Shri B.R. Sharma vs Syndicate Bank And Ors.
2013 Latest Caselaw 4300 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No. 5319/1998

%                                                        20th September , 2013

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


                          Versus


SYNDICATE BANK AND ORS.                                    ..... Respondents

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


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

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner, who was an employee of

respondent No. 1-Syndicate Bank, impugns the suspension order dated

8.9.1994 and the orders of the departmental authorities; disciplinary

authority dated 6.7.1998 and appellate authority dated 31.8.1998; imposing

the punishment of compulsory retirement upon the petitioner.

2. The basic facts forming the chargesheet against the petitioner were

that he alongwith about 25 odd officers organized an unauthorized assembly

of officers inside the premises of zonal office near the cabin of Mr. Prem

Maini, the then Deputy General Manager (DGM) of Delhi. At about 6.00

P.M. the petitioner along with others forcibly entered into the cabin of Mr.

Maini and engaged in disorderly behavior with Mr. Maini. Even threats

were given to Mr. Maini and Mr. Maini was unlawfully prevented from

leaving his cabin in the office. When Mr. Maini left the office with police

escort, the petitioner with his supporters, followed Mr. Maini by shouting

slogans and the petitioner at that stage rushed towards car of Mr. Maini with

an intention to physically assault him. The original assembly was unlawful

because no permission was given to the petitioner and the other officers to

come to the zonal office or to meet Mr. Maini. There are also allegations

against the petitioner of abusing Mr. Maini and also physically preventing

Mr. Maini from leaving his cabin in the office. Petitioner was therefore

suspended vide order dated 8.9.1994. Chargesheet was issued to the

petitioner on 12.10.1994. Enquiry proceedings were thereafter conducted by

the enquiry officer who was appointed on 7.12.1994. Enquiry proceedings

culminated with the report of the enquiry officer dated 1.5.1998 holding the

petitioner guilty. Disciplinary authority passed its order dated 6.7.1998

imposing the punishment of compulsory retirement upon the petitioner and

which order was upheld by the appellate authority's order dated 31.8.1998.

3. Before adverting to the arguments urged on behalf of the petitioner,

and the response of the respondent-bank, at the outset, it is necessary to set

out the scope of proceedings before a Court under Article 226 of the

Constitution of India whereby orders of departmental authorities are

challenged. It is settled law that this Court exercising jurisdiction under

Article 226 of the Constitution of India does not sit as an Appellate Court to

reappraise the evidence and findings/conclusions of the departmental

authorities. This Court can only interfere if the findings of the departmental

authorities are perverse or are in violation of the principles of natural justice

or the orders of the departmental authorities are against the rule/law.

4. The following arguments have been urged before me on behalf of the

petitioner:-

(I) Challenge to suspension

(a) Petitioner was discriminated against because only he was suspended

and other officers involved in the incident dated 6.9.1994 were not

suspended.

(b) Suspension order is invalid because it cannot be passed by Mr. Maini

because he became a Judge in his own cause and thus rendering the

suspension order illegal.

(c) Suspension of the petitioner continued for an unduly long period from

8.9.1994 till 4.7.1997, and suddenly it was revoked without any reason on

4.7.1997, and accordingly the entire suspension proceedings are illegal.

(II) Challenge to orders of the disciplinary authority and the appellate

authority

(a) Orders are discriminatory because petitioner has been singled out for

punishment and no action was taken against the other officers.

(b) No personal hearing was given by the disciplinary authority to the

petitioner.

(c) By invoking the doctrine of proportionality the petitioner argues that

he should not have been given the penalty of compulsory retirement in the

facts of the present case. It is argued that the petitioner has subsequently

applied for VRS and if the orders of the departmental authorities stand, then

petitioner will not be given voluntary retirement.

5. Before I turn to the arguments urged with respect to challenge to the

suspension order, it is necessary to state the law with respect to challenge to

suspension orders. Law with respect to suspension is stated by the Supreme

Court in the case of State of Orissa vs. Bimal Kumar Mohanty (1994) 4

SCC 126 and the relevant portion of this judgment reads as under:-

"It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations inputted to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending enquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the enquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or enquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations, gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending enquiry or

contemplated enquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or enquiry. The authority also should keep in mind public interest of the impact of the delinquent's continuance in office while facing departmental enquiry or trial of a criminal charge." (underlining added)

6. A reading of the aforesaid ratio of the Supreme Court in the case of

State of Orissa (supra) shows that there are various reasons for passing of

the suspension order. While one reason is that a person should not be able to

interfere with the enquiry, another equally strong reason is that the guilty

officer must not feel that during the pendency of enquiry proceedings he can

get away with the misconduct. Courts ordinarily do not interfere with

suspension orders, more so, in case such as the present where acts of

indiscipline alleged with disorderly conduct which violates the office

atmosphere, and in fact which actions amount to criminal offence as is stated

hereinafter because petitioner was convicted by the court of the Metropolitan

Magistrate as per the FIR lodged for the same actions. Suspension orders

also cannot be challenged when the departmental proceedings in fact

conclude against the charged officer by holding him guilty. In the present

case suspension besides being an aid to completion of departmental enquiry

was also with respect to the serious disorderly conduct

of the petitioner in the office, and which has been found against the

petitioner by the enquiry officer and the departmental authorities as also the

Metropolitan Magistrate. Once there is a finding of guilt against the charged

official/petitioner, the suspension order merges in the orders of the

departmental authorities and thereafter the same cannot be challenged.

7. On the aspect of discrimination with respect to the suspension order

against the petitioner and hence the same being illegal, reliance is placed by

the petitioner upon the judgment of the Supreme Court in the case of E.S.

Reddi Vs. Chief Secretary, Govt. of A.P. and Anr. (1987) 3 SCC 258. In

this judgment, the Supreme Court held that where various persons are

charged on the basis of the same acts of corruption, then, only one person

cannot be suspended and all the persons must be suspended.

In my opinion, the judgment relied upon by the petitioner

cannot help the petitioner because in the present case the issue is of unlawful

assembly, unlawful restraint, abusing and giving threats and other related

aspects on 6.9.1994 to the DGM, Mr. Maini by the petitioner. By its very

nature different sets of facts are alleged against the petitioner, and in fact

found against the petitioner by the enquiry officer. There is no

discrimination where different facts are stated against different persons

including as to whether who has given the abuse and who has not given the

abuse, who has given the threat and who has not given the threat, who

physically prevented Mr. Maini and unlawfully restrained him and who did

not and whether some people did or all did or some people did the same acts

and some people did other acts and some people did acts jointly with some

other persons etc etc. Once there are different sets of facts against different

sets of persons there can be no discrimination if one person is suspended and

other person is not suspended. Gravity, number and type of acts of a person

justifies differential treatment. In any case, in the present case the petitioner

cannot contend today of discrimination against suspension because this is

being done for the first time before this Court. Admittedly the petitioner

made representations dated 8.10.1994 and one undated of October, 1994

against his suspension, and in both these representations, there were no

challenge to the suspension order on the ground of discrimination against the

petitioner. Both these representations were decided against the petitioner in

terms of the order passed by the competent authority dated 10.10.1994 and

the appellate authority dated 16.12.1994. These orders of the competent

authority and the appellate authorities were not challenged at any point of

time till the departmental proceedings concluded. Therefore, today there

cannot be challenge to the suspension order on the ground of discrimination

much less after the petitioner has been found to be guilty by the

departmental authorities. The issue of discrimination is an issue of fact

cannot be raised for the first time in the petition and unless this issue of fact

was specifically urged and shown at the original stage as to how all persons

factually are similarly placed, and therefore they should be similarly treated,

and there should be no discrimination, and has to be necessarily pleaded at

the appropriate stage so that the factual defence to the same can be given and

thus justification with respect to differentiation in treatment. Since

petitioner did not take up the issue of discrimination against him at the

relevant point of time and this issue is being urged only for the first time in

this petition under Article 226 of the Constitution of India, and that too after

the conclusion of the enquiry which has held him guilty, and also petitioner

did not challenge the rejection of representations against the suspension

order by the orders of the departmental authority and the appellate authority

therefore, in my opinion, today there cannot be any valid challenge to the

suspension order dated 8.9.1994.

8. The issue with respect to Mr. Maini being a Judge in his own cause

and for which the judgment of the Supreme Court in the case of Arjun

Chaubey Vs. Union of India and Ors. (1984) 2 SCC 578 is relied upon by

the petitioner has also to be decided against the petitioner because lot of

water has been flown under the bridge as stated above not only because the

enquiry proceedings stand concluded against the petitioner holding him

guilty but also because on this ground no challenge was led by the petitioner

in his representations dated 8.10.1994 and another undated of October, 1994,

whereby the suspension order was challenged and also because the orders

rejecting the representations against the suspension dated 10.10.1994 and

16.12.1994 became final as they were never challenged.

9. The argument urged on behalf of the petitioner that suspension order

has remained in force for a long period of time and therefore the same is

illegal because it violates the ratio of the Supreme Court in the case of O.P.

Gupta Vs. Union of India and Ors. (1987) 4 SCC 328 is once again an

argument without any merit because all that the Supreme Court observed in

the case of O.P. Gupta (supra) was that if a suspension order continues for

an unduly long period of time, and which was of 11 years in the aforesaid

Supreme Court case, then, the suspended employee whose rights are affected

by the suspension is entitled to make a representation for expeditious

disposal of the departmental proceedings besides the fact that the same

would show malafides of the department for keeping the enquiry

unnecessarily pending for a long period of time and which was 20 years in

the case before the Supreme Court. In the present case it is also to be noted

that besides the suspension remaining in force for around 2 years and 10

months only, there is no case set up that departmental proceedings were

unduly and unnecessarily delayed by the department and which caused the

petitioner grave prejudice in the period of suspension. Also, and as already

stated above, departmental authorities have given the finding of guilt against

the petitioner and therefore on those findings being upheld, suspension order

would also be justified in the facts of the present case and thus there is no

ground to claim that the suspension order was wrongly passed in the first

place.

10. I may note at this stage that petitioner does not really question the

continuation of the suspension order in the writ petition and the petitioner

has only claimed the illegality ab initio with respect to the suspension order.

I have already held that there is no justification to question the passing of the

suspension order as initially passed, and therefore the challenge to the

suspension order allegedly illegally continuing for a long period of time is

an argument which is not only beyond the pleadings but also against the

facts of the present case where it cannot be said that suspension has

continued for an unduly long period of time and this has also to be taken

with the fact that there are no pleadings that departmental proceedings had

unnecessarily continued without the fault of the petitioner and only because

of the fault of the department. The argument urged on behalf of

the petitioner that suspension order is void ab initio and was wrongly passed

because it has continued for a long period of time is therefore misconceived

and rejected.

11. Therefore, in my opinion, the argument of challenge to the suspension

order dated 8.9.1994 is rejected for the aforesaid reasons and which are:

(i) No challenge was led to the suspension order in the representations of

October, 1994 on the ground of discrimination.

(ii) Also, no factual grounds were pleaded at the original stage and hence

cannot be allowed to be now raised as the respondent had no opportunity to

rebut the facts by bringing in the necessary facts in response.

(iii) After the representations were dismissed by the appropriate authority

and the appellate authority by its orders dated 10.10.1994 and 16.12.1994,

these orders were not challenged and thus became final.

(iv) In the present case there is a finding of guilt against the petitioner and

therefore the suspension order merges in the final orders which have been

passed by the departmental authorities giving the finding of guilt against the

petitioner, and at this stage therefore there cannot be challenge to the

suspension order.

(v) There is no pleading of lapsing of the suspension order by a long

passage of time and the challenge was led only to the illegality of the

suspension order since inception. Even if argument is allowed to be raised

that suspension order should lapse because of a long period of time, even

this argument is misconceived because suspension order has continued only

for about 2 years and 10 months unlike in the case of Supreme Court cited

by the petitioner wherein suspension unduly continued for 11 years and the

departmental proceedings continued for 20 years. Also, there is no ground

to hold the suspension order as lapsed because it is not the case of the

petitioner argued before me that the departmental proceedings unnecessarily

continued without any fault of the petitioner and only because of the fault of

the department.

12. That takes us to the issue of challenge to the enquiry report and the

consequent orders of the disciplinary authority and the appellate authority.

There is no challenge led by the petitioner to any perversity in the findings

of the departmental authorities. Of course, in my opinion, even if such a

challenge was raised of any alleged perversity the challenge would have

failed because enquiry officer in his detailed report running into 40 pages

has stated all the facts, referred to the evidence of the witnesses of both the

sides, analyzed the evidence and thereafter has given his valid findings and

conclusions which show that the petitioner was one of the lead members of

the unlawful assembly, petitioner and other officers without any

appointment caused unlawful assembly and thereafter marched into the

cabin of DGM, Mr. Maini, unlawfully restrained Mr. Maini and police had

to be ultimately called to escort Mr. Maini to his car etc etc. The following

portion of the report of the enquiry officer is relevant and which

undoubtedly shows that the enquiry officer was justified in arriving at the

findings of facts against the petitioner:-

"ANALYSIS OF EVIDENCE :

I have carefully considered the evidence adduced and documents and written brief submitted by both the sides. What I find from the oral evidence adduced by as many as 6 witnesses for the management and an equal number for the defence is that both the sides look at the incident that occurred between 5 PM & 7 PM differently. There is however, unanimity to the extent that on 6/9/94 about 30 persons assembled in front of the DGM's cabin among whom the CSOE, DW2 to 5, and other officers were present. Evidence is also on record that MW 1 to 6 were also present either inside the DGM's cabin or have entered the place of incident at the relevant time. While management claims that the gathering of officers at 5 PM on 6/9/94 was abinitio unauthorised, the defence claims that on 5/9/94 CSOE and DW 3 had met MW 6 and had obtained his permission to come over enmasse to submit a memorandum. MW 1 to 4 have not said anything in their letters marked as MEX 1 to 4 about any meeting having been held on 5/9/94 as their letters are referring to the incident of 6/9/94. MW 6 however, has revealed an examination in chief that on 5/9/94, the CSOE and some other officers discussed with PDOS. He has denied having met the CSOE on 5/9/94. During cross examination, the defence specifically questioned MW 6 about CSOE meeting MW 6 on 5/9/94. MW 6 replied that according to him CSOE met officers in PDOS and that he does not remember meeting CSOE on 5/9/94. Through the cross examination conducted at length the defence had questioned MW 6 about the CSOE meeting him directly and indirectly but MW 6 has maintained that CSOE has met the officers working in PDOS on 5/9/94 and that he was appraised of the meeting. The

question whether the assembly of officer is authorised or otherwise rests on the fact whether CSOE had obtained permission from MW 6 to assemble the next day to hand over a memorandum. In the face of denial of MW 6 even having met the CSOE or DW 3 on 5/9/94, I am not inclined to accept that CSOE was permitted by MW 6 to come after office hours on the next day enmasse to submit a memorandum. On the other hand there is total unanimity among the defence witnesses that they were there on 6/9/94 on the information conveyed by DW 3 that they were to come enmasse and hand over a memorandum to MW

6. According to all the defence witnesses, this was conveyed to them by DW 3. In the circumstances, whether or not CSOE and/or DW 2 were permitted as claimed by them to enmasse submit a memorandum, in the absence of any evidence for such permission rests on the statement of MW 6. MW 6 has maintained more than once that the meeting of 5/9/94 was with the PDOS and that he had not met CSOE on 5/9/94 or permitted CSOE to come on 6/9/94. The incident explained in the article of charge relating to 5/9/94 has a bearing on what ensued on 6/9/94. The management evidence in this regard is only through MW 6 whereas the defence evidence in this regard is through the CSOE and DW 3. Though several witnesses have been examined for both the sides as regards meeting of 5/9/94, it is the word of MW 6 against that of the CSOE & DW 3. MW 6 has categorically averred that the CSOE discussed with PDOS the issue of changing of domicile of an officer Sri Ajit Singh and when PDOS did not comply with his request the CSOE reached saying that on 6/9/94 he would show his strength. According to MW 6 they were expecting a show of strength on 6/9/94 and hence as precaution, they had requested the police to be in state of alert. In the fact of this, the only reasonable conclusion that can be drawn is that there was no permission granted to the CSOE/DW 3 to come the next day enmasse to hand over the memorandum or whatever to MW 6. The chain of events on 5/9/94 and 6/9/94 also do not persuade me to believe that MW 6 would himself invite a mass deputation, that too after office hours knowing what such mass deputation usually tends to be, that too when grievance, real of fancied or an unresolved issue with a trade union of whatever hue exists. It emerges from the evidence that the said assembly of officers was unauthorised and that Sri B.R. Sharma had organised the same. The presence of association or participation of other leaders does not change the role of Sri B.R. Sharma.

Now let me turn to the evidence regarding the incident of 6/9/94. The number of officers was about 30. This is agreed by both the sides. The officers started assembling inside the Zonal Office outside the DGM's cabin from 5 PM onwards on 6/9/94. This is admitted by the parties. MW 4 carried the message of MW 6 to the CSOE, and the other leaders of SBOF all India as well as State is a fact accepted by both the sides. Thus the leaders and officers who gathered outside the cabin from 5 PM onwards on 6/9/94 were in no doubt as to the refusal of MW 6 to see them. MW 6 and other management witnesses too aver that MW 6 had let it be very clear that he does not wish to meet and or accept memorandum of whatever from the CSOE and other leaders who had gathered outside his cabin. The charge of the management is that the CSOE alongwith other officers forcibly entered the cabin of MW 6 and the defence evidence shows that all the officers were specifically called to assemble at Zonal Office Delhi to give a memorandum to DGM purportedly as agreed by DGM on the previous day. It is also indicated in the defence evidence that the officers who had thus gathered were annoyed at the refusal of MW 6 to meet the officers who had gathered there that too in the presence of their all India as well as state leaders. The defence evidence has more than once talked about the feelings of the officers at the reaction of MW 6. The defence evidence had made it clear that it was the officers assembled there who decided to go into DGM's cabin notwithstanding the fact that the DGM had declined to meet them. In the words of DW 3 "the members felt very annoyed as they had come as an organisation". Two points become very clear, i,e. MW 6 refused to the CSOE, other leaders and officers permission to enter his cabin and secondly that it was the CSOE and other leaders and officers who decided to nevertheless enter the DGM's cabin.

The next aspect is whether or not the CSOE create an unruly scene, indulged in disorderly/incident behaviour in front of various other persons/staff members by holding out threats and attempting to prevent MW 6 from leaving the office/cabin. Towards this, MW 1 has averred that as soon as he entered the DGM's cabin, the CSOE started shouting at MW 6, questioning the authority of MW 6. MW 3 has claimed that the CSOE barged into DGM's cabin, demanded in a high pitched voice for a time to discuss certain matters concerning officers and when MW 6 informed that if CSOE is not satisfied with the decision of Zonal Office, he could appeal to the higher authority, the CSOE & other

officers continued to demand discussions with MW 6. According to MW 1, they did not heed to the request of MW 6 to leave the cabin. MW 1 has stated that MW 6 has requested the officers to leave the cabin which they did not comply. MW 3 has stated that MW 6 requested CSOE and other officers to leave the cabin but they continued to demand discussions. MW 4 has averred that the CSOE and other officers gatecrashed into the cabin, CSOE started shouting at a high pitch questioning the authority of MW 6 and that the CSOE and others did not leave the cabin of MW 6 when MW 6 advised them to leave the cabin. The evidence of the defence is that as soon as they entered, MW 6 was infuriated, he shouted in unparliamentary language and he used threats. Specifying the words used by the MW 6, all the defence witnesses has cited the same words, "all of you get out of my cabin immediately or else I will see that you are arrested/put behind the bars", while the management witnesses have unanimously claimed that Sri B.R. Sharma shouted and prevented MW 6 from leaving the cabin, the defence witnesses are equally unanimous in denying the same. To arrive at a conclusion, whether or not the CSOE misbehaved and whether or not he prevented MW 6 from leaving, I have to carefully reconstruct the event in the light of the facts emerging in the evidence on record. Admittedly, 30 or so officers entered the DGM's cabin at about 6 PM and according to the evidence, the DGM left the cabin at about 7 PM. This fact has emerged from the evidence adduced from both the sides. Regarding what transpired in this one hour after the entry of the CSOE/leaders/other officers till the DGM left is also described in graphic details by both the sides, i.e. the arrival of MW 5 with the Asstt Sub Inspector and a constable CSOE and officers arguing with the police officials, exit of the Asstt Sub Inspector and return after 5-10 minutes with a police Sub Inspector, the dictation of a police complaint by MW 6 to MW 4 and finally the exit of MW 6 accompanied by police and followed by CSOE and other officers finds support wholly or for most part from the evidence adduced on behalf of both the sides. It is clear from the exhibit I A 1 and evidence of MW 3 and MW 4 that the DGM's cabin was about 300 sqft with 40% of the space occupied by the furniture, table and chairs which means approx. 180 sqft of open space. In this space MW 1, 3, 4, 5, 6, two policemen and 30 officers were present for most of the time between 6 PM and 7 PM. Evidence shows that 30 officers entered DGM's cabin and did not budge from there inspite of the orders of the MW 6. It is

not the case of the defence that when they entered the DGM's cabin and when MW 6 shouted at them to get out, they got out. All the defence witnesses have claimed that no sooner they entered MW 6 asked them to get out. The question therefore that remains unanswered is that why the CSOE and other offices continued to remain in DGM's cabin throughout.

The claim of the defence is that they had gone in to submit a memorandum. The management evidence does not speak of any memorandum while the defence evidence is also silent about what they did with the memorandum when they confronted MW 6 on 6/9/94. On a careful consideration of the entire evidence with reference to the timings, i.e. 6 PM to 7 PM leads me to the only inevitable conclusion that while the CSOE/other officers continued to demand a discussion without which they would not leave, MW 6 continued to maintain that he shall not discuss but would like to leave the cabin. It is on the record that MW 6 directed the officers to leave his cabin which they did not comply. In the absence of any credible evidence with regards to existence or submission of memorandum, the whole matter becomes one of the CSOE and/or officers demanding a discussion with MW 6 and not allowing him to leave. Management evidence speaks that the CSOE had declared that MW 6 will not be allowed to leave. The evidence of MW 6 which is also supported by other management witnesses contends that MW 6 had made it clear that he wished to leave the cabin and for this purpose he called MW 5 and also the police. The fact MW 5 and the police came inside DGM's cabin is again not disputed by the defence but according to management witnesses, when MW 6 tried to leave, the CSOE physically prevented MW 6 by stretching his arms across the cabin door. Evidence is also adduced that the occupants of the DGM's cabin had squatted inside the cabin and with officers squatting and/or standing around the DGM's table on all sides from 6 PM onwards till the written complaint was handed over at about 7 PM makes it very clear that whole exercise resulted in confining or detaining MW 6 from going out of this cabin. I have therefore on careful consideration of the evidence particularly the fact that the 30 or so officers remained in the cabin between 6 PM and 7 PM have to believe that this in itself coupled with the CSOE blocking the entrance with his arms stretched restricted the movements of MW 6, confining him to the cabin, and the entry and stayal of officers around his table confined him to his chair. As regards unruly

scene, disorderly/indecent behaviour, I have to observe that these are indeed unruly, disorderly and indecent behaviour.

Evidence is on record that after MW 6 handed over the written complaint to the police inspector at about 7 PM, the CSOE/offices made way for MW 6 to leave the cabin. The management witnesses claimed that CSOE followed MW 6 upto his car while the defence denied this. Management witnesses have also averred that the inspector held the hand of the CSOE, but for which he would have physically harmed MW 6. In this connection, MW 2 who only witnessed the incident at 7 PM has averred that when MW 6 sat in his car, the CSOE, came rushing towards the front door of the car but was pulled back by the police. The defence witnesses have not touched upon this as all of them claimed that they were in the DGM's Secretariat to hand over the memorandum. The management evidence regarding the CSOE following the MW 6 upto his car, his rushing towards the car and the CSOE being held by the police inspector has not been rebutted by the defence.

In the course of the inquiry, certain aspects have clearly emerged from the evidence of both the sides like assembling at Zonal Office on 6/9/94, refusal of permission by MW 6 to meet the CSOE/leaders/officers, all officers entering MW 6's cabin at 6 PM, all of them staying inside the cabin between 6 and 7 PM and not going out of the cabin even after MW 6's orders them to go out. The defence has introduced the element of trade union rights and privileges. The defence apparently believes that what amounts to a misconduct is not so when done by a trade union. I am not inclined to agree with this argument. Individually or collectively, an officer is an officer and a trade union of officers have all the more responsibility to conform to rule of law.

CONCLUSION The charge is a composite one and on careful consideration of all the evidence, and for the reasons discussed in the foregoing analysis of evidences, I find that the charge of the management that the CSOE contravened Regulation No. 3(2) and 3(1) of Syndicate Bank Officer Employees (Conduct) Regulations 1976 stands proved by the management. I hold accordingly."

13. Let us now turn to the legal arguments which have been urged on

behalf of the petitioner to challenge the orders of the departmental

authorities. First argument which is urged is that the appointment of the

enquiry officer was wrong because the enquiry officer was a Chief Manager

working in one of the branches which were reporting to Mr. Maini, DGM

and therefore there could not be fairness on the part of the enquiry officer

who was a Chief Manager only.

Though factually this argument in itself would not have been

valid because all the officers of branches who work under the DGM would

therefore be disqualified in becoming enquiry officer and no such rule to

support his case was cited on behalf of the petitioner. In any case, the fact of

the matter is that admittedly the first enquiry officer was changed against

whom the petitioner had a grievance and the enquiry officer who finally

gave the report was a different officer against whom petitioner has no

grievance. Therefore today there cannot be any valid basis to challenge the

report of the enquiry officer merely because an earlier enquiry officer was

allegedly biased because nothing will turn upon this aspect inasmuch as the

final enquiry report has been given by a different enquiry officer and against

whom no charges are leveled.

14. It was next contended on behalf of the petitioner that the order of the

disciplinary authority is bound to be set aside because disciplinary authority

did not give any personal hearing to the petitioner. Also, it is argued that the

appellate authority similarly did not give personal hearing to the petitioner

and therefore the order of the appellate authority is also to be faulted for this

reason.

When counsel for the petitioner was asked to show if there was

any rule of the respondent-bank that the disciplinary authority was bound to

give a personal hearing although the enquiry officer had given personal

hearing before giving the report, it was agreed by the petitioner that there

was no rule which provided for giving of personal hearing by the

disciplinary authority. Also, it is not disputed by the petitioner that in the

representation made to the disciplinary authority the petitioner did not ask

for any personal hearing at any point of time before passing of the order by

the disciplinary authority. Once that is so, surely, the disciplinary authority

cannot be faulted with because it is only if a personal hearing was asked for

and then the personal hearing had not been provided there would be a valid

grievance, but since personal hearing was not asked for and nor was it

provided as required in the rules of the bank, the disciplinary authority has

hence committed no illegality in not giving any personal hearing to the

petitioner. This argument will also equally apply with respect to not giving

of personal hearing to the petitioner at the appellate stage because there is no

rule of the bank which requires giving of personal hearing at the appellate

stage. Counsel for the respondent No.1-bank has rightly relied upon the

judgment of the Supreme Court in the case of Oriental Bank of Commerce

& Anr. Vs. R.K. Uppal (2011) 8 SCC 695 and which holds that no personal

hearing need be given by the appellate authority unless there is a specific

rule in this regard.

Therefore, the arguments urged by the petitioner that the orders

of the departmental authorities must fail because no personal hearing had

been given to the petitioner, are arguments which have no substance, and are

accordingly rejected.

15. The final argument which was urged on behalf of the petitioner was

that the doctrine of proportionality ought to have been employed by the

departmental authorities and the petitioner should not have been visited with

the punishment of compulsory retirement. In this regard, I cannot agree with

the argument that petitioner should have been visited with a lesser

punishment inasmuch as there cannot be more grave issues than unlawful

assembly by a large number of officers of whom petitioner was one of the

leaders, and also the acts of abusing and threatening and shouting in a zonal

office of a bank are impermissible especially when unlawful assembly has

taken place in spite of denial of permission to approach the DGM on the

concerned date. To the aforesaid aspects is the important aspect that there

was an unlawful detention of the DGM Mr. Maini and the police had to be

ultimately called with reinforcement to escort Mr. Maini out of his cabin to

his car where again Mr. Maini was sought to be assaulted by the petitioner.

In my opinion, the acts which are aforesaid found against the petitioner,

denies him for being given the benefit of doctrine of proportionality for

reduction of the punishment. In any case, it may be stated that admittedly a

criminal case was filed against the petitioner on the same ground and

pursuant to the FIR lodged against the petitioner and a State case being filed,

petitioner was convicted by the judgment dated 14.8.2002 of the

Metropolitan Magistrate and fine imposed upon the petitioner for the offence

committed. This judgment has become final and the petitioner has not

challenged the judgment. This judgment was passed after conclusion of the

departmental proceedings and therefore I have taken note of the same as the

photocopy of the same has been given to me in the course of hearing and the

factual aspects of passing of the judgment and non challenge to the same are

not disputed by the petitioner.

Also it has to be noted that the petitioner had filed a petition

WP(C) 1790/1998 challenging the order of the Departmental Authorities

imposing a penalty of reduction of pay scale for a somewhat similar type of

incident, and this petition had been dismissed by me just two days back on

18.9.2013. For this additional reason also petitioner cannot be allowed to

invoke the doctrine of proportionality.

Therefore, I reject the argument that the petitioner should be

given the benefit of doctrine of proportionality by reducing the punishment

given of compulsory retirement. In fact, I may note that there is no extreme

punishment of removal but the punishment is of compulsory retirement only.

The argument of the petitioner based on invoking of doctrine of

proportionality is misconceived and is accordingly rejected.

16. Petitioner, at one stage, sought to argue that petitioner has been

wrongly discriminated because as per the counter-affidavit which is filed in

this Court, the bank exonerated other officers because they gave apology

letters, however, petitioner who also gave an apology letter should also have

been exonerated and no proceedings against him should have been taken,

however, I do not agree with the submission because as already stated above

in this judgment the issue of discrimination is fact based and unless this fact

based issue is urged originally in the enquiry proceedings, it is not possible

for the respondent No.1-bank to give its factual replies to refute the stand of

the petitioner. It is not disputed that at no stage during the pendency of the

proceedings before the enquiry officer, the ground of discrimination was

taken up as a fact, and therefore the respondent No.1-bank had no

opportunity to meet the factual position and therefore today the petitioner

cannot be permitted to urge the factual ground of discrimination only

because this ground was pleaded by submitting final argument before the

Enquiry Officer. Surely, if a factual issue unless pleaded should not be

allowed to be raised so as to take the other party by surprise because in the

absence of any pleadings on such a factual issue the respondent No.1-bank

had no opportunity to put up its factual stand so as to say that there is no

discrimination against the petitioner on account of various facts including of

petitioner being a primary ring leaders, petitioner going out of the way and

personally threatening Mr. Maini which was not given by other persons,

petitioner causing unlawful restraint by extending his arms to prevent Mr.

Maini from leaving his cabin etc etc. The relevant portion of the enquiry

report which is reproduced above shows certain illegal acts which are

attributable only to the petitioner and really there could not in any case be

discrimination against the petitioner. Therefore, the contention of the

petitioner of discrimination by contending that he also gave an apology letter

and should have been exonerated is an argument which cannot be allowed to

be raised simply because the respondent No.1 in its counter-affidavit has

stated that other officers were exonerated because they gave apology letters.

The issue having not been raised at the appropriate time cannot be allowed

to be raised by the petitioner only at the stage of final arguments before the

enquiry officer. This argument of the petitioner is also therefore rejected.

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

existence of any valid ground to set aside the suspension order or the orders

of the disciplinary authorities as urged on behalf of the petitioner. The writ

petition is therefore dismissed, leaving the parties to bear their own costs.

SEPTEMBER 20, 2013                                 VALMIKI J. MEHTA, J
godara/Ne