Delhi High Court

S.P. Sharma vs Punjab National Bank on 2 August, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Judgment Reserved on: 29.07.2010
                                  Judgment Delivered on: 02.08.2010

+                          R.S.A.No. 35/2007


       S.P. Sharma                             ...........Appellant

                   Through:       Mr. S.K. Chaudhary and Mr. A.P.
                                  Shaunak, Advocates.

                           Versus

       Punjab National Bank                    ..........Respondent

                   Through:       Mr.P.K. Dhamija and Mr. R.P. Vats,
                                  Advocates.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                       Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal is directed against the impugned judgment dated

27.10.2006 endorsing the finding of the trial court dated

17.02.1996 whereby the suit of the plaintiff/appellant had been

dismissed.

2. Briefly stated the factual matrix of the case is as follows:-

(i) Appellant was working as a Manager with the

respondent bank. A departmental enquiry was held

against him on charges of misappropriation of funds,

abuse of official position, falsifying of record. Enquiry

officer held him guilty; major punishment of dismissal

was awarded to him.

(ii) Plaintiff filed a suit for declaration seeking the

following reliefs:

(a) the report of the Enquiry Officer be declared as

null and void;

(b) his removal from services be quashed;

(c) he be reinstated.

(iii) Prior to the filing of the suit, the appellant had

preferred a writ petition being No. CWP No.

4293/1993. The prayers sought were:-

(a) For setting aside the impugned order dated

15.05.1992 dismissing the petitioner from

service, quashing and setting aside the order

dated 16.11.1992 passed by the appellate

authority, order dated 22.07.1993 passed by

Reviewing Authority rejecting his review petition.

(b) Further directions for reinstatement were sought

along with consequential benefits.

(iv) While disposing of the said petition on 9.9.1993, the

Division Bench of this court had inter alia held as

follows:-

"In our opinion principles of natural justice have been complied with. Petitioner was given adequate opportunities for filing a representation after the receipt of the enquiry report. He had to file a representation by 28th March, 1992 but he chose not to do so. An order was passed by the Disciplinary Authority on 15th May, 1992. It is contended by counsel for the petitioner that on 11th May, 1992, a representation was sent which was received in the office of Disciplinary Authority on 13th May, 1992. It is possible that this representation may not have been brought to the notice of the Disciplinary Authority but the Disciplinary Authority cannot be faulted for the simple reason that the representation had to be

filled by 28th March, 1992 and was filed much later than that date. Be that as it may, the said representation has been dealt with on merits at length by the Appellate Authority who has come to the conclusion that the serious and grave charges against the petitioner stand proved and principles of natural justice had been complied with. We find no infirmity in the conclusion. Dismissed."

(v) A Review Petition had preferred against the said order

which had also been dismissed on 2.11.1993. The

relevant extract of the said order inter alia reads as

follows:

"We do not find any error apparent from our order dated 9th September, 1993 whereby the writ petition of the petitioner was dismissed. No ground for review has been made out. Learned Counsel seeks to reply upon a subsequent decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar & Others decided on 1st October, 1993. That decision inter alia lays down the principle that copy of the Enquiry Report has to be given and representation considered by the Disciplinary Authority. We have held that copy of the Enquiry Report was given to the petitioner in the present case but he chose not to file representation within time. Representation is alleged to have been received in the office of the Disciplinary Authority two days before passing of his order and in any case that representation has been dealt with at length on merits by the Appellate Authority. It is also contended by the learned counsel that the Enquiry officer has found that the charges of forgery have not proved and it is not open to the counsel to raise this contention, while arguing review application. We have upheld the conclusion of facts of the Appellate Authority and we have not gone into the merits re-appreciating evidence. We find no merit in this application.

Dismissed."

(vi) Special Leave Petition against the orders of the High

Court was also dismissed on 21.02.1994.

(vii) In view of this factual position, trial judge had framed

the following preliminary issues in the suit:

(a) Whether the suit is barred under the general

doctrine of res judicata?

(b) Whether the suit is not maintainable?

Both these issues were decided against the plaintiff and

in favour of the defendant bank.

(viii) It was held that the allegations and averments in the

writ petition and the suit were directly and

substantially the same; relief claimed in both the

proceedings was the same. Bar of res judicata as

contained in Section 11 of the Code of Civil Procedure

(hereinafter referred to as the `Code') was attracted.

Suit was dismissed.

(ix) On 27.10.2006, this decision of the trial court was

endorsed by the first Appellate Court. It was

contended before the first Appellate Court that the

investigation report had come to the knowledge of the

appellant much after the enquiry; further while

dismissing the Review Petition, the High Court had

categorically stated that it had not gone into the merits

of appreciating evidence; doctrine of res judicata was

thus inapplicable.

3. This is a second appeal. On 10.05.2007, the following

substantial question of law was formulated:

"Whether the suit filed herein before the court below is barred by the principle of res judicata?"

4. The submissions propounded before the first Appellate Court

have been reiterated here as well. It is further argued that the

provisions of Section 11 of the Code are not attracted in view of the

fact that the writ petition was dismissed on 09.09.1993 without

notice to the respondent; proceedings were not contested; question

of the matter having been heard and finally decided did not arise.

Attention has been drawn to explanation III of Section 11 of the

Code; it is submitted that in the absence of notice to the

respondent, the question of an admission of the facts alleged or

denied whether explicitly or implicitly did not arise. The doctrine

was misapplied.

5. Counsel for the appellant has placed reliance upon a

judgment of the Apex Court reported in AIR 1969 Allahabad 466 (V

56 C 84) Nawab Hussain, Plaintiff-Appellant Vs. State of U.P.,

Defendant-Respondent to substantiate the submission that it is only

after a contest that the proceedings in the former suit can operate

as res judicata in the subsequent suit. For the same proposition

reliance has also been placed upon AIR 1965 Supreme Court 1153

State of U.P. Vs. Nawab Hussain, wherein the Supreme Court had

stated that the wholesome rule of res judicata based upon public

policy cannot be stretched too far to make it almost unworkable.

Reliance has also been placed upon AIR 1979 SC Hoshank Singh

Vs. Union of India to support the submission that a writ petition

dismissed in limine would not constitute a bar of res judicata to the

subsequent petition. Reliance upon AIR 1981 SC 1621 Kirti Kumar

Vs. Union of India has been placed to support the submission that

this doctrine is inapplicable to cases where the two forums have

separate and independent jurisdictions; applying this proposition it

is submitted that the proceedings in the writ court and the

proceedings in the subsequent suit were before two independent

forums which were having independent jurisdictions.

6. Respondent has countered these arguments. It is submitted

that the Division Bench has passed a reasoned and speaking order

after taking into account the pleadings made in the writ petition as

also the documents annexed thereto. The doctrine of res judicata

had rightly and correctly been applied by the two courts below.

7. To answer this proposition, it would be necessary to examine

the pleadings in the writ petition, the orders passed therein as also

the pleadings in the subsequent suit proceedings and the relief

claimed.

8. The writ petition was filed under Article 226 of the

Constitution of India seeking a writ of mandamus/certiorari. The

prayers made thereunder have been aforenoted. This writ petition

runs into 42 pages and the prayers are five in number. The body of

the petition states that the orders passed by the Enquiry Officer,

endorsed by the Disciplinary Authority and thereafter by the

Appellate and the Reviewing Authority are illegal for the reason

that they have violated the statutory regulations of the Punjab

National Bank Officers Employees Regulations. Further, the

Enquiry Officer had not followed the rules of natural justice which

has gravely prejudiced the case of the appellant. Along with the

petition, the petitioner had annexed various documents running

from page- 44 to page 183 of the paper book. The questions of law

raised in the petition find mention at page 3 of the body of the

petition.

9. It was on these pleadings that the order dated 9.9.1993 was

passed. Although this order was passed on the first hearing and

without notice to the respondent yet a perusal of the order running

into almost one page clearly shows that all grievances of the

petitioner as contained in the writ petition had been gone into and

dealt with. His submission on the question of violation of the

principles of natural justice had been specifically dealt with. The

Division Bench had noted that opportunity had been granted to the

appellant to file his representation against the order of the Enquiry

Officer within a time span i.e. upto 28.03.1992 but the appellant

had chosen not to comply with the directions. It had further noted

that in spite of a late representation made by the appellant which

had reached the Disciplinary Authority only on 13.05.1992; yet the

said representation had been dealt with on merits at length by the

Appellate Authority. Writ petition had accordingly been dismissed.

10. The Review Petition filed by the petitioner also ran into 50

pages. The grounds of review were contained on page 2. Along

with the review petition, documents running from page 53 to page

295 had been filed. Division Bench had reviewed its order on

2.11.1993. This order also ran into almost one page.

11. It is in this factual context that the application of the rule of

res judicata has to be appreciated. The judicial pronouncements

available in this regard also have to be appreciated.

12. In AIR 1965 SC 1153 Gulabchand Vs. State of Gujarat, the

Supreme Court had made the following observations:

"If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it

would be a bar."

Applying this proposition in the light of the facts of the

instant case it can safely and assuredly be said that the writ

petition No. 4293 of 1993 although dismissed in limine on 9.9.1993

(without notice to the respondent) yet the order passed was clearly

on the merits of the case. It was a speaking and a vocal order. It

had juxta-positioned the arguments of the petitioner and in the

context of the pleadings made in the petition held that there has

been no violation of the principles of natural justice calling for any

interference in the orders passed by the Enquiry Officer and the

subsequent hierarchy of the officers of the Department.

13. The further submission of the appellants that the

observations of the review court while disposing the review

petition on 2.11.1993 that: that we have not gone into the merits of

re-appreciating evidence clearly shows that the writ court had not

gone into the merits of the evidence before the appellate authority

has little force. These observations of the Division Bench were

made at the time when they were reviewing its earlier order dated

9.09.1993; thereby necessarily meaning that on 9.09.1993 this

exercise had already been concluded and the reviewing court was

not reviewing it again. As such, this vehement argument of the

appellant does not in any manner come to his aid.

14. The examination and scrutiny of the pleadings filed in the

writ petition and the pleadings in the suit show that they are by

and large the same. The parties are undisputably the same. The

questions which had arisen both in the writ petition and in the

subsequent suit related to the enquiry proceedings initiated

against the appellant and the legality/illegality of the orders passed

by the Enquiry Officer, the Disciplinary Authority, the Appellate

Authority and the Reviewing Authority. The matters in issue were

substantially and on the whole the same i.e. before the writ court

and in the suit.

15. In this scenario, the judgments relied upon by the learned

counsel for the appellant do not come to his aid.

16. The plea of constructive res judicata also applies to writ

proceedings. In the Gulab Chand Case (supra) it was held by the

Supreme Court.

"This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings , it would be open to the party to take one proceeding after another and urge new grounds every time; and that, plainly, is inconsistent with considerations of public policy to which we have just referred."

17. The appellant has already suffered two contentious

litigations, burdening both himself and the Department. The first

round lasted for five years i.e. from the initiation of the enquiry

proceedings upto the dismissal of his representation before the last

hierarchical officer of the Department i.e. the Reviewing Authority.

Vide a speaking order passed on 9.9.1993 endorsed in the Review

Petition by the Division Bench of this Court on 2.11.1993 which

again was a speaking order; both of which had substantially and

directly dealt with the same issues which were sought to be

subsequently contended by the appellant in the suit proceedings.

The grievances of the appellant having been heard and gone into

by the Division Bench of this Court in the writ proceedings, it was