K.N.Sinha, J. - (1.) The present Second Appeal has been filed against the judgment and decree dated 29.11.1999 passed in Civil Appeal No. 59 of 1999.
(2.) The facts giving rise to this second appeal passed through a very lengthy journey of judicial process and reached up to this stage. Appellant Bishan Chandra Gupta was an employee of respondent Bank, who was appointed as a clerk on 16.6.1978, on the basis of regular, selection. There was a dispute regarding the date of birth as given in the application and in the service record. Consequently, the appellant was charge-sheeted on 7,10,1990 for gross misconduct and wrong declaration of the date of birth. He was ultimately dismissed from service on 12.11.1993. Against the said dismissal order, appellant filed appeal in the department itself, which was also rejected on 5.8.1995. The appellant filed a writ petition no. 34967 of 1995 before this Court, challenging the orders dated 12.11.1993 and 5.8.1995. The said writ petition was allowed on 3.2.1998, by learned Single Judge of this Court, who quashed the orders dated 12.11.1993 and 5.8.1995. It would be relevant to mention here that during the pendency of the disciplinary proceedings, the appellant instituted a suit no. 339 of 1993 for declaration of the date of birth. The suit was decreed on 31.7.1995. The Bank preferred Civil Revision No. 77 of 1995 raising the issue of maintainability of the suit. The revision was dismissed by order dated 24.8.1996. Against the order passed in Civil Revision, the Bank filed writ petition No. 38208 of 1996. As stated earlier, the appellant's writ petition no. 34967 of 1995 was already allowed by this Court on 3.2.1998. Then respondent Bank filed a Special Appeal No. 158 of 1998, challenging the order of learned Single Judge. During the hearing of this Special Appeal, the record of writ petition no. 38208 of 1996 was also taken up. The Special Appeal and this writ petition were decided by the judgment dated 6.3.1998, It was directed by the Bench that appellant Bishan Chandra Gupta, (who was respondent in the Special Appeal), will file an application for amendment of the plaint of Civil Suit No. 339 of 1993 to include the challenge against the order of termination of his service and for impleadment of the Bank as defendant in the suit and the Trial court will allow the amendments and proceed to dispose of the suit as expeditiously as possible, if possible, by 30th September, 1998. Against the said order, a Special Leave Petition was preferred by the appellant, which was dismissed by the Apex Court on 13.5.1998. The plaintiff-appellant moved amendment application, which was allowed and prayer was added to the effect that "Dismissal of service of plaintiff w.e.f. 12.11.1993 is absolutely illegal, null and void and plaintiff be treated in the service of Bank". This amendment was allowed as per the direction of the Bench, deciding Special Appeal No. 158 of 1998. The Trial court, vide its judgment dated 20.3.1999, decreed the suit of the appellant. The Trial court held the date of birth of appellant to be 1.8.1954 and also declared the order dated 12.11.1993 illegal and void. The Trial court further declared the appellant to be continued in service.
(3.) Against the said judgment and decree, the respondent Bank filed First Appeal. The First Appeal was partly allowed by the judgment and decree dated 29.11.1999. The First Appellate Court confirmed the decree of the trial court as it related to declaration of the date of birth as 1.8.1954 but the later portion of the decree regarding declaration of appellant being continued in service, was set aside, holding that this matter comes under the Industrial Disputes Act and the said relief can be granted by the said forum. The respondent Bank filed Second Appeal No. 214/2000 and the appellant filed cross objection in the said Appeal. The appeal of the respondent Bank was dismissed at the admission stage itself in view of concurrent finding of the fact arrived at by both the courts below in respect of date of birth. After the dismissal of the appeal, the cross objection, regarding appellant's if reinstatement in service, was also dismissed. The appellant filed a review application No. 27477 of 2001, on the ground that since the cross objection was dismissed, he was prevented from challenging the said part of the order, which reversed the decree of the trial court regarding the appellant's reinstatement in service. The following order was passed on the review application:- "The review application is, therefore, without merit and is accordingly dismissed. However, it may be clarified that cross objection has been rejected on technical grounds and not on merits', therefore, respondent has granted liberty to file proper proceedings In respect of the relief claimed by him.";