Central Bank Of India vs Union Of India And Others
2012 Latest Caselaw 1797 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 

 
Court No. - 9
 

 
Case :- SPECIAL APPEAL No. - 2087 of 2011
 

 
Petitioner :- Central Bank Of India
 
Respondent :- Union Of India And Others
 
Petitioner Counsel :- M.B. Saxena,Himmanushu.Tiwari.
 
Respondent Counsel :- A.S.G.I.,Bushra Maryam
 

 
Hon'ble Yatindra Singh,J.

Hon'ble Mohd. Tahir,J.

1. The only point involved in the special appeal is, whether in the circumstances of the case, the question regarding validity of dismissal of Shri Brahamanand Agarwal (the contesting respondent) can be again agitated before the Industrial Tribunal, after it was upheld by the civil court.

THE FACTS

2. The contesting respondent joined the Central Bank of India (the Bank) on 16.8.1962 as a clerk. He was promoted as Sub-Accountant, a Junior Management Grade Scale 1 post on 13.3.1978.

3. In mid 1980's, certain irregularities, said to be committed by the contesting respondent, came to the knowledge of the Bank. The Bank started disciplinary proceedings under the Central Bank of India Officers, Employees (Discipline and Appeal) Regulations, 1976 (the Regulations) against the contesting respondent. A charge sheet dated 4.12.1985 was served upon him.

4. The charges were basically that the Bank was defrauded to the tune of Rs.2,00,800.01 due to lapses and irregularities of the contesting respondent. The details of lapses and irregularities were also mentioned in the charge sheet.

5. A regular enquiry was held and thereafter, the contesting respondent was dismissed from service on 16.7.1987. His appeal under the Regulations was dismissed on 21.9.1987.

6. The contesting respondent filed original suit no. 39 of 1988 in the court of Munsif, Jhansi for declaration that the dismissal order dated 16.7.1987 and the appellate order dated 21.9.1987 were illegal and void.

7. The aforesaid suit was decreed on 23.8.1994 on the ground that no reasonable opportunity was given to the contesting respondent.

8. The Bank filed civil appeal no. 106 of 1994. It was allowed on 28.4.1995. The finding recorded by the trial court that no reasonable opportunity was afforded, was set aside.

9. The contesting respondent filed second appeal no. 780 of 1995 before this court. It was dismissed on 28.4.1995.

10. The contesting respondent filed writ petition no. 20326 of 1998 the earlier WP) for a direction to the Bank to reinstate the petitioner in service and also to pay salary to him from month to month. This writ petition was dismissed on 4.5.2007 on the ground of alternative remedy of raising an industrial dispute.

11. The contesting respondent raised an industrial dispute. The Central Government referred the dispute vide L-12012/70/2008-IR(B-II) dated 4.2.2009 to the Central Government Industrial Tribunal, Kanpur for adjudication. The reference is as follows:

'Whether the action of the management of Central Bank of India, Regional Officer Jhansi, dismissing Sri Brahamanand Agarwal, Sub Accountant of Central Bank of India, Bara Bazar Branch, Jhansi from the bank service vide order dated 16.07.2007, of Disciplinary Authority is illegal and justified? What relief the workman concerned is entitled to?'

12. The Bank filed writ petition no. 1332 of 2010 against the aforesaid reference. It was dismissed on 17.8.2011. Hence, the present special appeal.

13. We have heard Sri M.B. Saxena and Sri Himanshu Tiwari, counsel for the Bank and Ms. Bushra Maryam, counsel for the contesting respondent.

THE DECISION

Dismissal Upheld In Civil Litigation--Cannot Be Reopened

14. The contesting respondent was dismissed from service on 16.7.1987. His departmental appeal was dismissed on 21.9.1987. The contesting respondent challenged these orders by means of original suit no. 39 of 1988.

15. The aforesaid suit was decreed, but civil appeal no. 106 of 1994 against the same was allowed and the suit was dismissed. Thereafter, the second appeal no. 780 of 1995 filed by the contesting respondent was dismissed. This court held that reasonable opportunity was offered. This judgement has become final.

16. The contesting respondent had started civil proceeding on the cause of action of his dismissal of service. It has attained finality: the principle of res judicata applies. With finalisation of civil proceeding, the question regarding legality or justifiability of the contesting respondent's dismissal has become final. It cannot be reopened.

Earlier WP--Question Not Reopened

17. The counsel for the contesting respondent submits that;

The earlier WP (WP 20326 of 1998) filed by the contesting respondent was dismissed on the ground of alternative remedy of raising industrial dispute;

The contesting respondent raised an industrial dispute;

The writ petition filed by the Bank was rightly dismissed by the single judge.

18. The counsel for the Bank submits that;

The order passed by the single judge in writ petition no. 20326 of 1998 is contradictory;

Once the single judge was not granting any relief against the dismissal order, then there was no question of granting any salary or dismissing the writ petition on the alternative remedy for raising dispute for claiming salary before the industrial tribunal;

So far as the salary is concerned, it can only be given provided the dismissal order was set aside;

The writ petition was dismissed. Any observation in that judgement against the Bank are not binding as the Bank could not file any appeal against the same.

19. It is not necessary for us to consider the submissions raised by the counsel for the Bank as in our opinion the single judge had not granted any liberty to raise the industrial dispute, so far as the dismissal was concerned. In our opinion, no reference could be made on the question regarding legality or justifiability of the dismissal order.

20. The earlier WP filed by the contesting respondent was essentially for a direction to the Bank to reinstate him in service and to pay him the salary month to month.

21. In the aforesaid writ petition, it was conceded that dismissal order was valid. However, it was claimed that there was some settlement between the Bank and the contesting respondent and on that ground, he was entitled to salary. Only this dispute was permitted to be reopened not any other dispute. This is clear from the judgement in the writ petition. The relevant part of the judgement is appended as Appendix-1.

22. In our opinion, the single judge had neither permitted the contesting respondent to raise the industrial dispute regarding his dismissal, nor it could be legally done as the question was finally decided by the civil court against the contesting respondent.

Rulings Distinguishable--Civil Court Jurisdiction Cannot Be Challenged

23. The counsel for the contesting respondent has cited State of Haryana and others Vs. Bikar Singh, 2006 (110) FLR 620; Rajasthan State Road Transport Corporation and others Vs. Deen Dayal Sharma, 2010 (126) FLR 407; and The Premier Automobiles Ltd. Vs. Kamlakar Shantaram Wadke and others, AIR 1975 SC 2238. The counsel submits that;

The contesting respondent was a workman and the dispute regarding his dismissal was an industrial dispute;

The civil court had no jurisdiction to go into this question;

The reference regarding validity of the dismissal is not barred and should be decided by the Industrial Tribunal;

The decisions cited by the counsel for the contesting respondent are distinguishable.

24. The facts of these cases are as follows:

The suits were filed by the workman before the civil court after their dismissal or for improving their service conditions;

It was admitted case that the plaintiffs were workmen and were claiming rights under the Industrial Disputes Act;

The suits were decreed and the management had taken the matter before the Supreme Court.

The jurisdiction of the civil court was challenged by the defendant management in the proceedings arising out of the suit itself.

This is not the case here.

25. The facts of this case are different than the facts of aforesaid cases. In this regard the following circumstances are relevant:

It is not admitted that the contesting respondent was a workman. The Regulations apply to an officer and not to the workman. The action was taken against the contesting respondent treating him to be an officer and not a workman.

The contesting respondent never took up the plea in the disciplinary proceedings or the civil suit filed by him that the Regulations do not apply to him as he is a workman;

It was the contesting respondent, who had filed the suit for declaring his dismissal as illegal and void. It is only when he lost the case that he started saying that he is workman.

These facts distinguish it from the cases cited by the counsel for the contesting respondent.

26. In this case, the suit was filed by the contesting respondent and the Bank had taken up a plea that the civil court had no jurisdiction. This issue was decided against the Bank. The first appellate court and this court in second appeal has not overruled that part of the decision but they had decided the case on merits treating the civil court to have jurisdiction over the subject matter.

27. The judgement of civil court can neither be challenged in the collateral proceedings nor can be challenged by the contesting respondent, who had himself filed the suit. There was no inherent lack of jurisdiction in the civil court. The contesting respondent cannot turn back and say that the suit was not maintainable: he is estopped.

28. In our opinion, the question regarding validity of the dismissal has already been decided in the civil suit and thereafter conceded in writ petition no. 20326 of 1998. There was no justification to refer it again for adjudication before industrial tribunal. It is not only waste of time but also amounts to abuse of the process of court.

CONCLUSIONS

29. Our conclusions are as follows:

(a) The question regarding legality and justifiability regarding the dismissal order has been decided by the civil court. It cannot be reopened by means of reference before the industrial tribunal;

(b) The civil court had decided that it had jurisdiction. It is not admitted case that the contesting respondent was a workman. There is no inherent lack of jurisdiction. The finding in civil litigation cannot be challenged in the collateral proceedings;

(c) In the earlier writ petition no. 20326 of 1998, the question regarding validity of dismissal order was neither opened, nor could it be reopened.

30. In view of our conclusions, the special appeal is allowed. The entire proceedings before the Central Government Industrial Tribunal, Kanpur in reference No. L-12012/70/2008-IR(B-II) dated 4.2.2009 be dropped.

Order Date :- 16.5.2012

SP

Appendix -1

The relevant part of judgement dated 4.5.2007 in the earlier WP (WP 20326 of 1998) are as follows. There are some clerical mistakes and we have added correct words in square bracket after scoring the incorrect words.

...

The learned counsel for the petitioner has lastly urged that the matter has been decided in the earlier writ petition [civil suit], hence he is making it clear that he had not challenged the order of termination but has only prayed for payment of his salary as that would amount to re-opening of the case which has already attained finality vide judgement in the earlier proceedings culminating in judgement in Second Appeal. Even if the petitioner is acquitted in the criminal case, in view of settled law that will not be in his favour, as his services had been terminated after departmental enquiry which attained finality vide judgement in the earlier writ petition [civil suit].

Per contra, if the payment of salary of the petitioner is made it will open a Pandora box which has already attained finality in the earlier proceedings. If the petitioner was aggrieved he could have prayed the court for payment of the salary which he did not do so and as such it will be deemed that all the questions raised in this writ petition had already been raised and decided in the earlier writ petition.

For the reasons stated above, I am not inclined to interfere in the impugned order under Article 226 of the Constitution.

The petition is accordingly dismissed on the ground of alternative remedy within two months from today. The petitioner may, if so advised, raise an industrial dispute before the Labour Court/Industrial Tribunal. Since the petitioner is alleging that he has been made payment of the amount under the settlement entered into between the petitioner and the Bank, the same can be settled in the industrial dispute where the parties can lead oral and documentary evidence in support of their case. Suffice it to say that even any pecuniary loss has been caused and the petitioner has deposited the money the Labour Court can still come to a conclusion that the petitioner has committed misconduct or not.

Dated 4.5.2007