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2007 DIGILAW 578 (GAU)

Top Bahadur Chhetri v. Union of India

2007-08-29

TINLIANTHANG VAIPHEI

body2007
JUDGMENT T. Vaiphei, J. 1. The validity of the three letters containing the decisions of the respondent Bank to terminate the temporary services of the petitioners and of the tenability of their claim for regularizing their temporary services are the common questions of law involved in these writ petitions. The petitioner in WP(C) No. 157(SH) of 2006 was discharged from the Assam Rifles on voluntary retirement in the year 1993, whereafter he was appointed on 20.10.1995 as "Badli Guard" at the Jowai Branch of the respondent-Bank. The petitioner in WP(C) No. 160(SH) of 2006, after his discharge from the Assam Rifles, also joined the respondent-Bank as Security Guard with effect from 1.11.1992. The petitioner in WP(C) No. 161 (SH) of 2006 was discharged from 58, Gorkha Rifles on 30.9.1991 and joined the respondent-Bank on 01.06.1994 as Security Guard. Apparently, no formal letters of appointments were issued to any of these petitioners. Be that as it may, despite assurance made by the respondent-Bank from time to time for their absorption/regularization of their services, according to the petitioners, no such decisions were taken. On the contrary, by separate letters, they were informed by the Bank-respondents of their decisions to terminate their service w.e.f. 6.4.2003. The petitioner in WP(C) No. 157(SH) 2006 thereupon filed WP(C) No. 73(SH) of 2003 before this Court challenging the decision to terminate his service with a prayer for regularizing his services. On or about the sometime, the petitioners in WP(C) No. 160(SH) of 2006 and WP(C) No. 161(SH) of 2006 also jointly filed WP(C) No. 238(SH) of 2003 claiming similar reliefs. 2. In the said writ petitions, the petitioners contended that since their initial recruitments were done after due assessment of their suitability to the posts in accordance with the extant guidelines of the respondent-Bank, the decision to terminate their services on the ground either of their being over-age or under-qualified was illegal and arbitrary. The respondents-Bank resisted the writ petitions by filing their affidavits-in-opposition. The Bank disputed therein the claim of the petitioners that they were suitable to the posts and contended that they were merely engaged/appointed purely on temporary basis as Badli Guards due to immediate administrative exigencies and that their induction into service was not indicative of their suitability for the posts in question on the basis of the extant guidelines of the Bank. The respondents-Bank pointed out that the suitability or eligibility of the petitioners were duly assessed in the interview held on 16.11.2000 in which it was found that none of them were eligible for their continuance in service in terms of the extant Guidelines. In so far as the petitioner in WP(C) No. 73(SH) of 2003 and the petitioner No. 2 in WP(C) No. 238(SH) of 2003 were concerned, according to the Bank, they were not Ex-Servicemen within the meaning of the Notification No. 36034/5/AT5-ESTT (SCT), Ministry of Personnel, PG & Pensions, Govt. of India, New Delhi, dated 27.10.1986, where as the petitioner No. 2 in WP(C) No. 238(SH) of 2003 was found academically deficient. Thus, it was contended by the Bank therein that as the petitioners did not fulfill the eligibility conditions, their decision to terminate their services was legally justified and could not be interfered with by this Court. 3. After hearing both the parties, this Court by the common judgment and order dated 22.9.2005 disposed of the writ petitions by directing the Bank-respondents to re-examine the issue in the light of the observations made by it and take a decision in that regard. It was also ordered therein that till a decision was taken, the services of the petitioners should not be disturbed. This Court recorded the finding that the petitioner in WP(C) No. 73(SH) of 2003 had been serving under the Bank from October, 1995, while the petitioners in WP(C) No. 238(SH) of 2003 had been serving under the Bank from 1991- 92, thereby indicating that the three of them had put in ten years or more of services with the Bank. This Court also found that the guidelines contained in the communication dated 22.06.1988 had mentioned that candidates for Bank Guards were forwarded by the Zilla Sainik Board/Employment Exchange without considering their trade, skill level, Medical Category and also without ascertaining as to whether they were Ex- Servicemen as defined in the Notification dated 27.10.1986. This Court rejected the contention of the learned Counsel for the Bank-respondents that the guidelines contained in the Notification dated 27.10.1986 were already in force when the petitioners were appointed in between 1991-92 and 1995, and held that para 2 of the communication dated 22.06.1998 was indicative of the enforceability of the guidelines for future recruitments. This Court rejected the contention of the learned Counsel for the Bank-respondents that the guidelines contained in the Notification dated 27.10.1986 were already in force when the petitioners were appointed in between 1991-92 and 1995, and held that para 2 of the communication dated 22.06.1998 was indicative of the enforceability of the guidelines for future recruitments. Taking note of the facts that the Bank could not give satisfactory reply to the pointed query made by the court as to why the services of the petitioners were retained for more than three years if they were not qualified, it accordingly held that fresh yardsticks, which were not in existence earlier, could not be applied now to disqualify them for their regular appointment or their continuance in service, particularly, when they had now put in more then ten years of services and also when no stand was taken by the Bank that their retention in service would compromise the level of performance required for its security. It was the aforesaid observations, which this Court required of the Bank-respondents to take into account while re-examining the issue of regularization of the services of the petitioners. 4. No appeal was preferred by the Bank-respondents from the aforesaid judgment and order of this Court. Purportedly, in compliance with this judgment and order, the Bank-respondents thereafter issued the impugned letters dated 19.6.2006 addressed to the Assistant General Manager, State Bank of India, Region-I, Zonal Office, Shillong (respondent No. 3) informing him of the decision of the appropriate authority to terminate the services of the petitioners by invoking Section 25 of the Industrial Disputes Act, 1947. The petitioners promptly filed these three writ petitions for quashing the three identical letters dated 19.6.2006 and for regularizing their respective services in terms of the observations made in the aforesaid judgment and order dated 22.9.2005. It is contended by the petitioners that the proposed termination of their services were done without giving them an opportunity of hearing and that the decision to terminate their services was being done by ignoring the findings of this Court, which have now attained finality, and is contrary to the directions of this Court. It is contended by the petitioners that the proposed termination of their services were done without giving them an opportunity of hearing and that the decision to terminate their services was being done by ignoring the findings of this Court, which have now attained finality, and is contrary to the directions of this Court. Contesting the writ petitions, the Bank-respondents in their affidavits-in-opposition submit that the writ petitions are not maintainable as the petitioners do not avail of an alternative remedy available under the Industrial Disputes Act, 1947 and that they are not entitled to regularization as their initial appointments have been made purely on temporary and emergency basis without having regard to the eligibility criteria laid down by law. They contend that the petitioner in WP(C) No. 157(SH) of 2006 is not an ex-servicemen in terms of the letter dated 19.10.1987 issued by the Bank, which was merely reiterated in the said letter dated 22.6.1998 and that he was also found over age when he was considered for appointment and also under qualified as per the Bank's Circular dated 1.9.1991. At this stage, it may be noted that the existence of the letters dated 19.10.1987,29.7.1987 and 1.8.1991 (which are annexed to their affidavit-in-opposition at Annexure-I and Annexure-V) were never brought to the notice of this Court earlier. Nor were copies of such documents made available in the earlier writ petition. As will be pointed out latter, these omissions are significant. In WP(C) No. 160(SH) of 2006, the stand taken by the Bank, in addition to their earlier contentions, is that the petitioner did not possess the minimum qualification i.e. Class V as required by the CO Letter No. PA/CIR/101 dated 1.8.1991. In so far as the petitioner in WP(C) No. 161(SH) of 2006 is concerned similar stand is taken by the Bank i.e. he did not even pass Class-V. It may again be noted that these pleas were never taken by the Bank in the earlier writ petition. 5. It is contended by the learned Counsel appearing for all the petitioners that the Bank-respondents did not duly consider the case of the petitioners in terms of the directions of this Court in the earlier writ petitions. 5. It is contended by the learned Counsel appearing for all the petitioners that the Bank-respondents did not duly consider the case of the petitioners in terms of the directions of this Court in the earlier writ petitions. They contend that when this Court has already given categorically findings and observations, the Bank-respondents cannot go behind the same and come with new pleas to defeat the legitimate claim of the petitioners based on the decision of this Court. According to the learned counsel, the new pleas taken by the Bank in this case are barred by constructive res judicata, and the Bank authorities were bound to consider the case of the petitioner within the four corners of those findings and observations of the judgment in question. Drawing my attention to the affidavit-in-opposition filed by the Bank, the learned Counsel point out that all, except the new pleas taken by the Bank herein, have been extensively dealt with and finally decided by this Court earlier while those new pleas are matters which might been or ought to have been taken up by them in the earlier writ petitions; they cannot now be grounds for defeating the case of the petitioners. In that view of the matter, contend the learned counsel, no more discretion is left with the Bank authorities but to issue orders for the regularization of the services of the petitioners. Per contra Mrs. T. Yangi, the learned Counsel appearing for the Bank authorities, while reiterating the submissions already made in the earlier writ petitions, submits that in view of the decision of the Apex Court in Uma Devi v. State of Karnataka (2006) II LLJ 722 SC, any direction to regularize the services of the petitioner would be illegal and, therefore, urges this Court to dismiss the writ petitions. 6. Upon hearing the learned Counsel appearing for the rival parties and on perusing the materials on record, the first point for consideration is whether the pleas taken by the Bank-respondents in these writ petitions can be said to be barred by res judicata/constructive res judicata? 6. Upon hearing the learned Counsel appearing for the rival parties and on perusing the materials on record, the first point for consideration is whether the pleas taken by the Bank-respondents in these writ petitions can be said to be barred by res judicata/constructive res judicata? It maybe recalled that this Court in the earlier writ petitions have already held that the eligibility criteria, namely, the minimum educational qualification and age of candidates required for the post in question and the ineligibility of retired personnel of the Assam Rifles as they do not come within the meaning of "Ex-Servicemen", which are prescribed in the Guidelines dated 27.10.1986, were not applicable when the petitioners were appointed to the posts in question since para 2 of the communication dated 22.6.1998 was only indicative of their future enforceability. As no appeals were preferred by the Bank authorities against these findings, I am of the view that these findings have now attained finality and are, therefore, binding upon the Bank-respondents. In so far as the letters dated 19.10.1987, dated 29.7.1987 and dated 1.8.1991 produced by the Bank in support of its contention that the guidelines dated 22.6.1998 were already in force when the petitioners were appointed to the posts in question, in my opinion, these documents are new evidence produced at this stage by the respondents to simply to re-agitate the issues already raised by them in the earlier writ petitions as the same is barred by res judicata. 7. The law is well-settled without reference to cause that the principle of res judicata is applicable in a writ proceeding under Article 226 of the Constitution. The principle of res judicata bars the trial of a case or an issue in which the matter directly or substantially in issue has already been adjudicated upon in a previous case. It is true that the non-production of these documents in the previous writ petitions might have resulted in erroneous decision by this Court. But public policy demands that there should be an end to litigation. The question whether a decision is correct or erroneous has no bearing on whether it operates or it does not operate as res judicata; otherwise, every decision would be impugned as erroneous and there would be no finality. But public policy demands that there should be an end to litigation. The question whether a decision is correct or erroneous has no bearing on whether it operates or it does not operate as res judicata; otherwise, every decision would be impugned as erroneous and there would be no finality. The principle is thus intended not only to prevent a new decision but also to prevent a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same question. But for this rule, there would be no security for any person and great injustice done under the cover of law. Thus, the rule of res judicata is another device invented by law to prevent an abuse of process of court at the hands of vindictive litigants. In this view of the matter, this Court of co-ordinate Bench cannot permit the respondents to raise the aforesaid points, which, if permitted, is likely to result in conflicting decisions. Consequently, I have no alternative but to hold that all the pleas taken by the respondents in these writ petitions are barred by the principle of res judicata/constructive res judicata. 8. The next point for determination is whether the respondent authorities disposed of the direction of this Court to consider the case of the petitioners in the light of the findings and observations made in the earlier judgment. As noticed earlier, the findings of this Court are that (a) the guidelines contained in the communication dated 22.6.1998 on the eligibility criteria laid down therein were not in force at the time when the petitioners were initially appointed to their respective posts, (b) fresh yardsticks, where which were not in existence then, could not be applied to disqualify them for their regular appointment or to deny their continuance in service, particularly, when they had now put in more than ten years of service and (c) no stand was taken by the Bank-respondents that their retention in service would compromise the level of performance required of them. It is quite possible that these findings could have been erroneous. But when no challenge was made by the Bank against these findings in appropriate proceedings, they have attained finality and are binding upon them. It is quite possible that these findings could have been erroneous. But when no challenge was made by the Bank against these findings in appropriate proceedings, they have attained finality and are binding upon them. Yet, the impugned letters read with the affidavits-in-opposition filed by them would show that these are the very grounds on which they refused to regularize the services of the petitioners and proceeded to terminate their services. It must be pointed out again and again that consideration of the case of the petitioners must have been and ought to have been limited to the findings and observations made in the said judgment. The direction to consider the order passed by the High Courts to authorities "to consider" is admittedly not a positive direction, but then the consideration contemplated by such direction is not an empty formality either. This aspect of the matter has been examined by the Apex Court in APSRTC v. G. Srinivas Reddy (2006) II LLJ 425 SC followed in Employees' State Insurance Corporation v. All India ITDC Employees' Union and Ors. (2006) II LLJ 547 SC. This is what the Apex Court says: 16. The High Courts also direct the authorities to "consider", in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of the power of judicial review, directs the authority to "consider" and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs "consideration" without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to "consider" afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, the High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so. 17. Where the High Court finds the decision making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to "consider" the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the Court. 17. Where the High Court finds the decision making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to "consider" the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the Court. (emphasis mine). But where the High Court without recording any findings, or without expressing any view, merely directs the authority to "consider" the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. 9. In my judgment, the facts of the instant writ petitions are covered by the first category of case mentioned in paragraph 17, namely, the duty of the Bank authorities to consider the matter in the light of the findings and observations contained in the earlier judgment of this Court. Therefore, the powers of the Bank authorities are obviously circumscribed by the observations and findings of this Court in the earlier judgment. At this stage, it may be useful to refer to one of the impugned letters(Annexure-8), which is illustrative of the other impugned letters, which reads thus: The Asstt. General Manager, Date: 19.06.2006 State Bank of India Region-I, Zonal Office, Shillong. Dear Sir, Temporary Bank Guards WP(C)No.73(SH) of 2002 Issue of Termination order along with payable compensation. Pursuant to the direction of the High Court and instructions received from Head Office, it is decided by the appropriate authority to terminate the services of the under mentioned Temporary Bank Guard as the close of business on 30.06.2006. The order will be issued by the competent authority from this Office which have to be handed over by you to the concerned Temporary Bank Guard working under your control. 2. Along with the Termination Order the workman has to be paid one months wages in lieu of the notice period (Under section 25(a) of ID Act, 1947), together with retrenchment compensation equivalent to 15 days average pay, for every completed years of continuous service or any part thereof in excess of 6 months Under section 25(F)(b). 3. 2. Along with the Termination Order the workman has to be paid one months wages in lieu of the notice period (Under section 25(a) of ID Act, 1947), together with retrenchment compensation equivalent to 15 days average pay, for every completed years of continuous service or any part thereof in excess of 6 months Under section 25(F)(b). 3. You are therefore, requested to make necessary arrangement for payment of the one month's wage and compensation beforehand, so that the same could be handed over to the workman in time along with the Termination Order. Particulars of the Workman to be retrenched: 1. Shri Top Bahadur Chhetri, Temporary Bank Guard, Jowai Branch. Yours faithfully, For Deputy General Manager 10. On careful reading of the impugned letters, what stands out is that the respondent authorities never considered the case of the petitioners in the context of the findings and observations if this Court. All that they said is that pursuant to the directions from this Court and instructions received from the Head Office, it had been decided to terminate the services of the petitioners at the close of business on 30.06.2006. This is certainly contrary to the directions of this Court. Once this Court has found that the petitioners were eligible for the post of Security Guards, the least they could have done was to convene a review DPC or Selection Committee to consider the case of the petitioners. Moreover, reading the impugned letters and the affidavits-in-opposition filed by the respondents in all the cases in juxtaposition, it is crystal clear that apart from the ineligibility of the petitioners harped on by them ad nauseam, which contention already rejected, by this Court, no other ground can be projected by them to deny regular appointment to the petitioners. The respondents are, if I may say so, bent upon flouting or circumventing the directions of this Court by hooks or crooks or in one way or another. True, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution does not normally direct the authorities to act in a particular manner. Aware of this legal position, this Court had in the earlier writ petitions refrained from directing the respondents to regularize the service of the petitioners. True, this Court in exercise of its writ jurisdiction under Article 226 of the Constitution does not normally direct the authorities to act in a particular manner. Aware of this legal position, this Court had in the earlier writ petitions refrained from directing the respondents to regularize the service of the petitioners. However, in this second round of litigations initiated by the petitioners, there does no longer appear to be any discretion left with the respondents for regular appointment of the petitioners especially when the stand taken by them in their pleadings is merely repetitive and, therefore, groundless. In that view of the matter, I am constrained to hold that the respondents-Bank are now left with no discretion but to give regular appointment to the petitioners in the posts they held with effect from the date of this judgment. The law is now well-settled since Union of India v. Anglo-Afghan Agencies AIR 1968 SC 718 , that in a case where the range of discretion with the authorities has been cut down to such an extent that only one decision is possible, the courts may specifically direct the authority to act in a particular manner. 11. A last ditch attempt is made by Mrs. T. Yangi, the learned Counsel for the Bank, to defend the case of the Bank by submitting that any direction to be made by this Court in the manner indicated above will be contrary to the law laid down by the Apex Court in Secy. State of Karnataka v. Uma Devi (3) (2006) 4 SCC 1 . I have had the privilege of going through this decision on several occasions. If I understand it correctly, what the Apex Court laid down therein is that mandamus cannot be issued by the writ courts for directing absorption, regularization, or permanent continuance of persons appointed on temporary, contractual, casual, daily wage or ad-hoc basis unless such employees have any enforceable legal right to be permanently absorbed or unless they can show that the State has a legal duty to make them permanent. I am unable to understand as to how this case can be of any assistance to the Bank authorities. As noted earlier, in these cases, the petitioners have been found to be qualified as per the extant rules/guidelines, but they were nevertheless not considered for appointment in the Selection Committee illegally or arbitrarily. I am unable to understand as to how this case can be of any assistance to the Bank authorities. As noted earlier, in these cases, the petitioners have been found to be qualified as per the extant rules/guidelines, but they were nevertheless not considered for appointment in the Selection Committee illegally or arbitrarily. Their services were retained for about 10 long years and were never terminate on the ground that they were ineligible for the posts held by them or on the ground that their services were temporary. 12. The Bank authorities for the first time sought to terminate their services when they refused to consider their case for regular employment in the Selection proceeding duly constituted by them on the grounds, which have now been found by this Court to be non-existent. It is nobody's case that the petitioners refused to take part in the selection proceeding or compete with other eligible candidates. Nor is it the case of the Bank authorities that even if the petitioners were held to be eligible, they would not be suitable for the posts. This is the direct and inevitable inference which can be drawn from the tone and tenor of their affidavits-in opposition. Therefore, there is no force in the contention of the learned Counsel for the respondents. 13. For the reasons recorded in the foregoing, these writ petitions succeed. Let a mandamus issue directing the Bank-respondents to regularize the services of the petitioners in the posts of Security Guards subject, however, to medical fitness and favourable police verification. The entire exercise shall be carried out within a period of two months from the date of receipt of this judgment. Consequently, the impugned letters dated 19.6.2006 terminating the services of the petitioners are hereby quashed. But there shall be no order as to costs. Petition allowed.