CENTRAL BANK OF INDIA & OTHERS versus DRAGENDRA SINGH JADON

CENTRAL BANK OF INDIA & OTHERS

DRAGENDRA SINGH JADON

(Civil Appeal No. 5036 of 2022)

AUGUST 02, 2022

[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]

Service law – Res Judicata – Applicability of – Respondentwas appointed to the post of agricultural assistant in the appellant-Bank – Respondent was served chargesheet alleging that he hadimpersonated his brother in written test conducted by Bank –Disciplinary Enquiry held and thereafter services of the respondentwas terminated by the appellant in the year 1982 – Respondentraised an industrial dispute – Tribunal by award dated 2008 heldthat charge of impersonation was not proved and dismissal wasunjustified, thus reinstated respondent but without back wages –Respondent filed writ petition in the High Court in the year 2009challenging the award of tribunal insofar as relates to the denial ofback wages – Appellants also filed writ petition before the HighCourt in the year 2009 challenging the award so far relates to thereinstatement of services of respondent – High Court by commonjudgment dismissed both the writ petitions – In compliance with thejudgment of High Court appellant reinstated the respondent – In2013 respondent filed another writ petition to reinstate therespondent to the post of Agricultural Finance officer and also forthe fixation of pay and seniority – Appellant objected that the writpetition is barred by the principles of res judicata – High Court byjudgment dated 2015 held that the appellant shall be entitled forall the benefits upon reinstatement except back wages – Writ appealwas dismissed – Before the Supreme Court, appellant-bankcontended that principles of res judicata applied to the writproceedings – On appeal, held: The issue in the earlier writ petitionwas regarding legality of the award – However, the question in thesecond writ petition was, whether, for the purposes of seniority andfixation of pay, the respondent was to be treated as newly appointedemployee – Matter-in-issue in both the writ petitions is differenttherefore principles of res judicata inapplicable – No infirmity with

Athe concurrent findings of the Single Bench and the Division Benchof the High Court – Appeal dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5036of 2022.

From the Judgment and Order dated 03.04.2017 of the High CourtBof Madhya Pradesh at Gwalior in Writ Appeal No. 310 of 2015.

Debal Banerji, Sr. Adv., Ms. Meera Mathur, Advs. for theAppellants.

Prashant Shukla, Anushree Shukla, Ms. Pratibha Yadav, MayankCGautam, Pashupathi Nath Razdan, Advs. for the Respondent.

The Judgment of the Court was delivered by

INDIRA BANERJEE, J.

Leave granted.D2. This appeal is against judgment and order dated 3rd April2017 passed by the Division Bench of the High Court of Madhya Pradeshat Gwalior dismissing Writ Appeal No. 310 of 2015 filed by the Appellantsagainst an order dated 7th August 2015, passed by the Single Bench,allowing the Writ Petition under Article 226 of the Constitution of Indiabeing Writ Petition No. 1571 of 2013, filed by the Respondent.E

3. On or about 23rd April 1975, the Respondent was appointed tothe post of Agricultural Assistant in the Appellant-Bank and posted at itsKailaras Branch in Madhya Pradesh.

4. Over four years after his appointment, the Respondent wasFserved with chargesheet dated 18th September 1979 alleging that hehad impersonated his brother in Written Test conducted by the Bankthrough the Banking Service Recruitment Board, Lucknow on 6th May1979 and answered the questions on his behalf. Pursuant to thechargesheet, Disciplinary Enquiry was held after which the services ofthe Respondent were terminated by the Appellant-Bank by an orderGdated 29th January 1982.

5. The Respondent raised an industrial dispute. By NotificationNo. L-12012/135/84-D.II(A) dated 7th April 1988, the Government ofIndia, Ministry of Labour referred to the Central Government IndustrialTribunal cum Labour Court, hereinafter referred to as the “Tribunal”,

the dispute of “Whether the action of the management of the CentralBank of India, Gwalior in dismissing from service Shri DragendraSingh Jadon, Agricultural Assistant with effect from 29.01.1982 isjustified? If no, to what relief is the workman entitled?”

6. By an Award dated 10th September 2008, the Tribunal heldthat the Appellant-Bank was not able to prove the charge of impersonationagainst the Respondent and therefore, the dismissal was unjustified. TheTribunal, however, found that the Respondent had gainfully been employedthroughout the interregnum period after termination, and, therefore, limitedrelief to reinstatement without back wages. The Appellants contend thatthere was no specific or general direction for continuity of service of theRespondent or consequential benefits.

7. On or about 12th July 2009, the Respondent filed writ petitionbeing Writ Petition No. 3091 of 2009(S) in the High Court of MadhyaPradesh at Gwalior, challenging the Award of the Tribunal insofar as theRespondent had been declined back wages. In the said Writ Petition, theRespondent sought the relief of modification of the Award dated 10thSeptember 2008, by giving the Respondent the benefit of full back wages,continuity in service and other consequential benefits and such otherrelief as might be necessary for doing justice including costs.

8. The Appellants also filed Writ Petition being Writ Petition No.621 of 2009(S) against the Award dated 10th September 2008, insofaras the Respondent was directed to be reinstated in service. By commonjudgment and order dated 8th May 2012, the High Court dismissed boththe writ petitions. The Appellants states that, in compliance of the orderdated 8th May 2012, the Appellant-Bank reinstated the Respondent witheffect from his date of reporting i.e. 18th August 2012.

9. Sometime in March 2013, the Respondent moved Writ Petitionbeing Writ Petition No. 1571 of 2013 in the High Court of Madhya Pradeshat Gwalior, seeking orders on the Appellant-Bank to reinstate theRespondent to the post of Agricultural Finance Officer with notionalfixation of pay upto 10th September 2008 i.e the date of the Award ofthe Tribunal and for payment of actual salary from 10th September 2008,being the date of the Award. The Respondent also prayed that theAppellant-Bank be directed to fix the seniority and the current salary ofthe Respondent, taking into consideration his past services.

96SUPREME COURT REPORTS

10. The Appellant-Bank contested the Writ Petition and filed areply, raising preliminary objection to the maintainability of the WritPetition on the ground of the Writ Petition being barred by principles ofres judicata.

11. By judgment and order dated 7th August 2015, the learnedBSingle Judge of the High Court, allowed the Writ Petition. The SingleJudge held :-

“The Tribunal, upon reference made to it by the CentralGovernment to adjudicate as to whether the respondents werejustified in removing the petitioner from service, has answeredthe reference in negative and in favour of the petitioner-workman holding that petitioner was wrongly removed fromservice. Accordingly, the Tribunal ordered for reinstatement,but without back wages. Legal meaning attributed to word“reinstatement” is beyond any cavil of doubt as by catena ofdecisions of Hon’ble the Apex Court and various High Courts,word “reinstatement” has been unequivocally explained tothe effect that once the Authority or Court orders forreinstatement of an employee, then the position of thatemployee is restored back to the date on which he was removedfrom services. As such, the respondents were not justifiedhaving excluded the period from the date of removal of thepetitioner to the date of his reinstatement and treating thesame as completely dies non and also in not allowing thepetitioner to get the service benefits attributable to him by virtueof the aforesaid length of service. In the opinion of this Court,the order (Annexure P/1) passed by the Respondent-Bank isnot in conformity with the order passed by the Tribunal.Hence, the impugned order, so far as it relates to denyingbenefits to the petitioner for the intervening period (the periodfrom the date of removal of the petitioner from service to thedate of his reinstatement), excepting denial of back wages isquashed and it is held that the petitioner shall be held entitledfor all the benefits except back wages construing him to be inservice from the date of removal till the date of actualreinstatement in service. Needless to mention that consequentupon the reinstatement, petitioner is entitled to regular salaryfrom the date of Award subject to adjustment of the amount

already paid under Section 17B of the Industrial DisputesAct.”

12. Mr. Debal Banerji, Senior Advocate, appearing on behalf ofthe Appellant-Bank rightly argued that the principles of res judicataapply to writ proceedings under Articles 226 and 227 of the Constitutionof India. There can be no dispute with the proposition. It is also true thatthe learned Single Judge of the High Court has not specifically dealtwith the issue of res judicata raised by the Appellant-Bank.

13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suitis entertained and disposed of on merits, the objection is deemed to havebeen rejected. The mere fact that an issue may not specifically havebeen dealt with, or reasons not specifically disclosed for decision on thatissue, would not vitiate judgment and order, that is otherwise correct.

14. It is not correct to say that the Respondent obtained the orderof this Court by suppressing the fact that an earlier Writ Petition movedby the Respondent had been dismissed. In Paragraph 5.5 of the WritPetition, the Respondent clearly stated that both the parties had challengedthe Award of the Tribunal before the High Court - the Management ofthe Appellant-Bank against the entire Award and the Respondent againstthe part of the Award refusing back wages. Both the Writ Petitions i.e.W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of2009(S) filed by the Appellants were heard analogously and dismissedby common order dated 8th May 2012. The Respondent not onlymentioned the fact that he had initiated Writ Petition earlier, but alsoannexed copy of the common judgment and order of the High Court inthe earlier Writ Petitions as Annexure P-4.15. Even though, the Court may not have specifically dealt withthe issue of res judicata raised by the Appellant-Bank as preliminaryissue, it is clear from the judgment and order of the Single Bench as alsothe impugned judgment and order of the Division Bench, that the secondwrit petition was not barred by the principles of res judicata or analogousprinciples.

16. The principles of res judicata are attracted where the matterin issue in the later proceedings have directly and substantially been inissue in earlier proceedings, between the same parties, in competentforum having jurisdiction. Res judicata debars the Court from exercising

Ajurisdiction to determine the lis, if it has attained finality between theparties. There is distinction between res judicata and issue estoppel.In the case of issue estoppel, party against whom an issue has beendecided would be estopped from raising the same issue again.

17. Where an issue could have been raised in earlier proceedings,Bbut has not been raised, the principle of constructive res judicata wouldbe attracted to deny relief, for it is not the policy of law that multipleproceedings should be initiated in Court in relation to the same cause ofaction. Where the cause of action for initiation of proceedings is adistinctive cause of action, the principles of res judicata would not apply.

C18. What was in issue in the earlier writ petition being Writ PetitionNo. 3091 of 2009(S) was the legality of the Award and other consequentialbenefits. The cause of action for Writ Petition No. 1571 of 2013 arosesubsequently. The issue in the later writ petition was not whether theRespondent was entitled to back wages for the period prior to the dateof the Award, which issue had been decided in the earlier writ petition,Dbut the issue of fixation of pay and seniority upon reinstatement in service.The question in the second writ petition was, whether, for the purposesof seniority and fixation of pay, the Respondent was to be treated as anewly appointed employee and that too with effect from 18th August2012, when the Award directing his reinstatement was dated 10thESeptember 2008.

19. In our considered view, the learned Single Bench of the HighCourt rightly granted relief to the Respondent. By the impugned judgmentand order, the Division Bench of the High Court dismissed the Appeal ofthe Appellants and directed that the Respondent would have to be treatedin service from the date of removal till the date of actual reinstatementFin service and would accordingly be entitled to seniority and the right tobe considered for promotion, but would not be entitled to back wages.

20. We find no infirmity with the concurrent findings of the SingleBench and the Division Bench of the High Court. There is differenceGbetween reappointment and reinstatement. Reinstatement means to returna person or thing to its previous position or status. An order ofreinstatement puts person back to the same position.

21. The Tribunal had granted the Respondent, the relief ofreinstatement. Considering that the Respondent had not actually renderedservice to the Appellant-Bank and that he had been earning in theH

intervening period, the Tribunal denied him back wages. The Tribunaland the High Court (both the Single Bench and the Division Bench)have in effect and substance found the termination of service of theRespondent to be wrongful.

22. The Appellant-Bank cannot take advantage of its own wrongof wrongfully dismissing the Respondent from service, to deny him thebenefit of seniority, promotion and other benefits to which he wouldhave been entitled, if he had attended to his duties.

23. The appeal is, accordingly, dismissed.

Ankit Gyan

Appeal dismissed.

(Assisted by : Aarsh Choudhary, LCRA)