Augustine George Masih, J. (Oral) - C.M. Nos. 14320-C of 2015
1. Prayer in this application is for restoration of the appeal, which was dismissed for non-prosecution by this Court vide order dated 16.11.2015.
2. For the reasons mentioned in the application, which is duly supported by the affidavit of the counsel for the applicant/appellant, the present application is allowed. The appeal is restored to its original number and the same is taken on Board for consideration.
C.M. No. 804-C of 2011
1. Prayer in this application is for condonation of delay of 12 days in re-filing the appeal.
2. For the reasons mentioned in the application, which is duly PRERNA DATTA 2016.03.10 09:09 I attest to the accuracy and integrity of this document supported by the affidavit of the clerk of the counsel for the applicant/appellant, the same is allowed. Delay of 12 days in re-filing the appeal stands condoned.
RSA No. 288 of 2011
1. Challenge in this appeal is to the judgment and decree passed by the Additional Civil Judge (Senior Division) Karnal dated 23.03.2007, whereby the suit for declaration filed by the appellant-plaintiff with a prayer that the order dated 13.01.1990 passed by the Deputy General Manager, New Delhi dismissing him from service and the order dated 25.03.1992 passed in an appeal by the General Manager dismissing the appeal being null and void and declaring the appellant entitled to be deemed in service and all the consequential benefits with pay and allowances along with interest @ 18% per annum, stands dismissed, appeal against which preferred by the appellant-plaintiff has been dismissed by the Additional District Judge (FTC), Karnal on 01.05.2010.
2. It is the contention of the learned counsel for the appellant that in the disciplinary proceedings, which have been initiated against the appellant, the Enquiry Officer has acted as a Presenting Officer and has cross-examined the witnesses of the Management. He contends that no opportunity to cross-examine the management-witnesses has been given to the appellant-plaintiff by the Enquiry Officer and, therefore, the principle of natural justice stands violated, because of which the enquiry report and the consequential order of dismissal by the disciplinary authority as also the appellate order cannot sustain. That apart, he contends that the punishing authority has not recorded the dissenting note with regard to the findings recorded by the Enquiry Officer qua charges No. 6, 8 and 12 which were PRERNA DATTA 2016.03.10 09:09 I attest to the accuracy and integrity of this document only partly proved and the Enquiry Officer has proceeded to punish the appellant-plaintiff by taking those charges into consideration violating Clause 7 (ii) of the Bank of Baroda Officer Employees (Discipline and Appeal) Regulations 1976. He, thus, contends that the judgments and decree as passed by the Courts below without taking into consideration this aspect cannot sustain and deserve to be set aside and the suit of the appellant-plaintiff decreed.
3. I have considered the submissions made by the learned counsel for the appellant and with his able assistance, have gone through the impugned judgments but do not find any illegality therein.
4. The appellant-plaintiff was working as a Branch Manager when a charge-sheet was served on him on 12.12.1987 under the Bank of Baroda Officer Employees (Discipline and Appeal) Regulations 1976. The enquiry was conducted by Sh. P.K. Mukherjee. He submitted his enquiry report, wherein except for charges No. 6, 8 and 12, which were partly proved, the remaining charges stood proved to the hilt. The punishing authority i.e. the Deputy General Manager, Zonal Office, Bank of Baroda agreed with the enquiry report and proceeded to pass the order of punishment of dismissal for the mis-conduct. Since charges No. 6, 8 and 12 were also partly proved, there was no need to record a dissenting note. Such a note would have been required in case no charges were proved against the appellant-plaintiff. Even if charges 6, 8 and 12 which were partly proved are ignored, the other charges were proved to the hilt, which charges have been found by the Courts below to be of grave nature. The Court has even gone to the extent of saying that even if charges No. 6, 8 and 12 have been partly proved, the material before the competent authority was sufficient to justify the Prerna Datta 2016.03.10 09:09 I attest to the accuracy and integrity of this document dismissal of the appellant. Therefore, the contention of the counsel for the appellant would not cut any ice as it would make no difference to the ultimate outcome of the proceedings.
5. The assertion of the counsel for the appellant that the principles of natural justice have not been complied with as in the enquiry proceedings, the appellant-plaintiff was not given any opportunity to cross-examine the witnesses and that the Enquiry Officer has himself cross-examined the witnesses of the Management, cannot be accepted as there is no evidence on record which would substantiate the same. The appellant-plaintiff has not placed on record the enquiry report and further, there is no evidence on record projecting or proving the assertions, as have been made by the counsel for the appellant. In the absence of any evidence on record, the conclusion, as has been drawn by the Courts below, cannot be faulted with.
6. It may be added here that the appellant-plaintiff has not impleaded the Bank of Baroda as a party to the suit, who is the employer of the appellant. The relief, therefore, as claimed, cannot be granted to him. That apart, even the Appellate Authority i.e. the General Manager, Bank of Baroda is not a party to the suit although the order passed by the Appellate Authority dated 25.03.1992 has been challenged in the present suit.
7. No other point has been argued by the counsel for the appellant-plaintiff.
8. There being concurrent findings recorded by the Courts below on the facts of the case, which have been found to be based on proper appreciation of the pleadings and the evidence produced by the parties, there is no illegality in the impugned judgments passed by the Courts below. PRERNA DATTA 2016.03.10 09:09 I attest to the accuracy and integrity of this document
9. There is no substantial question of law in the present appeal, which requires consideration of this Court.
10. In view of the above, finding no merit in the appeal, the same stands dismissed.
C.M. No. 1265-C of 2015
11. In view of the dismissal of the main appeal, no separate orders are required to be passed in this application for stay and, therefore, the same stands dismissed.
