United Bank of India VsBiman Talukdar

S.C. Das, J.—This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 03.05.2007 passed by the learned Additional District Judge, Court No. 2, West Tripura, Agartala in Title Appeal No. 35 of 2006, whereunder the learned Additional District Judge reversed the judgment and decree dated 18.03.2006 passed by the learned Civil Judge, Senior Division, Court No. 1, Agartala, West Tripura in Title Suit No. 51 of 2004. Heard learned counsel, Mr. D.R. Choudhury for the appellants and learned counsel, Mr. D.K. Biswas, for the respondent.

The second appeal has been admitted for hearing on the following substantial questions of law:--

"(i) Whether the Ld. 1st Appellate Court can decide that the bank authority has got no prescribed rules to initiate departmental proceeding against the Plaintiff-Appellant-Respondent, the Bank Employee where the Plaintiff-Appellant-respondent has never stated in his pleadings and never raised the plea that the bank authority has got no power to initiate the departmental proceeding against the bank employee and there is no rules and regulations of the bank relating to initiation of departmental proceeding?

(ii) Whether the Ld. Lower Court committed wrong and illegalities in deciding that the disciplinary authority, the Defendant-Respondent-Appellant No. 2, the Regional manager of Tripura Region is legally estopped to bring the subsequent proceeding even on the same charge being earlier proceeding dropped and declared by Civil Court as void on technical ground?

(iii) Whether the civil Court has got jurisdiction to entertain the case of the plaintiff-Appellant-respondent being the subject-matter of the suit is the industrial dispute between the management of the bank and its workmen?"

The respondent as plaintiff (hereinafter mentioned as ''plaintiff'') instituted Title Suit No. 51 of 2004 in the Court of Civil Judge, Senior Division, Court No. 1, Agartala, West Tripura seeking declaration with consequential relief of recovery of money with damages against the defendants-appellants (hereinafter mentioned as ''defendants'') and the suit was dismissed by judgment and decree dated 18.03.2006. Felt aggrieved, the plaintiff preferred Title Appeal No. 35 of 2006 and by impugned judgment and decree dated 03.05.2007, the learned Additional District Judge, Court No. 2, West Tripura, Agartala allowed the appeal and consequently set aside the judgment and decree passed by the learned Civil Judge, Senior Division, dated 18.03.2006 and decreed the suit in favour of the plaintiff.

Felt aggrieved, the defendants preferred the present second appeal on the substantial questions of law indicated herein above.

The short fact, necessary for disposal of this second appeal, is mat the plaintiff is an employee of defendant No. 1 and a disciplinary proceeding was initiated against the plaintiff by the defendants for misconduct in the year 1995 and the disciplinary proceeding was ended in punishment of the plaintiff. The plaintiff challenged the order of punishment by filing Title Suit No. 55 of 2002 in the Court of Civil Judge, Senior Division, Court No. 1, Agartala, West Tripura and by judgment and decree dated 03.06.2003 the suit was decided in favour of the plaintiff and the order passed by the disciplinary authority was declared as illegal and void. That judgment and decree dated 03.06.2003 passed in T.S. No. 55 of 2002 has attained finality and a copy of the judgment has been proved and marked as Exbt.-12 on behalf of the plaintiff in the suit. The defendants thereafter initiated a fresh proceeding on the same charges against the plaintiff and that disciplinary proceeding has been challenged by the plaintiff by filing the instant Title Suit No. 51 of 2004. The trial Court by impugned judgment and decree dated 18.03.2006 dismissed the suit, but in the first appeal the appellate Court in Title Appeal No. 35 of 2006 by judgment and decree dated 03.05.2007 allowed the appeal and decreed the suit in favour of the plaintiff.

Only question which arose for decision in this second appeal is as to whether the defendants had the authority to initiate a fresh proceeding on the same charge.

Learned counsel, Mr. D.R. Choudhury appearing for the defendants-appellants and learned counsel, Mr. D.K. Biswas appearing for the plaintiff-respondent submit that disciplinary matters of Bank employees are guided by the provision prescribed in Bipartite Settlement between the Bank employees and management. Chapter XIX of the Bipartite Settlement deals with the provisions regarding disciplinary action. It is an admitted position, as contended by learned counsel of both side, that there is no provision in the Bipartite Settlement for initiation of a de novo proceeding or a fresh proceeding. I have a glimpse to the provision of Chapter-XIX of the Bipartite Settlement placed by the learned counsel of the parties before the Court. There are provisions of disciplinary action against the Bank employees in the Bipartite Settlement, but there is no specific provision of initiation of a de novo or fresh proceeding after a disciplinary proceeding has ended.

Learned counsel, Mr. Choudhury appearing for the defendants-appellants submits that the order passed by the disciplinary authority after completion of the disciplinary proceeding was declared illegal and void by the learned Civil Judge, Senior Division in Title Suit No. 55 of 2002 only on technical ground that the opportunity of defence assistance was not afforded to the plaintiff and on that ground alone the order passed by the disciplinary authority was quashed. It was not decided on merit and so, the defendants-appellants initiated a fresh proceeding and/or de novo proceeding on the same charges, but that has been challenged in the present suit.

It is an admitted position that Bank management and employees are bound by the Bipartite Settlement which has got the force of law for the Bank management and employees are concerned. Admittedly, there is no specific provision in the Bipartite Settlement to initiate a fresh or de novo proceeding against a Bank employee for misconduct. Once a case is disposed of, it is disposed of for ever and on the same charge a fresh proceeding cannot be initiated. The CCS(CCA) Rules has not been made applicable in the case of Bank employees. So, the question arose for decision is whether in the absence of a specific provision a fresh or de novo proceeding can be initiated.

Learned counsel, Mr. Choudhury referring to the case of State of Punjab & Ors. v. Chander Mohan, reported in (2005) 13 SCC 81 has submitted that a fresh enquiry is not barred if the disciplinary action was taken by an incompetent authority. The fact of that reported case and the fact of the present case at hand is clearly different and distinguishable and so the ratio of that decision cannot be applied in the fact of the present case.

It is a settled proposition that conferment of jurisdiction is a legislative function and it can neither be conferred by the authority on the parties nor by a superior court.

The Bank management and Bank employees in their Bipartite Settlement, which is the relevant law for the management and the employees, since does not prescribe any provision for initiation of a de novo proceeding or a fresh proceeding on the same charge, once the punishment order was declared as illegal and void by a competent Court of law, the subsequent proceeding initiated by the defendants-appellants cannot stand in the eye of law.

The Supreme Court in the case of Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, has held that in the absence of a specific provision, a departmental enquiry cannot continue against an employee. Same observation made by the Apex Court in the case of Dev Prakash Tewari v. U.P. Co-operative Institutional Service Board, Lucknow & Ors., in Civil Appeal Nos. 5848-49 of 2014, decided on 30.06.2014.

In my considered opinion, since the disciplinary proceeding and punishment inflicted by the disciplinary authority against the plaintiff was declared as illegal and void by judgment dated 03.06.2003 by a Court of competent jurisdiction in Title Suit No. 55 of 2002 and that order attained finality, a subsequent disciplinary proceeding on the same charge in the absence of any specific provision therefor in the bipartite settlement, i.e., the relevant law applicable to the parties, the appellate Court, in my considered opinion, rightly allowed the appeal and I find no merit in the second appeal.

Accordingly, the second appeal stands dismissed. Parties to bear their costs. Send back the lower court records along with a copy of this judgment.