Sri Kalpataru Mondal vs Sagar Gramin Bank

Asok Kumar Ganguly, J.—All these appeals were assigned to this Bench and were directed against the judgment and Order dated June 14, 2002 passed by a learned Judge of the Writ Court on the basis of some concessions made before the learned Judge by the learned Counsel appearing for Sagar Gramin Bank (hereinafter referred to as the said ''Bank'').

By the said judgment the learned Judge of the Writ Court was, inter alia, pleased to allow the writ petition and was further pleased to quash and set aside the promotional process which resulted from the Circular of the Bank dated March 31, 1988 and directed the private Respondents to be reverted to their original posts. The learned Judge directed the Bank to initiate a further selection process in accordance with the guidelines suggested by the Apex Court and directed the said promotional process to be on seniority basis within a period of two months from the communication of the order of the learned Judge. The directions given by the learned Judge, however, were subsequently stayed by the Division Bench of this High Court.

Two sets of private Respondents filed two appeals. Of those two sets of private Respondents Sri Kalpataru Mondal, Sri Amarendranath Biswas, Sri Sachindranath Dhar and Sri Binoy Kumar Sarkar filed M.A.T. 2152 of 2002 and their main grievance was that they were not served with the copy of the Writ Petition nor was their case heard by the learned Judge of the Writ Court but by the judgment of that learned Judge they have been reverted. These facts have been specifically stated by them in para. 2 of the stay petition. These clear averments in para. 2 of the stay Petition could not be controverted before this Court either by the writ Petitioners or by the Bank Authorities, The other set of private Respondents namely, Sri Subrata Ghosh Hazra, Sri Paritosh Kumar Ghosh, Sri Gautam Basu, Sri Tapan Jyoti Paul, Sri Dipak Kumar Chattopadhyay, Sri Nirmal Chandra Das, Sri Swapan Das, Sri Nimai Chand Sarkar, Sri Nitish Sinha, Sri Pradip Kumar Bhowmick, Sri Tapan Kanti Majumdar, Sri Dilip Kumar Dhar, Sri Mrinal Kanti Gangopadhyay and Sri Dilip Kumar Bandyopadhyay filed an appeal which is numbered as F.M.A. 571 of 2002. In that appeal the main grievance of the Appellants was that they were not properly served with the copy of the writ petition inasmuch as they were not served at the residential addresses but they were alle-gedly served by serving on the General Manager, Sagar Gramin Bank at 190 Ultadanga Main Road. This, according to them, is not proper service. As such, they came to know about the pendency of the writ petition at a very later stage and they could enter appearance only at the fag end of the hearing of the writ petition after they came to know from some of the Office staff who were working at the Head Office of the Bank that a writ petition was pending against them. It is also stated before this Court and it has also been averred in the stay petition that the learned Advocate of those private Respondents had no copy of the writ petition as such they could not file any affidavit-in-opposition before the learned trial Judge. This aspect of the case, which has been made out by them, has not been controverted. But from the judgment under appeal it appears that their Counsel was heard. Whether the prayer was made on behalf of the Appellants for filing an affidavit-in-opposition to the writ petition before the learned Judge, does not appear from the records of the case. But the fact remains that they were not served at the residential addresses and they were served in such a manner which might have caused them substantial prejudice in defending their case before the learned trial Judge. This possibly cannot be doubted.

The learned Counsel for the Bank in the appeal F.M.A. 2940 of 2002 filed by the Bank, submitted that a Bank is not bound by the concession made by its lawyer before the learned trial Judge. According to the Bank''s Counsel no such concession is required to be made and such concession is made by the Counsel himself and not on the basis of any instruction given by the Bank. The last category of the Appellants are the writ Petitioners themselves and in their appeal (M.A.T. 2696 of 2002) they felt that they are aggrieved by certain directions given by the learned Judge while allowing the writ petition.

In support of their contention the learned Counsel appearing for different sets of Appellants advanced various arguments before us. But we are of the view that the matter should be remanded to the learned trial Judge for rehearing of the writ petition for the following reasons.

a) The Appellants in M.A.T. 2152 of 2002 were admittedly not heard at all by the learned Judge of the Writ Court but their promotions have been set aside and they have been directed to be reverted to the posts in which they were functioning prior to this promotion, despite the fact that they were promoted to the posts and were working in the promoted posts for four years. It is obvious that The order of reversion will prejudicially affect those Appellants and before such order can be passed by a Court, the persons concerned must be heard. But, in the instant case, they were not heard. For this reason alone the order under appeal cannot be sustained.

b) Apart from that the Appellants in M.A.T. 2152 of 2002 also have a grievance inasmuch as they were not given a proper opportunity of hearing in the sense there is nothing on record to show that writ petition was served on them in their address and in proper time. Their grievance that they came to know about the pendency of such writ petition only from some employees of the Head Office and therefore they rushed to the Court and could enter their appearance through a lawyer at the fag end of the matter, is a grievance which could not be refuted. The mere fact that their Counsel was heard by the learned Judge does not mean that the writ petition was served on them in due time. The fact remains that these Appellants could not file any affidavit before the learned trial Judge. Therefore, they have also been prejudiced in the sense that they were not given adequate opportunity of hearing. This is also one of the factors for vitiating the order passed by the learned Judge of the writ Court.

c) The learned Counsel for the Bank submitted before us that the Bank is not bound by the concession made before the learned Judge by their Counsel. Since the concession was made on a question of law, they cannot be made bound by the same.

It is obviously true that the points arising out of the principles of seniority-cum-merit, is a question of law and the learned Judge mostly proceeded on the basis of a concession made by the learned Counsel for the Bank to the effect that correct principles on the basis of seniority-cum-merit were not followed and promotions were given in violation of the principles and primarily because of that reason the learned Judge was pleased to set aside the promotions of the private parties. So the concession made in this case by the learned Counsel for the Bank, is on a question of law. In Central Council For Research In The Central Council for Research in Ayurveda and Siddha and Another Vs. Dr. K. Santhakumari, , it has been held in para. 12 that ''if the learned Counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot ensure to the benefit of any party''. The learned Judges of the Supreme Court in the case of Central Council Supra were also considering the question of promotion on the principle of seniority-cum-merit and while considering the matter in that aforesaid context, the above conclusions were reached by the learned Judges. In support of that conclusion, the learned Judges also relied on the decision of the Supreme Court in the case of Uptron India Limited Vs. Shammi Bhan and Another, .

d) It is obviously clear that in the instant case the entire basis of the judgment of the learned Judge of the Writ Court is on the basis of a concession, made by the learned Counsel for the Bank on the basis of application on the principle of seniority-cum-merit. The learned Judge did not decide the question involved in the writ petition except by relying on the aforesaid concession. Therefore, there has not been a proper decision on merits of the controversies involved before the learned Judge. Apart from that two of the Appellants, as pointed out above; did not get a proper opportunity of hearing.

So for the aforesaid reasons we are of the view that the matter should be remanded to the writ Court for rehearing on merits. Since the matter is to be reheard on merits and the judgment and order passed by the Writ Court does not survive, grievance of the writ Petitioner/Appellant in M.A.T. 2696 of 2002 which arises out of the order under appeal need not be considered afresh, since the said order has been set aside.

For the reasons aforesaid the judgment and Order dated June 14, 2002 passed by the learned Judge of the Writ Court in writ petition (W.P. 13951 (W) of 1998), is set aside. The Respondents to the writ petition who have not filed their affidavits are at liberty to file the same within a period of three weeks from date. Reply, if any, be filed by the writ Petitioner within a period of two weeks thereafter.

Since this is an old matter, this Court observes that the writ petition may be finally heard by the appropriate Bench within a period of two months from date.

With the aforesaid direction the appeals are disposed of and the judgment under appeal passed by the learned Judge of the Writ Court is set aside.

No order as to costs.

Tapan Kumar Dutt J.

I agree.