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Bishan Chandra Gupta v. Canara Bank,Bareilly And Others - SECOND APPEAL No. 1133 of 2002  RD-AH 4096 (6 October 2005)
Second Appeal No. 1133 of 2002
Bishan Chandra Gupta .Appellant
..... vs. .....
Canara Bank and another Respondents.
HON'BLE K.N. SINHA, J.
1. The present Second Appeal has been filed against the judgment and decree dated 29.11.1999 passed in Civil Appeal No. 59 of 1999.
2. The facts giving rise to this second appeal passed through a very lengthy journey of judicial process and reached up to this stage. Appellant Bishan Chandra Gupta was an employee of respondent Bank, who was appointed as a clerk on 16.6.1978, on the basis of regular selection. There was a dispute regarding the date of birth as given in the application and in the service record. Consequently, the appellant was charge-sheeted on 7.10.1990 for gross misconduct and wrong declaration of the date of birth. He was ultimately dismissed from service on 12.11.1993. Against the said dismissal order, appellant filed appeal in the department itself, which was also rejected on 5.8.1995. The appellant filed a writ petition no. 34967 of 1995 before this Court, challenging the orders dated 12.11.1993 and 5.8.1995. The said writ petition was allowed on 3.2.1998, by learned Single Judge of this Court, who quashed the orders dated 12.11.1993 and 5.8.1995. It would be relevant to mention here that during the pendency of the disciplinary proceedings, the appellant instituted a suit no. 339 of 1993 for declaration of the date of birth. The suit was decreed on 31.7.1995. The Bank preferred Civil Revision No. 77 of 1995 raising the issue of maintainability of the suit. The revision was dismissed by order dated 24.8.1996. Against the order passed in Civil Revision, the Bank filed writ petition No. 38208 of 1996. As stated earlier, the appellant's writ petition no. 34967 of 1995 was already allowed by this Court on 3.2.1998. Then respondent Bank filed a Special Appeal No. 158 of 1998, challenging the order of learned Single Judge. During the hearing of this Special Appeal, the record of writ petition no. 38208 of 1996 was also taken up. The Special Appeal and this writ petition were decided by the judgment dated 6.3.1998. It was directed by the Bench that appellant Bishan Chandra Gupta, (who was respondent in the Special Appeal), will file an application for amendment of the plaint of Civil Suit No. 339 of 1993 to include the challenge against the order of termination of his service and for impleadment of the Bank as defendant in the suit and the Trial court will allow the amendments and proceed to dispose of the suit as expeditiously as possible, if possible, by 30th September, 1998. Against the said order, a Special Leave Petition was preferred by the appellant, which was dismissed by the Apex Court on 13.5.1998. The plaintiff-appellant moved amendment application, which was allowed and prayer was added to the effect that "Dismissal of service of plaintiff w.e.f. 12.11.1993 is absolutely illegal, null and void and plaintiff be treated in the service of Bank". This amendment was allowed as per the direction of the Bench, deciding Special Appeal No. 158 of 1998. The Trial court, vide its judgment dated 20.3.1999, decreed the suit of the appellant. The Trial court held the date of birth of appellant to be 1.8.1954 and also declared the order dated 12.11.1993 illegal and void. The Trial court further declared the appellant to be continued in service.
3. Against the said judgment and decree, the respondent Bank filed First Appeal. The First Appeal was partly allowed by the judgment and decree dated 29.11.1999. The First Appellate Court confirmed the decree of the trial court as it related to declaration of the date of birth as 1.8.1954 but the later portion of the decree regarding declaration of appellant being continued in service, was set aside, holding that this matter comes under the Industrial Disputes Act and the said relief can be granted by the said forum. The respondent Bank filed Second Appeal No. 214/2000 and the appellant filed cross objection in the said Appeal. The appeal of the respondent Bank was dismissed at the admission stage itself in view of concurrent finding of the fact arrived at by both the courts below in respect of date of birth. After the dismissal of the appeal, the cross objection, regarding appellant's reinstatement in service, was also dismissed. The appellant filed a review application No. 27477 of 2001, on the ground that since the cross objection was dismissed, he was prevented from challenging the said part of the order, which reversed the decree of the trial court regarding the appellant's reinstatement in service. The following order was passed on the review application:-
"The review application is, therefore, without merit and is accordingly dismissed. However, it may be clarified that cross objection has been rejected on technical grounds and not on merits, therefore, respondent has granted liberty to file proper proceedings in respect of the relief claimed by him."
4. Thus, though the review application was dismissed but the liberty was granted to file proper proceedings in respect of the relief claimed. After the said order, the appellant filed the present Second Appeal No. 1133 of 2002, which was admitted on 6.5.2003, after condonation of delay in filing the appeal. This Court while admitting this appeal, framed the following substantial questions of law:-
(1) Whether the first appellate court has erred in refusing the relief to the appellant that dismissal is nullity and he continues in service on the ground that he should approach for the remedy under Industrial Disputes Act?
(2) Whether the first appellate court has failed to follow the directions of this court given in Appeal No. 158 of 1998 which was also confirmed by the Hon'ble Supreme Court ?
(3) Whether this second appeal is not maintainable as the judgments of the courts below have already merged in the judgment of Second Appeal No. 214 of 2000 ?
5. I have heard Sri Ramendra Pratap Singh, learned counsel for the appellant and the learned senior counsel Sri J.N. Tiwari for the respondent and perused the records of the appeal.
6. The substantial question nos. 1 and 2 are almost inter - related, hence taken up together. Admittedly the appellant was appointed as a clerk of respondent Bank and on account of this fact that he had given a wrong date of birth, he was charge-sheeted and dismissed from service by order dated 12.11.1993. The appellant filed a departmental appeal against the said order and also filed a Suit (339/1993) in the civil court. The departmental appeal was dismissed. The suit was decreed. The suit was in respect of declaration of date of birth only. Against the rejection of the departmental appeal, the appellant filed a writ petition before this Court and against the decree of the suit, Bank preferred Revision No. 77 of 1995 raising the maintainability of the suit. The writ petition of the appellant was allowed by learned Single Judge of this Court vide judgment dated 3.2.1998 whereas the revision regarding maintainability of the suit filed by respondent Bank was dismissed by order dated 24.8.1996. Then the respondent Bank filed Special Appeal No. 158 of 1998 challenging the order of the learned Single Judge passed on 3.2.1998 in writ petition no. 34967 of 1995. At the same time the respondent Bank filed a writ petition No. 38208 of 1996, against the dismissal of the revision, which upheld the trial court's order on jurisdiction. During the hearing of the Special Appeal, the order of learned Single Judge allowing the writ petition of appellant regarding his reinstatement in service and also the matter involved in revision about maintainability of the suit on the ground of jurisdiction, were before the Bench in the Special Appeal. The Bench, while quashing the judgment of learned Single Judge, passed in writ petition no. 34967/1995 and also deciding the writ petition of Bank (38208/1996), ordered that respondent Bishan Chandra Gupta will file an application for amendment of the plaint to include the challenge against the order of termination of his service and for impleadment of Bank as defendant in the suit and the trial court will allow the amendment and proceed to dispose of the suit.............. Meaning thereby it was the Division Bench of this Court, which directed the present appellant Bishan Chandra Gupta to amend the plaint and include the relief regarding declaration of dismissal order void and illegal. The Division Bench also directed the court to allow this amendment and decide the suit expeditiously. To quote the relevant portion of the order of Division Bench passed in Special Appeal No. 158 of 1998:-
"The special Appeal is, therefore, allowed and the judgment / order dated 3.2.1998 in civil Misc. Writ petition No. 34967 of 1995 is set aside and the said writ petition and the connected writ petition No. 38208 of 1996 are both disposed of by the following order:-
The respondent Bishan Chand Gupta who is plaintiff in civil suit No. 339 of 1993 pending in the court of Civil Judge (senior Division), Bareilly, will file an application for amendment of the plaint to include the challenge against the order of termination of his service for impleadment of the Bank as defendant in the suit and the trial court will allow the amendments and proceed to dispose of the suit as expeditiously as possible by 30th September, 1998."
7. It cannot be said that the Bench of this Court was unaware of the nature of the relief, which was to be claimed by the appellant in the suit. The Division Bench also decided jurisdiction as well. The order itself is very clear which directs the appellant to include and challenge the order of termination of service and to implead the Bank as defendant. The Division Bench did not leave any option to the civil court to consider over this amendment but directed the trial court to allow the amendment and proceed to decide the matter. Thus, the civil court was working under the direction of the Division Bench of this Court to allow the amendment and to include the challenge against the order of termination of service. This order was challenged by the appellant before the Apex Court and Hon'ble the Apex Court dismissed the special leave petition, meaning thereby that the order of Division Bench in Special Appeal was confirmed by the said Special Leave Petition.
8. In the above background, the first appellate court, should have decided the appeal in respect of both the reliefs on merit, as the trial court did. The order dated 6.3.1998 passed in Special Appeal called upon the civil court to decide the matter and not to reject it by giving a suggestion to the appellant to approach another forum. If it was so, this direction could have been given by the High Court in Special Appeal itself. There was no room for the civil court to deviate from the direction and make out a new case suggesting the appellant to approach the Industrial Tribunal. Hon'ble the Supreme Court, in the case of Ramendra Kishore Biswas vs. State of Tripura & others, reported in 1999 (1) S.C.C. page 472, while dealing with the issue vis-à-vis The Central Civil Services (Classification, Control & Appeal) Rules, 1965, has clearly held that jurisdiction of civil courts to deal with the service matters cannot be taken away.
9. Besides the legal aspects of the matter, it is worthwhile to mention that the issue before the civil court was with regard to declaration of the date of birth of the appellant and reinstatement in service. The dismissal of the appellant was based on the fact that he had given a wrong date of birth as 1.8.1954. Thus, the dismissal was as a result of wrong date of birth. If the said date of birth was found to be correct and it was declared that date of birth was 1.8.1954, then the dismissal order, which was solely based on this issue, automatically comes to an end. No other ground, disciplinary, financial or otherwise, was involved in the said dismissal order. The trial court decreed the suit holding the date of birth to be 1.8.1954 and declared that the dismissal order would be illegal and void. The first appellate court, while dealing with the appeal, maintained the decree regarding declaration of date of birth as 1.8.1954. The trial court's decree was confirmed on this point. However, the decree regarding declaration in respect of appellant being in service was set aside. The intention of the Division Bench in Special Appeal was very clear while permitting the appellant to include the amendment and directing the court below to decide the same. When the main issue regarding date of birth was decided in favour of the appellant, there was no occasion to refuse the relief (D) which was a consequential relief.
10. I, therefore, come to the conclusion that the first appellate court was in error in refusing the said relief and it has failed to follow the direction of this Court as given in Special Appeal no.158 of 1998, which was confirmed by Hon'ble The Apex Court by dismissing the special leave petition against the said order. As there is a concurrent finding in respect of the date of birth and as second appeal of the respondent Bank has already been dismissed at the initial stage, the relief (D) regarding the appellant continuing in service is allowed and the termination order dated 12.11.1993 is declared to be illegal and void. The appellant shall be deemed to continue in service of the respondent Bank, with pay, allowances and other benefits attached to the post.
11. As regards the substantial question of law no. 3, about maintainability of the second appeal, learned Senior Counsel for respondent Bank Sri J.N. Tiwari has submitted that doctrine of merger shall apply and since bank's second appeal no. 214 of 2000 was dismissed, the order of the lower court merged into the said order. In order to come to correct the conclusion, the previous history has to be traced out. In fact, judgment of the first appellate court, by which the decree of the trial court regarding date of birth was confirmed, was under challenge by the respondent Bank in Second Appeal No. 214 of 2000. The said appeal was dismissed by this Court. The appellant had also filed a cross objection in the said Appeal against the order reversing that portion of the trial court's decree by which he was deemed to continue in service. As the Second Appeal of the respondent Bank was dismissed, the cross objection was automatically dismissed without any report of admissibility or not. The appellant filed a Review Petition, which was dismissed but he was granted liberty to initiate the proceedings as per law. Consequent thereupon, he filed this second appeal in which the delay was condoned and appeal was admitted by framing the substantial questions of law. This Court, while admitting the appeal observed that the appeal of respondent was dismissed on 4.5.2001 on the ground that it does not involve any substantial question of law. The cross objection was dismissed only on the ground that the appeal has been dismissed, hence the appeal cannot be admitted.
12. Thus, it is clear that the cross objection of the appellant was dismissed only on technical ground. Learned counsel for the respondent Bank has submitted that when respondent Bank's second appeal no. 214 of 2000 was dismissed, the order of the lower court merged into it. He has relied upon Kunhay Ammed and others vs. State of Kerala and another, (2000 (6) SCC page 359) and S.Shanmugavel Nadar vs. State of Tamilnadu and another (2002 (8) SCC page 361) besides some other authorities. These authorities are not applicable in favour of respondent Bank on the facts of the present case. It may be seen that in the case of Kunhay Ammed and others (supra) it was held that dismissal at the stage of special leave, by non speaking order does not constitute res judi cata and does not culminate any merger of the impugned decision. Sri Ramendra Pratap Singh, learned counsel for the appellant has also relied upon the said judgment.
13. The second appeal was dismissed in limine at the admission stage itself. It was not decided on merit. This court while admitting the present Second Appeal, has observed that the respondent Bank's Second Appeal No. 214 of 2000 was dismissed on 4.5.2001 on the ground that it does not involve any substantial question of law.
14. Thus, the doctrine of merger would not apply in the present case on facts and law both. The appeal of respondent Bank was on the limited point about both the courts below granting declaration of date of birth. Even if the argument of learned counsel for respondent is accepted, only that portion of the order would merge, which was under challenge. The appellant has already filed cross objection against the other relief. So far as the legal aspect is concerned, it is very much clear that appeal was not decided on merit but was dismissed at the admission stage itself, hence the doctrine of merger would not apply and second appeal is maintainable.
15. In view of above discussion on law and fact, the appeal is hereby allowed. The judgment and decree dated 29.11.1999 passed in Civil Appeal No. 59 of 1999, so far as it relates to the dismissal of relief No. (D) of the plaint, is set aside and the judgment and decree dated 20.3.1999 passed by the Additional Civil Judge (Senior Division) 4th, Bareilly in civil suit No. 339/1993 Bishan Chandra Gupta vs. State of U.P. & others is restored and confirmed by this judgment. The suit of the plaintiff appellant stands decreed with costs throughout. Appellant Bishan Chandra Gupta shall be deemed to continue in service of respondent Bank with all pay, allowances and other benefits attached to the post. The salary and other financial benefits shall be paid to the petitioner within one month from the date of this order, failing which the respondent Bank shall pay simple interest of 9% on the salary and other financial benefits, till the date of actual payment.
Dated:October 06, 2005.
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