CENTRAL BANK OF INDIA THR. vs. DRAGENDRA SINGH JADON

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5036 OF 2022 (ARISING OUT OF SLP (C) NO. 20995 OF 2017) CENTRAL BANK OF INDIA & OTHERS ...... APPELLANT (S) VERSUS DRAGENDRA SINGH JADON .... RESPONDENT (S) J U D G M E N T INDIRA BANERJEE J. Leave granted. 2. This appeal is against a judgment and order dated 3 rd April 2017 passed by the Division Bench of the High Court of Madhya Pradesh at Gwalior dismissing Writ Appeal No. 310 of 2015 filed by the Appellants against an order dated 7 th August 2015, passed by the Single Bench, allowing the Writ Petition under Article 226 of the Constitution of India being Writ Petition No. 1571 of Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2022.08.02 19:01:31 IST Reason: 2013, filed by the Respondent. 2 3. On or about 23 rd April 1975, the Respondent was appointed to the post of Agricultural Assistant in the Appellant-Bank and posted at its Kailaras Branch in Madhya Pradesh. 4. Over four years after his appointment, the Respondent was served with a chargesheet dated 18 th September 1979 alleging that he had impersonated his brother in a Written Test conducted by the Bank through the Banking Service Recruitment Board, Lucknow on 6 th May 1979 and answered the questions on his behalf. Pursuant to the chargesheet, Disciplinary Enquiry was held after which the services of the Respondent were terminated by the Appellant-Bank th by an order dated 29 January 1982. 5. The Respondent raised an industrial dispute. By Notification No. L- th 12012/135/84-D.II(A) dated 7 April 1988, the Government of India, Ministry of Labour referred to the Central Government Industrial Tribunal cum Labour Court, hereinafter referred to as the “Tribunal”, the dispute of “Whether the action of the management of the Central Bank of India, Gwalior in dismissing from service Shri Dragendra Singh Jadon, Agricultural Assistant with effect from 29.01.1982 is justified? If no, to what relief is the workman entitled?” th 6. By an Award dated 10 September 2008, the Tribunal held that the Appellant-Bank was not able to prove the charge of impersonation against the Respondent and therefore, the dismissal was unjustified. The Tribunal, however, found that the Respondent had gainfully been employed throughout the interregnum period after termination, and, therefore, limited relief to reinstatement without back wages. The Appellants contend that there was no 3 specific or general direction for continuity of service of the Respondent or consequential benefits. 7. On or about 12 th July 2009, the Respondent filed a writ petition being Writ Petition No. 3091 of 2009(S) in the High Court of Madhya Pradesh at Gwalior, challenging the Award of the Tribunal insofar as the Respondent had been declined back wages. In the said Writ Petition, the Respondent sought the relief of modification of the Award dated 10 th September 2008, by giving the Respondent the benefit of full back wages, continuity in service and other consequential benefits and such other relief as might be necessary for doing justice including costs. 8. The Appellants also filed a Writ Petition being Writ Petition No. 621 of 2009(S) against the Award dated 10 th September 2008, insofar as the Respondent was directed to be reinstated in service. By a common judgment th and order dated 8 May 2012, the High Court dismissed both the writ petitions. th The Appellants states that, in compliance of the order dated 8 May 2012, the Appellant-Bank reinstated the Respondent with effect from his date of reporting th i.e. 18 August 2012. 9. Sometime in March 2013, the Respondent moved a Writ Petition being Writ Petition No. 1571 of 2013 in the High Court of Madhya Pradesh at Gwalior, seeking orders on the Appellant-Bank to reinstate the Respondent to the post of Agricultural Finance Officer with notional fixation of pay upto 10 th September 2008 i.e the date of the Award of the Tribunal and for payment of actual salary from 10 th September 2008, being the date of the Award. The Respondent also 4

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6 13. Where an objection to the maintainability of any application/suit on an issue of law is not expressly dealt with, but the application/suit is entertained and disposed of on merits, the objection is deemed to have been rejected. The mere fact that an issue may not specifically have been dealt with, or reasons not specifically disclosed for decision on that issue, would not vitiate a judgment and order, that is otherwise correct. 14. It is not correct to say that the Respondent obtained the order of this Court by suppressing the fact that an earlier Writ Petition moved by the Respondent had been dismissed. In Paragraph 5.5 of the Writ Petition, the Respondent clearly stated that both the parties had challenged the Award of the Tribunal before the High Court - the Management of the Appellant-Bank against the entire Award and the Respondent against the part of the Award refusing back wages. Both the Writ Petitions i.e. W.P. No. 621 of 2009(S) filed by the Respondent and W.P. No. 3091 of 2009(S) filed by the Appellants were heard analogously and dismissed by a common order dated 8 th May 2012. The Respondent not only mentioned the fact that he had initiated a Writ Petition earlier, but also annexed a copy of the common judgment and order of the High Court in the earlier Writ Petitions as Annexure P-4. 15. Even though, the Court may not have specifically dealt with the issue of res judicata raised by the Appellant-Bank as a preliminary issue, it is clear from the judgment and order of the Single Bench as also the impugned judgment and order of the Division Bench, that the second writ petition was not barred by the principles of res judicata or analogous principles. 7 16. The principles of res judicata are attracted where the matter in issue in the later proceedings have directly and substantially been in issue in earlier proceedings, between the same parties, in a competent forum having jurisdiction. Res judicata debars the Court from exercising jurisdiction to determine the lis, if it has attained finality between the parties. There is a distinction between res judicata and issue estoppel. In the case of issue estoppel, a party against whom an issue has been decided would be estopped from raising the same issue again. 17. Where an issue could have been raised in earlier proceedings, but has not been raised, the principle of constructive res judicata would be attracted to deny relief, for it is not the policy of law that multiple proceedings should be initiated in Court in relation to the same cause of action. Where the cause of action for initiation of proceedings is a distinctive cause of action, the principles of res judicata would not apply. 18. What was in issue in the earlier writ petition being Writ Petition No. 3091 of 2009(S) was the legality of the Award and other consequential benefits. The cause of action for Writ Petition No. 1571 of 2013 arose subsequently. The issue in the later writ petition was not whether the Respondent was entitled to back wages for the period prior to the date of the Award, which issue had been decided in the earlier writ petition, but the issue of fixation of pay and seniority upon reinstatement in service. The question in the second writ petition was, whether, for the purposes of seniority and fixation of pay, the Respondent was to be treated as a newly appointed employee and that too with effect from 18 th 8 August 2012, when the Award directing his reinstatement was dated 10 th September 2008. 19. In our considered view, the learned Single Bench of the High Court rightly granted relief to the Respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the Appellants and directed that the Respondent would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages. 20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a difference between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order of reinstatement puts a person back to the same position. 21. The Tribunal had granted the Respondent, the relief of reinstatement. Considering that the Respondent had not actually rendered service to the Appellant-Bank and that he had been earning in the intervening period, the Tribunal denied him back wages. The Tribunal and the High Court (both the Single Bench and the Division Bench) have in effect and substance found the termination of service of the Respondent to be wrongful. 9