1 NMS-1516-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1516 OF 2010 IN SUIT NO.1713 OF 2002 Anand Govind Bhide ..Plaintiff Vs The. Pr. Chief General Manager, Dept. of Admn & Personnel Management, Reserve Bank of India, Central Office, 19 th floor, Mumbai 400 001 ..Defendant AND CHAMBER SUMMONS NO.162 OF 2011 IN SUIT NO.1713 OF 2002 Anand Govind Bhide ..Plaintiff Vs The. Pr. Chief General Manager, Dept. of Admn & Personnel Management, Reserve Bank of India, Central Office, 19 th floor, Mumbai 400 001 ..Defendant 2 NMS-1516-10.odt -- Mr.Atul Rajadhyaksha, Senior Counsel with Mr.Amit Jamsandekar and Mr.Nikhil Davare i/b. M/s.Udwala and Udeshi, for defendant. Plaintiff in person. -- CORAM : R.G.KETKAR, J. RESERVED ON : 15 th JULY, 2011 PRONOUNCED ON : 5 th AUGUST, 2011 JUDGMENT: Heard finally by consent of the parties. Notice of Motion No.1516 of 2010 is taken out by the defendant – Principal Chief General Manager, Department of Administration & Personnel Management, Reserve Bank of India (for short “R.B.I.”), for (i) rejection of the plaint and dismissal of the suit as the same is barred by Section 11of the Code of Civil Procedure, 1908 (for short “C.P.C.”) and/or principles analogous to res-judicata and/or constructive res-judicata and/or issue of estoppal in view of the judgment and orders dated 13 th March, 2000 passed in Writ Petition No.510 of 1998 and 18 th October, 2000 passed in Review Petition No.23 of 2000, respectively; and also for 3 NMS-1516-10.odt rejection of the plaint as the suit does not disclose any cause of action. 2] Chamber Summons No.162 of 2010 is taken out by the plaintiff for striking out the defence of the defendant under Order XI Rule 21 of C.P.C.; for directing not to use the written statement filed by the defendant on record being time barred under Order V Rule 1 of C.P.C.; and for decreeing the suit by setting aside the Retirement Order dated 17 th October, 1997 and for treating the plaintiff as if in R.B.I. service upto 30 th November, 1999 with due promotion as the Chief General Manager in Grade F with all the service benefits and retirement benefits. The plaintiff has also prayed that the defendant be penalised according to law for wrongful misrepresentation as also for the fraud practiced by them before this Court in Writ Petition as also Review Petition. The plaintiff has further prayed for interest to be paid on the delayed payment of compensation at the rate of 15% per annum since November, 1997 when the plaintiff was required to file Writ Petition till the date of actual making of due payment. 4 NMS-1516-10.odt 3] Since the parties in both the proceedings are common and the issues of law and facts in both the proceedings are common, the Notice of Motion and Chamber Summons can conveniently be disposed of by this order. 4] On 6 th December, 1968, the plaintiff joined service of Reserve Bank of India as Assistant Engineer (Officer Grade A). In due course of time, he was promoted on merits to the posts of Officer in Grade B, Grade C and Grade D. The defendant issued Office Circular No.4596 on 16 th October, 1982 requiring mandaterily to record reasons and to state reasons in the reply while rejecting any representations. Subsequently, on 9 th May, 1991, an Administration Circular No.11 was issued. By that Circular, Retirement age has been increased from 58 to (58+1+1) years subject to the requirements laid down in that Circular. It is the case of plaintiff that there is no discretion with the Authorities of R.B.I. To refuse extension and in view of Circular dated 16 th October, 1982, R.B.I. cannot reject any representation without recording reasons. 5 NMS-1516-10.odt 5] The plaintiff was, thereafter, promoted as General Manager in Officer Grade “E” on 1 st February, 1994. It is his case that he has not received any adverse remark about his performance and that he is keeping very good health and his leave record has also been satisfactory. However, despite this position, for no valid reason, the defendant issued retirement order dated 17 th October, 1997 retiring the plaintiff on 30 th November, 1997. It is the case of the plaintiff that he satisfied all the requirements laid down in the Circular dated 9 th May, 1991 and in fact, his case was recommended by his Head of the Department for continuation in service. Immediately, the plaintiff made representation on 28 th October, 1997 to the defendant which was rejected on 12 th November, 1997 without assigning any reason. This was contrary to the Office Circular No.4596 dated 16 th October, 1982 which mandatorily requires to give reasons. Being aggrieved by the rejection, the plaintiff preferred Appeal on 18 th November, 1997 which was rejected by the Committee which was not validly constituted. 6 NMS-1516-10.odt 6] The plaintiff filed Writ Petition No.510 of 1998 which was dismissed on 13 th March, 2000 on the ground that this Court cannot sit in Appeal over the decision taken by R.B.I. and that this Court has no jurisdiction to go into the disputed questions as pleaded by the defendant. The plaintiff, thereafter, filed Review Petition No.23 of 2000 which was also not entertained for same reasons. The plaintiff has, thereafter, issued notice under Section 80 of C.P.C. on 2 nd November, 2000, which was, however, not replied by the defendant. He was, therefore, constrained to institute the present suit on 9 th April, 2001 in the City Civil Court. By order dated 9 th April, 2002, the plaint was returned for presentation before the appropriate forum and, accordingly, on 13 th April, 2002 the present Suit is instituted in this Court. The plaintiff has prayed for the following reliefs :- 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 th October, 1997 be set aside. 7 NMS-1516-10.odt c) The defendant Bank be directed to treat the plaintiff as if in continuation of Service after 30.11.97 & upto 30.11.99 as per the Rules. 7] The defendant has filed written statement on 25 th June, 2008 resisting the suit on various grounds. By order dated 17 th December, 2008 after hearing both sides and after perusal of the plaint and written statement, issues came to be settled. 8] The defendant has taken out Notice of Motion No.1516 of 2010 for rejection of the plaint as also for dismissal of the suit referable to Order VII Rule 11(d) of the C.P.C. as the same is barred by Section 11 of C.P.C. in view of the judgment and order passed by this Court in Writ Petition No.510 of 1998 and Review Petition No.23 of 2000 and also for rejection of the plaint as it does not disclose any cause of action. In support of this Motion, Mr.Manoj Sharma, General Manager, Department of Administration and Personnel Management, Reserve Bank of India has made 8 NMS-1516-10.odt affidavit. The plaintiff has filed affidavit-in-reply opposing the Notice of Motion. It is contended that the plaint can be rejected under Order VII Rule 11(d) of the C.P.C. only where it appears from the statement in the plaint to be barred by any law. There is no statement in the plaint by which it can be said that the suit is barred by any law. Even otherwise, plaint cannot be rejected and suit cannot be dismissed on the ground of Section 11 of C.P.C. Writ Petition was essentially filed under Article 226 of the Constitution of India and was not a suit contemplated under C.P.C. 9] It is further contended that the defendant had admitted in paragraph 9 of the affidavit dated 25 th November, 1999 filed in Writ Petition No.510 of 1998 that this Court ought not to go in disputed facts in writ proceedings and the petitioner should file Civil Suit. Thus, the defendant admitted that this Court was not competent to adjudicate upon the disputed facts in the writ petition and the suit was the appropriate remedy. The plaintiff has also contended that in order to attract Section 11 of the C.P.C., the subject matter in the formal suit must be same. In the earlier writ petition, no issues were framed whereas, in the present suit, as many as 9 issues 9 NMS-1516-10.odt have been framed which are required to be adjudicated on the basis of the evidence as also on merits. Therefore, there is no question of applicability of principles of res-judicata or constructive res-judicata. That apart, the subject matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. While disposing of Writ Petition and Review Petition, the Court had merely expressed opinion and has not finally decided the case. It therefore cannot be considered that the case was fully heard and finally decided. It has been also pleaded that the defendant has practiced fraud and misled this Court at the time of hearing of Writ Petition and Review Petition. The original file was produced by surprise by R.B.I. at the time of hearing of Writ Petition. The file was neither relied upon nor exhibited by the respondent in reply. Even the Committee who took the decision not to grant continuation in service to the plaintiff after the age of 58 years was not properly constituted. On these among other grounds, the plaintiff has resisted the Notice of Motion. 10] I have heard Mr.Anand Govind Bhide, plaintiff in person and 10 NMS-1516-10.odt Mr.Atul Rajadhyaksha, learned Senior Counsel for the defendant. 11] Mr.Bhide reiterated the contentions raised in the affidavit-in- reply filed opposing the Notice of Motion. He has also relied upon the following judgment: (i) Ragho Prasad Gupta Vs. Shri Krishna Poddar, AIR 1969 SC 316 to contend that the issues raised in the present suit were not raised in the Writ Petition filed by him and that the Writ Petition was disposed of by this Court by merely expressing opinion which cannot be construed as judgment; (ii) Mahboob Sahab Vs. Syed Ismail and ors, AIR 1995 SC 1205 to contend that the defendant has obtained orders in Writ Petition by practicing fraud before this Court and therefore, the defendant cannot be allowed to say that the matter is res judicata and cannot be reopened. There can also be no question of res judicata in a case where signs of fraud or collusion are 11 NMS-1516-10.odt transparently pregnant or apparent from the facts on record; (iii)State of Maharashtra and anr. Vs. M/s.National Construction Company, Bombay and anr, AIR 1996 SC 2367 to contend that the bar applies only if the matter directly and substantially in issue in the writ petition has been heard and finally decided. 12] On the other hand, Mr. Rajadhyaksha invited my attention to order dated 13 th March, 2000 passed by the Division Bench of this Court in Writ Petition No.510 of 1998 and judgment and order dated 18 th October, 2000 passed in Review Petition No.23 of 2000. He also invited my attention to paragraph 3 of the affidavit in reply dated 15 th June, 2010 wherein the plaintiff has admitted that even though the cause of action and reliefs sought in the Writ Petition and Review Petition are same in the suit, the pleading in both the cases are not at all same. 12 NMS-1516-10.odt 13] I have considered the rival submissions made by the parties. It is not in dispute that before instituting present suit, the plaintiff had filed Writ Petition No.510 of 1998 praying for the following reliefs: a) The order of Retirement of the petitioner dated 17 th October, 1997 be set aside. b) The Reserve Bank of India be directed to grant extension of service to the petitioner. Perusal of the said petition as also perusal of the plaint would indicate that the averments and contentions raised therein are identical. Basically, the plaintiff is claiming that his order of retirement dated 17 th October, 1997 is illegal and as a matter of right, the defendant ought to have granted him extension till 30 th November, 1999. The matter in issue in the Writ Petition as also in Review Petition is directly and substantially in issue in the present suit. Writ Petition No.510 of 1998 was dismissed by this Court on 13 th March, 2000. Perusal of order dated 13 th March, 2000 would 13 NMS-1516-10.odt indicate that this Court after perusing the original file pertaining to the case of the plaintiff, found that his case was taken up for review well in time by the Committee consisting the Governor, Chairman and Dy. Chairman and Deputy Governor. Starting from 19 th September, 1997 the file moved from one desk to other and finally on 27 th September, 1997 the entire service file of the plaintiff was called for and thereafter, decision was taken on 27 th September, 1997 to the effect that extension be not given to him. It was further observed that the decision taken by the defendant was keeping with policy of the defendant. When the case of the plaintiff was put before the Committee meant for that purpose and after considering the relevant material, if a decision is arrived at, this Court cannot sit in appeal over that decision. Having satisfied itself about the observance of the rules in that regard, the Court was of the opinion that nothing further could be done in the matter. The Court further observed that it is well known that extension on retirement is solely within the discretion of the Management and it is not right of the Officer. The Supreme Court has considered this issue in State Bank of Bikaner and Jaipur Vs. Jag Mohan Lal, (1989) AIR SUPREME COURT 75. 14 NMS-1516-10.odt 14] The plaintiff, thereafter, filed Review Petition No. 23 of 2000 which was dismissed on 18 th October, 2000. In that petition, a specific grievance was raised about the constitution of the Committee. The Court called for original file and after perusal of it, the Court was satisfied that the Committee comprising of high level Officers headed by the Governor, four Deputy Governors and other Senior Officers of R.B.I. had reviewed several cases, including the case of the plaintiff for continuation in service beyond 58 years. The Committee has given reasons in each case as to why such continuation should or should not be granted. After going through the file, this Court was satisfied that R.B.I. did not act contrary to the law or to the applicable Circulars on the subject while reviewing the case of the plaintiff. The Court further observed that judicial review of administrative orders extends only to the decision making process and not the decision itself and that the Court has no jurisdiction to sit in appeal over the assessment of the plaintiff by his superior Officers which the Court must respect and accept. The Court further observed that no injustice was caused to the plaintiff herein and accordingly, dismissed the Review Petition. 15 NMS-1516-10.odt 15] Mr.Bhide strenuously contended that this Court dismissed the petition on the ground that while exercising power under Article 226 of the Constitution of India, this Court did not sit in Appeal over the decision taken by the defendant. He further submitted that the Committee who took the decision not to grant extension to the plaintiff was also not properly constituted. The Court while dismissing the petition, did not frame requisite issues and consequently, Section 11 of C.P.C. is not applicable. 16] Mr.Bhide contended that while disposing Review Petition, the Court did not enter into the validity of the decision taken by the defendant whereby he was refused continuation in service. The Court only considered whether the decision making process was proper or not. In other words, he submitted that the Court while deciding the Writ Petition as also Review Petition did not enter into the question about validity of the decision, but only decided the decision making process. He therefore submitted that in the present suit, the Court is not only entitled to decide the disputed questions of fact, but also to test the validity of the decision taken 16 NMS-1516-10.odt by the defendant. 17] I am sorry to say that the plaintiff is not right in his submissions. The basic issue both in the Writ Petition as also in the Review Petition was whether the order dated 17 th October, 1997 retiring the plaintiff from service is valid or not and whether the defendant was justified in refusing continuation in service to the plaintiff. While dismissing the Writ Petition as also Review Petition, the Court found that the decision was taken by the Committee which was properly constituted. The question whether to grant the extension or not on retirement was answered by holding that it is well within the discretion of the Management and it is not a matter of right of any Officer. The said question was answered in the light of the judgment of the Apex Court in the case of State Bank of Bikaner (supra). The matter in Writ Petition was directly and substantially in issue in the present suit and the same was decided by this Court on merits. It is not in dispute that the plaintiff did not challenge the order passed by this Court in Writ Petition as also Review Petition. He is bound by these orders. It is not as if that the Court while dismissing the Writ Petition and Review Petition, 17 NMS-1516-10.odt held that it involves disputed question. It is also not the case where the plaintiff was permitted to withdraw the Writ Petition or Review Petition with liberty to adopt appropriate remedy. It is in these circumstances, I am clearly of the opinion that the plaintiff is bound by the decisions that were rendered on merits by this Court in Writ Petition as also Review Petition. The issues raised in the present suit are finally concluded by the judgments and orders passed by this Court in Writ Petition and Review Petition and the same cannot be agitated in this Suit. The question whether the decision rendered in Writ Petition on matters in controversy operates as res judicata or not in the subsequent suit is answered by the Apex Court in (i) Gulabchand Chhotalal Vs. State of Gujarat, AIR 1965 SC 1153, (ii) Union of India Vs. Namik Singh, AIR 1968 SC 1370 and (iii) Durg Rajnandgaon Gramin Bank Vs. Suresh Kumar Shukla, (1999)1 SSC 243. In view of these decisions, it is settled position that the Writ Petition having been dismissed on merits, the suit for the same reliefs is barred by res judicata. I also do not find substance in the contention raised by the plaintiff that the orders in Writ Petition and Review Petition were obtained by the defendant by practicing fraud. The judgments of the Apex Court in Ragho 18 NMS-1516-10.odt Prasad Gupta (supra), Mahboob Sahab (supra) and State of Maharashtra and another (supra) do not advance the case of the plaintiff. 18] In the result, Notice of Motion deserves to be allowed in terms of prayer clause (a) with no order as to the costs. Suit instituted by the plaintiff being Suit No.1713 of 2002 is liable to be dismissed and the same is, accordingly, dismissed. 19] In view of the dismissal of the suit, it is not necessary for me to consider Chamber Summons No.162 of 2011 taken out by the plaintiff for striking off the defence of the defendant as also for not allowing the defendant to rely upon the written statement of the defendant for defending the suit. Chamber Summons stands disposed of with no order as to the costs. [R.G.KETKAR, J.]