the

relevant point of time this procedural aspect could have been got cured by

putting the necessary questions to the petitioner. The second reason for

rejecting the argument is that no ground as per the judgment in this regard

has been pleaded in the writ petition of violation of procedure contained in

sub-Rule 17 and therefore an argument beyond pleadings cannot be

permitted by this Court. The third reason for rejecting this argument is that

even if I permit the argument to be raised, it is necessary that this objection

should have been raised alongwith specific prejudice to the petitioner for

not following the procedure alongwith the specific questions as to what are

the circumstances which could not be explained and which have been held

against the petitioner in the report of the enquiry officer, however as

already stated above there are no pleadings much less grounds of prejudice

to the petitioner by reference to specific depositions/questions in the

enquiry proceedings, and therefore I do not think that this ground urged on

behalf of the petitioner merits acceptance. The argument has to be rejected

also for the reason that the present is not a case where there would be some

sort of ambiguity in the evidence because not only the petitioner cross-

examined the witnesses of the management, but also that the petitioner did

not step into the witness box and did not lead the evidence of any of his

witnesses and therefore there is no reason why the evidence led on behalf

of the management/bank should not be accepted by the Court, more so for

the reason that the scope of hearing in a petition under Article 226 of the

Constitution of India is limited.

9. In view of the above, I do not find any merit in the petition,

and the same is therefore dismissed, leaving the parties to bear their own

costs.

NOVEMBER 25, 2013                             VALMIKI J. MEHTA, J.
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