LPA/94/2005 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 94 of 2005 In SPECIAL CIVIL APPLICATION No. 896 of 1980 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHHABILDAS KARAMCHAND SHETH - Appellant(s) Versus BANK OF BARODA & 3 - Respondent(s) ========================================================= Appearance : MR MC SHAH for Appellant(s) : 1, MR DARSHAN M PARIKH for Respondent(s) : 1, RULE SERVED for Respondent(s) : 2, SERVED BY RPAD - (R) for Respondent(s) : 3, RULE UNSERVED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE SHARAD D.DAVE Date : 04/03/2008 LPA/94/2005 2/12 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. This Letters Patent Appeal arises out of the judgment and order rendered in Special Civil Application No.896 of 1980 dictated on 26.4.2004, 18.8.2004 and 1.9.2004 dismissing the petition. 2. The petition was preferred by the present appellant and the facts giving rise to the petition can be stated thus in narrow compass. The appellant was employee of the respondent bank working in the main office of the bank at Mumbai as Sectional Head. The disciplinary proceedings came to be initiated against him on 10.7.1971 on the charge of gross negligence which was likely to cause loss to the bank and of action prejudicial to the interest of the bank and of acts subversive of discipline. It was alleged that the petitioner issued Travellers' Cheque worth Rs.30,000/- on 17.12.1970 on the basis of forged indent letter without properly verifying signature of the agent concerned which is contrary to the procedure prescribed for issuance of Travellers' Cheque. On conclusion of the departmental inquiry, the Inquiry Officer found that petitioner failed to take normal and reasonable care, that the petitioner was grossly negligent which resulted into loss to the bank and was likely to cause further loss to the bank, that the appellant had acted in a manner which LPA/94/2005 3/12 JUDGMENT was prejudicial to the interest of the bank and that acts or omissions on the part of the petitioner were subversive of the discipline because he totally ignored the Rules and the procedure and usual banking norms. 2.1 By order dated 16.8.1972, the petitioner was punished with reduction in rank to the post of Clerk. Feeling aggrieved, the petitioner preferred the appeal before the Appellate Authority who, then was one Shri K.R.Parikh, Dy.General Manager. The Appellate Authority dismissed the appeal and confirmed the finding of guilt so also punishment imposed upon the appellant by order dated 10.1.1973. 2.2 Against the said order of the Appellate Authority, the petitioner approached the Chairman of the Bank with the appeal/revision/representation. The Chairman of the Bank was authorized by the Board of Directors to take appropriate decision in the matter. The Chairman of the Bank, by order dated 18.8.1979, confirmed the finding of the guilt and punishment imposed on the appellant. Being aggrieved thereby, the appellant preferred Special Civil Application No.896 of 1980. 3. The petition under Article 226 of the Constitution of India was founded mainly on the ground that the Appellate Authority lacked inherent jurisdiction of hearing the appeal of the present appellant. The contention was founded on the fact LPA/94/2005 4/12 JUDGMENT that the officer who had heard the appeal had retired from service before he took the decision on the appeal and, therefore, he did not have jurisdiction. 4. The petition was opposed on two counts. First that the petition was not maintainable before this Court because of want of territorial jurisdiction. 4.1 It was also contended that Mr.K.R.Parikh who worked as the Appellate Authority was reengaged immediately after his retirement as Advisor to the Chairman and Managing Director and, therefore, he can be said to be in service of the bank. It was also the case that appointment of the Appellate Authority was made by name and his retirement would not be relevant factor. The third contention that has been raised is that the appellant did challenge the order of the Appellate Authority before the Chairman of the Bank as per the practice prevalent then though there are no specific rules to that effect. The Chairman was authorized by the Board of Directors to take appropriate decision over the appeal/ revision/ representation of the appellant. It is the case of the bank that in the appeal before the Chairman, the question of want of jurisdiction on the part of the Appellate Authority was not raised at all and, therefore, it cannot be said to have been conceded to or waived or dropped by the appellant and the appellant, therefore, cannot raise this contention in a petition under Article 226 of the Constitution of LPA/94/2005 5/12 JUDGMENT India before this Court. It is also contended on behalf of the Bank that apart from the fact that in the appeal before the Chairman, the question of want of jurisdiction was not raised, the fact remains that the case of the appellant was considered by the Chairman on merits. This appeal, even if accepted, would ultimately result in remand of the case to the Appellate Authority. If that situation is created, it would create anomaly in the sense that decision of the Chairman who is the highest authority in a Bank would be questioned before and examined by the Appellate Authority which is manned by an officer lower in the rank than the Chairman of a bank. It is also canvassed that this would be throwing the question once again open on merits after about 38 years. As such, assuming that the Appellate Authority did not have any jurisdiction, it may to be considered that no prejudice is caused to the appellant on account of so called want of jurisdiction. It was, therefore, submitted that this appeal may not be entertained. 5. Learned advocate Mr.Parikh on behalf of the appellant in rejoinder relied on the decision of the Bombay High Court in the case of Mishrimal Jethmal Oswal Indian Citizen Vs. Municipal Council of Lonavala in Letters Patent Appeal No.27 of 2006 in Public Interest Litigation No.10 of 2005 where the view was taken that the authority who decides the case must be in existence at the time of pronouncement of the order. LPA/94/2005 6/12 JUDGMENT 5.1 It was also contended by learned advocate for the appellant that the order by the Chairman is bad in the eyes of law because it is non-speaking, unreasoned and is passed without hearing the appellant. No other contention is raised. No other case law is cited. 6. We have carefully considered rival sides submissions. 7. The appellant's petition and the Letters Patent Appeal are mainly based on the ground that the Appellate Authority did not have jurisdiction to decide the appeal over the order of the Inquiry Officer for the reason that Mr.K.R.Parikh who was then Deputy General Manager had retired on 31.12.1972 before pronouncing the order in the appeal though he had heard the appeal while he was in office. This contention is sought to be met with by contending that Mr.K.R.Parikh was immediately employed after his superannuation as Advisor to the Chairman and Managing Director and, therefore, when he passed the order, it cannot be said that he was not part of the organization of the bank. Second fold of the contention was that Mr.Parikh was appointed as Appellate Authority by name and his superannuation would not make any difference so far as jurisdiction is concerned. 7.1 We are unable to accept any of these LPA/94/2005 7/12 JUDGMENT contentions. Mr.Parikh was appointed as Appellate Authority because he happened to be Deputy General Manager and the moment he ceased to be Deputy General Manager, he would lose the jurisdiction to perform any of the duties entrusted to him as such, be it that of Appellate Authority or be it any other duty that is to be performed by a Deputy General Manager. The appointment as Appellate Authority cannot be considered to be appointment by name which would give him jurisdiction even after superannuation. The language employed in the notice dated 5.7.1971 makes it clear that the appeal could be preferred before Mr.K.R.Parikh, Deputy General Manager, Bombay main office within 45 days. There was no need to refer to the designation and posting of Mr.Parikh if he was appointed as Appellate Authority in his personal capacity by name. 7.2 The second part of submission that Mr.K.R.Parikh was reemployed immediately upon his superannuation as Advisor to the Chairman and Managing Director and, therefore, he can be said to have continued in his office and could have performed the same functions that he was performing prior to his retirement also cannot be accepted. In this regard, if we examine the affidavit-in-reply, particularly, para 20, it is clear that respondent No.3 Mr.K.R.Parikh retired with effect from 31.12.1972 and hearing had taken place prior to his retirement and even after 31.12.1972 he was continued in service of the respondent bank on contract basis LPA/94/2005 8/12 JUDGMENT as Advisor to the Chairman and Managing Director. Though not specifically contended, it appears to be the case of the bank that after retirement and subsequent to re-engagement, position of Mr.K.R.Parikh was not reduced below the rank of Deputy General Manager. This also can hardly be a relevant consideration once a man retires. It is clear that Mr.Parikh was “re-engaged on contract basis as Advisor to the Chairman and Managing Director” and his functions, duties and jurisdiction would be governed limited to that fresh contract. In absence of material to the contrary scope of his functions or duties would be the acts as Advisor to the Chairman and Managing Director and not beyond that. The moment he left his reins upon reaching the age of superannuation, he could not have performed any of the duty which he was performing prior to his retirement unless his re-engagement was for that specific purpose and it is not the case of the bank that re-engagement of Mr.Parikh included his functions as Appellate Authority even if position of Mr.Parikh remains at par or above the level of Deputy General Manager his jurisdiction would be different. He would enjoy only advisory jurisdiction and may not enjoy decision making powers which the Deputy General Manager in the office may be enjoying and we, therefore, find substance in the contention of the appellant that the Appellate Authority lacked in inherent jurisdiction when it pronounced the order in the appeal after retirement, though it was after re- engagement on contractual basis as Advisor to the LPA/94/2005 9/12 JUDGMENT bank. 8. The second point that would call for consideration would be whether the petitioner could have raised this contention in his petition once he surrendered to the jurisdiction of the Chairman by preferring the appeal, revision or representation without raising this point before the Chairman. 8.1 In this regard, it has been vehemently contended on behalf of the appellant that the Appellate Authority inherently lacked jurisdiction and, therefore, the point can be raised by the petitioner/ appellant at any point of time even if it is not raised before the Chairman. If it was the case of territorial or pecuniary jurisdiction, possibly position would have been different, but here there is a lack of inherent jurisdiction and, therefore, it can be raised before this Court while preferring the petition. 8.2 To counter this, it was contended that this Court cannot exercise the writ jurisdiction in the facts of this case on technical plea that may be raised by the petitioner for the reason that it may result into an anomalous situation. If the appeal is entertained, it will be sent back to the Appellate Authority for reconsideration on merits. When the highest authority of the bank i.e. Chairman has considered the case of the petitioner appellant on merits and if it is sent to the Appellate Authority LPA/94/2005 10/12 JUDGMENT which would be manned by an officer who would be lower in rank than Chairman in the bank, it would create embarrassing and anomalous situation and, therefore, this appeal may not be entertained. 8.3 The appellant may be right in contending that plea of want of jurisdiction could have been raised in the petition for the first time when it is found that the order by the Appellate Authority was suffering from lack of inherent jurisdiction, but when the petitioner/appellant opted to go before the Chairman and failed to raise that contention there and when the Chairman decided his case on merits, the question of prejudice would also be a relevant consideration while exercising writ jurisdiction. 8.4. The highest authority of the bank has considered the case of the petitioner/appellant. The decision is assailed on the ground that it is a non- speaking order. Our attention is drawn to the Annexure-U to the petition purported to be the order of the Chairman. On examination, it is found that it is only a communication addressed to the petitioner appellant informing him that the appeal was examined and it was not considered favourably. It is not the order or its copy. It is sent by the Assistant Manager of the bank and, therefore, we are not able to accept the contention that the order of the Chairman is not a speaking order. The order itself is not before the Court. LPA/94/2005 11/12 JUDGMENT 8.5. As to the contention that the Appeal before the Chairman was decided without personal hearing, it may be noted that the Appellant had not asked for personal hearing as can be seen from memo of appeal. The appeal was not statutory but was by way of practice prevalent then. In such a situation, the decision of the Chairman would not stand vitiated on this ground. 9. We find substance in contention that since the case of the appellant is considered by the highest authority of the bank, it would lead to anomalous situation if the matter is sent back to the Appellate Authority for considering the case on merits since the decision of the Appellate Authority is assailed only on the ground of want of jurisdiction. 10. Last but not the least was the contention regarding jurisdiction of this Court to entertain this petition. The same was not answered to by learned Single Judge. In this regard, it may be noted that the petitioner appellant was employed with the Bank of Baroda at Bombay and worked as such at Bombay only till he retired even after passing of the impugned order. The transaction for which he was charge sheeted departmentally also took place at Bombay. The proceedings were also conducted at Bombay. All the authorities, i.e. Inquiry Officer, Appellate Authority and Chairman are stationed at Bombay. Under the circumstances, it has been LPA/94/2005 12/12 JUDGMENT contended by the respondent that the petition was bad on account of jurisdiction. It was contended by learned advocate Mr.Parikh on behalf of the appellant that in light of Section 21 of the Civil Procedure Code, such contention cannot be raised at appellate or revisional stage unless prejudice is shown. Be that as it may. We also do not propose to answer that question as learned Single Judge has not answered the same and the case of the petitioner appellant is considered by us on merits. 11. It may be recorded that about 38 years have gone-by by now to the incident. The appellant did not challenge jurisdiction of Appellate Authority when departmental proceedings were initiated. He did not challenge order of Appellate Authority before the Chairman on this ground. No personal hearing was sought before Chairman. The order of the Chairman cannot be considered bad for want of hearing to be given to the appellant as same was not sought. Creating anomalous situation by judicious order is unwarranted as no fruitful purpose will be served. 12. In light of the foregoing discussion, the appeal must fail and stands dismissed. No costs. (A.L.Dave,J) (Sharad D.Dave,J) pathan