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1996 Supreme(Cal) 425
HIGH COURT OF CALCUTTA
D.P. KUNDU. J.
Asim Basu
vs.
The Bank of Baroda & Ors.
with
Biswanath Sil
vs.
The Bank of Baroda & Ors.
C.O. 4676 (W) of 1989 with C.O. 4677 (W) of 1989
Decided on: October 15, 1996
Advocate Appeared:
Kalyan Bandopadhyay, Gobinda Chowdhury for the petitioner
Jatin Ghosh for the respondents
The court has jurisdiction to review an appellate order passed by a departmental appellate forum if the petitioner has been granted leave by the court to challenge the final order.
Headnote:
WRIT PETITION - AMENDMENT - DEPARTMENTAL PROCEEDINGS - JUDICIAL REVIEW - APPLICABILITY OF CIVIL PROCEDURE CODE - ADMINISTRATIVE TRIBUNAL - JURISDICTION - SCOPE OF JUDICIAL REVIEW - MULTIPLICITY OF PROCEEDINGS - ADMINISTRATIVE ACTION - JUSTICIABILITY - ALTERNATE REMEDY.
Fact of the Case:
The petitioner, a bank manager, challenged the departmental charge-sheet and initiation of departmental proceedings against him. During the pendency of the writ petition, the petitioner took recourse to the departmental appellate forum and filed a supplementary affidavit challenging the final order passed by the disciplinary authority. The respondents opposed the amendment application on the grounds that the writ petition had become infructuous, the petitioner had sought to introduce a new cause of action, and the appellate order was the operative order.
Finding of the Court:
The court allowed the amendment application, holding that the amendments sought did not take away any vested rights of any party, no question of limitation arose, and no prejudice would be caused to any party. The court further held that allowing the amendments would avoid multiplicity of proceedings.
Issues: 1. Whether the writ petition had become infructuous due to the petitioner's recourse to the departmental appellate forum. 2. Whether the petitioner could seek to introduce a new cause of action by way of amendment. 3. Whether the appellate order was the operative order and whether the court had jurisdiction to review it.
Ratio Decidendi: 1. The court held that the writ petition had not become infructuous as the petitioner had taken recourse to the departmental appellate forum after the final order had been passed. 2. The court held that the petitioner could not seek to introduce a new cause of action by way of amendment, as this would amount to changing the subject matter of the controversy. 3. The court held that the appellate order was the operative order, but that it had jurisdiction to review it as the petitioner had been granted leave by the court to challenge the final order.
Final Decision: The court allowed the application for amendment and directed the petitioner to file a copy of the writ petition incorporating the amendments allowed within a week from the date of re-opening after long vacation.
D. P. Kundu, J.
1. This is an application for amendment of the writ application.
2. Being aggrieved by and dissatisfied with the continuance of the parallel proceeding criminal and departmental and commencement of departmental proceeding in New Delhi and failure and/or refusal to allow engagement of legal practitioner to defend the writ petition the writ petitioner preferred the writ petition praying for the following reliefs :-
"(a) For a writ of or in the nature of Certiorari calling upon the respondents to produce or cause to produce to the Registrar, Appellate Side, of this Hon'ble Court, records papers and documents relating to the issuance of charge-sheet dated 8.8.88 and also the papers, records and documents out of which the Inquiring Authority held preliminary hearing on 23.3.89 in the departmental proceedings so that conscionable justice may be done by quashing the same;
(b) For a writ of or in the nature of Mandamus commanding and directing the respondents to keep the departmental proceedings, stayed until the criminal proceedings being CC No. 16 of 1986 pending in the 1st Court of learned Special Judge at Alipore is ended;
(c) For an interim order of injunction restraining the respondents from continuing the departmental proceedings initiated against the petitioner and/or any other proceedings relating to the same charges as in the criminal proceedings being Criminal Case No.16 of 1986 pending in the 1st Court of learned Special Judge till the disposal of the said criminal proceedings;
(d) Rule in terms of prayers (a) and (b) ;
(e) Interim order in terms of prayer (c) ;
(f) To pass such other or further order or orders as to your Lordships may deem fit and proper;
(g) To make the Rule absolute, if the respondents fail to show sufficient cause or return;
(h) Costs of, and incidental to this petition."
3. On April 12, 1989 the learned Court passed the following order.
"Let this matter come up for hearing weeks hence. The petitioner is directed to serve copies of this writ petition on all respondents, if not served already, and an affidavit-of-service.
There will be an interim order to the extent that the petitioner on any date specified by the respondent No.2, at least three day in advance, will call on the office of the respondent No. 2 and take inspection of the documents referred to in Annexure R to the writ petition which are lying in the office of the respondent No.2 or which would be made available to the writ petitioner by the respondent No.2. The respondents will also be entitled to supply copies of the documents to be certified by the respondent No.2. If there are other documents which have been referred to in Annexure R, but such documents are not in the custody of the respondent No.2, the respondent No. 2 will ensure supply of the copies of such documents to the petitioner which will also be certified by him as the true copies Only after supply of such copies, the disciplinary proceeding in question should be proceeded with. But no final order should be passed during the pendency of the writ proceeding without the leave of the Court. If the petitioner feels inconvenient in attending the proposed enquiry at New Delhi, the petitioner is directed to enumerate the specific instances of such inconvenience to the respondent No.2. The respondent No.2 is directed to consider such representation and to dispose of the same for changing the venue of the place of enquiry, if such change of venue appears justified and reasonable.
Liberty is given to the parties to ask for any other suitable orders, if necessary." -
On 12.5.93 the ld. court passed the following order;-
"Having heard Mr. J.N. Ghosh, learned Counsel for the respondents and Mr. Ranajit Mukherjee, ld. Advocate for the writ petitioner, it appears that the enquiry proceeding has been completed. Since by an order passed by this Court on April 12, 1989, the final order could not be communicated, leave is sought for to communicate the final order which has already been
