CENTRAL BANK OF INDIA & OTHERS VERSUS DRAGENDRA SINGH JADON

CENTRAL BANK OF INDIA & OTHERS VERSUS DRAGENDRA SINGH JADON

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5036 OF 2022

(ARISING OUT OF SLP (C) NO. 20995 OF 2017)

CENTRAL BANK OF INDIA & OTHERS ...... APPELLANT (S)

VERSUS

DRAGENDRA SINGH JADON .... RESPONDENT (S)

 J U D G M E N T

INDIRA BANERJEE J.

Leave granted.

2. This appeal is against a judgment and order dated 3rd April 2017 passed

by the Division Bench of the High Court of Madhya Pradesh at Gwalior

dismissing Writ Appeal No. 310 of 2015 filed by the Appellants against an order

dated 7th August 2015, passed by the Single Bench, allowing the Writ Petition

under Article 226 of the Constitution of India being Writ Petition No. 1571 of

2013, filed by the Respondent.

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3. On or about 23rd April 1975, the Respondent was appointed to the post of

Agricultural Assistant in the Appellant-Bank and posted at its Kailaras Branch in

Madhya Pradesh.

4. Over four years after his appointment, the Respondent was served with a

chargesheet dated 18th September 1979 alleging that he had impersonated his

brother in a Written Test conducted by the Bank through the Banking Service

Recruitment Board, Lucknow on 6th May 1979 and answered the questions on

his behalf. Pursuant to the chargesheet, Disciplinary Enquiry was held after

which the services of the Respondent were terminated by the Appellant-Bank

by an order dated 29th January 1982.

5. The Respondent raised an industrial dispute. By Notification No. L12012/135/84-D.II(A) dated 7th April 1988, the Government of India, Ministry of

Labour referred to the Central Government Industrial Tribunal cum Labour

Court, hereinafter referred to as the “Tribunal”, the dispute of “Whether the

action of the management of the Central Bank of India, Gwalior in dismissing

from service Shri Dragendra Singh Jadon, Agricultural Assistant with effect from

29.01.1982 is justified? If no, to what relief is the workman entitled?”

6. By an Award dated 10th September 2008, the Tribunal held that the

Appellant-Bank was not able to prove the charge of impersonation against the

Respondent and therefore, the dismissal was unjustified. The Tribunal,

however, found that the Respondent had gainfully been employed throughout

the interregnum period after termination, and, therefore, limited relief to

reinstatement without back wages. The Appellants contend that there was no

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specific or general direction for continuity of service of the Respondent or

consequential benefits.

7. On or about 12th July 2009, the Respondent filed a writ petition being Writ

Petition No. 3091 of 2009(S) in the High Court of Madhya Pradesh at Gwalior,

challenging the Award of the Tribunal insofar as the Respondent had been

declined back wages. In the said Writ Petition, the Respondent sought the

relief of modification of the Award dated 10th September 2008, by giving the

Respondent the benefit of full back wages, continuity in service and other

consequential benefits and such other relief as might be necessary for doing

justice including costs.

8. The Appellants also filed a Writ Petition being Writ Petition No. 621 of

2009(S) against the Award dated 10th September 2008, insofar as the

Respondent was directed to be reinstated in service. By a common judgment

and order dated 8th May 2012, the High Court dismissed both the writ petitions.

The Appellants states that, in compliance of the order dated 8th May 2012, the

Appellant-Bank reinstated the Respondent with effect from his date of reporting

i.e. 18th August 2012.

9. Sometime in March 2013, the Respondent moved a Writ Petition being

Writ Petition No. 1571 of 2013 in the High Court of Madhya Pradesh at Gwalior,

seeking orders on the Appellant-Bank to reinstate the Respondent to the post

of Agricultural Finance Officer with notional fixation of pay upto 10th September

2008 i.e the date of the Award of the Tribunal and for payment of actual salary

from 10th September 2008, being the date of the Award. The Respondent also

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prayed that the Appellant-Bank be directed to fix the seniority and the current

salary of the Respondent, taking into consideration his past services.

10. The Appellant-Bank contested the Writ Petition and filed a reply, raising a

preliminary objection to the maintainability of the Writ Petition on the ground of

the Writ Petition being barred by principles of res judicata.

11. By a judgment and order dated 7th August 2015, the learned Single Judge

of the High Court, allowed the Writ Petition. The Single Judge held :-

“The Tribunal, upon reference made to it by the Central

Government to adjudicate as to whether the respondents

were justified in removing the petitioner from service, has

answered the reference in negative and in favour of the

petitioner-workman holding that petitioner was wrongly

removed from service. 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 of decisions of Hon’ble the Apex Court and

various High Courts, word “reinstatement” has been

unequivocally explained to the effect that once the Authority

or Court orders for reinstatement of an employee, then the

position of that employee is restored back to the date on

which he was removed from services. As such, the

respondents were not justified having excluded the period

from the date of removal of the petitioner to the date of his

reinstatement and treating the same as completely dies non

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and also in not allowing the petitioner to get the service

benefits attributable to him by virtue of the aforesaid length

of service. In the opinion of this Court, the order (Annexure

P/1) passed by the Respondent-Bank is not in conformity with

the order passed by the Tribunal. Hence, the impugned order,

so far as it relates to denying benefits to the petitioner for

the intervening period (the period from the date of removal

of the petitioner from service to the date of his

reinstatement), excepting denial of back wages is quashed

and it is held that the petitioner shall be held entitled for all

the benefits except back wages construing him to be in

service from the date of removal till the date of actual

reinstatement in service. Needless to mention that

consequent upon the reinstatement, petitioner is entitled to

regular salary from the date of Award subject to adjustment

of the amount already paid under Section 17B of the

Industrial Disputes Act.”

12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of the AppellantBank rightly argued that the principles of res judicata apply to writ proceedings

under Articles 226 and 227 of the Constitution of India. There can be no dispute

with the proposition. It is also true that the learned Single Judge of the High

Court has not specifically dealt with the issue of res judicata raised by the

Appellant-Bank.

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13. Where an objection to the maintainability of any application/suit on an

issue of law is not expressly dealt with, but the application/suit is entertained

and disposed of on merits, the objection is deemed to have been rejected. The

mere fact that an issue may not specifically have been dealt with, or reasons

not specifically disclosed for decision on that issue, would not vitiate a

judgment and order, that is otherwise correct.

14. It is not correct to say that the Respondent obtained the order of this

Court by suppressing the fact that an earlier Writ Petition moved by the

Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the

Respondent clearly stated that both the parties had challenged the Award of

the Tribunal before the High Court - the Management of the Appellant-Bank

against the entire Award and the Respondent against the 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 of 2009(S) filed by the Appellants were

heard analogously and dismissed by a common order dated 8th May 2012. The

Respondent not only mentioned the fact that he had initiated a Writ Petition

earlier, but also annexed a copy of the common judgment and order of the

High Court in the earlier Writ Petitions as Annexure P-4.

15. Even though, the Court may not have specifically dealt with the issue of

res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from

the judgment and order of the Single Bench as also the impugned judgment

and order of the Division Bench, that the second writ petition was not barred by

the principles of res judicata or analogous principles.

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16. The principles of res judicata are attracted where the matter in issue in

the later proceedings have directly and substantially been in issue in earlier

proceedings, between the same parties, in a competent forum having

jurisdiction. Res judicata debars the Court from exercising jurisdiction to

determine the lis, if it has attained finality between the parties. There is a

distinction between res judicata and issue estoppel. In the case of issue

estoppel, a party against whom an issue has been decided would be estopped

from raising the same issue again.

17. Where an issue could have been raised in earlier proceedings, but has

not been raised, the principle of constructive res judicata would be attracted to

deny relief, for it is not the policy of law that multiple proceedings should be

initiated in Court in relation to the same cause of action. Where the cause of

action for initiation of proceedings is a distinctive cause of action, the principles

of res judicata would not apply.

18. What was in issue in the earlier writ petition being Writ Petition No. 3091

of 2009(S) was the legality of the Award and other consequential benefits. The

cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The

issue in the later writ petition was not whether the Respondent was entitled to

back wages for the period prior to the date of the Award, which issue had been

decided in the earlier writ petition, but the issue of fixation of pay and seniority

upon reinstatement in service. The question in the second writ petition was,

whether, for the purposes of seniority and fixation of pay, the Respondent was

to be treated as a newly appointed employee and that too with effect from 18th

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August 2012, when the Award directing his reinstatement was dated 10th

September 2008.

19. In our considered view, the learned Single Bench of the High Court rightly

granted relief to the Respondent. By the impugned judgment and order, the

Division Bench of the High Court dismissed the Appeal of the Appellants and

directed that the Respondent would have to be treated in service from the date

of removal till the date of actual reinstatement in service and would

accordingly be entitled to seniority and the right to be considered for

promotion, but would not be entitled to back wages.

20. We find no infirmity with the concurrent findings of the Single Bench and

the Division Bench of the High Court. There is a difference between

reappointment and reinstatement. Reinstatement means to return a person or

thing to its previous position or status. An order of reinstatement puts a person

back to the same position.

21. The Tribunal had granted the Respondent, the relief of reinstatement.

Considering that the Respondent had not actually rendered service to the

Appellant-Bank and that he had been earning in the intervening period, the

Tribunal denied him back wages. The Tribunal and the High Court (both the

Single Bench and the Division Bench) have in effect and substance found the

termination of service of the Respondent to be wrongful.

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22. The Appellant-Bank cannot take advantage of its own wrong of wrongfully

dismissing the Respondent from service, to deny him the benefit of seniority,

promotion and other benefits to which he would have been entitled, if he had

attended to his duties.

23. The appeal is, accordingly, dismissed.

.................................... J.

 [INDIRA BANERJEE]

.................................... J.

 [J.K. MAHESHWARI]

NEW DELHI;

AUGUST 02, 2022