2000 Supreme(MP) 1181

IN THE HIGH COURT OF MADHYA PRADESH
Bhawani Singh, Fakhruddin, JJ.
P.S. Karwade – Appellant
Versus
UCO Bank – Respondent
L.P.A. No. 69 of 1996(G)
Decided On : 09-05-2000

Headnote:(1) Civil Services – domestic enquiry – officer also involved in same case at Some stage – cannot be appointed as enquiry officer – some other officer should be appointed.

       (2) Court – point argued hut omitted – same Court should be approached.

       (3) Civil Procedure Code, 1908 – O. 47 R. 1 – point argued hut not decided – same Court should be approached – appellate Court cannot deal with it.

        Short Note

       1. This appeal is directed against the order dated November 17, 1995, passed by the learned Single Judge in Writ Petition No. 44/94.

       2. The appellant was Manager of the Bank. He issued notice to M/s Mangaldeep a customer of the Bank. It is a demand notice of October 10, 1992. Reply by the customer is date November 4, 1992, making some accusations against the Zonal Manager, who happens to be the Disciplinary Authority.

       3. Both the documents, namely, notice issued by the petitioner to M/s Mangaldeep and reply filed by this Firm, are part of the record the matter was initiated before the National Consumer Dispute Redressal Commission, New Delhi, by M/s Mangaldeep. In this case, both, the Zonal Manager and the petitioner, were party by designation. Their stand was same before the National Consumer Dispute Redressal Commission (for brevity 'Commission'). It is alleged that the Zonal Manager wanted to shift the liability on the petitioner, for which and with this background, charge – sheet was issued against the petitioner. The charges are as extracted below:

       "(i) That the Officer, who has issued the charge – sheet; was himself a party to the dispute before the National Consumer Dispute Redressal Commission, New Delhi, and as such, he cannot be a Judge in his own case.

       (ii) That the petitioner retired from service on 31st December, 1993, and the enquiry cannot be continued against him after the relationship of master and servant, has come to an end."

       4. Learned counsel for the petitioner does not contest item No. (ii) of the charge and with respect to charge (i), conclusion recorded by the learned Single Judge in the penalty – mate paragraph of the order is that:

       “So far as the contention that both, Zonal Manager and the petitioner, were arrayed as respondents in the petition, there is something to be said in favour of the petitioner. Justice should not only be done but it should seem to have been done. This is a case where the petitioner has made an allegation that with regard to a transaction notices were served on them. The apprehension of the petitioner that he is being harassed and action has been taken by respondent No.2 only with a view to absolve cannot be ruled out. As such, the authority higher than the Zonal Manager would look into the grievance of the petitioner and would examine as to whether any action is required to be taken or not be examined. Till a decision is taken, no further proceedings be held."

       5. Learned counsel for the petitioner submits that the learned Single Judge did not deal with third point, namely, competency of officer issuing the charge – sheet, although it was specifically argued. It is also submitted that the charge – sheet and the show cause notice are liable to be set aside in view of the finding recorded by the learned Single Judge in paragraph 6 of the Order. Learned counsel also submits that objection filed by the otherside is not maintainable.

       6. Shri N.K. Modi, learned counsel for the respondents; submitted that apprehension of the petitioner is unsustainable. The Zonal Manager may be party along with the petitioner before the Commission, that would not go to show that he is prejudiced against the petitioner. More over, by this time, the authority has been transferred from the place where the issue arose. With respect to maintainability of cross – objection; reference is made to Order 41 Rule 22 of the Code of Civil Procedure supported by some decisions brought to our notice.

       7. We have considered the matter carefully. We are of the considered opinion that the learned Single Judge has come to the conclusion that the case requires to be examined by an officer higher than the Zonal Manager. Obviously, this finding has been recorded looking to the allegation made by the petitioner about the Zonal Manager, who was party before the Commission, (and the issue arose out of the notice issued by the petitioner to the Firm, which levelled certain allegations against the Zonal Manager and then the case was initiated before the Commission. Naturally, the Zonal Manager may be under the impression that the petitioner was responsible for the episode in which he was also involved by the Firm. Therefore, in the totality of the circumstances and fairness to the petitioner, who has retired, it would be desirable that the matter is examined by the General Manager of the Bank), afresh for deciding whether, in the facts and circumstances of the case, it is really necessary to initiate action against the petitioner, who has by now retired. He 'should not be influenced by issuance of show cause notice and framing of charge against the petitioner.

       8. In view of above conclusion, whether the objections are maintainable or not, need not be examined. However, we like to address to the contention of the learned counsel for the petitioner that the question of competence has not been decided by the learned Single Judge, since this kind of plea is generally raised by the parties in appeal. It is well settled that when a party alleges that it argued a point before the Court below, but it did not decide the same, the proper Course is to approach the same Court/Judge, draw the attention to the argument so raised and omissions committed by the Court/Judge and invite finding thereon. In case, such a course is not adopted, the plea cannot be allowed to be raised in the appellate Court, for first time. Any way, the question about the competency of the Zonal Manager does not arise since we have directed the Authority about him to deal with the matter and decide the question. The General Manager will take decision in the matter within two months on production of the copy of this order by the petitioner, since the petitioner has retired and is waiting for his retiral benefits.

       9. Consequently, the appeal is dispose of in terms aforesaid. Costs on parties.