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2002 DIGILAW 146 (MP)

S. S. Kaushal v. State Bank of India

2002-02-08

BHAWANI SINGH, K.K.LAHOTI

body2002
Judgment ( 1. ) THIS appeal is directed against the order in Writ Petition No. 4055/2000 decided on October 9, 2000. Contention of the appellant, that he be treated, in continuous service for the purposes of pensionary/retiral benefits from the date of his removal, after departmental enquiry by the employer, which though quashed by this Court but maintained by the Supreme Court, till the date of judgment of the Supreme Court in previous round of litigation, has been rejected by the learned single Judge. ( 2. ) SHORT facts of the case are that the petitioner was appointed in respondent-Bank on March 31, 1967. He was served with a charge sheet. After departmental enquiry, petitioner was removed from the service on May 8, 1984 vide order Annexure P/1. ( 3. ) AGGRIEVED by the order of removal, appellant filed an appeal to the appellate authority, but the same was dismissed and communicated to him on January 25, 1985. Appellant filed Misc. Petition No. 375/1987. Division Bench of this Court vide order (Annexure P/2) on January 15, 1992 allowed the writ petition and the order of removal was set aside. The appellant was directed to be reinstated with half back wages payable to him on reinstatement. Respondent-Bank, aggrieved by the order of this Court, filed Special Leave Petition No. 8147/1992 before the Supreme Court. On August 17, 1997, the Supreme Court passed interim order (Annexure P/3) staying the order passed by this Court on the condition that the respondent will pay to appellant subsistence allowance for the period from the date of dismissal in accordance with law and continue to pay subsistence allowance in future till further orders. But the Supreme Court finally allowed the appeal on January 12, 1994 (Annexure P/4) and the order of punishment was restored without any other order. ( 4. ) THE Supreme Court while hearing, Civil Appeal No. 1884/1993 (Punjab National Bank and Ors. v. Kunj Behari Misra 1998-II-LLJ-809 noticed decision in State Bank of India, Bhopal v. and S. S. Kaushal (Annexure P/4) and the matter was referred to a larger Bench which held that the case of S. S. Kaushal did not lay down the correct law. ( 5. v. Kunj Behari Misra 1998-II-LLJ-809 noticed decision in State Bank of India, Bhopal v. and S. S. Kaushal (Annexure P/4) and the matter was referred to a larger Bench which held that the case of S. S. Kaushal did not lay down the correct law. ( 5. ) IT is pertinent to mention here that the appellant, after Apex Courts decision in the case of Kunj Behari Misra (supra) filed a Civil Appeal before the Supreme Court for a direction to the respondent to reinstate him in service as per order of this Court in W. P. No. 375/1987 dated January 15, 1992 (P/2 ). Butthe Apex Court was not inclined to grant the relief and dismissed the appeal vide order dated November 29, 1999. This fact has been mentioned in para 5. 11 of this writ petition. Thereafter, appellant filed this writ petition on July 3, 2000 claiming abovesaid relief. Reliance has been placed on Rule 20-B of State Bank of India (Supervising Staff) Service Rules, which reads as under: "20-B : In case disciplinary proceedings under these Rules have been initiated against an employee before he ceases to be in the Banks service by the operation of, or by virtue of, any of these Rules, the Disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in these Rules as if the employee continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. " ( 6. ) CONTENTION of the appellant before learned single Judge was: That as he had been paid subsistence allowance as per the interim order passed by the Apex Court, he may be treated to be in service and the period of interregnum to be counted towards his service. Learned single Judge held that the interim relief granted by the Apex Court could not travel beyond the final judgment. Final judgment in the matter of appellant was passed but his termination was found to be in accordance with law. If the termination is held to be in accordance with law, then the petitioner would stand terminated on the date of the order, issued by the employer. Final judgment in the matter of appellant was passed but his termination was found to be in accordance with law. If the termination is held to be in accordance with law, then the petitioner would stand terminated on the date of the order, issued by the employer. Under the circumstances, it cannot be said that by grant of some interim order in his favour, his services were continued or he continued in service. Merely because the judgment of the Supreme Court in his case was later reversed, he will not get any benefit as the judgment between the parties stood. In view of the above, the learned single Judge dismissed the petition. ( 7. ) LEARNED counsel for the appellant submits that in view of the provisions of Rule 20-B, his services be deemed to be continued, till the decision of the Apex Court and he is entitled for all service and pensionary benefits. As his dismissal order was set aside by this Court on January 15, 1992 and the Supreme Court directed payment of subsistence allowance for the period from the date of dismissal till further orders. Hence, his services will be deemed to be terminated on January 12, 1994 when the Apex Court allowed the Special Leave petition by order Annexure P/4. ( 8. ) WE have considered the argument raised by the learned counsel for the appellant. Appellant cannot get any benefit of Rule 20-B because it specifically provides that in case disciplinary proceedings are initiated against any employee before he ceases to be in the service, the Disciplinary proceedings may be continued and concluded by the authority and the employee shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. Scope of Rule 20- B is limited for continuation and] conclusion of the proceedings during which the employee shall be deemed to be in service. The employer, by this Rule, will be in a position to continue the disciplinary proceedings and take decision in this regard and the employee shall be deemed to be in service but no monetary or other benefit can be extended on the basis of this Rule. The contention of the appellant is misconceived, liable to be rejected. ( 9. ) WE have also considered the other; argument advanced by the learned counsel. The contention of the appellant is misconceived, liable to be rejected. ( 9. ) WE have also considered the other; argument advanced by the learned counsel. As per the averments made by the petitioner in para 5. 11 of the petition, his prayer for reinstatement in service was declined by the Supreme Court even on November 29, 1999. Previously also Supreme Court confirmed the dismissal order passed by the disciplinary authority on May 8, 1984 and the order passed by this Court on January 15, 1992 was set aside. In the circumstances, the appellant, cannot get any benefit from the order passed by this Court on January 15, 1992 (P/2) as the same had been set aside by the Apex Court. ( 10. ) THE Apex Court in the case of Kunhayammed v. State of Kerala AIR 2000 SC 2587 : 2000 (6) SCC 359 held in paras 44 (i) and (iv) as under: "44 (i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) xxxxx xxxxx xxxxx (iii) xxxxx xxxxx xxxxx (iv) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been revoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. " ( 11. ) IN Amba Bai and Ors. v. Gopal and Ors. 2001 (5) SCC 570 , the Apex Court in para 11 of the judgment, held that: "11. If the judgment or order of an inferior Court is subjected to an appeal or revision by the superior Court and in such proceedings the order or judgment is passed by the superior Court determining the rights of parties, it would supersede the order or judgment passed by the inferior Court. If the judgment or order of an inferior Court is subjected to an appeal or revision by the superior Court and in such proceedings the order or judgment is passed by the superior Court determining the rights of parties, it would supersede the order or judgment passed by the inferior Court. The juristic jurisdiction for such doctrine of merger is based on the common law principle that there cannot be, at one and the same time, more than one operative order governing the subject matter and the judgment of the inferior Court is deemed to lose its identity and merges with the judgment of the superior Court. " ( 12. ) IN view of this, the order passed by this Court in Writ Petition No. 375/1987 dated January 15, 1992 has been merged in the order passed by the Apex Court and petitioner cannot take any benefit of the order passed by this Court which was ultimately set aside by the Apex Court. Simply because, appellant was paid subsisting allowance by the interim order passed by Apex Court, his services cannot to be extended till the final judgment. Apex Court has also not issued any order in this regard while the matter was finally decided by order (annexure P/4) dated January 12, 1994 or on subsequent occasion when appellant filed Civil Appeal, which was also dismissed on November 29, 1999. ( 13. ) IN view of the above, the present appeal has no merit and is dismissed with no order as to costs.