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2009 DIGILAW 238 (CAL)

Tapati Mondal v. United Bank of India

2009-03-19

PRANAB KUMAR CHATTOPADHYAY, TAPAN MUKHERJEE

body2009
Judgment : PRANAB KUMAR CHATTOPADHYAY, J. (1) This appeal is at the instance of the writ petitioner assailing the judgment and order passed by the learned Single Judge whereby and whereunder the said learned Judge dismissed the writ petition without granting any relief to the writ petitioner who, however, died during the pendency of the present appeal. In view of the death of the sole appellant during the pendency of the appeal, his heirs have been substituted as appellants. (2) The deceased appellant was an employee of the respondent- bank and the departmental proceeding was initiated by the bank against the said deceased appellant on the basis of the charge-sheet dated 19th February, 1993. The said charge-sheet was issued by the Regional Manager of the respondent-bank and the Disciplinary Authority of the deceased appellant. (3) During the pendency of the departmental proceeding, several writ petitions were moved by the deceased appellant before this Honble Court alleging various illegalities and/or irregularities in the matter of conducting the disciplinary proceeding. Ultimately, the enquiry report was submitted by the Enquiry Officer before the Disciplinary Authority. Upon receipt of the said enquiry report, the Disciplinary Authority communicated the same to the deceased appellant and also granted an opportunity to make representation in connection with the said enquiry report. The deceased appellant thereafter submitted his representation in connection with the said enquiry report wherein a specific allegation was made by the said deceased appellant to the effect that appropriate opportunity was not granted for production of the defence witness and furthermore, he could not effectively cross-examine the material witnesses namely, MW-1, MW-2 and MW-3. (4) The Disciplinary Authority, thereafter, arrived at the conclusion that the charges levelled against the deceased appellant were established beyond doubt and by the written communication dated 5th October, 1996 informed the said deceased appellant to the effect that the said Disciplinary Authority tentatively decided to impose th6 punishment of dismissal without notice. The aforesaid order dated 5th October, 1996 was passed by the Disciplinary Authority during the pendency of the writ petition filed earlier by the deceased appellant. The said writ petition bearing C.O. No. 19710 (W) of 1995, however, came up for hearing before a learned Single Judge of this Honble Court and was ultimately disposed of finally by the judgment and order dated 26th August, 1998. The said writ petition bearing C.O. No. 19710 (W) of 1995, however, came up for hearing before a learned Single Judge of this Honble Court and was ultimately disposed of finally by the judgment and order dated 26th August, 1998. The operative part of the said order is quoted hereinbelow:-"...........Under these circumstances, the part of the proceeding from the stage of cross-examination of the prosecution witnesses by the petitioner is set aside. The Bank is directed to allow the writ petitioner one further chance to cross-examine the witnesses produced by them. But the prayer of the petitioner for supplying him copies of preliminary enquiry report and the complaint as has been rejected by the Enquiring Officer appears to be justified. This Court does not want to interfere with it in any way. Therefore, the petitioner will get the benefit of cross-examining the witnesses of the authority afresh without the preliminary report and the complaint and on the charge-sheet as it was communicated to him stands and on the basis of the documents supplied to him already. In case of any further default on the part of the petitioner, the proceeding will continue without allowing him further chance. After such proceeding of enquiry from the stage of cross-examination of the witnesses, the authority will come to a fresh consideration as per law. If the petitioner is aggrieved with the result of such proceeding, he may take recourse in law as provided in the departmental rules, before the appellate authority. The prayer of the petitioner for refixing the Subsistence allowance by allowing him annual increments from time to time, is not justified and is accordingly rejected. Subsistence allowance as fixed by the authority to the extent of Rs. 4000/- at present calculated on the basis of his pay as he used to get at the time of suspension appears to be quite justified. I do not think that it should be revised pending finality of the proceeding......." (5) The aforesaid judgment of the learned Single Judge was partly in favour of the writ petitioner (now deceased) since the part of the proceeding from the stage of cross-examination of the prosecution witnesses by the deceased appellant/writ petitioner was set aside and the bank authorities were directed to allow the said writ petitioner one further chance to cross- examine the witnesses. The other part of the judgment of the said learned Single Judge was, however, against the deceased appellant/writ petitioner since the learned Single Judge specifically held that the Enquiry Officer was justified in rejecting the prayer of the writ petitioner for supplying him copies of the preliminary enquiry report and other records. (6) Challenging the aforesaid judgment of the learned Single Judge both the parties preferred appeals before the Division Bench of this Honble Court. One appeal was preferred by the deceased appellant/writ petitioner (F.M.A. No. 1347 of 2000) and another appeal was preferred by the bank authorities (M.A.T. No. 3477 of 1998). (7) Both the appeals were finally heard together and disposed of by the same judgment and order dated 11th December, 2000 by a Division Bench of this Hon ble Court presided over by the Honble Justice Ashok Kumar Mathur (the then Chief Justice of this Honble Court). The operative part of the said judgment reads as follows:- "The learned Counsel for the writ petitioner submitted that in an earlier writ petition filed by him Satyabrata Sinha, J, (as His Lordship then was) passed an order on 30th March, 1995 whereby time limit was fixed that is three months. Therefore, further enquiry after the time limit according to the learned Counsel was beyond jurisdiction. So far as first submission is concerned suffice it to say that the subsequent order dated 26th August, 1998 the learned Judge directed to proceed with the enquiry from the stage of cross-examination of the witnesses. Therefore, the earlier time frame fixed by the learned Single Judge on 30th March, 1995 appears to have any relevance so far as subsistence allowance is concerned. The enquiry has come to an end and the authorities will pass final order. Therefore, at that time they will decide the question of further subsistence allowance whether that is sufficient or that should be enhanced. It is entirely to the discretion of the authorities at the conclusion of the enquiry. Therefore, after hearing the learned Counsel for the respective parties and considering the facts and circumstances of the case we dismiss both the stay application as well as the appeal treating those as on days list." (8) By the aforesaid judgment both the appeals preferred by the respective parties were dismissed even though certain observations were recorded therein which were relied upon afterwards. (9) Mr. (9) Mr. Saktinath Mukherji, learned Senior Counsel representing the appellants submits that the observations recorded in the judgment of the Division Bench of this Honble Court cannot have any operational significance as both the appeals were finally dismissed. Mr. Mukherji further submits that in view of dismissal of both the appeals, judgment and order dated 26th August, 1998 passed by the learned Single Judge became final and binding on the parties to the proceeding. (10) In any event, the Disciplinary Authority under Memo dated 2nd January, 2001 granted an opportunity to the deceased appellant to submit a written representation regarding proposed punishment, which according to the deceased appellant was a so-called opportunity without complying with the specific direction passed by the learned Single Judge in the order dated 26th August, 1998 passed in C.O. No. 19710 (W) of 1995. The appellant/writ petitioner, since deceased, therefore, submitted a written representation on 6th January, 2001 before the Disciplinary Authority categorically stating inter alia that the direction of the said Disciplinary Authority mentioned in the letter dated 2nd January, 2001 was in clear violation of the order dated 26th August, 1998 passed by the learned Single Judge and requested the Disciplinary Authority by the said written representation to withdraw and/or cancel and/or recall the Memo dated 2nd January, 2001 issued earlier by the said Disciplinary Authority to the original appellant. (11) The Disciplinary Authority, however, after receiving the aforesaid representation of the appellant/writ petitioner, since deceased, confirmed the proposed punishment and issued the letter dated 10th January, 2001 inflicting the punishment of "dismissal without notice" upon the said deceased appellant with immediate effect. (12) The deceased appellant thereafter being aggrieved by the said final order dated 10th January, 2001 moved a writ petition bearing W.P. No. 355 (W) of 2001 before this Honble Court, which was finally disposed of by a learned Single Judge of this Honble Court on 15th January, 2001 as hereunder:-"..........in my view, the instant writ application is premature. I do not consider it proper to prompt the passing of the final order by the Disciplinary Authority. I do not consider it proper to prompt the passing of the final order by the Disciplinary Authority. The petitioner shall be entitled to raise all such eontentions as are open to him before the Disciplinary Authority and if aggrieved by any order is adverse to the petitioner, passed by the Disciplinary Authority, it is open to the petitioner to avail the remedy of appeal if provided for under the rules governing his service for judicial review under Article 226 if applicable to the facts of the case." (13) The deceased appellant, therefore, filed a departmental appeal against the order of dismissal on several grounds and on 1st December, 2001 the Appellate Authority was pleased to dismiss the said appeal. The deceased appellant thereafter filed another writ petition bearing W.P. No.6581 (W) of 2002 which was finally disposed of by the order dated 26th June, 2002 by another learned Single Judge of this Honble Court whereby and whereunder the said learned Judge was pleased to set aside the order passed by the Appellate Authority and directed the said authority to reconsider the appeal in the light of the observations made in the said order passed by the learned Single Judge. (14) Pursuant to the aforesaid order of the learned Single Judge the Appellate Authority reconsidered its earlier order and passed another order on 7th August, 2002 dismissing the appeal preferred by the deceased appellant and upholding the order dated 10th January, 2001 passed by the Disciplinary Authority. The appellant/writ petitioner, since deceased, filed another writ petition challenging the said order of the Appellate Authority dated 7th August, 2002, which was ultimately dismissed by the learned Single Judge by the judgment and order under appeal. (15) Mr. Saktinath Mukherji, learned Senior Counsel of the appellants submits that the learned Single Judge while dismissing the writ petition by the judgment and order under appeal failed to appreciate that the specific directions issued by another learned Single Judge of this Court while finally deciding the earlier writ petition of the appellant/writ petitioner, since deceased, bearing C.O. No. 19710 (W) of 1995 by the order dated 26th August, 1998 were neither followed by the Disciplinary Authority nor taken into consideration by the Appellate Authority although specific grounds were raised in this regard by the deceased appellant. Mr. Mr. Mukherji further submits that the learned Single Judge should not have ignored the earlier judgment passed by another learned Single Judge of this Honble Court in the previous writ petition filed by the deceased appellant herein. Mr. Mukherji also submits that the observations of the Appeal Court cannot have any effect at all after ultimate dismissal of both the appeals and, therefore, the same cannot affect the rights accrued to the appellant/writ petitioner, since deceased, on the basis of the judgment and order dated 26th August, 1998 passed by the learned Single Judge. (16) Mr. Mukherji referred to and relied on a decision of the Privy Council in the case of Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, reported in AIR 1922 PC 241 wherein the Privy Council observed:-"Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them............................" (17) Undisputedly, in the instant case, learned Single Judge had quashed the proceedings from the stage of cross-examination and was pleased to make the rule absolute to that extent. Mr. Mukherji, learned Senior Counsel of the appellants submits that any contrary observation of the Appeal Court without setting aside the order of the learned Single Judge cannot pervade for the simple reason that so long the judgment and order of the learned Single Judge remains in force, there is no right of appeal against the contrary observation of the Appeal Court. Mr. Mukherji specifically urged before this Court that after dismissal of both the appeals by the Division Bench of this Honble Court such contrary observations cannot survive to affect the rights of the parties. Mr. Mukherji referred to and relied on a Division Bench judgment of this Honble Court in the case of Sm. Tarabai Mohata and Ors. v. Union of India, reported in AIR 1971 Calcutta 225 wherein the Honble Division Bench in Paragraph-16 observed:-"16. In upholding the second contention we have also considered the objection of Mr. Pal that this objection is barred by principles of res judicata. We are however unable to accept this contention of Mr. Tarabai Mohata and Ors. v. Union of India, reported in AIR 1971 Calcutta 225 wherein the Honble Division Bench in Paragraph-16 observed:-"16. In upholding the second contention we have also considered the objection of Mr. Pal that this objection is barred by principles of res judicata. We are however unable to accept this contention of Mr. Pal for the simple reason that his claim of bar of res judicata based as it is on the judgment of the learned Subordinate Judge dated April 16, 1952 in the earlier Misc. Cases under Section 47 of the Code of Civil Procedure cannot be entertained for the simple reason that the present appellants who were the judgment- debtors objectors in the said proceedings had succeeded and the learned Subordinate Judge had found the execution itself to be not maintainable. Therefore, in the facts no finding however adverse against the present appellants who were the successful parties in that litigation can operate as res judicata. Reference may be made in the case of Kumar Pasupati Nath Malia v. Sankariprosad, ILR 1957(2) Cal 587: AIR 1957 Cal 128 and Midnapur Zamindari Co. v. Naresh, 48 Ind App 49 : AIR 1922 PC 241." (18) Mr. Mukherji also referred to and relied on a decision of the Honble. Supreme Court in the case of Ramesh Chandra v. Shiv Charan Dass and Ors., reported in AIR 1991 SC 264 wherein the Honble Supreme Court observed:-"4..........This finding could not be taken advantage of by the plaintiff for more than one reason. This observation was unnecessary as the appeal was dismissed. One could understand if the appeal would have been allowed and the liability for payment of rent would have been fastened on defendant Nos.2 and 3 as they were in possession. But since appeal was dismissed the order of trial Court that liability to pay rent was of defendant No. 1 stood affirmed. Therefore, it was an observation which was not only off the mark but unnecessary. It could not accordingly operate as res judicata between defendant No. 1 and defendant Nos.2 and 3 as much less between plaintiff and defendant Nos.2 and 3. One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against defendant Nos. One of the tests to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against defendant Nos. 2 and 3 they could not challenge it by way of appeal........." (19) Mr. Basu, learned Senior Counsel representing the respondent- Bank, however, submits that in view of the order dated December 11, 2000 passed by the Division Bench of this Honble Court, there was no scope for acting on the basis of the order of the learned Single Judge passed in C.O. No. 19710 (W) of 1995 on 26th August, 1998 and the present appeal is liable to be dismissed on merit. Mr. Basu further submits that the charges levelled against the deceased employee itself are very serious in nature and the objection raised on behalf of the said deceased appellant is virtually on a technical point since the dismissed employee concerned namely, the deceased appellant challenged the legality and/or validity of the impugned order passed by the Disciplinary Authority and affirmed by the Appellate Authority only on the ground of non-providing reasonable opportunity of cross-examining the witnesses in compliance with the order dated 26th August, 1998 passed by the learned Single Judge of this Honble Court in C.O. No. 19710 (W) of 1995. Mr. Basu also submits that in the present case, after the death of the employee concerned, the present appellants are claiming back wages which cannot be automatic. It has been submitted by Mr. Basu that the respondent-Bank did not enjoy the services of the dismissed employee during the pendency of the disciplinary proceedings arising out of the serious charge of misappropriation of banks money and, therefore, the legal heirs of the deceased employee namely, the appellants herein are not entitled to receive any back wages. Learned Senior Counsel of the respondent-bank referred to and relied on the following decisions of the Honble Supreme Court in support of his aforesaid arguments:- (1) JT 2005 (10) SC 344 [U.P.State Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey] (Paragraph22). (2) JT 2005 (6) SC 137 [General Manager, Haryana Roadways v. Rudhan Singh] (Paragraphs-5 and 7). Learned Senior Counsel of the respondent-bank referred to and relied on the following decisions of the Honble Supreme Court in support of his aforesaid arguments:- (1) JT 2005 (10) SC 344 [U.P.State Brassware Corpn. Ltd. and Anr. v. Udai Narain Pandey] (Paragraph22). (2) JT 2005 (6) SC 137 [General Manager, Haryana Roadways v. Rudhan Singh] (Paragraphs-5 and 7). (20) While considering the submissions of the learned Counsel of the respective parties we are unable to accept the contentions of the respondent-bank that there was no scope for acting on the basis of the order dated 26th August, 1998 passed by a learned Single Judge of this Honble Court in C.O. No. 19710 (W) of 1995 in view of the subsequent order passed by the Division Bench of this Honble Court on 11th December, 2000. There is no dispute that by the aforesaid order dated 11th December, 2000, the Honble Division Bench of this Court dismissed both the appeals and the connected Stay applications preferred by both the parties herein assailing the judgment and order passed by the learned Single Judge on 26th August, 1998 in C.O. No. 19710 (W) of 1995. (21) Mr. Mukherji, learned Senior Counsel of the appellants, in our opinion, has rightly submitted before this Court that the judgment and order dated 26th August, 1998 passed by the learned Single Judge of this Court in C.O. No. 19710 (W) of 1995 acquired finality and became operative and binding on both the parties in view of the fact that both the appeals preferred from the said judgment and order passed by the learned Single Judge were dismissed by the Division Bench and no appeal was preferred therefrom before the Honble Supreme Court. (22) It is well settled that the observations of the Division Bench cannot have any effect at all and also cannot interfere with the rights already accrued in favour of the parties pursuant to the judgment of the learned trial Court. The decisions cited by the learned Senior Counsel of the appellants in this regard are very much relevant. (23) In the instant case, both the appeals were dismissed by the Division Bench of this Honble Court and, therefore, mere observations of the Division Bench also cannot affect the accrued right of any party to the proceeding specially when no appeal can be preferred only assailing the observations of the Division Bench. (23) In the instant case, both the appeals were dismissed by the Division Bench of this Honble Court and, therefore, mere observations of the Division Bench also cannot affect the accrued right of any party to the proceeding specially when no appeal can be preferred only assailing the observations of the Division Bench. The departmental proceedings initiated against the appellant/writ petitioner, since deceased, should have been conducted and completed upon complying with the specific directions passed by the learned Single Judge on 26th August, 1998 in C.O. No. 19710 (W) of 1995. The deceased appellant was not given further chance to cross-examine the prosecution witnesses in compliance with the specific direction passed by the learned Single Judge in C.O. No. 19710 (W) of 1995 dated 26th August, 1998. (24) The respondent-bank had no authority to ignore and/or avoid the specific direction passed by the learned Single Judge in C.O. No. 19710 (W) of 1995 dated 26th August, 1998 as the appeals preferred from the said judgment and order dated 26th August, 1998 before the Division Bench of this Honble Court were dismissed as a result whereof, the aforesaid order passed by the learned Single Judge on 26th August, , 1998 reached its finality. Therefore, the entire disciplinary proceedings conducted against the deceased appellant have clearly vitiated for non-compliance of the specific directions passed by the learned Single Judge of this Honble Court in C. O. No. 19710 (W) of 1995. (25) On examination of the judgment and order under appeal we find that the learned Single Judge failed to consider that the judgment and order dated 26th August, 1998 passed by another learned Single Judge of this Honble Court in the earlier writ petition being C.O. No. 19710 (W) of 1995 which had reached its finality and the authorities of the respondent-bank were duty bound and obliged to follow the directions mentioned in the said order passed by the learned Single Judge in C.O. No. 19710 (W) of 1995. (26) The failure of the respondent-bank to comply with the specific directions of the learned Single Judge passed in the earlier writ petition of the deceased appellant being C.O. No. 19710 (W) of 1995 had vitiated the entire disciplinary proceedings conducted against the said deceased appellant and, therefore, the order of punishment inflicted upon the said deceased appellant cannot be sustained in the eye of law as the said order of punishment was passed in clear violation of the solemn order passed by this Honble Court in C.O. No. 19710 (W) of 1995. (27) In the aforesaid circumstances, the subsequent order of the Appellate Authority approving the aforesaid order of the Disciplinary Authority also cannot be legally sustained. (28) We, therefore, set aside both the orders namely, the order of punishment dated 10th January, 2001 passed by the Disciplinary Authority and the subsequent approval of the same by the order dated 7th August, 2002 passed by the prescribed Appellate Authority. (29) For the aforementioned reasons, the impugned judgment and order under appeal passed by the learned Single Judge cannot be sustained and the same is accordingly, set aside. (30) Since we have quashed the order of punishment dated 10th January, 2001 issued by the Disciplinary Authority and subsequent order dated 7th August, 2002 passed by the Appellate Authority, the deceased employee would be entitled to back wages. As the bank authorities undisputedly, did not enjoy the services of the dismissed employee, question of allowing full back wages in the facts of the present case is not at all warranted. In our opinion, payment of 50% of the admissible back wages of the deceased employee would meet the ends of justice. (31) We, therefore, direct the respondent-bank to pay 50% of the admissible back wages of the deceased employee to his heirs, i.e. the appellants herein from the date of dismissal till the date of death of the said deceased employee at an early date but positively within a period of eight weeks from the date of communication of this order. (32) With the aforesaid observations and directions, this appeal stands allowed. (33) In the facts and circumstances of the present case, there will be no order as to costs.