Anand Govind Bhide v. The Pr. Chief General Manager, Reserve Bank of India, Mumbai 400 001

Judgment

{Per A.S. Oka, J.}

1. On 14th December, 2012, we finally heard the Appeal and today the Appeal is kept for dictation of Judgment. By this Appeal, the Original Plaintiff has taken an exception to the Judgment and Order dated 5th August, 2011 passed by the learned Single Judge of this Court, by which the learned Single Judge held that the suit filed by the Appellant is barred by principles of res judicata under Section Dixit APEAL-830-11 11 of the Code of Civil Procedure, 1908, (hereinafter referred to as “the said Code”).

2. With a view to appreciate the submissions made by the Appellant appearing in person, it will be necessary to set out, in brief, the facts of the case. The

Appellant/Plaintiff was working as a Manager in the Premises Department of Reserve Bank of India, Central Office, Mumbai. By a communication dated 17 th October, 1997, the General Manager of the Reserve Bank of India, Department of Administration and Personnel Management, informed the Petitioner that he would be retiring from the employment by the end of November, 1997 in terms of Regulation 26(1) of the Reserve Bank of India (Staff) Regulations, 1948 on his attaining the age of superannuation of 58 years on 1st December, 1997. It appears that, after receiving the said communication, the Appellant made a representation dated 28th October, 1997 to the Reserve Bank of India, which was rejected on 12 th November, 1997. By the said representation, the Appellant prayed for grant of extension of the period of employment. As the said representation was rejected, the Appellant filed Writ Petition No.510 of 1998 on the Original Side of this Court. The Petition was filed for challenging the said communication dated 17 th October, 1997. The said Writ Petition was dismissed by the Division Bench of this Court by Judgment and Order dated 13th March, 2000. The Petitioner applied for review of the Judgment and Order dated 13th March, 2000, by which the Writ Petition was dismissed. By Judgment and Order dated 18th October, 2000, the Review Petition was dismissed by the Division Bench. Thereafter, the Appellant filed present suit. In the suit, one of the prayers is that the communication/order of retirement dated 17th October, 1997 be set aside and the Respondent-Bank be directed to treat the Appellant as in continuous service upto 30th November, 1999. A prayer was also made to refer the case to the in-house Grievance Redressal Cell of the Reserve Bank of India urgently, pending the hearing of the suit. Dixit APEAL-830-11

3. Notice of Motion No.1516 of 2010 was taken out by the Respondent/Defendant praying for rejection of the plaint and also for dismissal of the suit. It was contended that, as the suit was barred by Section 11 of the said Code, the plaint deserves to be rejected in exercise of powers under Clause (d) of Rule 11 of Order VII of the said Code. It appears that earlier, the said Notice of Motion was made absolute. Therefore, the Appellant preferred Appeal No.1142 of 2010 before the Division Bench of this Court for challenging the order. By Judgment and Order dated 29th November, 2010, by setting aside the said order, Appeal was allowed and the Notice of Motion taken out by the Respondent was remitted to the learned Single Judge for de novo hearing. After the order of remand, the Appellant filed a Chamber Summons, being Chamber Summons No.162 of 2011, praying for striking out the defence of the Respondent and also for not allowing the Respondent to rely upon the written statement. By the order impugned in the Appeal, the Notice of Motion taken out by the Respondent was made absolute in terms of prayer clause (a) by holding that the suit was barred by the principles of res judicata. The Chamber Summons was disposed of by observing that the same did not survive.

4. We have heard the Appellant appearing in person. Apart from making oral submissions, he has tendered across the Bar written arguments in brief. His first submission is that, while disposing of the earlier Appeal No.1142 of 2010 by order dated 29th November, 2010, the Notice of Motion ought not to have been remitted to the learned Single Judge for fresh hearing. He submitted that, in fact, the suit ought to have been remitted to the learned Single Judge for final hearing. He submitted that he can always challenge order of remand in subsequent proceedings. Dixit APEAL-830-11

5. He pointed out that the Respondent/Defendant filed written statement on 25th June, 2008 i.e. after a period of six years from the date on which period fixed for filing written statement had expired. He submitted that the right to defend of the Respondent was “time barred” in view of provisions of Order V Rule 1 of the said Code. He, therefore, submitted that defence raised by the said Notice of Motion based on invalid written statement was also time barred. He submitted that, therefore, the Chamber Summons was taken out by him for striking out the defence and for directing that the written statement shall not be considered. He submitted that he has submitted before the learned Single Judge as many as 21 draft issues and 5 new issues were raised by him by way of Chamber Summons. He pointed out that a Writ Petition is not a substitute for a Civil suit and the order was passed in his Writ Petition, after giving a very short period of about 15 minutes for hearing. He submitted that the principles of res judicata cannot be applied on the basis of the order passed in the Writ Petition as the Appellant was not given detailed hearing in the Writ Petition. He urged that, in any event, the first prayer in the plaint was for a decree directing a reference of the dispute to in- house Grievance Redressal Cell. He submitted that the said prayer was not made by him in the Writ Petition or in the Review Petition filed in the Writ Petition. He urged that, in view of Section 15 and Section 89 of the said Code, he was entitled to the said relief. He submitted that the earlier representation was neither referred to, nor decided by the Governor of the Reserve Bank of India or by the Central Board. He invited our attention to the order passed in the Review Petition by a Division Bench of this Court. He pointed out that a file was shown to the Division Bench, which was never placed on record of the suit. He also invited our attention to the 12 grounds in the Memorandum of Appeal. He submitted that the order of remand of Notice of Motion in earlier Appeal was illegal and there could not have been remand of the Notice of Motion. He urged that as there were several issues Dixit APEAL-830-11 in the suit, including issues of fraud and misrepresentation, the suit could not have been dismissed by the learned Single Judge without deciding all the issues. He submitted that the said issues were never directly or substantially in issue in the Writ Petition filed by him. He submitted that the Writ Petition cannot be termed as a normal suit filed by him. Without prejudice to the earlier contentions, he urged that the principles of res judicata de-bar the Court from trying the suit. He submitted that, considering the fact that there were 24 issues arising out of the pleadings, the principles of res judicata could not have been applied. He urged that the paper book of the Writ Petition was consisting of only 33 pages and the plaint compilation has 104 pages containing several new averments and additional exhibits. He urged that by way of Chamber Summons, he had made five prayers. He reiterated that, at the time of hearing of his Writ Petition before the Division Bench, only 15 minutes time was granted. He submitted that the writ Court was misled by the Respondent/Defendant. He, therefore, urged that the impugned order may be set aside and the suit be ordered to be heard on merits. He submitted that as the written statement was belatedly filed, there is no contest on merits and, therefore, the Respondent/Defendant is not entitled to urge any contention on merits. He has relied upon various decisions in support of his submissions. He urged that the decision of the Apex Court in the case of State Bank of Bikaner Vs. Jag Mohal Lal is outdated and is not applicable. The learned Senior Counsel appearing for the Respondent/Defendant supported the impugned Judgment and Order.

6. One of the main submissions canvassed by the Appellant appearing in person was that a Writ Petition under Article 226 of the Constitution of India cannot be termed as earlier suit and that considering the scope of writ jurisdiction, on the basis of orders passed in Writ Petition and Review Petition, the principles of res judicata cannot be invoked. As far as this aspect is concerned, it Dixit APEAL-830-11 will be necessary to make a reference to a decision of the Apex Court in the case of Gulabchand Chhotalal Parikh Vs. State of Gujarat, [AIR 1965 SC 1153]. In paragraph 22 of the Judgment, the Apex Court has noted submission made before it that a decision in a Writ Petition under Article 226 does not operate as res judicata in a Regular suit subsequently filed for a declaration of the Plaintiff's right. The Apex Court considered various earlier decisions on the said question. In paragraphs 60 and 61, the Apex Court proceeded to hold thus:- “60. As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceeding is immaterial.

61. We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Articles 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.” Dixit APEAL-830-11 [Underline added]

7. Even in the case of Union of India Vs. Nanak Singh, [AIR 1968 SC 1370], the Apex Court has reiterated the view taken in the case of Gulabchand Chotalal Parikh (supra). Therefore, the first submission of the Appellant that an order in a Petition under Article 226 will not operate as res judicata will have to be rejected. At this stage, it will be necessary to make a reference to the prayers made in the Writ Petition filed by the Petitioner, which read thus : “a) The Order of Retirement of the Petitioner dated 17th October, 1997 be set aside. b) The Reserve Bank of India be directed to grant extension of service to the Petitioner.”

8. The Writ Petition was dismissed by Judgment and Order dated 13 th March,

2000. Perusal of the Judgment and Order in the Writ Petition shows that the grievance of the Appellant was considered on merits and findings have been recorded. Paragraph 3 of the said Judgment reads thus :- “3. For this purpose, past three years' performance of the years 1995, 1996 and 1997 has also been considered including adverse remarks, which are communicated for the years 1994-1995. To this, the petitioner has answered that he had made a representation against this remark and inspite of those remarks, he has been granted promotion. However, in keeping with this policy, when the case of the petitioner was put before the Committee meant for the purpose and after considering the relevant material, if a decision is arrived at, this Court being not sitting in appeal over this decision, having satisfied itself about the observations of the rules Dixit APEAL-830-11 in that regard, in our opinion, nothing further could be done in the matter. It is well known that extension on retirement is solely within the discretion of the management and it is not a matter of right of the officer. The Supreme Court has decided this issue in State Bank of Bikaner and Jaipur v. Jag Mohan Lal (1989) AIR SUPREME COURT 75).” [Underline supplied]

9. Thereafter, the Appellant sought review of the Judgment and Order in the Writ Petition. Even in the Review Petition a prayer was made for setting aside the communication/order dated 17th October, 1997. The Appellant also prayed for grant of all service benefits. It appears from the order passed in the Review Petition that a contention was raised by the Appellant that it is not clear from the order passed in the Writ Petition whether the Reviewing Committee, which took the decision against the Appellant, consisted of the Governor and the Deputy Governors of Reserve Bank of India. The Judgment and Order in the Review Petition records that the original file was called for and the Division Bench was satisfied that a Committee comprising of high level officers headed by the Governor, four Deputy Governors and other Senior Officers of the Reserve Bank of India reviewed the case of the Appellant for continuation in service beyond 58 years. The Division Bench observed that the Committee has given reasons as to why continuation should not be granted. Therefore, after having perused the file, the Division Bench observed thus :- “We called for the original file and, and after its perusal, we are satisfied that a committee comprising of high level officers headed by the Governor, four Deputy Governors and other senior officers of the Reserve Bank of India had reviewed several cases, including the case of the Petitioner, for continuation in service beyond 58 years. Dixit APEAL-830-11 The committee has given reasons in each case as to why such continuation should or should not be granted. On an overall reading of the file, we are not satisfied that the Reserve Bank of India acted contrary to law or to the applicable circulars on the subject while reviewing the case of the Petitioner. We cannot forget that judicial review of administrative orders extends only to the decision making process, and not the decision itself. We have no jurisdiction to sit in appeal over the assessment of the Petitioner by his superior officers which we must respect and accept.”

10. It is not in dispute that the order passed in the Writ Petition as well as in the Review Petition has attained finality. Now it will be necessary to make a reference to the prayers made in the suit. The prayers read thus :- “(a) The Defendant be ordered to refer this case with all submissions to their In house Grievance Redressal Cell (GRC) urgently, pending hearing of this suit so as to minimise the differences. (b) The Order of Retirement of the Plaintiff dated 17.10.1997 be set aside. (c) The Defendant Bank be directed to treat the Plaintiff as if in Continuation of Service after 30.11.97 & up to 30.11.99 as per the Rules.” [Underline added]

11. On plain reading of the said prayers, the substantive prayers are prayer clauses (b) and (c). Prayer clause (b) for setting aside the order of retirement dated 17th October, 1997 was specifically made in the Writ Petition filed by the Petitioner and was rejected. Prayer clause (c) is merely a consequential prayer to prayer clause (b). As far as prayer clause (a) is concerned, it is not a substantive Dixit APEAL-830-11 prayer. It is a prayer for interim relief directing a reference of the case to in-house Grievance Redressal Cell, pending the hearing of the suit, “so as to minimize the differences”. The Appellant appearing in person has made submissions on this prayer by contending that the said prayer is in consonance with Section 89 of the said Code. But on plain reading of the said prayer, it is obvious that the same was for grant of interim direction during the pendency of the suit. The said prayer was made only by way of interim relief, which is very clear from the averments made in paragraph 16 of the plaint. In any event, the reference to in-house Grievance Redressal Cell was sought for seeking continuation after the age of 58 years. Thus, it is crystal clear that the substantive prayers in the suit were already made in the Writ Petition as well as in the Review Petition and the same have been rejected on merits. Therefore, the law laid down by the Apex Court in the case of Gulabchand Chhotalal Parikh Vs. State of Gujarat (supra) will squarely apply.

12. Another submission was made by the Appellant regarding the order of remand of the Notice of Motion passed in earlier Appeal No.1142 of 2010. Earlier, on the Notice of Motion No.1516 of 2010, an order of rejection of the plaint was passed. The order of the Division Bench passed in the said Appeal reads thus :- “1] Admit. Heard finally by consent of the parties. By consent of the parties, the order impugned is set aside. The motion is remitted back for de novo hearing and disposal. All contentions available to both the sides are kept open. Appeal is disposed of.”

13. The said order is expressly by consent. The Notice of Motion was specifically remitted to the learned Single Judge for de novo hearing. We do not agree with the submission that this Court is empowered to modify the said order Dixit APEAL-830-11 of the co-ordinate Bench which has attained finality. As far as this Court is concerned, the said order has become final. Moreover, the said order has been specifically passed by consent of the Appellant.

14. The Appellant appearing in person has relied upon various decisions. The first decision is of the Apex Court in the case of Mangal Prasad Tamoli (Dead) by LRs. Vs. Narvedshwar Mishra (Dead) by LRs. & Ors., [AIR 2005 SC 1964]. The said decision will not help the Appellant to contend that the order passed by the Division Bench of this Court in earlier Appeal, which has become final, can be reopened by this Court. He relied upon a decision of the Apex Court in the case of M/s. International Woollen Mills Vs. M/s. Standard Wool (U.K.) Ltd., [AIR 2001 SC 2134] in support of the contention that the Writ Petition has not been decided on merits. He relied upon a decision of the Apex Court in the case of Kewal Singh Vs. Mt. Lajwanti, [AIR 1980 SC 161] in support of his contention that there was no adjudication in the Writ Petition after full hearing. For the same purpose, he relied upon a decision of the Apex Court in the case of State of Maharashtra & Anr. Vs. National Construction Company, Bombay & Anr., [AIR 1996 SC 2367]. The decision of the Apex Court in the case of Ragho Prasad Gupta Vs. Shri Krishna Poddar, [AIR 1969 SC 316] is again on the issue of principles of res judicata. He relied upon a decision of the Apex Court in the case of Mahboob Sahab Vs. Syed Ismail & Ors., [AIR 1995 SC 1205] in support of his contention that as the judgment in Writ Petition and in Review Petition was obtained by fraud, the same will not operate as res judicata. Lastly, he submitted that a decision of the Apex Court in the case of State Bank of Bikaner and Jaipur & Ors. Vs. Jag Mohan Lal, [1989 Supp. (1) SCC 221], has become obsolete with the passage of time. However, the said decision has no bearing on the issue involved in this Appeal. Dixit APEAL-830-11

15. We have already referred to material portion of the orders of the Division Bench in the earlier Writ Petition and in the Review Petition. Merely because the Respondent/Defendant in the written statement did not rely upon the file, which was shown to this Court in Review Petition, the Appellant cannot contend that the order of the Division Bench has been fraudulently obtained.

16. We, therefore, agree with the view taken by the learned Single Judge that the suit was barred by principles of res judicata. Therefore, the learned Single Judge has rightly declined to consider the Chamber Summons for striking off the defence of the Respondent.

17. Hence, there is no merit in the Appeal and the same is, accordingly, dismissed with no orders as to costs. [S.S. SHINDE, J.] [A.S. OKA, J.]