CENTRAL BANK OF INDIA & OTHERSversusDRAGENDRA SINGH JADON

                        [2022] 13 S.C.R. 93                              93


            CENTRAL BANK OF INDIA & OTHERS                               A
                                  v.
                  DRAGENDRA SINGH JADON
                   (Civil Appeal No. 5036 of 2022)
                         AUGUST 02, 2022                                 B
    [INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
       Service law – Res Judicata – Applicability of – Respondent
was appointed to the post of agricultural assistant in the appellant-
Bank – Respondent was served a chargesheet alleging that he had
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impersonated his brother in a written test conducted by Bank –
Disciplinary Enquiry held and thereafter services of the respondent
was terminated by the appellant in the year 1982 – Respondent
raised an industrial dispute – Tribunal by award dated 2008 held
that charge of impersonation was not proved and dismissal was
unjustified, thus reinstated respondent but without back wages –         D
Respondent filed a writ petition in the High Court in the year 2009
challenging the award of tribunal insofar as relates to the denial of
back wages – Appellants also filed a writ petition before the High
Court in the year 2009 challenging the award so far relates to the
reinstatement of services of respondent – High Court by a common
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judgment dismissed both the writ petitions – In compliance with the
judgment of High Court appellant reinstated the respondent – In
2013 respondent filed another writ petition to reinstate the
respondent to the post of Agricultural Finance officer and also for
the fixation of pay and seniority – Appellant objected that the writ
petition is barred by the principles of res judicata – High Court by     F
judgment dated 2015 held that the appellant shall be entitled for
all the benefits upon reinstatement except back wages – Writ appeal
was dismissed – Before the Supreme Court, appellant-bank
contended that principles of res judicata applied to the writ
proceedings – On appeal, held: The issue in the earlier writ petition
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was regarding legality of the award – However, 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 – Matter-in-issue in both the writ petitions is different
therefore principles of res judicata inapplicable – No infirmity with
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                                 93
94            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A    the concurrent findings of the Single Bench and the Division Bench
     of the High Court – Appeal dismissed.
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5036
     of 2022.
          From the Judgment and Order dated 03.04.2017 of the High Court
B    of Madhya Pradesh at Gwalior in Writ Appeal No. 310 of 2015.
           Debal Banerji, Sr. Adv., Ms. Meera Mathur, Advs. for the
     Appellants.
          Prashant Shukla, Anushree Shukla, Ms. Pratibha Yadav, Mayank
C    Gautam, Pashupathi Nath Razdan, Advs. for the Respondent.
           The Judgment of the Court was delivered by
           INDIRA BANERJEE, J.
           Leave granted.
D          2. This appeal is against a judgment and order dated 3rd 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 7th 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 2013, filed by the Respondent.
E
           3. On or about 23rd 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
F    served with a chargesheet dated 18th 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 6th 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 by an order
G    dated 29th January 1982.
            5. The Respondent raised an industrial dispute. By Notification
     No. L-12012/135/84-D.II(A) dated 7th 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”,
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   CENTRAL BANK OF INDIA & OTHERS v. DRAGENDRA                                 95
         SINGH JADON [INDIRA BANERJEE, J.]

the dispute of “Whether the action of the management of the Central            A
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?”
        6. By an Award dated 10th September 2008, the Tribunal held
that the Appellant-Bank was not able to prove the charge of impersonation      B
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 specific or general direction for continuity of service of the
Respondent or consequential benefits.                                          C

       7. On or about 12th 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 10th           D
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 10th September 2008, insofar            E
as the Respondent was directed to be reinstated in service. By a common
judgment and order dated 8th May 2012, the High Court dismissed both
the writ petitions. The Appellants states that, in compliance of the order
dated 8th May 2012, the Appellant-Bank reinstated the Respondent with
effect from his date of reporting i.e. 18th August 2012.                       F
       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 10th September 2008 i.e the date of the Award of          G
the Tribunal and for payment of actual salary from 10th September 2008,
being the date of the Award. The Respondent also prayed that the
Appellant-Bank be directed to fix the seniority and the current salary of
the Respondent, taking into consideration his past services.

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96            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A           10. The Appellant-Bank contested the Writ Petition and filed a
     reply, raising a preliminary objection to the maintainability of the Writ
     Petition on the ground of the Writ Petition being barred by principles of
     res judicata.
           11. By a judgment and order dated 7th August 2015, the learned
B    Single Judge of the High Court, allowed the Writ Petition. The Single
     Judge held :-
           “The Tribunal, upon reference made to it by the Central
           Government to adjudicate as to whether the respondents were
           justified in removing the petitioner from service, has answered
C          the reference in negative and in favour of the petitioner-
           workman holding that petitioner was wrongly removed from
           service. Accordingly, the Tribunal ordered for reinstatement,
           but without back wages. Legal meaning attributed to word
           “reinstatement” is beyond any cavil of doubt as by catena of
           decisions of Hon’ble the Apex Court and various High Courts,
D          word “reinstatement” has been unequivocally explained to
           the effect that once the Authority or Court orders for
           reinstatement of an employee, then the position of that
           employee is restored back to the date on which he was removed
           from services. As such, the respondents were not justified
E          having excluded the period from the date of removal of the
           petitioner to the date of his reinstatement and treating the
           same as completely dies non and also in not allowing the
           petitioner to get the service benefits attributable to him by virtue
           of the aforesaid length of service. In the opinion of this Court,
           the order (Annexure P/1) passed by the Respondent-Bank is
F          not in conformity with the order passed by the Tribunal.
           Hence, the impugned order, so far as it relates to denying
           benefits to the petitioner for the intervening period (the period
           from the date of removal of the petitioner from service to the
           date of his reinstatement), excepting denial of back wages is
G          quashed and it is held that the petitioner shall be held entitled
           for all the benefits except back wages construing him to be in
           service from the date of removal till the date of actual
           reinstatement in service. Needless to mention that consequent
           upon the reinstatement, petitioner is entitled to regular salary
           from the date of Award subject to adjustment of the amount
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   CENTRAL BANK OF INDIA & OTHERS v. DRAGENDRA                                  97
         SINGH JADON [INDIRA BANERJEE, J.]

       already paid under Section 17B of the Industrial Disputes                A
       Act.”
       12. Mr. Debal Banerji, Senior Advocate, appearing on behalf of
the Appellant-Bank rightly argued that the principles of res judicata
apply to writ proceedings under Articles 226 and 227 of the Constitution
of India. There can be no dispute with the proposition. It is also true that    B
the learned Single Judge of the High Court has not specifically dealt
with the issue of res judicata raised by the Appellant-Bank.
       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       C
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       D
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            E
2009(S) filed by the Appellants were heard analogously and dismissed
by a common order dated 8th 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.                                     F
       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     G
principles.
       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
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98             SUPREME COURT REPORTS                          [2022] 13 S.C.R.


A    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,
B    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.
C           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,
D    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 18th August
     2012, when the Award directing his reinstatement was dated 10th
E    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
F    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
G    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
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    CENTRAL BANK OF INDIA & OTHERS v. DRAGENDRA                            99
          SINGH JADON [INDIRA BANERJEE, J.]

intervening period, the Tribunal denied him back wages. The Tribunal       A
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.
      22. The Appellant-Bank cannot take advantage of its own wrong
of wrongfully dismissing the Respondent from service, to deny him the      B
benefit of seniority, promotion and other benefits to which he would
have been entitled, if he had attended to his duties.
       23. The appeal is, accordingly, dismissed.

Ankit Gyan                                             Appeal dismissed.
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(Assisted by : Aarsh Choudhary, LCRA)




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