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1996 DIGILAW 426 (CAL)

Asim Basu v. Bank of Baroda

1996-10-15

D.P.KUNDU

body1996
JUDGMENT D. P. Kundu, J. 1. This is an application for amendment of the writ application. 2. Being aggrieved by and dissatisfied with the continuance of the parallel proceeding criminal and departmental and commencement of departmental proceeding in New Delhi and failure and/or refusal to allow engagement of legal practitioner to defend the writ petition the writ petitioner preferred the writ petition praying for the following reliefs :- "(a) For a writ of or in the nature of Certiorari calling upon the respondents to produce or cause to produce to the Registrar, Appellate Side, of this Hon'ble Court, records papers and documents relating to the issuance of charge-sheet dated 8.8.88 and also the papers, records and documents out of which the Inquiring Authority held preliminary hearing on 23.3.89 in the departmental proceedings so that conscionable justice may be done by quashing the same; (b) For a writ of or in the nature of Mandamus commanding and directing the respondents to keep the departmental proceedings, stayed until the criminal proceedings being CC No. 16 of 1986 pending in the 1st Court of learned Special Judge at Alipore is ended; (c) For an interim order of injunction restraining the respondents from continuing the departmental proceedings initiated against the petitioner and/or any other proceedings relating to the same charges as in the criminal proceedings being Criminal Case No.16 of 1986 pending in the 1st Court of learned Special Judge till the disposal of the said criminal proceedings; (d) Rule in terms of prayers (a) and (b) ; (e) Interim order in terms of prayer (c) ; (f) To pass such other or further order or orders as to your Lordships may deem fit and proper; (g) To make the Rule absolute, if the respondents fail to show sufficient cause or return; (h) Costs of, and incidental to this petition." 3. On April 12, 1989 the learned Court passed the following order. "Let this matter come up for hearing weeks hence. The petitioner is directed to serve copies of this writ petition on all respondents, if not served already, and an affidavit-of-service. On April 12, 1989 the learned Court passed the following order. "Let this matter come up for hearing weeks hence. The petitioner is directed to serve copies of this writ petition on all respondents, if not served already, and an affidavit-of-service. There will be an interim order to the extent that the petitioner on any date specified by the respondent No.2, at least three day in advance, will call on the office of the respondent No. 2 and take inspection of the documents referred to in Annexure R to the writ petition which are lying in the office of the respondent No.2 or which would be made available to the writ petitioner by the respondent No.2. The respondents will also be entitled to supply copies of the documents to be certified by the respondent No.2. If there are other documents which have been referred to in Annexure R, but such documents are not in the custody of the respondent No.2, the respondent No. 2 will ensure supply of the copies of such documents to the petitioner which will also be certified by him as the true copies Only after supply of such copies, the disciplinary proceeding in question should be proceeded with. But no final order should be passed during the pendency of the writ proceeding without the leave of the Court. If the petitioner feels inconvenient in attending the proposed enquiry at New Delhi, the petitioner is directed to enumerate the specific instances of such inconvenience to the respondent No.2. The respondent No.2 is directed to consider such representation and to dispose of the same for changing the venue of the place of enquiry, if such change of venue appears justified and reasonable. Liberty is given to the parties to ask for any other suitable orders, if necessary." - On 12.5.93 the ld. court passed the following order;- "Having heard Mr. J.N. Ghosh, learned Counsel for the respondents and Mr. Ranajit Mukherjee, ld. Advocate for the writ petitioner, it appears that the enquiry proceeding has been completed. Since by an order passed by this Court on April 12, 1989, the final order could not be communicated, leave is sought for to communicate the final order which has already been made. Regard being had to the materials on record, leave is granted to communicate the final order to the writ petitioner. Since by an order passed by this Court on April 12, 1989, the final order could not be communicated, leave is sought for to communicate the final order which has already been made. Regard being had to the materials on record, leave is granted to communicate the final order to the writ petitioner. The respondents will not give effect to the final order for a period of two months. Liberty is given to the petitioner to file a supplementary affidavit, if any, challenging the final order, within one week after the summer holidays reply, if any, a week thereafter. The matter will appear 'for orders' four weeks after the holidays. The application affirmed on 23.3.93 and filed in Court on 24.3.93, for leave to the Bank to pass final order' is thus disposed of, without any order as to costs." 4. It appears that during the pendency of the writ petition the writ petitioner preferred an appeal before the Appellate Authority against final order dated May 28, 1993. It further appears that the Appellate Authority passed its order on August 3, 1993. 5. By amending the writ petition the petitioner wants to question the enquiry report, the 'final order passed by the disciplinary authority and the order passed by the Appellate Authority: 6. The respondents opposed the application for amendment on three fold grounds. Firstly, On the ground that the writ petition has been rendered infructuous by the writ petitioner's own conduct whereby the writ petitioner has taken recourse to the remedy provided for in the departmental rules after initiation of the writ petition; secondly, on the ground that as the writ petition itself has become infructuous, no leave can or ought to be granted by the Hon'ble Court to amend the writ petition and thirdly, on the ground that in any case, by way of the amendment, the' petitioner seeks to introduce a totally new and distinct case and/or cause of action separate from the one or which the original writ petition has been instituted and as such the amendment application cannot be allowed. 7. With regard to the first arm of the respondents submission, it was submitted that the writ petition was instituted challenging the departmental charge-sheet and initiation of departmental proceedings against the writ petitioner in 1988, at that time the writ petitioner was the Manager of Alipore Branch of the respondent Bank. 7. With regard to the first arm of the respondents submission, it was submitted that the writ petition was instituted challenging the departmental charge-sheet and initiation of departmental proceedings against the writ petitioner in 1988, at that time the writ petitioner was the Manager of Alipore Branch of the respondent Bank. It was submitted that an 'identical charge-sheet was issued to one Shri Ashim Basu who was at the relevant time the Manager of the Lansdowne Branch of the respondent Bank. It was submitted that both the said Ashim Basu and the present writ petitioner instituted consecutive writ applications challenging the charge-sheet and initiation of disciplinary proceedings initiated against them. It was submitted that the writ petition instituted by Shri Ashim Basu was numbered as C.O. No. 4675 (w) of 1989 while the present writ petition was numbered as C.O. No. 4677 (w) of 1989. It was argued that on 12th May, 1993 leave was granted to the respondent Bank to pass the final order but not to give effect to the same for a period of two months. It was contended by the respondents that the ld. Court also given liberty to the said Shri Ashim Basu and the present writ petitioner to challenge the final order by way of supplementary affidavit. The respondents contended that the final order of the departmental proceedings was passed, with the leave of the ld. Court on 25.5.93. It was contended that both the present writ petitioner and the said Shri Ashim Basu however, chose to take recourse to the remedy provided for in the relevant Rules and Regulations, being the Bank of Baroda Officer Employees' (Discipline & Appeal) Regulations, 1976. The respondents contended that after preferring departmental appeal on 7.6.93 the writ petitioner filed a supplementary affidavit on 15.6.93 purporting to challenge the said final order but deliberately suppressed the fact of preferring departmental appeal from this Hon'ble Court. It was contended on behalf of the respondents that once the writ petitioner took recourse to Departmental Appellate Forum provided for by the relevant Rules and Regulations, the instant writ petition became infructuous. The respondents referred to and relied upon Abanindra Vs. A.K. Majumdar, reported in AIR 1956 Cal 273 . Reliance was made on the following lines in paragraph 9 of the reported decision. "In our opinion, the position taken up by the petitioners is utterly untenable. The respondents referred to and relied upon Abanindra Vs. A.K. Majumdar, reported in AIR 1956 Cal 273 . Reliance was made on the following lines in paragraph 9 of the reported decision. "In our opinion, the position taken up by the petitioners is utterly untenable. It has been held by this Court more than once that although the existence of an alternative remedy is not an absolute bar to the entertainment or maintenance of an application under Article 226 of the Constitution, still, if a party had availed himself of the alternative remedy, he could not after having exhausted those remedies or gone a certain way in their pursuit, switch round to Article 226 of the Constitution and start a fresh line of proceeding under that provision." 8. The respondent also referred to and relied upon P.C. Ray vs. A.C. Mukherjee, Income-tax Officer, reported in AIR 1959 Cal 131 ; paragraph 34 of the reported decision. 9. the respondents also referred to and relied upon M.R. Mill vs. Addl. Commissioner, Commercial Taxes, West Bengal, reported in 67 C.W.N. 405. The relevant lines of the said decision read as follows :- “Therefore, the petitioner thinks that though he has appealed to the Board of Revenue, yet he has little chance of success there. I am of the opinion', that it is not a proper course or a proper exercise of the discretion of this court to grant relief under Article 226 of the Constitution by pre-judging a pending appeal or revision which the petitioner himself has chosen. No doubt an alternative remedy is not always a bar to exercise of discretion by this court under Article 226 of the Constitution. But then this is not a question of the existence of an alternative remedy. It is a case where the petitioner has actually availed of that remedy and that remedy is being pursued' and prosecuted and is pending. A constitutional writ under Article 226 in such .circumstances should not be used for that will encourage gambling in litigation because the petitioner in such cases would take the chance of asking for the writ from this court and winning it, and if he fails then trying his luck in the alternative remedy which he had already initiated before he has come to this court for constitutional relief. The Constitution should not be lent or used for such legal betting." 10. The Constitution should not be lent or used for such legal betting." 10. It was argued by the respondents that as the writ petitioner chose to take recourse to the departmental forum the writ petition was rendered infructuous by such conduct. The respondents also submitted that in Ashim Basu's case the Hon'ble Court by an order was pleased to dismiss the writ petition as infructuous on the ground that the said Shri Ashim Basu had already taken recourse to departmental forum. 11. The respondents submitted that the writ petitioner sought to set a new case on a new cause of action by way of amendment. It was submitted that the writ petitioner has in fact, sought to alter the real matter in controversy between the parties to the writ petition. It was further submitted that the writ petition' was instituted challenging issuance of the charge-sheet and initiation of departmental proceedings in the writ petition. It was submitted that the departmental proceedings had reached its finality with the passing of the final order. By way of amendment, the writ petitioner now seeks to challenge the appellate order in the, instant writ petition and this tantamounts to changing the subject matter of the controversy on the basis of grievances of the writ petitioner. The respondents referred to and relied upon Ma Shwe Mya vs. Maung Mo Hnaung, reported in AIR 1922 PC 249. The relevant lines from the said case read as follows : "All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but none the less no power has yet been given to enable one distinct cause of action to be substituted for another, nor to 'change, by means of amendment, the subject matter of the suit." 12. The respondents also relied upon Kanda vs. Waghu, reported in AIR 1950 PC 68, paragraph 12 of the said decision reads as follows :- "In asking the Board to allow the plaint to be amended at this stage attention has been drawn to the provisions of section 153 and Order 6 Rule 17, Civil P.C. The powers of amendment conferred by the Code are very wide, but they must be exercised in accordance with legal principles, and their Lordships cannot allow an amendment which would involve the setting up of a new case. The judgment of Lord Buckmaster in Ma Shwe Mya vs. Maung Mo Hnaung, 48 I.A. 214 at p. 217 : (AIR (9) 1922 PC 249) is directly in point. It was there held that it was' not open to a Court under section 153 and Order 6, Rule 17, to Allow an amendment which altered the real matter in controversy between the parties. The application for leave to amend is rejected." The respondents also referred to and relied upon Ganesh Trading Co. vs. Moji Ram, reported in AIR 1978 SC 484 . The relevant lines from paragraph 5 of the reported decision reads as follows : "It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accured in its favour due to lapse of time." 13. The respondents further submitted that by the order dated 12.5.93 the writ petitioner was granted leave by Susanta Chakraborty, J. (as His Lordship then was) to challenge the final order by using a supplementary affidavit. The final order was passed on 25.5.93 and the petitioner took recourse to departmental appeal by preferring an appeal on 7.6.93 and the appellate order was passed on 3rd August, 1993 thus appellate order dated 3rd August, 1993 became the operative order. The respondents submitted that no leave was given by the ld. Court to challenge the appellate order. 14. The final order was passed on 25.5.93 and the petitioner took recourse to departmental appeal by preferring an appeal on 7.6.93 and the appellate order was passed on 3rd August, 1993 thus appellate order dated 3rd August, 1993 became the operative order. The respondents submitted that no leave was given by the ld. Court to challenge the appellate order. 14. The respondents referred to and relied upon Collector of Customs vs. East India Commercial Co., reported in AIR 1963 SC 1124 . Paragraph 4 of the reported decision read as follows :- "The question therefore turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court. it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In fact, by issuing a writ to the original authority setting aside its irderm the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once may be within its territorial jurisdiction once the appeal is disposed of though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal." 15. The respondent also referred to and relied upon I.T. Commissioner vs. Amritlal Bhogilal, reported in AIR 1958 SC 868 paragraph 10 of the reported decision reads as Follows :- "There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision along which subsists and is operative and capable of enforcement, but the question is whether this principle can apply to the Income-tax Officer’s order granting registration to the respondent.” 16. The ld. Advocate for the petitioner referred to and relied upon B.P. Bag & Ors. vs. State of West Bengal & Ors., reported in 1980 LAB.I.C. NOC 60 (Cal). The relevant lines for the aforesaid notes of case read as follows :- "It is true that the amendments raised contradictory bas1s to the original petition or contrary to the stand taken by the petitioners in the original application and that the amendments had been sought for at a belated stage. But the amendments, in the instant case, should be allowed because the amendments sought for do not take away any vested rights of any parties and no question of limitation arises. If the amendments are allowed there, is no need of any fresh investigation of facts and the points of law on which the amendments have been sought for the parties had opportunity to make their submissions therefore, no prejudice would be caused if the amendments are allowed, If the amendments are allowed then the same would avoid multiplicity of proceedings." 17. The ld. Advocate for the petitioner also referred to and relied upon Bachhittar Singh vs. State of Punjab, reported in AIR 1963 SC 395 and contended that departmental enquiry can be divided into (a) the enquiry (which involves a decision of the question 'whether the allegations made against the servant are true or not) and (b) taking action (i.e. in case allegations are found to be true, whether the servant should be punished or not and if so in what manner). It was contended that there is just one continuous proceeding though there are two stages in it. 18. The ld. It was contended that there is just one continuous proceeding though there are two stages in it. 18. The ld. Advocate for the petitioner referred to and relied upon Karan Singh vs. Vajan Singh, reported in 1996 JT (1) SC 618 relating upon this decision the ld. Advocate for 'the petitioner argued that appeal is a continuation of the original proceeding. 19. The ld. Advocate for the petitioner further argued that the provision of Code of Civil Procedure have no manner of application in the writ proceeding. The ld. Advocate referred to and relied upon Rameshar vs. Jot Ram, reported in AIR 1976 SC 49 . The ld, Advocate for the petitioner argued that Court can take note of subsequent event and mould the relief accordingly. 20. The Id., Advocate for the petitioner referred to and relied upon Union of India & Ors. vs. R. Reddappa & Anr., reported in (1993) 4 SCC 269 . The relevant lines from paragraph 5 of the reported decision read as follows :- "True the jurisdiction exercised by the High Court under Article 226 or the tribunal is not as wide as it is in appeal or revision but once the court is satisfied of injustice or arbitrariness then the restriction, self-imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice." 21. Considering the facts and circumstances involved in the case and considering the submissions made by both the parties this Court is of the view that amendments sought for in the instant case should be allowed because amendments sought for do not take away any vested rights of any party and no question of limitation arises. This Court is of the view that if the amendments are allowed no prejudice would be caused to any party. This Court is of the view that if the amendments sought for are allowed then the same would avoid multiplicity of proceeding. If the amendment is not allowed the petitioner can challenge the appellate order by a fresh petition it would mean multiplicity of proceeding. Under these circumstances the application for amendment is allowed. The writ petitioner is directed to file a copy of the writ petition incorporating the amendments allowed within a week from the date of re-opening after long vacation. A copy of the amended writ petition should also be served upon the ld. Under these circumstances the application for amendment is allowed. The writ petitioner is directed to file a copy of the writ petition incorporating the amendments allowed within a week from the date of re-opening after long vacation. A copy of the amended writ petition should also be served upon the ld. Advocate for the respondents within the said period. Application for amendment is allowed.