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Judgment
Pranab Kumar Chattopadhyay, J.—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.
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 February 19, 1993. The said charge-sheet was issued by the Regional Manager of the respondent-bank and the Disciplinary Authority of the deceased-appellant.
During the pendency of the departmental proceeding, several writ petitions were moved by the deceased-appellant before this Hon''ble 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, M.W.I, M.W.2 and M.W.3.
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 October 5, 1996 informed the said deceased-appellant to the effect that the said Disciplinary Authority tentatively decided to impose the punishment of dismissal without notice. The aforesaid order dated October 5, 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 CO. No. 19710 (W)/1995, however, came up for hearing before a learned single Judge of this Hon''ble Court and was ultimately disposed of finally by the judgment and order dated August 26, 1998. The operative part of the said order is quoted here in below:
...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 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....
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.
Challenging the aforesaid judgment of the learned single Judge both the parties preferred appeals before the Division Bench of this Hon''ble Court. One appeal was preferred'' by the deceased-appellant/writ petitioner (F.M.A. 1347/2000) and another appeal was preferred by the bank authorities (M.A.T. 3477/1998).
Both the appeals were finally heard together and disposed of by the same judgment and order dated December 11, 2000 by a Division Bench of this Hon''ble Court presided over by the Hon''ble Justice Ashok Kumar'' Mathur (the then Chief Justice of this Hon''ble 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 Satya Brata Sinha, J. (as His Lordship then was) passed an order on March 30, 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 August 26, 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 March 30, 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 day''s list.
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.
Mr. Saktinath Mukherjee, learned senior counsel representing the appellants submits that the observations recorded in the judgment of the Division Bench of this Hon''ble Court cannot have any operational significance as both the appeals were finally dismissed. Mr. Mukherjee further submits that in view of dismissal of both the appeals, judgment and order dated August 26, 1998 passed by the learned single Judge became final and binding on the parties to the proceeding.
In any event, the Disciplinary Authority under Memo dated January 2, 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 August 26, 1998 passed in CO. No. 19710 (W) of 1995. The appellant/writ petitioner, since deceased, therefore, submitted a written representation on January 6, 2001 before the Disciplinary Authority categorically stating inter alia that the direction of the said Disciplinary Authority mentioned in the letter dated January 2, 2001 was in clear violation of the order dated August 26, 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 January 2, 2001 issued earlier by the said Disciplinary Authority to the original appellant.
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 January 10, 2001 inflicting the punishment of "dismissal without notice" upon the said deceased-appellant with immediate effect.
The deceased-appellant thereafter being aggrieved by the said final order dated January 10, 2001 moved a writ petition bearing W.P. No. 355 (W)/2001 before this Hon''ble Court, which was finally disposed of by a learned single Judge of this Hon''ble Court on January 15, 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. The petitioner shall be entitled to raise all such contentions as are open to him before the Disciplinary Authority and if aggrieved by any order that 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.
The deceased-appellant, therefore, filed a departmental appeal against the order of dismissal on several grounds and on December 1, 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)/2002 which was finally disposed of by the order dated June 26, 2002 by another learned single Judge of this Hon''ble 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.
Pursuant to the aforesaid order of the learned single Judge the Appellate Authority reconsidered its earlier order and passed another order on August 7, 2002 dismissing the appeal preferred by the deceased-appellant and upholding the order dated January 10, 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 August 7, 2002, which was ultimately dismissed by the learned single Judge by the judgment and order under appeal.
Mr. Saktinath Mukherjee, 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 CO. No. 19710 (W)/l995 by the order dated August 26, 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. Mukherjee further submits that the learned single Judge should not have ignored the earlier judgment passed by another learned single Judge of this Hon''ble Court in the previous writ petition filed by the deceased-appellant herein. Mr. Mukherjee 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 August 26, 1998 passed by the learned single Judge.
Mr. Mukherjee referred to and relied on a decision of the Privy Council in the case of AIR 1922 241 (Privy Council) Roy, 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;....
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. Mukherjee, 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. Mukherjee specifically urged before this Court that after dismissal of both the appeals by the Division Bench of this Hon''ble Court such contrary observations cannot survive to affect the rights of the parties. Mr. Mukherjee referred to and relied on a Division Bench judgment of this Hon''ble Court in the case of Sm. Tarabai Mohata and Others Vs. Union of India (UOI), wherein the. Hon''ble Division Bench in Paragraph 16 observed:
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 u/s 47 of the CPC cannot be entertained for the simple reason that the present appellants who were the judgment-debtor''s 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 Pashupati Nath Malia and Another Vs. Sri Sankari Prosad Singh Deo and Others,
Mr. Mukherjee also referred to and relied on a decision of the Hon''ble Supreme Court in the case of Ramesh Chandra Vs. Shiv Charan Dass and Others, wherein the Hon''ble Supreme Court observed:
..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 defendants 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 defendants No. 2 and 3 as much less between plaintiff and defendants No. 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 defendants No. 2 and 3 they could not challenge it by way of appeal....
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 Hon''ble Court, there was no scope for acting on the basis of the order of the learned single Judge passed in CO. No. 19710 (W)/1995 on August 26, 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 August 26, 1998 passed by the learned single Judge of this Hon''ble Court in CO. No. 19710 (W)/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 bank''s 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 Hon''ble Supreme Court in support of his aforesaid arguments:
(1) U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey,
(2) General Manager, Haryana Roadways Vs. Rudhan Singh,
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 August 26, 1998 passed by a learned single Judge of this Hon''ble Court in CO. No. 19710 (W)/1995 in view of the subsequent order passed by the Division Bench of this Hon''ble Court on December 11, 2000. There is no dispute that by the aforesaid order dated December 11, 2000, the Hon''ble 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 August 26, 1998 in C.O. No. 19710 (W)/1995.
Mr. Mukherjee, learned senior counsel of the appellants, in our opinion, has rightly submitted before this Court that the judgment and order dated August 26,1998 passed by the learned single Judge of this Court in CO. No. 19710 (W)/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 there from before the Hon''ble Supreme Court.
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.
In the instant case, both the appeals were dismissed by the Division Bench of this Hon''ble 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 August 26, 1998 in CO. No. 19710 (W)/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 CO. No. 19710 (W)/1995 dated August 26, 1998.
The respondent-bank had no authority to ignore and/or avoid the specific direction passed by the learned single Judge in CO. No. 19710 (W)/1995 dated August 26, 1998 as the appeals preferred from the said judgment and order dated August 26, 1998 before the Division Bench of this Hon''ble Court were dismissed as a result whereof, the aforesaid order passed by the learned single Judge on August 26, 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 Hon''ble Court in CO. No. 19710 (W)/1995.
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 August 26, 1998 passed by another learned single Judge of this Hon''ble Court in the earlier writ petition being C.O. No. 19710 (W)/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)/l995.
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)/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 Hon''ble Court in C.O. No. 19710 (W)/1995.
In the aforesaid circumstances, the subsequent order of the Appellate Authority approving the aforesaid order of the Disciplinary Authority also cannot be legally sustained.
We, therefore, set aside both the orders namely, the order of punishment dated January 10, 2001 passed by the Disciplinary Authority and the subsequent approval of the same by the order dated August 7, 2002 passed by the Prescribed Appellate Authority.
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.
Since we have quashed the order of ''punishment dated January 10, 2001 issued by the Disciplinary Authority and subsequent order dated August 7, 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.
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.
With the aforesaid observations and directions, this appeal stands allowed.
In the facts and circumstances of the present case, there will be no order as to costs.
Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned advocates of the parties on completion of usual '' undertaking.
Tapan Mukherjee, J.
I agree.