Karnataka High Court
State Bank Of India vs Balanagouda S Desai on 14 March, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 14 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
R.S.A. NO.2760/2006 (DEC/INJ)
BETWEEN:
1. STATE BANK OF INDIA,
ZONAL OFFICE, TS COM PLEX,
KESHWAPUR - 580020,
HUBBALLI BY ITS GENERAL MANAGER.
2. STATE BANK OF INDIA,
ZONAL OFFICE, TS COM PLEX,
KESHWAPUR - 580020,
HUBBALLI BY ITS CHIEF MANAGER.
... APPELLANTS
(BY SRI SURESH S.GUNDI, ADVOCAT E)
AND
BALANGOUDA S.DESAI,
AGED 48 YEARS,
ARMED GUARD,
STATE BANK OF INDIA,
ZONAL OFFICE,
HUBBALLI-580020,
(SINCE DECEASED BY HIS LR'S).
1(A) SMT.SUREKHA,
W/O BALANGOUDA DESAI,
AGE: 48 YEARS,
OCC: HOUSE WIFE.
1(B) RANJANA,
D/O BALANGOUDA DESAI,
AGE: 27 YEARS.
2
1(C) ASHVINI RAMESH MALAGI,
AGE: 25 YEARS.
1(D) JYOTHI,
D/O BALANGOUDA DESAI,
AGE: 23 YEARS.
1(E) PREETHI BALANGOUDA DESAI ,
AGE: 21 YEARS.
1(F) SAVITHA DUNDAPPA KURNI,
AGE: 29 YEARS.
1(G) VIJAY BALANGOUDA DESAI,
AGE: 19 YEARS.
1(H) SHRIMANTHI SHIVANGOUDA DESAI ,
AGE: 68 YEARS.
... RESPONDENTS
(BY SRI HANUMANTHAREDDY SAHUK AR, ADVOCATE FOR
R1(A-H)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF C.P.C., AGAINST THE JUDGMENT AND
DECREE DATED 14.07.2006 PASSED IN R.A.NO.76/2005 ON
THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.), HUBBALLI ,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.02.2005 PASSED IN
O.S.NO.370/2003 ON THE FILE OF T HE I ADDITIONAL CIVIL
JUDGE (JR.DN.), HUBBALLI.
THIS APPEAL COMING ON FOR FINAL HEARING THI S
DAY, THE COURT , DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment dated 14.07.2006 passed by II Addl. Civil Judge (Sr.Dn.), Hubballi, in R.A.No.76/2005 dismissing appeal and confirming judgment and decree dated 28.02.2005 passed by I 3 Addl. Civil Judge (Jr.Dn.), Hubballi, in O.S.No.370/2003, this second appeal is filed.
2. Appellants were defendants no.1 and 2 before trial Court and appellants no.1 and 2 in R.A.No.76/2005. Respondent no.1 herein was plaintiff in suit and respondent in appeal.
3. For the sake of convenience, parties to this appeal are referred to by their rankings before trial Court.
4. O.S.No.370/2003 was filed by plaintiff seeking following reliefs:
(a) To declare that order under letter no.DIS/CON/412, dated 07.12.2001 by defendant No.2 as illegal, null and void only to the extent of "The period of suspension will be treated as such and will not count for service, seniority wages, pensions and increments".
(b) To declare that the order issued under
letter no.DIS/CON/745, dated
13.12.2002 by the Defendant No.1 in rejecting the appeal as illegal, null and void and consequently.
(c) The Defendants be directed by a decree of Mandatory Injunction to treat 4 suspension period as on duty and count for service, seniority, wages, pensions and increments.
5. In plaint, it was stated that plaintiff was working as Armed Guard in defendants' bank at its zonal office at Hubballi. While working as such, he was arrested on 17.03.1993 by Keshwapur Police in Crime no.27/1993 registered for offence under Sections 468, 471 and 420 of I.P.C. In view of his arrest, defendant no.2 passed an order dated 23.03.1993 placing him under suspension pending prosecution case. But, plaintiff was acquitted of charges vide order dated 28.09.2001 passed in C.C.No.514/1994. After acquittal, defendant no.2 passed an order dated 07.12.2001 reinstating plaintiff into service w.e.f. 28.09.2001, but restricting his pay and benefits during period of suspension payable, subsistence allowance received by him and also treating period of suspension as not spent on duty. 5
6. Challenging order dated 07.12.2001 insofar as regulating period of suspension and denying full salary and benefits, plaintiff filed suit. Upon entering appearance, defendants filed written statement raising preliminary ground regarding maintainability of suit. It was contended that plaintiff working as 'Armed Guard' and would be 'workman' under Section 2(d) of Industrial Disputes Act and defendant would be an 'industry', therefore civil suit was barred by provisions of Industrial Disputes Act.
7. It was also contended that plaintiff was involved in case of fraud of Rs.5,500/-, for which he was arrested by Keshwapur Police and was prosecuted before J.M.F.C-II, Hubballi. It stated that acquittal of plaintiff was on benefit of doubt. Therefore, as provided under para 521(2)(c) of Sastry Award, defendants decided not to proceed with departmental enquiry but by treating period of suspension as not spent on duty and restricting salary and benefits for said period. It was stated that order passed was in- 6 conformity with provisions of Sastry Award, therefore, suit was liable to be dismissed.
8. In view of preliminary objection regarding maintainability of suit, initially trial court passed orders on 30.01.2003 with regard to maintainability under Order VII Rule 11(d) of C.P.C. and suit came to be dismissed as being barred under Section 10 of Industrial Disputes Act and provisions of Administrative Tribunals.
9. It was challenged by plaintiff in R.A.No.47/2003. On 17.07.2003, appeal was allowed setting aside order of dismissal insofar as plaint relief nos.1 and 2. Appeal was dismissed insofar as plaint relief no.3. Consequently, suit was restored. Thereafter trial court framed following issues:
(1) Whether the plaintiff proves that, the orders passed in DIS/CON/412, dated 07.12.2001 and DIS/CON/745 dated 13.12.2002 are illegal and perverse passed without hearing the plaintiff?7
(2) Whether the plaintiff is entitled for the relief of declaration and injunction as prayed for?
(3) Whether the suit of plaintiff is not maintainable in the eye of law?
(4) What order?
10. In order to establish his case, plaintiff examined himself as PW1 and got marked Exhibits P1 to P5. On behalf of defendants, one witness was examined as DW1 and copy of Sastry Award extract was marked as Exhibit D1. On consideration, trial court decreed suit in following terms:
"The order DIS/CON/412 dated 07.12.2001 passed by the second defendant is null and void and further the letter dated DIS/CON/745 dated 13.12.2002 passed by defendant No.1 is hereby declared as null and void and further the defendants are hereby directed by way of mandatory injunction to treat the suspension period as on duty and to count the same for service, seniority, wages, pension and increments."
11. Main reason assigned by trial court for decreeing suit was that order regulating period of 8 suspension was passed without compliance of principles of natural justice. Trial court also held that as defendants had decided not to hold departmental enquiry, invocation of para 521(2)(c) for regulating period of suspension was unjustified. Challenging said judgment and decree, defendants filed appeal in R.A.No.76/2005. In appeal, main grounds urged were that plaintiffs and defendants were governed by provisions of Industrial Disputes Act and jurisdiction of civil court was ousted. It was also contended that impugned order was passed as provided under Sastry Award, which did not contemplate hearing and therefore finding of trial court was contrary to law. It was also contended that without proper appreciation of oral and documentary evidence and without giving proper reasons, trial court had passed impugned judgment.
12. Based on pleadings, first appellate Court framed following points for consideration: 9
(1) Whether the appellant has proved that the judgment and decree dated 28.02.2005 is not based on the pleadings and evidence placed before it and needs interference by this Court?
(2) What order?
13. Upon re-appreciation of evidence first appellate court concurred with conclusions arrived at by trial court and dismissed appeal. Against concurrent findings, defendants are in appeal.
14. Heard learned counsel for appellants and respondents. Perused impugned judgment and decree and record.
15. Sri Suresh S.Gundi, learned counsel for appellants submitted that appeal was admitted on 22.03.2011 to consider following substantial question of law:
"Whether Courts could have overlooked a binding award between the parties for granting a relief contrary to terms of award and virtually sitting in judgment over terms of the award which undoubtedly binds the parties?"10
16. Learned counsel submitted that proviso in para 521(2)(c) of Sastry Award would clearly come into play in the instant case, as admittedly plaintiff was acquitted of charges in criminal case on benefit of doubt. Proviso justified that if acquittal is on benefit of doubt, employee be paid such portion of pay and allowances as management may deem proper and period of his absence shall not be treated as period spent on duty unless management so directs.
17. Relying upon decision of Hon'ble Supreme Court in the case of Union of India and others V/s Jaipal Singh reported in 2004(1) SCC 121, learned counsel submitted that in para 4 of judgment, wherein it has held that:
"xxxxxxx appellants are well within their rights to deny back wages to the respondents for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent."11
18. Relying upon decision in Ranchhodji C. Thakore Vs. the Superintendent Engineer, Gujarat Electricity Board reported in 1996(11) SCC 603, it was su bmitted that petitioner was involved in commission of offence under provisions of Indian Penal Code and was prosecuted for same. Hon'ble Supreme Court held that conduct of employee would be relevant as petitioner himself had involved in crime, though he was later acquitted, disabled himself from rendering services on account of conviction and incarceration in jail. Therefore, he would not be entitled for back wages. It was submitted that order of suspension was passed only due to he prosecuted for offences by police. Immediately after acquittal, as he was reinstated, appellant had rightly passed order regulating period of suspension by denying back wages in excess of subsistence allowance paid.
19. Learned counsel further relied upon decision of Hon'ble Supreme Court in Baldev Singh Vs. Union 12 of India & Others, reported in 2005 (8) SCC 747, wherein, it held that mere acquittal does not automatically entitle him to get salary for concerned period on the logic of 'no work no pay'. Reliance was also placed on decision of Hon'ble Supreme Court in Civil Appeal No.3894/2020 in the case of State of Rajasthan and other Vs. Love Kush Meena disposed of on 24.03.2021, wherein in paragraphs no.24, 25 and 27, Apex Court considering fact of acquittal of benefit of doubt on claim for reinstatement and back wages, held that disciplinary authority was nevertheless entitled to defer from findings in criminal trial and pass appropriate orders. It was held that same cannot be said to be suffer from infirmity.
20. In addition, learned counsel relied upon decision of Division Bench in Syndicate Bank Vs. A Raghupathy Bhat, reported in 2006 (1) KLJ 146 and High Court of Allahabad in the case of U.P.S.R.T.C. through Managing Director and 13 Others Vs. Presiding Officer Labour Court, Faizabad and Another reported in 2019 SCC OnLine All 5422, wherein under similar circumstances, it was held that employee would not be entitled to full wages for period of suspension.
21. Learned counsel would further submit that trial court committed grave error in granting prayer no.3 in suit which was not available for consideration as in earlier round of litigation, appeal insofar as prayer No.3 was dismissed in R.A.No.47/2003. Without noticing same, trial court as well as first appellate court granted said relief and therefore, interference was called for.
22. On the other hand, Sri Hanumanth Reddy Sahukar, learned counsel for respondents opposed appeal and supported judgment and decree passed by trial court. Learned counsel for respondent would submit that instant appeal is against concurrent finding and it is settled law that interference by High 14 Court against concurrent findings should be extremely limited or only on substantial question of law. Learned counsel further submitted that defendants have passed impugned order without holding any enquiry and admittedly without issuing show cause notice to plaintiff before passing impugned order.
23. From above submission, it is not in dispute that while plaintiff was working as security guard in defendant - bank, he was arrested on 17.03.1993 for offences under Sections 468, 471 and 420 of IPC. And that, defendant placed him under suspension due to his arrest. Subsequently, on 28.09.2001, he was acquitted of charges extending benefit of doubt. Thereafter defendant passed an order on 07.12.2001, reinstating him back into service and regulating his pay and emoluments for the period of suspension to subsistence allowance already received by him and treating said period as not spent on duty. 15
24. While plaintiff contends that said order was passed without complying with principles of natural justice and therefore, illegal, defendant seeks to sustain order on the ground that said order was passed in exercise of power under paragraph 521 (2)(c) of Sastry Award.
25. As substantial question of law framed also refers to said Award, it would be appropriate to refer to said provision. Paragraph 521(2)(c) of Sastry Award reads as follows:
" If he be acquitted, it shall be open to the management to proceed against him under the provisos set out below in sub-paragraphs (9) and (10) infra relating to discharges.
However, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice. And he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension; provided 16 that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowances as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so direct."
26. Submission of learned counsel for appellant would require reading of proviso as an independent clause. It is settled law that proviso cannot be read as an independent provision. In Dwarka Prasad v. Dwarka Das Saraf, reported in (1976) 1 SCC 128, after referring to several earlier decisions, it is held as follows:
"... The law is trite. A proviso must be limited to the subject-matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context.....
...If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the 17 enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction."
27. From a careful reading of entire provision harmoniously, for application of said provision, following conditions are to be satisfied:
Firstly, it should be a case of initiation of departmental proceedings as a result of employee facing criminal trial and if he has been acquitted of charges in criminal trial.
Secondly, management should have decided to continue domestic enquiry proceedings.
28. Upon conclusion of departmental enquiry, in respect of further course of action, two options are available to management. If after conclusion of 18 departmental enquiry, it decides not to continue employee in service, management would be liable to pay three months notice or salary for said period in lieu thereof. In such case, employee would be entitled to full salary and emoluments for the period of suspension.
The second option as per 'proviso' would arise if, in case, acquittal is on benefit of doubt, then management would be entitled to regulate pay and allowances for the period of suspension and same shall not be treated as spent on duty.
29. Admittedly, defendant in the instant case, has not decided to continue departmental proceedings. The case of defendant simply put is that, due to arrest of plaintiff in criminal case, he was placed under suspension. Upon his acquittal, he was reinstated into service. But, unlike in the decisions sought to be relied upon, defendant has not established that it was deprived of services of 19 plaintiff till his acquittal, due to he suffering jail sentence.
30. It is also not in dispute that before passing impugned order regulating pay and allowances for period of suspension, plaintiff was not afforded an opportunity of being heard. Impugned order in that regard was violative of principles of natural justice. Therefore, trial court was justified in concluding that defendant was not justified in invoking para 521 (2)(c)of Sastry award. As it is concluded above that invocation of said provisions in the instant case would not be justified, conclusion drawn by trial court cannot be said to be contrary to law. Likewise, dismissal of appeal by first appellate court concurring with reasoning of trial court also cannot be found fault with.
31. Contention of learned counsel for defendants that grant of consequential relief by trial court despite said relief having been refused in 20 earlier appeal would extend scope of appeal beyond substantial question of law framed. In any case, power exercised by trial court would be referrable to provisions of Order VII rule 7 of CPC, which reads as under:
"7. Relief to be specifically stated.- Even plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked fro. And the same rule shall apply to any relief claimed by the defendant in his written statement."
32. The law relating to relief claimed and moulding of relief is well settled. Plaintiff claiming alternative reliefs cannot be compelled to choose one of the reliefs claimed at the earliest point in the suit. When larger relief is claimed, granting of smaller relief would be permissible provided that same is not inconsistent with pleadings of parties. 21
33. The High Court of Patna in the case of Manan Singh V. Mostt. Lal Badan, reported in AIR 2006 Pat. 87, held, while exercising power under Order VII rule 7 of CPC, such relief which was not claimed and are not concerned with pleadings of parties cannot be granted.
34. In the instant case, plaintiff has sought for declaration that order dated 07.12.2001 passed by defendant no.2 be declared as illegal, null and void to the extent of "period of suspension will be treated as such and will not come for service, seniority, wages, pensions and increments". Though, relief of mandatory injunction to treat period of suspension as on duty and count for service, wages, pension and increment was disallowed by first appellate court, at the time of remanding the suit, grant of said benefit as a consequential order to the declaration sought for cannot be said to be inconsistent with pleadings or larger than the relief sought. Therefore even said contention does not hold water.
22
35. For the above reasons, substantial question of law framed does not arise for consideration in this appeal.
Accordingly, appeal is dismissed.
Sd/-
JUDGE CLK / p sg *