Shri Mool Shanker Singh vs Regional Manager, Punjab National Bank and Another

Sudhir Agarwal, J.—This is an application seeking impleadment of Punjab National Bank, Personnel Division, Head Office, New Delhi though its General Manager as respondent No. 3. It has been opposed by Sri K.L. Grover, learned Senior Advocate, assisted by Sri Ramesh Singh on serveral grounds.

Before coming to the objections raised by learned Counsel for the respondents, it would be appropriate to refer a few facts to understand the dispute in hand.

The petitioner is aggrieved by the order dated 24.9.1993 passed by Regional Manager, Punjab National Bank, Division Officer, Varanasi whereby the petitioner''s representation for payment of agricultural assistance allowance has been rejected. The second order is dated 16.10.1993 passed by Senior Manger communicating the order dated 24.9.1993 of the Regional Manager of the Bank. The petitioner was working as Clerk-cum-Godown Keeper on 31.7.1971 and, thereafter, was transferred and posted as Agricultural Clerk vide order dated 27.11.1975 passed by Regional Manager, Kanpur directing him to work under Agriculture Officer (T.F.O./A) in the Bank at Ghazipur. It is said that there was a bipartite settlement between the Employees'' Association and the Bank containing terms and conditions of service of the employees of the Bank and there under special provisions for payment of special allowance to various employees based on their nature of duties have been provided and according to the said bipartite settlement, the petitioner was entitled to get special allowance of Rs. 75/- per month which was later on increased to Rs. 121/- per month. The petitioner repeatedly moved the respondents for the same but it was not accepted. He has filed the present writ petition after rejection of his representation in this regard.

Contesting the writ petition, respondents No. 1 and 2 filed a counter affidavit sworn by M.R. Singh, Manager, Punjab National Bank, Branch Ghazipur in December, 1999 wherein it is stated that the Punjab National Bank is a financial institution constituted under Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. It has its Head Officer at New Delhi. For administrative purposes, it has various Regional Officers at difference places including one at Varanasi, and Branch Offices in at different places including Ghazipur. The respondents 1 and 2, besides raising other preliminary objections, have also said that the Punjab National Bank is the employer and a corporate juristic personality, but since it has not been impleaded as one of the respondents, the writ petition is not maintainable. It is said that the respondents 1 and 2 are not juristic persons and, therefore, the writ petition is not maintainable.

The non maintainability of the writ petition on account of non impleadment of the Bank has been denied by the petitioner in the rejoinder affidavit.

The writ petition was initially dismissed by this Court on the ground that it is barred by res judicata whereagainst the matter went to the Apex Court where allowing the appeal it has remanded the matter vide judgment dated 12.3.2004 directing it to be decided afresh on merits passing the following order:

Leave granted.

Heard the learned Counsel for the parties.

In our view the High Court should have considered the grievance of the appellant on merits pertaining to his claim for higher special allowances. Merely because in the earlier writ petition the High Court had provided only for making representation, it would not mean that the matter is closed and the petitioner was not entitled to approach the High Court, later even though the representation was rejected and no relief was granted to him. The High Court never considered the case on merits.

We, therefore, allow the appeal and set aside the order passed by the High Court and remand the matter for consideration on merits.

After the remand, this application for impleadment has been filed by the petitioner on 27.8.2008, which has been opposed by the respondents.

Sri K.L. Grover, vehemently contended that against the proposed respondent, the cause of action is now barred by limitation and, therefore, impleadment cannot be allowed which would have the effect of nullifying the limitation. He says that after remand, the case has to be heard and decided between the parties as they were and on the basis of the material as it was available. No change or alteration can be permitted by adding any party in the matter. He further said that the case is prima facie now that of a money claim since the petitioner has already attained the age of superannuation and retired, the petitioner has remedy of civil suit. Therefore, also the application cannot be allowed. He submits that this is not amendment but an impleadment and for the first time, an impleadment after more than a decade cannot be permitted since it is likely to case serious prejudice to the persons, who is sought to be impleaded and, in case, Order 1 Rule 9 and Order 1 Rule 10 (5) would come into picture to show that such an amendment at this stage is not permissible. He placed reliance the Apex Court decision in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, Ram Prasad Dagduram Vs. Vijay Kumar Motilal Mirakhanwala and Others, and N.T. Abraham Vs. State of Kerala and Others,

In my view, all the objections on behalf of the respondent-Bank opposing the impleadment application are wholly misconceived, hyper technical and only to waste precious time of the Court. The time, learned Senior Counsel for the respondents has taken in persuading this Court not to allow the impleadment application would have been sufficient for disposal of the writ petition itself on merits and this attitude is really unfortunate. The Bank instead of contesting the matter on merits pertaining to salary/wages of its employees is more interested in persuading the Court to non suit the petitioner on the reasons other than merits. It is true that the valid legal objections regarding maintainability of a case cannot be said to be technical for the reason that where such objection can validly be taken by a party, there is no reason as to why the same should not be taken but it would have been a happy situation if an employer ought to have tried to satisfy its employee by getting an adjudication on merits that its action or inaction is justified in law and it is not guilty of harassing its employees by unjustified, illegal or oppressive attitude. That would have satisfied the entire work force of the employer and would have been in better interest of the institution. But in the case in hand, the matter is pending for the last 15 years and in one or the other way attempt of the Bank is to persuade the Court not to decide the matter on merits and non suit the petitioner on the grounds other than an adjudication on merits. The Bank, being a nationalized Bank and a ''''State'' Under Article 12 of the Constitution, is expected to act as a model employer and must have shown the zeal of getting satisfaction to its employees about correctness of its acts instead of taking the advantage of their incapacity of having the best legal brains for protecting their interest and, therefore, resulting in some such lapses on the basis of which a Court of law may technically non suit them in some cases, despite of having merits in their claim. If the Bank would have shown an attitude of satisfying its employees by allowing adjudication on merits, that would have not only curtailed litigation but saved both the sides from prolonged agony and continuous expenditures on litigation also.

Now coming to the merits of the submission regarding this application, it is not in dispute that the ''''Punjab National Bank'' is a Banking institution and is statutory body governed by the rules and regulations framed under a Central Act. The status of the Punjab National Bank came to be considered before the Apex Court in Punjab National Bank by Chairman and Another Vs. Astamija Dash, and in para 13 of the judgment, the Court observed as under:

The Bank is a scheduled Bank within the meaning of the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. It has various statutory powers. It has inter alia power to frame Regulations. In exercise of its powers conferred upon it by Section 19 read with Sub-section (2) of Section 12 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, the Board of Directors of the Punjab National Bank, in consultation with the Reserve Bank of India and with the previous sanction of the Central Government made Regulations known as the Punjab National Bank (Officers'') Service Regulations, 1979.

The officers of the Bank, therefore, are governed by the aforesaid statutory Regulations of 1979. So far as the employees other than officers of the Bank are concerned, they are governed by bipartite settlement executed by the Bank or its Officers having power delegated under the Regulations.

The conditions of service of the employees of the Bank thus are governed by the statutory provisions. The various authorities of the Bank are delegatees of power under statute regarding recruitment and other conditions of service of the employee of the Bank. It is in exercise of these statutory powers, such authorities pass various orders on the claims of the employees in one or the other manner. Such orders, therefore, in effect are orders passed by the authorities having statutory power to pass such orders. Whenever an order is passed by a statutory authority in exercise of a statutory power causing grievance to a person, it is always open to such aggrieved person to challenge such action of the authority concerned by filing a writ petition in this Court and power of the High Court to issue writ is not confined to ''a person'', natural or juristic, but it extends to an ''''authority'' also. Article 226(1) is reproduced as under:

Power of High Courts to issue certain writs.--(1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

The High Court since can issue writ to the authority who has passed the impugned order, and since they are parties in the present writ petition, apparently, it cannot be said that the writ petition as such is not maintainable. However, since the financial implication, ultimately, would be extended to the Bank, therefore, it would be necessary to be impleaded as one of the respondents. In Nasik Municipal Corporation Vs. Harbanslal Laikwant Rajpal and Others, etc., the Apex Court observed that though the authorities who have passed the order are before the Court in a writ jurisdiction but the body who would ultimately have to bear the financial implication must also be impleaded as one of the respondents and in absence thereof, no order having financial implication on such person, who is not impleaded ought to have been passed.

It is for the High Court to see that the parties who are likely to be affected by its order are before it as respondents and if such parties are not impleaded, the Court should allow the petitioner to implead those persons but where the petitioner refuses to do so, the writ petition deserves to be dismissed for non joinder of necessary parties. The defect of non impleadment of such parties by the petitioner on its own is not an incurable defect and can be cured for which the High Court must give an opportunity to the petitioner and it is only when he refuses to do so, the writ petition be dismissed for non joinder of necessary parties. The jurisdiction of the High Court under Article 226 is extraordinary and equitable. The prime object of utmost importance is dispensation of justice and not to throw away a litigation involving substantial question of law affecting the rights, legal and constitutional of persons, on mere procedural defects as that would amount to a travesty of justice.

It is well settled that proceedings under Article 226 are not suit and, therefore, the procedure laid down with respect to a suit in CPC would not strictly govern the writ petition under Article 226. The Apex Court in Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, held that the provisions of CPC are not to be strictly observed and followed for proceeding under Article 226 of the Constitution, but it is only the principles of the aforesaid Code, which have been applied and followed so that constitutional powers may be exercised primarily keeping in mind its objective and secondly to impart justice in accordance with principles of natural justice.

In Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, the Apex Court held that the Court may allow impleadment of a necessary or proper party at any stage if it finds that the writ issued by the Court is likely to affect such party in any manner. The defect of non impleadment of necessary party can be allowed to be removed at any time before the final order in the matter is passed in order to avoid the multiplicity of proceedings. It is only if the petitioner refuses to implead necessary parties as respondents that the writ petition may be dismissed for non joinder of necessary parties and not otherwise. The relevant observations in Prabodh Verma (supra) in para 28 of the judgment is reproduced as under:

The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh''s case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non joinder of necessary parties. The only respondents to the Sangh''s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties.- not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh''s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.

It would also be necessary at this stage to refer the observations of the Apex Court in Prabodh Verma (supra) that the High Court should not dismiss a writ petition on mere technicality but it should not condone every kind of laxity. It was with reference to lack of proper pleading by the Advocates which cause delay in disposal of the matter. It would be appropriate to refer the observation made in para 38 of the judgment as under:

The petitioners were represented by well-known Counsel, one of them practising in this Court. It is true that neither this Court nor any High Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well drafted pleading, an exception. An ill drafted pleading is an offspring of the union of carelessness with. imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the Courts can ill afford by reason of their overcrowded dockets.

Lack of proper drafting on the part of the counsel for petitioners is writ large in this case also but where, may be after sometime, the Counsel realizes its mistake and seeks permission to rectify the same, this Court would not adopt a rigid attitude of not condoning such laxity since it is not the fault on the part of the litigant but an officer of the Court and laxity on the part of an officer of the Court should not be allowed to cause an irreparable loss to a litigant unless the rectification or condonation becomes impossible or impermissible in law.

The authorities relied on by the counsel for the Bank have no application to the facts of the present case inasmuch here is not a case where a person unconnected with the parties already impleaded is sought to be impleaded for the first time.

In Narayan Bhagwantrao Gosavi (Supra), the Apex Court refused to enter into concurrent findings of the Courts below that the public had a right in the temple in the idol for a number of considerations and other circumstances, which could not be shown to be perverse or incorrect by the appellant and declined to accept the contention of the appellant that the deity was a family deity and the said judgment, in my view, does not help the respondents in any manner to support their submission in opposition of the application.

In Ramprasad Dagaduram (supra), the question up for consideration before the Apex Court was whether new parties added to a suit for foreclosure of mortgage deed are barred by limitation from enforcing their right to enforce mortgage. The plaintiff Vijay Kumar filed a suit to enforce a mortgage against the appellant alleging that it was executed on 13.12.1934 in favour of Tara Bai, proprietor of Firm of Narayan Das Chunni Lal. The plaintiff claimed to have been adopted by Tara Bai on 16.7.1948 and became entitled to enforce the mortgage as her sole heir on her death. The appellant in his written statement admitted the mortgage but denied claim of the plaintiff that he was adopted by Tara Bai. The appellant said that Tara Bai died leaving her three daughters as her heirs. The plaintiff had no right to enforce the mortgage. The suit was dismissed by the District Judge observing that the plaintiff failed to establish his case. In appeal, when the matter was pending, the plaintiff moved an application seeking addition of his mother Mahabal Kumari as a co-plaintiff with him since she was willing to be so added though her sisters were not willing. Hence, they were sought to be impleaded as defendants. This application was opposed but allowed by the High Court whereafter one of the sisters of the plaintiff''s mother filed her written statement to enforce the mortgage. The High Court refused to go into the question of adoption, that is the validity of the claim of the plaintiff Vijay Kumar, but decreed the suit in favour of the co-plaintiff, i.e., the mother of Vijay Kumar and her two sisters impleaded as defendants and directed that the suit brought by the Vijay Kumar would stand dismissed. It is in these facts and circumstances, the Apex Court in appeal was required to consider the effect of order 1 Rule 10 (1) and (2) Code of Civil Procedure. The Apex Court held that Sub-rule 1 of Order 1 Rule 10 only permits addition of a plaintiff and does not provide for addition of a defendant while the order of the Court directed addition of both, a plaintiff and two defendants. It further observed that addition of Mahabal Kumari as a plaintiff, who was mother of the initial sole plaintiff Vijay Kumar could not be made party under Sub-rule 1 unless it was necessary for determination of real matter in dispute but her addition as plaintiff would not have any significance unless her two sisters are also added as defendants which could have been done under Sub-rule 2 of Order 1 Rule 10 for the reason that no decree could have been passed in favour of Mahabal Kumari, if the case of adoption failed. Though order 1 Rule 10 Sub-rule 2 permits addition of both plaintiff and defendants, but the same was not sought to be relied for the reason that it was also conceded that in view of Section 22 of Limitation Act, the suit as regards the parties added under Sub-rule 2 had to be deemed to have been instituted when they were added. In the case before the Apex Court, at the time when three impleadments were allowed, the suit for enforcing the mortgage would have been barred by limitation. The Apex Court found that the plaintiff Vijay Kumar did not file suit claiming something along with other but he claims something in his own rights and the parties which were sought to be added also sought to enforce their own rights which was in conflict with and antagonistic to those which were being pressed in the suit as originally framed. In these circumstances the limitation would have attracted if impleadment subsequently would have been allowed and that is why the Apex Court held that the same is impermissible in law.

I do not find any occasion to follow the said dictum and law laid down therein in the case in hand inasmuch here the respondents which are already party to the writ petition are authorities of the Bank who exercised their authority as delegated upon them by the Bank itself. They were not the respondents impleaded on their own but they were in fact representatives of the Bank having exercised power conferred upon them by the Bank under the Statute. Since the writ petition could have been filed against an authority also, therefore, the petitioner filed the writ petition challenging the orders passed by the respondents No. 1 and 2, who are authorities of the Bank and have passed the orders impugned in this writ petition in exercise of the power conferred by the Bank under the Statute. The respondents No. 1 and 2, therefore, are already representing the Bank but since the financial implication lie upon the Bank, therefore, the Bank was also a necessary party to be impleaded as held by the Apex Court in Ranjeet Mal (supra) and it is for this reason that the Bank has been sought to be impleaded herein. It cannot be said to be a case of impleadment of a party for the first time which has nothing to do with the parties who are already represented and arrayed as respondents.

Moreover, in absence of the Bank, the entire litigation from day one is being looked after by the Bank itself. It is interesting to notice that the stand taken in para 2 of the counter affidavit of the Bank itself shows that there is clear cut distribution of work by the Bank in a hierarchied system and the authorities have exercised power in view of that distribution of power. The Bank is continuously persuading this matter on behalf of respondents No. 2 and 3 through various officials. Therefore, in my view, it is a hyper technical objection that the Bank can take plea of limitation if it is allowed to be impleaded today.

Moreover, for the proceedings under Article 226, Limitation Act, 1963, as such, has no application. It is unexplained delay and laches only which are to be considered by this Court. In the facts and circumstances of the case, I find that the concerned authorities were already impleaded in the matter and the Bank''s interest was continuously being watched by the Bank through its counsels and Officers. The matter is not confined to the respondents No. 1 and 2 only. The counter affidavit has been sworn by a Branch Manager of the Bank and in para 2, it has been said that for administrative purposes, the Bank has various Regional and Branch offices and if the persons managing the offices have been conferred power to pass orders with respect to the staff working therein, it cannot be said that those authorities are to be treated outside the Bank. The respondents No. 1 and 2 here are the officials and authorities of the Bank and the order challenged in this writ petition has been passed by them under the statutory power conferred by the Bank itself. Therefore, after impleadment of respondents No. 1 and 2 technically it cannot be said that the Bank is not a party but in order to avoid multiplicity of the litigation, the Bank can also be allowed to be impleaded.

So far as the judgment in N.T. Abraham (supra) is concerned, the same has no application at all in respect to the issues up for consideration for the purpose of this application inasmuch the Apex Court observed therein that a dispute pertaining to money matters arising out of a contract ought to have been decided under civil laws and not under Article 226 of the Constitution of India. In the case in hand, it is not a matter of simple contract and enforcement thereof but here is a case, where the employer is a statutory body having power to lay down conditions of service of its staff. The matter is that of status and not of pure and simple contract. Therefore, the judgement in N.T. Abraham (supra) has no application to the facts of these case.

In the result, the application is allowed. Let the necessary corrections in the array of parties be made within a week.

Issue notice to the newly impleaded respondent. Steps be taken within ten days.

The newly impleaded respondent, if so advised, may file counter affidavit within a month. Rejoinder affidavit, if any, may be filed before the next date of listing for hearing. List this matter for hearing after two months.