RSA No.2090 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2090 of 2008 (O&M) Date of Decision: 28.05.2009 H.R.Mattu, ..Appellant Vs. The State Bank of Patiala & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Sanjiv Gupta, Advocate, for the appellant. --- Vinod K.Sharma,J. (Oral) CM No.6298-C of 2008 This is an application filed under section 151 of the Code of Civil Procedure for exemption, from filing certified copy of judgment and decree of learned trial court. For the reasons stated in the application the civil misc. is allowed. The appellant is exempted from filing certified copy of judgment and decree of learned trial court and permitted to place on record the true RSA No.2090 of 2008 2 copy. CM No.6297-C of 2008 This is an application for making good the deficiency in the court fee. For the reasons stated in the application, civil misc. is allowed and the delay in making good the deficiency in the court fee is condoned. RSA No.2090 of 2008 The plaintiff/appellant has challenged the judgment and decree passed by the learned courts below vide which suit filed by the plaintiff/appellant for declaration and mandatory injunction stands dismissed. The plaintiff/appellant filed a suit for declaration to challenge the office order No.DPD/1878 dated 7.8.1999 passed by the General Manager, Operations, State Bank of Patiala whereby penalty of compulsory retirement was imposed on the plaintiff/appellant. The plaintiff claimed the order to be illegal, null and void, ultra vires, mala fide, unconstitutional, unjustified and against the principles of natural justice and Rules and Regulations governing the service conditions of the plaintiff/appellant. As a consequential relief the plaintiff claimed that he was entitled to work as Officer JMGS-I with all rights, benefits and privileges including salary along with interest at the rate of 18 per cent per annum. The plaintiff joined the respondent bank as clerk-cum-typist on 17.8.1974 and was promoted as Officer JMGS-I w.e.f. 1.2.1985. He joined as Assistant Manager in State Bank of Patiala, Dharampura Bazar Branch, Patiala in December, 1993. In October, 1993 he was transferred to the State RSA No.2090 of 2008 3 Bank of Patiala, Shindhi Bazar Branch, Patiala. The plaintiff claims that he was illegally charge-sheeted vide memo dated 3.9.1998 on false and baseless allegations. He claimed that he was not supplied with the copies of the documents demanded by him. He submitted detailed reply to the charge-sheet denying the allegations. Inquiry Officer was appointed who held the plaintiff/appellant guilty of the charges. However, it was claimed that the inquiry was fake, on the basis of which impugned order was passed. In view of the findings recorded by the Inquiry Officer, the impugned order was passed. Order was further said to be discriminatory in nature as other employees were awarded punishment of stoppage of increments only, though similarly situated, with the plaintiff/appellant. It was also the case of the plaintiff/appellant that FIR was lodged with CBI only against Gopal Chand Garg, Head Cashier and that no fraud was ever detected by the Branch Manager despite annual verification of chest currency. Violation of Rules and Regulations was also alleged. It was claimed that the plaintiff was not given opportunity to lead evidence in defence. The suit was contested and the objection was raised qua the maintainability of the suit, as well that of estoppel. It was pleaded that the plaintiff/appellant did not exhaust the remedies of statutory appeal and review available to him. Plaintiff himself had admitted the charges voluntarily, categorically and absolutely during the inquiry proceedings therefore, he was estopped from filing the present suit. Facts regarding appointment and transfer to different places were admitted. It was pleaded RSA No.2090 of 2008 4 that the plaintiff/appellant was charge-sheeted for acts of misconduct committed by him which were specific. It was denied that copies of documents sought by him were not supplied. In the reply to the charge-sheet the appellant/plaintiff admitted, that the balance of differences which were wrongly cast and balance shown less by the Head Cashier Gopal Chand Garg were initiated by the plaintiff/appellant. Differences did not come to the notice of respondents due to heavy load of work, because of other duties being performed by him at that time. The defendant/respondents pleaded that in the reply submitted the plaintiff/appellant did not seek copies of the documents. Reply filed was found to be unsatisfactory, and thereafter inquiry officer was appointed who conducted inquiry and submitted his report on 4.3.1999. The report was sent to the plaintiff/appellant for making representation and submissions thereon. He submitted his objections on 9.3.1999. During inquiry no objection was raised to the conduct of inquiry, therefore, it was denied that the inquiry was fake. It was pleaded that the punishment awarded was in consonance with the acts of misconduct committed by him as he has failed to check the balance cast by the Head cashier on different occasions on vault register/currency chest, books/currency transaction, memos, and had put his initials without checking the resultant balances, in a most irresponsible and negligent manner. Which helped in misappropriation of amount of Rs.73 lacs by the then Head Cashier. Interest of the bank was put to grave risks. In the replication averments made in the written statement were denied and that of the plaint were reiterated. The learned trial court on appreciation of evidence have RSA No.2090 of 2008 5 recorded, a concurrent finding of fact, that the plaintiff failed to discharge the onus. The impugned orders were held to be legal and not null and void, as claimed. Learned trial court in view of the findings that the order was valid held that the plaintiff/appellant was not entitled to mandatory injunction prayed for. The suit was held to be premature as the plaintiff did not avail the statuary remedies available to him under the Rules and Regulations. Civil court was held to have jurisdiction to entertain the suit. It was also held that the suit was properly valued for the purposes of court fee and jurisdiction. It was, however, held that the plaintiff/appellant was estopped from filing the present suit by his conduct. The findings recorded by the learned trial court stand affirmed by the learned lower appellate court. Mr.Sanjiv Gupta, learned counsel appearing on behalf of the appellant contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading, misconstruing as well as misinterpretation of pleadings and evidence, thus, perverse? 2. Whether there was violation of provisions of Regulations of respondent bank, and that the order passed was disproportionate to the charges proved? 3. Whether there was violation of principles of natural justice and therefore, inquiry stood vitiated? In support of the substantial questions of law, learned counsel RSA No.2090 of 2008 6 for the appellant contended that the learned courts below failed to notice that in spite of the application having been moved by the plaintiff/appellant for production of documents, the defendant/respondents failed to produce the documents called for, therefore, the learned courts below committed an error in not drawing adverse inference against the defendant/respondents. It is also the contention of the learned counsel for the appellant that the audit report produced on record on the request of the plaintiff/appellant showed that no loss was caused to the bank. It was also contended that there was discrimination as the plaintiff was treated differently from other charge- sheeted employees. In support of the substantial questions of law learned counsel appearing on behalf of the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Kailash Nath Gupta Vs. Enquiry Officer, (R.K.Rai), Allahabad Bank and others, (2003) 9 Supreme Court Cases 480 to contend that the court has power to interfere with the quantum of punishment, rather it is the duty of the Hon'ble High Court to consider the question whether the punishment is disproportionate to the charges levelled. On consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. Nothing has been pointed out as to which evidence or pleadings have been misread or misconstrued, to hold the findings recorded by learned courts below to be perverse. The other contention raised that other similarly situated employees were awarded lesser punishment of stoppage of increments RSA No.2090 of 2008 7 cannot be accepted as no evidence was produced in support of this contention. Learned courts below, therefore, rightly held that the plaintiff/appellant failed to prove the discrimination. Even otherwise, it is admitted by the learned counsel show that one of the employees was dismissed from service, who was mainly responsible. Other employees have been awarded different punishment as per the charges proved against them. The plaintiff was punished with premature retirement, which cannot be said to be disproportionate to the charges proved, being serious in nature. Nothing was pointed out to show as to which of the regulations was violated in holding inquiry. The allegations were admitted by the plaintiff/appellant in the reply, as held by the learned courts below. The judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the case. It is not open to the civil court to interfere with the quantum of punishment when the plaintiff/ appellant has chosen not to avail his statutory remedies available under the regulations. Substantial questions of law raised are answered against the appellant. No merit. Dismissed in limine. 28.05.2009 (Vinod K.Sharma) rp Judge