Sikar Kendriya Sahkari Bank Limited vs Bhagirath Singh (Dead) Thr. Lrs.

Sikar Kendriya Sahkari Bank Limited ….Appellant(s)

VERSUS

Bhagirath Singh (Dead) Through L. Rs. …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) These appeals are filed against the final

judgment and order dated 11.10.2007 and

23.01.2008 passed by the High Court of Rajasthan

at Jaipur in D.B. Civil Special Appeal (Writ) No.

1467 of 1997 in S.B. Civil Writ Petition No. 1418 of

1990 and Civil Application No. 194 of 2007 in D.B. Signature Not Verified Digitally signed by ANITA MALHOTRA Civil Special Appeal (Writ) No. 1467 of 1997 in S.B. Date: 2018.09.24 17:03:15 IST Reason: 1 Civil Writ Petition No. 1418 of 1990 respectively

whereby the High Court allowed the Special Appeal

and dismissed the Civil Misc. Application stating

that there is no good reason to change the earlier

order.

2) In order to appreciate the controversy involved

in these appeals, few facts need mention

hereinbelow.

3) The appellant is a Co­operative Bank having

their area of operation in District Sikar in the State

of Rajasthan. The respondent­Bhagirath Singh

(since dead and now represented by his legal

representatives) was appointed by the appellant­

Bank on 17.09.1975 on the post of Clerk. The

appellant, however, terminated the services of the

respondent by order dated 28.03.1979.

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4) Late Bhagirath Singh felt aggrieved by his

termination approached to the State Government

and prayed for making on Industrial Reference to

the Labour Court to decide the legality and

correctness of his termination from the services.

5) The State Government acceded to his request

and made Reference to the Labour Court, Jaipur

under Section 10 of the Industrial Disputes Act,

1947 (hereinafter referred to as “the ID Act’) on

09.04.1980. The Labour Court entertained the

Reference and called upon the parties to file their

respective statements. Parties accordingly filed their

statements.

6) The Labour Court by award dated 21.07.1984

answered the Reference in favour of Bhagirath

Singh. The Labour Court held that firstly, the

respondent had continuously worked for more than

3 240 days in one calendar year and, therefore,

entitled for protection of the labour laws; Secondly,

no enquiry was conducted by the Bank before his

termination; Thirdly, he was not paid any

retrenchment compensation as provided under

Section 25 (F) of the ID Act prior to his termination

and, therefore, it is a case of illegal termination; and

lastly, since no evidence was led by the Bank to

prove that he was gainfully employed elsewhere, he

was entitled to claim full back wages. With these

findings, the Labour Court set aside the termination

order and directed for reinstatement of Bhagirath

Singh in service with payment of full back wages.

The Bank then on 10.01.1985 allowed Bhagirath

Singh to join as Clerk and he accordingly joined the

services pursuant to the award passed by the

Labour Court.

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7) Bhagirath Singh then filed a Civil Suit No.

61/1986 in the Court of Munsif (1st class), Sikar

against the Bank for a declaration and grant of

mandatory injunction to claim relief of seniority,

regularization and salary etc. after joining the

services. The Bank as defendant contested the suit.

By Judgment/decree dated 05.12.1989, the Civil

Judge dismissed the suit. Bhagirath Singh, felt

aggrieved by the dismissal of the suit, filed writ

petition being W.P. No. 1418 of 1990 in the High

Court. The Single Judge, by order dated

13.02.1996, dismissed the writ petition. Bhagirath

Singh felt aggrieved and filed intra court appeal

(D.B. Civil Special Appeal (Writ) No. 1467/1997)

before the Division Bench. By impugned order dated

11.10.2007, the Division Bench allowed the appeal

ex parte, set aside the order of the writ court and

5 directed the Bank to regularize the services of

Bhagirath Singh from the date when the services of

similarly situated persons were regularized and also

directed to give him consequential benefits.

Aggrieved by the said order, the appellant filed an

application being Civil Application No. 194 of 2007,

which was dismissed by the High Court by order

dated 23.01.2008. Feeling aggrieved by both the

orders, the Bank has filed the present appeals by

way of special leave in this Court.

8) Heard Mr. K.L. Janjani, learned counsel for the

appellant and Mr. M.M. Kashyap, learned counsel

for the respondent.

9) Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeals and while setting

aside the order of the Division Bench remand the

case to the Division Bench for deciding the writ

6 appeal afresh on merits after affording an

opportunity to the Bank.

10) In our opinion, the need to remand the case to

the Division Bench has occasioned because, as

urged by the learned counsel for the appellant

(Bank), the Division Bench allowed the employee’s

appeal without hearing the Bank.

11) In other words, the appeal was heard ex parte

by the Division Bench without hearing the Bank

or/and its counsel which resulted in passing of an

adverse order against the Bank and, in

consequence, resulted in allowing the employee’s

writ petition by directing the Bank to give Bhagirath

Singh the benefit of regularization, seniority and

consequential benefits arising therefrom.

12) In our opinion, having regard to the facts and

circumstances arising in the case, the grounds

taken and the cause shown, the Bank was entitled

7 for a hearing before the Division Bench in the writ

appeal. It was more so because the Bank eventually

suffered adverse order without hearing them.

Substantial justice demands that a litigant is

entitled for a right to be heard before any order is

passed against him. (See Sangram Singh vs.

Election Tribunal, Kotah AIR 1955 SC 425)

13) In view of the forgoing discussion, the appeals

succeed and are accordingly allowed. Impugned

orders are set aside. The case is remanded to the

Division Bench for deciding the writ appeal out of

which these appeals arise afresh on merits in

accordance with law. Needless to say, the appellant­

Bank would be entitled to raise all pleas in their

appeal before the High Court while prosecuting the

appeal.

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14) Since the matter is quite old, we request the

High Court to decide the appeal as expeditiously as

possible preferably within six months without being

influenced by any of our observations because

having formed an opinion to remand the case to the

High Court, we did not consider it proper to go into

the merits of the controversy.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..............................…..J. [MOHAN M. SHANTANAGOUDAR]

New Delhi;

September 24, 2018

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