Rajan Malhotra vs Allahabad Bank
2014 Latest Caselaw 1970 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  RSA Nos.234/2013 & 161/2013

%                                                    21st April, 2014

1.     RSA No.234/2013

RAJAN MALHOTRA                                            ..... Appellant
                          Through:       Mr. Arjun Krishnan, Advocate.

                          Versus

ALLAHABAD BANK                                       ..... Respondent

                          Through:       Mr. Rajesh Gautam, Advocate with
                                         Ms. Arpita Seth, Advocate.
2.     RSA No.161/2013

ALLAHABAD BANK                                             ..... Appellant
                          Through:       Mr. Rajesh Gautam, Advocate with
                                         Ms. Arpita Seth, Advocate.

                          Versus

RAJAN MALHOTRA                                            ..... Respondent
                          Through:       Mr. Arjun Krishnan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

RSA No.161/2013 and C.M. No.12404/2013 (stay)

1(i)         This Second Appeal is filed by the appellant-bank

impugning the judgment of the first appellate court dated 27.5.2013 by

which the first appellate court partly allowed the appeal against the

judgment of the trial court dated 1.12.2005. The trial court by its

judgment dated 1.12.2005 while directing re-appointment of the

respondent/plaintiff directed the appellant-bank to consider the case of

the plaintiff for promotion in accordance with the service rules and also

granted all arrears of salary from 15.4.1993 till passing of the judgment

by the trial court. The first appellate court passed the following

modification in the judgment of the trial court:-

"33. The appeal is therefore partly allowed by modifying the impugned judgment and decree thereby directing as under:-

(i). The appellant is directed to appoint the respondent and give the place of posting to the respondent and he would be entitled to be considered for notional promotion and during the remaining service he shall be entitled to the remuneration of the post which he would hold. However he shall not be entitled to any salary or consideration for pension benefits for the period he has not rendered services to the appellant bank on the dictum of no work, no pay.

(ii) All the other legitimate dues of the respondent be also released to him by the appellant as per the rules.

(iii). In the special circumstances of the case, the respondent is awarded a sum of Rs.50,000/- as the litigation cost which the appellant shall pay to the respondent."

(ii) The effect is that the judgment of the trial court was

sustained by the first appellate court with regard to entitlement of the

respondent/plaintiff to join the services with the appellant-bank,

however, arrears of salary were not granted by applying the principle of

'no work, no pay'. Respondent/plaintiff however was to get actual

enhanced salary by giving notional benefits to the respondent/plaintiff

for the period he had not worked with the appellant/bank.

2. The facts of the case show a chequered history. There was an

earlier litigation which was initiated by the respondent/plaintiff being suit

No.275/1997. In this suit, two reliefs in alternative were prayed for. One

was that if the appellant is treated to have resigned then monetary relief

should be granted of Rs.72,951/- and which amount was the difference

between the total of the amounts of gratuity, provident fund etc to be

reduced from the loan and other liabilities of the respondent/plaintiff to the

appellant-bank. Though the relief clause was not too clear, however the

cause of action in the plaint showed arising of disputes as to whether at all

the plaintiff should be taken to have resigned from the appellant-bank. This

suit No.275/1997 (first suit) was originally dismissed, however, an appeal

filed by the respondent/plaintiff herein was allowed by the judgment dated

21.1.2003. By this judgment dated 21.1.2003 the first appellate court in the

earlier suit held that the respondent/plaintiff herein, appellant in the earlier

appeal, cannot be said to have resigned from the appellant-bank because

there was no order passed by the appellant-bank accepting the resignation of

the respondent/plaintiff. The first appellate court in the earlier appeal

therefore remanded the matter after deciding the additional issue framed in

the appeal with respect to the validity of the resignation of the

respondent/plaintiff in favour of the respondent/plaintiff and the suit was

directed to be decided on merits taking the resignation of the

respondent/plaintiff to have been withdrawn and not having been accepted

by the bank. Admittedly, neither this judgment of the trial court passed after

remand and nor the earlier appellate court judgment dated 21.1.2003 was

further appealed from by the appellant-bank herein. After remand of the

suit, the suit was decided by the trial court by its judgment dated 2.11.2004

whereby the respondent's/plaintiff's suit was decreed for an amount of

Rs.8606/- alongwith interest @ 9% per annum simple being the amount of

the TDS which was said to be illegally deducted by the appellant/bank. This

earlier matter rested at the stage of the judgment of the first appellate court

in the earlier appeal dated 21.1.2003 and in the suit judgment dated

21.1.2003 becoming final and binding between the parties. Therefore, these

judgments operate as res judicata between the parties as to the

respondent/plaintiff not having resigned from the bank. Appellant-bank

even then refused to appoint the respondent/plaintiff and consequently the

present suit came to be filed wherein the respondent/plaintiff claimed the

reliefs of direction against the appellant/bank for joining back in services

and also payment of arrears of salary etc. The subject/present suit was a suit

for declaration and injunction and the following reliefs were prayed:-

"In view of the above, this Hon'ble Court may kindly grant mandatory injunction directing the defendant Bank:

(I) To appoint the plaintiff while giving him a posting after due consideration of his promotions by a date as may be determined by this Hon'ble Court.

(II) Not to touch his gratuity, deposits of provident funds etc, and to deduct the arrears of housing loan installments/arrears of recoveries etc, from the accumulated arrears of his salaries found due as payable to plaintiff after due consideration of increments and promotional benefits including consequential benefits. (III) To give effect to the declarations as may be given by this Hon'ble Court and (IV) To give the salary to the plaintiff w.e.f. from a date as found by this Hon'ble Court by the declaration as given hereinabove and clear and pay, all the arrears of plaintiff, within a period as may be fixed by this Hon'ble Court.

(V) To give salary for the period from 1.12.1991 to 14.4.93 as with held by the Bank-and credited to sundry creditors A/c. at Badkhera Branch of defendant bank, (VI) To give interest @ 9% per annum w.e.f. 21.01.03 on the amounts of salary or arrears till the date of final payment of all the arrears due to the plaintiff."

3. As already stated above, this suit was decreed by the trial court

vide its judgment dated 1.12.2005 as per the following observations:-

"The plff. has further prayed for declaration regarding the promotion w.e.f. 24.3.95. Admittedly though the plff. continued in service in view of the order of Ld.ADJ, but is not working. No promotion rules of the plff. has been placed on record at all nor any steps has been

taken by the plff. to prove that the plff. is entitled for the promotion as prayed being without on duty. Accordingly in my considered opinion the plff. has failed to prove his entitlement regarding promotion w.e.f. 24.3.95. Even otherwise the promotion can not be claimed as a matter of right, but plff is entitled to be considered for promotion. As the plff. continued in service, the plff. is entitled for the promotion as per service rules of the deft. along with other benefits is accordance with law. Any claim of the plff. regarding the salary from 1.12.91 to 14.4.93 is barred by limitation categorically, accordingly the pltf. is not entitled for any such amount on account of salary. Needless to mention the plff. is further entitled for all other monetary/service benefits in his service in accordance with the service rules and regulations of the deft. There is nothing on the record nor any thing contrary proved by the deft. for disentitlement of the plff. for the relief as prayed in the suit. In totality and in nutshell the case of the plff. in one way or the other remained unimpeached and unrebutted. This issue is accordingly disposed off in favour of the plff. and against the deft.

Relief:

In view of my abovesaid discussions, the suit of the plff. is decreed in favour of the plff. and against the deft. The deft. is directed to appoint and give the place of posting to the plff. The deft. is further directed to consider the case of the plff. for promotion in accordance with the service rules and regulations of the deft. along with other service benefits regarding PF, gratuity etc.. The cost of the suit is also awarded in favour of the plff. and against the deft. Decree sheet be prepared accordingly. File be consigned to R/R."

4. As already stated above, this judgment of the trial court dated

1.12.2005 has been partially modified by the first appellate court in terms of

the impugned judgment by denying the arrears of salary on the ground of 'no

work, no pay'.

5. In my opinion, the aforesaid facts show that no question of law,

much less any substantial question of law, arises for this appeal to be

entertained under Section 100 CPC because once the earlier judgment in the

first suit and appeal became final, by the principle of res judicata contained

in Section 11 CPC, the appellant-bank was bound to reinstate the

respondent/plaintiff. This relief has been correctly granted by both the

courts below. Whereas the trial court gave the complete arrears of salary, the

first appellate court has denied arrears of salary by applying the principle of

'no work, no pay'. I am noting that as per the statement made before me on

behalf of the respondent/plaintiff, and who has filed the connected appeal

being RSA No.234/2013, that the said appeal is not pressed and the

respondent/plaintiff in the present appeal and the appellant in RSA

No.234/2013 is satisfied with the impugned judgment of the first appellate

court dated 27.5.2013.

6. Learned counsel for the appellant sought to argue before this

Court that the respondent/plaintiff has in fact accepted dues towards the

provident fund, gratuity etc as stated in the written statement in the present

suit and since to which no replication was filed by the respondent/plaintiff,

respondent/plaintiff is not entitled to reinstatement in services, however,

counsel for the respondent/plaintiff, on instructions from the

respondent/plaintiff, states that the respondent/plaintiff has not accepted any

amount towards gratuity, provident fund etc and which dues are payable on

the services coming to an end and such amounts are not accepted either

whole or in part adjustment as is claimed by the appellant-bank. Therefore,

though no such issue seems to have been pleaded and urged before the

courts below, much less by leading such evidence on behalf of the appellant-

bank, even if this issue is looked into, this argument has no merit in view of

the statement made before me by the respondent/plaintiff who is present in

the Court in person.

7. In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.

RSA No.234/2013

8. Counsel for the appellant, on instructions from the appellant

who is present in person in Court, states that he has instructions not to press

the appeal.

9. Dismissed as not pressed.

APRIL 21, 2014                                VALMIKI J. MEHTA, J.
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