Karnataka High Court
B.A. Bhat vs Syndicate Bank And Ors. on 5 April, 1989
Equivalent citations: (1990)ILLJ266KANT
JUDGMENT
1. At the stage of preliminary hearing notice was ordered to the respondents. Accordingly, learned counsel, Sri Radhesh Prabhu, has entered appearance on behalf of the respondents and the statement of objections is also filed. As the petition turns upon a short point, rule is issued and it is heard for final disposal.
2. In this petition under Article 226 of the Constitution, the petitioner has sought for the following reliefs :
To -
(a) declare by the issue of an appropriate writ, order or direction, as the case may be, declaring the view entertained by the Disciplinary Authority in proceeding with the enquiry proceedings against the petitioner pursuant to the liberty reserved by this Hon'ble Court, without reinstating the petitioner in service and granting him all consequential benefits flowing from the success of the petitioner in the writ petition, as illegal, arbitrary and void, with a further declaration that the respondents would not get authority and power to proceed with the petitioner in the enquiry proceedings until and unless he is reinstated in service with all consequential benefits;
(b) issue a writ in the nature of mandamus or order or direction, as the case may be, directing the respondents not to proceed with the enquiry proceedings against the petitioner until and unless he is reinstated in service with all consequential benefits flowing from the quashing of the order of dismissal passed against him; and
(c) pass such other orders just and expedient in the circumstances of the case including the award of costs in the interest of justice and equity.
3. The petitioner has been compelled approach this court because of the reply given by the first respondent-bank as per annexure M Having regard to the contentions urged on both sides, the following points arise for consideration.
(1) Whether the petitioner is entitled to have a direction issued to the respondents to reinstate him and to pay back wages ?
(2) Whether the aforesaid relief is barred by res judicata ?
(3) Whether the granting of the aforesaid relief covered by point No. 1 amounts to review of the order of this court in W.A. No. 567 of 1985 ?
4. Points 1 to 3 :
As all the three points are interconnected, therefore, it is convenient to deal with all of them together. Accordingly. all the three points are considered together.
5. The facts necessary for the purpose of deciding the aforesaid points, are not in dispute and the same are as follows :
(a) The petitioner was an office-employee in the first respondent-bank. There was a disciplinary proceeding initiated against him which ended in an order of dismissal passed on 31st December, 1976. During the period of inquiry and till the date of dismissal, the petitioner was in service and he was never kept under suspension. Aggrieved by the order of dismissal, the petitioner preferred an appeal before the appellate authority which also ended against him. Therefore, the petitioner approached this court in W.P. No. 10165 of 1977 to have the order of dismissal of the disciplinary authority and also that of the appellate authority, quashed and further to have him reinstated into the back with all consequential benefits. The writ petition was allowed. The relevant portion of the order passed in W.P. No. 10165 of 1977 on 1st February 1985, was as follows :
"Rule extracted above except making provision for having a representative has not specified designation of a person who could represent a delinquent official. By restricting petitioner to have representative of the cadre of an officer colleague and not providing sufficient time to avail of assistance of an officer colleague, petitioner has been undoubtedly denied the reasonable opportunity of getting defended. An enquiry held without providing sufficient opportunity to nominate his representative is vitiated on account of non-compliance of principles of natural justice. On behalf of respondents, it is vehemently urged that petitioner has cross-examined witnesses and examined his own witnesses and irregularity, if any, in not permitting the petitioner to have a representative of his choice or not providing sufficient time has not caused any prejudice. Hence, there is no good ground to interfere. Faced with the situation there was no other alternative except to proceed with the enquiry under protest; he might have cross-examined and also examined defence witnesses, but his plea that representative would had done better and got him exonerated cannot be brushed aside so lightly. As per rule extracted he is not only entitled to appear by himself but also appoint a representative. It is not unlikely that refusal had caused serious prejudice. Hence, both on the ground of denial of opportunity to defend his case through Sadashiva time was not provided ground that sufficient time was not provided to make alternative arrangement after B. V. Bhat expressed his disinclination to defend him vitiated the impugned order of punishment.
Pursuant to second show cause notice issued by disciplinary authority apart from pleading innocence he has pleaded for lenient view in case of acceptance of enquiry report. The relevant portion of consideration by disciplinary authority reads thus :
"He has submitted his written submission dated 30th December, 1976, Wherein I find that he has reiterated his earlier stand and attacked the findings of the enquiry officer. I have very carefully considered his written submission and in my view, there is no substance."
Likewise appellate authority has not considered whether finding based on material placed could be sustained or otherwise. None of the contentions urged by the petitioner are considered. There is no application of mind. Non-consideration of representation or explanation offered by the petitioner pursuant to second show-cause notice in the proper perspective vitiate impugned order. Finding on these two aspects is sufficient to invalidate impugned order and it is unnecessary to examine merits or demerits of other contentions urged . .
Accordingly, writ petition succeeds, impugned orders are quashed reserving liberty to respondents to proceed with enquiry from the stage at which infirmity has occurred if they so desire. Rule made absolute."
6. The respondents Nos. 1 and 2 herein being aggrieved by the aforesaid order passed in the writ petition went up in appeal in W.A. No. 567 of 1985. The Division Bench, by its order dated 30th September 1988, disposed of the appeal in the following terms :
"4. As has come in the earlier part of the judgment, the learned single judge has also expressed his opinion with regard to the point that proper opportunity of defending the case has not been given to the respondent. In our view, in the wake of the finding which we have recorded above, it is not necessary to go into this aspect of the matter. Even the learned single judge could have avoided giving a finding on this issues as the matter should have been remitted to the disciplinary authority for deciding the whole case afresh in accordance with law. In this view of the matter, we would prefer not to express any opinion on this aspect of the matter as the same also has to be considered by the disciplinary authority, and the finding recorded by the learned single judge in this regard is set aside.
5. At the stage, it may be observed that M. Patil appearing for the respondent is agreed to the proposed order which Mr. Radesh Prabhu, learned counsel for the appellants. Though he vehemently advanced his arguments on the first point decided against the bank by the learned single judge, has not been able to convince that we should not adopt this course.
6. For the reasons recorded above we modify the order of the learned single Judge to this extend that the findings on point No. 1 is set aside and the matter is remitted to the disciplinary authority for deciding the whole case in accordance with law in the light of the representation made by the respondents delinquent and the observations made by us in the judgment. In the circumstances of the case, we make no order as to costs."
7. The case of the petitioner is that, as a result of remitting the disciplinary proceeding to the stage at which it was pending on the date he filed the reply to the show cause notice issued pursuant to the findings submitted by the Inquiry Officer, further proceedings can be proceeded with only on reinstating the petitioner and on payment of backwages. The contention of the petitioner is that such a relief flows out of the order passed in the writ petition. On the contrary, it is contended on behalf of the respondents that there was no specific direction issued for reinstatement of the petitioner and payment of backwages, therefore, the petitioner is not entitled to seek such a relief. Such a relief, it is contended, must be deemed to have been refused as not arising out of the order. Even otherwise, granting of such a relief would amount to review of the decision of the Division Bench that the petitioner cannot demand reinstatement as a condition precedent for proceeding with the disciplinary proceeding.
8. It appears to me that the bank is not well advised in taking up this stand in the facts and circumstances of this case, and in view of the legal position that flows out of the order passed by this Court. The employment under a nationalised bank is not a matter of contract. Though an employment under a nationalised bank, which stands in the position of a "State" for all purpose, to start with may be a contact, when once a person enters the employment it becomes a matter of status and it is governed by the Rules and Regulations. In Roshan Lal Tandon v. Union of India, (1968-I-LLJ-576), the law on the point is stated thus (at pp. 582-583);
"The legal position of Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties ... But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law, and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned."
9. Therefore, once the order of dismissal, passed as a result of a disciplinary proceeding, is quashed and the matter is remitted to the disciplinary authority to start from the stage of receipt of the explanation, the order of dismissal which had put an end to the status of the petitioner as an officer-employee of the bank disappears and the status of an employee automatically gets restored. This Court, when it allowed the writ petition with the reliefs contained therein regarding the consequential benefits, though the order did not state in express terms that the consequential benefits also were granted, such directions flowed from granting the main relief itself. The order of a Court should not be read as a statute. It should be read and construed in the light of the facts of the case and the reliefs sought for. The necessary consequence of the order allowing the writ petition and quashing the impugned order was that the status of the petitioner as an officer of the bank stood reinstated, because on the date of the order of dismissal was passed and during the pendency of the inquiry proceedings, the petitioner was not kept under suspension. He continued to be in service as a fullfledged employee of the bank and was paid full pay and allowances. If upto the date of dismissal an employee was continued in service, as a consequence of quashing the order of dismissal such employee would, in law, be entitled to be reinstated. Such a direction in the facts and circumstances of the case flows as a matter of course. The contention that it is not permissible for the Court to grant reinstatement and back wages is only to be stated to be rejected. It is not an inflexible rule. It may be so where the employment is under a contract; it does not apply to a case where the service is a matter of status and is not a matter of contract and it is governed by the Rules and Regulations.
10. However, the learned counsel for the respondents has placed reliance on paras 17 and 18 of the Judgment of the Supreme Court in M. D. U. P. Warehousing Corporation v. Vijay Narayan Vajpayee, (1980-I-LLJ-222). In that case, the Supreme Court observed thus at p. 228) :
"Further contention of the learned counsel for the appellants is that even if the dismissal of the respondent was wrongful, the High Court could only quash the same, but it could not in the exercise of its certiorari jurisdiction under Article 226 of the Constitution give the further direction that the employee should be reinstated in service with full back-wages. It is maintained that in giving this further direction the High Court had overleaped the bounds of its jurisdiction.
There appears to be force in this contention. It must be remembered that in the exercise of its certiorari jurisdiction under Article 226 of the Constitution, the High Court acts only in a supervisory capacity and not as an appellate Tribunal. It does not review the evidence upon which the inferior Tribunal purported to base its conclusion; it simply demolishes the order which it considers to be without jurisdiction or manifestly erroneous, but does not, as a rule, substitute its own view for those of the inferior Tribunal. In other words, the offending order or the impugned illegal proceedings is quashed and put out of the way as one which should not be used to the detriment of the writ petitioner. Thus, in matters of employment, while exercising supervisory jurisdiction under Article 226 of the Constitution, over the orders and quasi judicial proceeding of an administrative authority - not being a proceeding under the industrial/labour law before an Industrial/labour Tribunal - culminating in dismissal of the employee, the High Court should ordinarily, in the event of the dismissal being found illegal, simply quash the same and should not further give a positive direction for payment to the employee full back-wages (although as a consequence of the annulment of the dismissal, the position as it obtained immediately before the dismissal is restored). Such peculiar powers can properly be exercised in a case where the impugned adjudication or award has been given by Industrial Tribunal or Labour Court. The instant case is not one under Industrial/labour Law. The respondent-employee never raised any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal. He directly moved the High Court for the exercise of its special jurisdiction under Article 226 of the Constitution for challenging the order of dismissal primarily on the ground that it was violative of the principles of natural justice which required that his public employment should not be terminated without giving him a due opportunity to defend himself and to rebut the charges against him. Furthermore, whether a workman or employee of a statutory authority should be reinstated in public employment with or without full back-wages, is a question of fact depending on evidence to be produced before the Tribunal. If after the termination of his employment the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not the reinstatement should be with full back-wages and with continuity of employment. For these two-fold reasons, we are of the opinion that the High Court was in error in directing payment to the employee full back-wages"
11. It is relevant to notice in this regard that this court allowed the writ petition in which the consequential relief of reinstatement was sought for. It must be deemed to have been granted having regard to the context in which the reliefs were prayed for and the order allowing the writ petition was passed. This court did not consider the matter for the first time as the first authority. What was challenged in the writ petition was validity of the disciplinary proceeding and the orders passed therein. Once those orders were quashed automatically the status of the petitioner as an employee of the bank stood restored and the service continued without break. Therefore, the consequential relief of reinstatement must be deemed to have been ordered. Therefore, the decision in M.D.U.P. Warehousing Corporation's case, (supra) cannot be held to support the case of the bank. Even on a close scrutiny of the decision it is relevant to notice that the aforesaid underlined portion does support the case of the petitioner. The petitioner has challenged the disciplinary proceeding which has resulted in the dismissal of the petitioner from service.
12. The contention that the relief of reinstatement and back-wages must be deemed to have been refused as there was no specific direction issued in this regard, is also not based upon proper reading of the order of this court. As already pointed out, the order of the court should not be read as a statute. It should be read in the context in which it is passed. The order allowing the writ petition did amount to granting the relief of reinstatement and payment of backwages, because in the absence of an order of dismissal the petitioner should have been continued in service and should have been entitled to pay of wages, because he was not kept under suspension during the course of inquiry and was continued in service till the date of dismissal.
13. The contention that the relief prayed for by the petitioner if granted would amount to review of the order of the Division Bench cannot also be accepted. It is already pointed out that on a proper and reasonable reading of the order allowing the writ petition, reinstatement and back-wages must be deemed to have been granted. The bank has refused to reinstate the petitioner in service and pay the back-wages on the ground that there is no specific direction issued by this court. Therefore, the question of reviewing the order passed in W.A. No. 567 of 1985 which affirmed the order of the learned single judge except to the extent it modified the order regarding the conditional remand made by the single judge, does not arise. The writ petition is only to enforce those directions which have been already issued in W.P. No. 10165 of 1977. Even otherwise, it is also not possible to hold, and it cannot also be held, that a relief which has not been specifically refused, and which as a matter of courses flows out of the relief granted by the court, should be held to have been refused, on the ground that it is not expressly granted, therefore it must be deemed to have been refused and therefore the provisions of Section 11 of the Civil Procedure Code are attracted.
14. No doubt, the rule of res judicata affects the jurisdiction of a court. But, while applying the rule of res judicata, the court has to take care to see that the application of the said rule is not stretched to such an extent or applied in such a manner, that the party who is entitled to the relief and such relief is deemed to have been granted, is deprived of the same. In the instant case, if the contention of the respondents that there was no specific direction issued regarding reinstatement and pay of back-wages and, therefore, it must be deemed to have been refused is accepted, it would amount to even denying the relief that already stands granted in the writ petition, which the bank, on not reading the order correctly, has refused to grant the same to the petitioner. Thus I am of the view that the contention of the respondent based on the rule of res judicata is not well founded. It is misconceived. It is accordingly rejected.
15. For the reasons stated above all the three points raised for determination are answered against the respondents.
16. There is one more contention urged on behalf of the respondents that the petitioner cannot make it a condition precedent that he should be reinstated and back-wages must be paid before proceeding with the enquiry. This contention is also not well founded. On the quashing of the order of dismissal it becomes the bounden duty of the respondents to reinstate the petitioner back into service and restore the position which he enjoyed on the date the order of dismissal was passed. Back has refused to reinstate the petitioner and pay him the back-wages. It wants to proceed with the enquiry without reinstating the petitioner and without paying him the back wages which cannot be held to be permissible, because on the quashing of the order of dismissal the petitioner continues to be in service. He gets reinstated into the bank service and continuity of the service is also available to him. That being the legal consequence the bank cannot refuse to reinstate him and it cannot without reinstating insist upon proceeding with the enquiry.
17. The contention of the bank is that the petitioner is not entitled to back-wages, because after the order of dismissal, the petitioner was gainfully employed. This has been specifically denied by the petitioner. If only the back had furnished the details about the employment undertaken by the petitioner during this period, the plea of employment under another would have led to an issue. The plea raised by the bank is as follows :
"It is reliably learnt that the petitioner has been gainfully employed ever since the earlier order of dismissal. The petitioner is not entitled to any relief of reinstatement or back-wages."
This is a vague statement. It does not give particulars of employment. There cannot be an employment without an employer and the bank, being such a mighty organisation, is not expected to make such a vague statement. Instead of putting up a vague plea it should have held an enquiry and ascertained necessary particulars of employment, and raised a proper plea based upon such enquiry. The petitioner has denied that he was employed ever since the order of dismissal was passed. That being so, as the bank has specifically invited the Court to record a finding in this regard, the court has no option but to record a finding that it is not proved that the petitioner was gainfully employed after the order of dismissal was passed. Therefore, the bank cannot refuse to pay the back-wages.
18. For the reasons stated above, writ petition is allowed in the following terms :
(1) Respondents are directed to reinstate the petitioner and pay the back-wages and then proceed with the enquiry as directed by this court in W.P. No. 10165 of 1977 and W.A. No. 567 of 1985. Compliance in one month from the date of receipt of this order.
(2) In the light of the stand taken by the bank, the petitioner is entitled to costs also. Accordingly, the respondent shall pay the costs. Advocate's fee Rs. 1,000.