S.Vijaya Kumar vs The Executive Committee C.B.And ...
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     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.19956 of 2002

                                 AND
                      I.A.NOS.2 AND 3 OF 2019
                                   IN
                WRIT PETITION NO.19956 of 2002

                         COMMON ORDER


      This Writ Petition is filed seeking a Writ of Certiorari calling for

the records pertaining to the order passed on 13.06.2002 by the

Executive Committee of the Central Board and Reviewing Authority

rejecting the review petition filed by the petitioner on 12.10.2001 and

communicated vide Lr.No.A&R/HYD/2512, dt.17.06.2002 and to quash

the same and consequently to direct the respondents to conduct a fresh

review in accordance with law.

2. Brief facts leading to the filing of this Writ Petition are that the

petitioner was appointed as a Probationary Officer in State Bank of

India on 07.12.1971 and his services were confirmed on 07.12.1973.

Within a span of 3 years, the petitioner was promoted as a Branch

Manager and was posted at Tadikalapudi Branch. On 08.02.1978, the

petitioner was suspended from service and four charges were framed W.P.No.19956 of 2002

against the petitioner. During the enquiry, only charge No.1 was proved

and the other charges, i.e., charges 2, 3 and 4 were held as not proved.

However, the disciplinary authority held that charge No.2 was also

proved and dismissed the petitioner from service on 17.07.1982. The

appeal of the petitioner was also dismissed by order dt.22.12.1982. The

disciplinary authority was also a Member and Secretary to Appellate

Authority in Local Board, SBI, LHO, Hyderabad. The petitioner filed

W.P.No.194 of 1983 in A.P. High Court and the Writ Petition was

allowed on 26.11.1987 by a Division Bench of the High Court which

heard the W.P. with W.A.No.141 of 1986 in the case of similarly placed

employees. This Court held that the petitioner was dismissed by an

authority who was not competent to pass the said order. This was

reversed by the Hon'ble Supreme Court by its judgment dt.18.07.1990

in SLP No.4176 of 1998 and the matter was remanded to the Hon'ble

High Court for hearing on other points raised in the W.P. in accordance

with law. The Writ Petition was again allowed on 29.03.1991 by

holding that the enquiry report ought to have been given to the petitioner

along with the show-cause notice. The matter was again taken to the

Hon'ble Supreme Court in Civil Appeal No.2935 of 1991 and the

Hon'ble Supreme Court remanded the matter to this Court on W.P.No.19956 of 2002

06.08.1996 holding that all the points raised in the Writ Petition should

be considered by the High Court. When the matter came up again before

the Division Bench, the Writ Petition was again allowed on 03.02.1997

on the ground that the three grounds raised by the employee in the

additional affidavit filed by the petitioner in the Hon'ble Supreme Court

were not denied by the bank and that an opportunity to be defended by a

lawyer was not given to the petitioner. However, it was left open to the

respondent bank to proceed with the enquiry afresh if it is considered

appropriate. This order was again assailed before the Hon'ble Supreme

Court and the Hon'ble Supreme Court taking note of the fact that no

affidavit was filed in the Court, remanded the case again to the High

Court on 24.10.1997 for fresh disposal of the case after giving the

parties an opportunity to file an additional affidavit, if required.

3. During the third remand proceedings, the Division Bench of the

High Court came to the conclusion that the charge No.2 on violation of

principles of natural justice is not sustainable and by way of an interim

order directed the appellate authority to reconsider the appeal both in

terms of the sustainability of the Charge No.1 and also as regards the

quantum of punishment. Thereafter, the appellate authority reconsidered W.P.No.19956 of 2002

the matter and vide orders dt.09.02.1999, held that charge No.1 was

sufficient to dismiss the petitioner from service. Again the matter was

placed before the Division Bench of this Court, which passed the order

on 28.09.2000 dismissing the Writ Petition as devoid of merits. Against

the said judgment, the petitioner filed a petition for Special Leave to

Appeal (Civil) in C.C.No.2856 of 2001 before the Apex Court, but the

same was withdrawn subsequently with liberty to file a representation/

review before the respondents. Accordingly, the petitioner filed a review

application dt.12.10.2001 before the Executive Committee of the

Central Board and Reviewing Authority, SBI, Mumbai, for review of

the punishment order as well as to consider granting of notional salary

and allowances from 17.07.1982 to 09.02.1999. Vide orders

dt.16.11.2001, the review application was dismissed by holding that the

acts of misconduct committed by the petitioner are grave in nature and

the punishment of dismissal from service is justified and that the same

has already been upheld by the High Court. Challenging the same, this

Writ Petition is filed.

4. Learned counsel for the petitioner, Sri V. Mallik, submitted that

against the order of punishment of dismissal from service, the petitioner W.P.No.19956 of 2002

had filed W.P.No.194 of 1983 and after remand by the Hon'ble Supreme

Court on three occasions, on 09.12.1998 Hon'ble Division Bench of this

Court had set aside the order of the appellate authority and remanded the

matter for reconsideration by quashing Charge No.2 and also on the

aspect of quantum of punishment. He submitted that by virtue of the

said order, the original order dt.17.07.1982 had merged with the order of

the appellate authority which has been set aside and when this Court had

set aside the appellate order, the original order also is set aside and until

the final order is passed by the appellate authority on 09.02.1999, there

is no order of dismissal and hence, the petitioner is entitled to notional

salary and allowances from 17.07.1982 till 09.02.1999. Though he fairly

admitted that the issue of dismissal from service is covered against the

petitioner on merits by the judgment of this Court in W.P.No.194 of

1983, the issue of doctrine of merger of the original order with the

appellate order and the consequences of the interim suspension of the

appellate order and ultimate setting aside of the order by the High Court

had been left open and therefore, that issue is not covered by the

principle of res judicata. On the issue of merger, the learned counsel for

the petitioner has relied upon the judgment of a 7-Judge Bench of the

Hon'ble Supreme Court in the case of S.S. Rathore Vs. State of W.P.No.19956 of 2002

Madhya Pradesh1, wherein the Hon'ble Apex Court had approved the

ratio of a 3-Judge Bench decision in the case of Somnath Sahu Vs. The

State of Orissa and others2. It is the case of the petitioner that the order

of original authority merges into the order of appellate authority even if

the appellate authority confirms the order passed by the original

authority and when such appellate authority's order is set aside, both the

appellate as well as the original orders are set at naught. The learned

counsel submitted that the reviewing authority has erred in not

considering the claim of the petitioner for notional salary and

allowances by holding it to be covered against the petitioner by the

judgment of this Court in W.P.No.194 of 1983. He therefore seeks

admission of the additional affidavit filed by the petitioner by way of

I.A.No.2 of 2019 and admission of additional documents filed by the

petitioner by way of I.A.No.3 of 2019 and to allow the writ petition and

pass orders granting relief of notional pay and allowances from the date

of dismissal of the original order, i.e., 17.07.1982 till the date of the first

appellate order dt.09.02.1999.

1989 LawSuit(SC) 423 : [(1989) 4 SCC 582]

(1969) 3 SCC 384 W.P.No.19956 of 2002

5. I.A.Nos.2 and 3 of 2019 are allowed and the affidavit and the

additional documents are taken on record and only such documents

which are relevant for adjudication of the issue are looked into.

6. Sri E. Madan Mohan Rao, learned counsel representing the

respondents, however, submits that the issue of dismissal of the

petitioner from service has been considered at length by the Division

Bench of this Court in W.P.No.194 of 1983 and has been confirmed and

therefore, the said issue is covered by the principle of res judicata and

seeking such a relief again is not maintainable. He further submits that

the issue of merger of the original order with the appellate order and the

consequences of setting aside of the appellate order had been left open

for consideration by the Division Bench while setting aside the appellate

order. It is submitted that by way of an interim direction, when the

appellate order has been set aside to the appellate authority for

reconsideration, the original order was in force and even if there is an

interim suspension of the original order during the pendency of the writ

petition, the interim orders do not survive when the writ petition is

finally decided. He submits that the doctrine of merger would apply only

when the original order is either confirmed or set aside or modified by W.P.No.19956 of 2002

the appellate authority and when the order of the appellate authority has

been ultimately confirmed by the High Court in the Writ Petition, the

doctrine of merger would apply, but it cannot be said that the original

order has been set at naught when only the appellate order has been set

aside to the appellate authority only for following the principles of

natural justice and reconsidering the quantum of punishment. He

submits that the petitioner had never challenged the order of punishment

dt.09.02.1999 nor has he filed any review seeking consideration of the

issue which was left open on the earlier occasion by this Court. He

submits that the petitioner, though filed an SLP before the Hon'ble

Supreme Court, he had withdrawn the same and therefore, the prayer for

notional salary and allowances cannot be raised in the review

application. He therefore sought dismissal of the Writ Petition.

7. Having regard to the rival contentions and the material on record,

this Court notices that the issue on merits of the punishment of dismissal

from service is already settled as the Division Bench of this Court in

W.P.No.194 of 1983 has dismissed the Writ Petition filed by the

petitioner. Therefore, the only issue for consideration in this Writ

Petition is with regard to the eligibility of notional salary and allowances W.P.No.19956 of 2002

from 17.07.1982 to 09.02.1999 and whether the order dt.17.07.1982

subsists when the appellate order dt.22.12.1982 has been set aside on

09.12.1998. As rightly pointed out by the learned counsel for the

respondents, by way of the interim order dt.09.12.1998, this Court in

W.P.No.194 of 1983 had only set aside the appellate order to the

appellate authority for reconsideration on Charge No.1 and also the

quantum of punishment. Therefore, the original order was neither

suspended nor set aside by this Court and the fresh appellate order was

passed on 09.02.1999 again confirming the order of punishment of

dismissal from service. Therefore, the original order of punishment was

in force till the final appellate order was passed and the petitioner would

not be entitled to notional salary and allowances for the said period.

Once the petitioner's appeal against the punishment order has been

considered and no relief was granted, there is no cause for any further

relief to the petitioner. The judgments relied upon by the learned counsel

for the petitioner in the case of S.S. Rathore Vs. State of Madhya

Pradesh (1 supra) and in the case of Somnath Sahu Vs. The State of

Orissa and others (2 supra) also do not come to the rescue of the

petitioner. In the case of Somnath Sahu Vs. The State of Orissa and

others (2 supra), a 3-Judge Bench of the Hon'ble Supreme Court was W.P.No.19956 of 2002

considering the doctrine of merger of the original order with the

appellate order and it was held that it is the appellate decision alone

which subsists and is operative in law and is capable of enforcement.

Further, the Hon'ble Supreme Court has also held that if the appellate

order is defective in law, there would not be any merger of the original

decision with the appellate decision. In the case of S.S. Rathore Vs.

State of Madhya Pradesh (1 supra), a 7-Judge Bench of the Hon'ble

Supreme Court has affirmed the ratio in Somnath Sahu Vs. The State

of Orissa and others (2 supra). However, in the case before this Court,

the respondents have clearly established that the appellate order was not

set aside on merits but was set aside only to cure a defect. The original

order of the respondents has thus not been set aside even during the

pendency of the Writ Petition before this Court.

8. In view thereof, this Court is of the opinion that the original order

has never been suspended and was subsisting until the final order

dt.09.02.1999 was passed by this Court. In view of the same, this Court

does not see any merit in this Writ Petition.

9. In the result, W.P.No.19956 of 2002

(a) The Writ Petition is accordingly dismissed. No order as to costs.

(b) I.A.No.2 of 2019 is allowed.

(c) I.A.No.3 of 2019 is allowed.

10. Pending miscellaneous petitions, if any, in this Writ Petition shall

also stand dismissed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 23.08.2022 Svv