Regular Second Appeal No.3001 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-12.8.2010 Smt.Vijay Laxmi wife of Surinderjit ...Appellant Versus Punjab National Bank and another ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Dheeraj Jain Advocate for the appellant. Mr.Santosh Kumar Sharma, Advocate for the respondents. M ehinder S ingh S ullar , J . The epitome of the facts, culminating in the commencement, relevant for disposal of present appeal and emanating from the record, is that Vijay Laxmi wife of Surinderjit appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit against Punjab National Bank and its Regional Manager-respondent- defendants (hereinafter to be referred as “the defendants”) for a decree of declaration to the effect that the impugned order dated July, 1981, terminating her services, is wrong, illegal and as such is ineffective on her rights. 2. Concisely, the case set up by the plaintiff, was that she joined as Clerk-cum-Cashier with defendant No.1 at substantive post in the admissible pay scale in the month of June, 1977. Owing to certain irregularities in maintaining the account, she was placed under suspension without issuing any prior show cause notice on 5.2.1979. Thereafter, she was served with a charge sheet without list of witnesses and documents. She submitted reply to the charge sheet, but the same was ignored and departmental enquiry was initiated against her. She made request to the Inquiry Officer to allow her to have inspection of the documents, so that she may be in a position to properly cross-examine the witnesses, but in vain. An FIR was stated to have been lodged by the defendants in the Police Station on 21.1.1979 against her and co-employee Shashi Rani. Ultimately, her services were Regular Second Appeal No.3001 of 1986 2 terminated without following the due procedure of enquiry, in the month of July,1981. 3. Levelling a variety of allegations, in all, according to the plaintiff that as no opportunity of hearing was provided, documents were not supplied to her and the relevant rules and principles of natural justice were violated, therefore, the enquiry was vitiated. Thus, she has challenged the termination order, being wrong, illegal, arbitrary, capricious, against the provisions of Shastri Award and Bipartite Rules and as such is ineffective and not binding on her rights. On the basis of aforesaid allegations, the plaintiff filed the suit against the defendants seeking a decree for declaration in the manner depicted here-in-above. 4. The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit; Court fees and jurisdiction. According to them, the plaintiff had not filed any appeal in the department, her suit was premature and liable to be dismissed. On merits, the defendants claimed that she was suspended on 5.2.1979 in connection with fraud of Rs.2500/- and Rs.8000/-. There was no requirement to issue show cause notice before her suspension pending further departmental proceedings in respect of offences or the misconduct committed by her. The case of the defendants further proceeds that the plaintiff was afforded full opportunity to inspect the relevant documents and other correspondence as and when desired by her during the enquiry proceedings. The bank never preferred to have the decision of FIR lodged and took administrative action as per rules of the bank and in view of the Bipartite settlement. Having followed the due procedure of enquiry as per Bipartite Settlement, the plaintiff was actually dismissed, vide order dated 11.8.1981 (Ex.P8) and no such order terminating her services was passed in the month of July, 1981. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. Regular Second Appeal No.3001 of 1986 3 5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:- 1. Whether the suit is premature in view of the fact that the plaintiff has not exhausted the remedy/remedies available to her under the Bipartite Settlement and Industrywise Award?OPD 2. Whether the plaint is vague and wanting?OPD 3. Whether the suit has been valued properly for the purposes of court fee and jurisdiction?OPP 4. Whether the suit is maintainable in the present form?OPP 5. Whether the suit is bad for nonjoinder of necessary parties?OPD 6. Whether any cause of action has been arisen to the plaintiff in July, 1981, if so to what effect against the defendant Bank?OPP 7. Whether this court has jurisdiction to try the suit?OPP 8. Whether the impugned order dated 11.8.81 terminating the services of the plaintiff is wrong, illegal, passed with pre-determination as alleged?OPP 9. Relief. 6. The parties to the lis produced on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiff, by virtue of impugned judgment and decree dated 4.4.1985. 8. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiff filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 19.4.1986. 9. The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is Regular Second Appeal No.3001 of 1986 4 how I am seized of the matter. 10. Assailing the impugned judgments and decrees of the Courts below, the learned counsel for the appellant-plaintiff has contended with some amount of vehemence that the allegations contained in the charge sheet were vague, which was not accompanied by list of witnesses and documents. No show cause notice was issued before suspension of the plaintiff. No adequate opportunity of being heard was afforded to her. The appointment of new Inquiry Officer was illegal and enquiry report was not supplied to her. In all, according to the learned counsel that since the defendants did not follow the statutory rules, regulations and principles of natural justice, so, the impugned termination order (Ex.P8) is illegal, null & void and inoperative on the rights of the plaintiff. In this regard, he has placed reliance on the judgment of Hon'ble Apex Court in case Uttar Pradesh Government v. Sabir Hussain (1975) 4 Supreme Court Cases 703 and the judgments of this Court in cases Dhian Singh (deceased) through his L.Rs v. State of Punjab and others 2008 (1) I.L.R.(P&H) 1; Rattan Singh Sidhu v. Punjab & Sind Bank & another 2007 (1) I.L.R. (P&H) 139; Sadhu Ram v. State of Punjab 2005 (2) SCT 295; State of Haryana v. Som Datt Ex-Constable 1981(1) S.L.R.647 and Harchand Singh v. The State of Punjab 1980 (3) SLR 711. 11. On the contrary, hailing the impugned judgments and decrees of the Courts below, the learned counsel for the respondent-defendants urged that the opportunity of being heard was granted to the plaintiff, she was duly allowed to inspect the record/documents and the impugned termination order (Ex.P8) was passed after following the due procedure and principle of natural justice. In support of his contention, he has placed reliance on the judgments of Hon'ble Supreme Court in cases Debotosh Pal Choudhary v. Punjab National Bank 2002 (4) S.C.T. 451; State of U.P. v. Harendra Arora and another (2001) 6 Supreme Court Cases 392; Managing Director, E.C.I.L., Hyderabad v. B.Karunakar (II) 1994 Supp (2) Supreme Court Cases 391 and the judgment of this Court in case Regular Second Appeal No.3001 of 1986 5 Jaswant Singh v. Deputy General Manager Personnel, Punjab & Sind Bank and another 2008 (2) S.C.T.134. 12. Possibly, no one can dispute with regard to the crux of the law laid down (while considering the import of Government of India Act, 1935; Punjab Police Rules, 1934; Punjab and Sind Bank Officers Employee (Discipline and Appeal) Regulations, 1981 and Punjab Civil Services (Punishment and Appeals) Rules, 1952 and 1970) in the aforesaid judgments relied upon by the learned counsel for the plaintiff that if the Inquiry Officer did not follow the statutory rules of enquiry, non-supply of list of witnesses, documents with the charge sheet and the enquiry report and if it had caused a great prejudice to the case of the delinquent officer, then the punishment order is bad and illegal. Sequelly, the law laid down in the above-mentioned judgments relied upon by the learned counsel for the defendants is well settled that if no prejudice is caused to the delinquent officer for non-supply of list of witnesses, documents with the charge sheet and the enquiry report (in the absence of prejudice), then the punishment order cannot legally be termed as illegal. That means, each case has to be tested on the basis of evidence on record and on its own touchstone. 13. Such thus being the legal position and material on record, now the core question, that arises for determination in this appeal, is as to whether any rules have been violated during the enquiry proceedings and any kind of prejudice has been caused to the plaintiff in this relevant connection or not? 14. Having regard to the rival contentions of the learned counsel for the parties, relatable to the evidence on record, to my mind, the due procedure was followed during the course of enquiry proceedings and no prejudice is shown to have been caused to the plaintiff in this context. 15. As is evident from the record that the plaintiff joined as Clerk-cum- Cashier with defendant No.1 in the month of June, 1977. She committed fraud of Rs.2500/- and Rs.8000/- and manipulated the accounts. She was placed under Regular Second Appeal No.3001 of 1986 6 suspension on 5.2.1979. There was no requirement to issue any show cause notice before her suspension. The matter was also reported to the police. The charge sheet (Ex.P2) was duly served upon the plaintiff and she was directed to file reply to the same within seven days. She filed reply (Ex.P3) to the charge sheet. As the reply was not found satisfactory, therefore, the enquiry was initiated against her. Shri P.K.Sethi DW4 was subsequently appointed as Enquiry Officer and Shri J.C.Kapahi was appointed as Presenting Officer. The intimation, vide letter Ex.P.4 regarding the change of the Inquiry Officer, was sent to the plaintiff. The Inquiry Officer followed the due procedure and after affording full opportunity of being heard to the delinquent official, conducted and completed the enquiry as per rules. Sh.P.K.Sethi (DW4) was examined in Court and inter-alia maintained that he observed all the rules and regulations at the time of enquiry. He had produced the inquiry proceedings (Ex.PW4/1) in this relevant direction. 16. It is not a matter of dispute that the parties are governed by Bipartite Settlement published by the Punjab National Bank, which has statutory force, in the matter of disciplinary proceedings. There is no provision for supply of list of witnesses, enquiry report, charge sheet and documents in the Bipartite Settlement. Para 19.3(d) of the Bipartite Settlement provides for straightway dismissal of the employee, who has committed an offence and has been convicted therefor. The plaintiff, while appearing as PW2, has admitted that she received the charge sheet, to which she replied and enquiry was held. The show cause notice of proposed punishment was given to the plaintiff and she filed reply. The trial Court critically examined the enquiry file and charge sheet (Ex.P2) and acknowledged as under:- “The first sitting for inquiry took place at Sultanwind Road Punjab National Bank, at 11 A.M. on 27.12.80 in the presence of the plaintiff. Charge sheet was read over and the plaintiff was asked whether she pleaded guilty to the charge sheet but she did not plead guilty to the charge sheet and she did not show her intention to inspect the documents. Therefore, the inquiry was adjourned to 3.1.81 but the plaintiff did not appear. So the inquiry was adjourned to 21.1.81 and on that day Sh.Rajinder Regular Second Appeal No.3001 of 1986 7 Singh was examined in the presence of the plaintiff. This witness was duly cross-examined by the plaintiff and she did not make any request for assistance of her co-employee. Thereafter Sh.K.K.Gupta was examined on 4.2.81 and this witness was fully cross-examined by the plaintiff. Thereafter, the inquiry was adjourned to 13.2.81 and Sh.Ajit Singh Khehra, was examined as prosecution witness in the presence of the plaintiff. This witness was also cross examined by the plaintiff and thereafter the plaintiff was asked, whether, she wanted to lead evidence in defence. She stated that she did not want to examine any witness in defence. However, she gave her own statement and the Inquiry Officer recorded her statement and thereafter, the arguments were heard and the Inquiry Officer submitted his findings which are the part of Ex.PW4/1. I need not discuss the whole inquiry report but the Inquiry Officer held her guilty and observed that though the bank has not suffered any loss because of timely and fortunately coming to light of the attempted fraud but the presence of such type employee in an industry like ones in the Banking where financial transactions are the order of the day is going to be always dangerous position and risky affair and can pose serious threat in future also. He has held that the charge No.4 during inquiry has been substantiated beyond reasonable doubt which goes to show her malafide intention and motive. The Regional Manager agreed with the findings of the Inquiry Officer and proposed to award punishment of dismissal to the plaintiff and she was asked to be present for personal hearing on 28.7.81 at 11 A.M. She was personally heard and her statement was recorded by the Regional Manager on 28.7.81. Thereafter show Cause Notice Ex.P6 was issued to the plaintiff and plaintiff filed reply to the Show Cause notice Ex.P5. After considering the reply to the Show Cause Notice, the impugned order Ex.P.8 was passed by the Regional Manager, defendant No.2 vide which the services of the plaintiff were terminated from 11.8.81.” The Ist appellate Court further examined the matter and negatived the claim of the plaintiff in this regard. 17. Meaning thereby, the Inquiry Officer has given the adequate opportunity of being heard to the plaintiff and has followed the due procedure as Regular Second Appeal No.3001 of 1986 8 contemplated under the Bipartite Settlement and principles of natural justice. The learned counsel did not point how, when and in what manner the enquiry proceedings were vitiated. Therefore, it cannot possibly be saith that no opportunity of being heard was given to the plaintiff or she was, in any way, prejudiced for non supply of indicated documents. Thus, the contrary arguments of the learned counsel for the plaintiff “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. 18. Faced with this situation, the next argument of the learned counsel that since the plaintiff was acquitted in the criminal case, so, she cannot be held guilty in departmental proceedings, is again not tenable. Para 19.3(c) of the Bipartite Agreement postulates that “it is open to the Management to proceed against the delinquent official departmentally in the case of acquittal. Thus, the relevant rules permit the initiation of two types of criminal as well as departmental proceedings simultaneously. It was not obligatory on the part of the defendants to close the matter automatically in the wake of acquittal of plaintiff by the criminal Court as urged on her behalf. Thus, the defendants were well within their jurisdiction to conduct domestic enquiry irrespective of the factum of acquittal of the plaintiff by criminal Court. 19. An identical question arose before the Hon'ble Supreme Court in cases T.N.C.S.Corpn. Ltd. and others v. K.Meerabai (2006) 2 Supreme Court 255 and Commissioner of Police, New Delhi v. Narender Singh (2006) 4 Supreme Court Cases 265. Having considered the matter deeply, it was ruled that “the standards of proof require in a criminal proceeding are entirely different than that of departmental disciplinary action and acquittal in criminal Court not by itself is a ground not to initiate or drop departmental proceedings. The criminal as well as departmental proceedings can go simultaneously.” The same view was again reiterated by the Hon'ble Apex Court in case Union of India and others v. Naman Singh Shekhawat (2008) 4 Supreme Court Cases 1. These observations “mutatis Regular Second Appeal No.3001 of 1986 9 mutandis” are applicable to the facts of the instant case and are the complete answer to the problem in hand. 20. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiff to assail the findings of the Courts below. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiff, in this relevant context, have already been duly considered and dealt with by the Courts below. 21. There is another aspect of the matter, which can be viewed from a different angle. The Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the well-articulated and well-reasoned indicated concurrent findings of fact. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiff, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this relevant behalf. 22. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments and decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the case. Regular Second Appeal No.3001 of 1986 10 23. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 24. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 12.8.2010 Judge AS Whether to be referred to reporter?Yes/No