ANIL KSHETARPAL,J. - (1.) This is second round of writ petition. In the previous round, the petitioner filed CWP-9988-2017, challenging the order dated 09.12.2015, dismissing him from the service, which was affirmed in the appeal on 29.10.2016. The order dated 08.11.2016, forfeiting the gratuity earned, by the petitioner, was also the subject matter of challenge. The High Court after examining the facts of the case partly allowed the writ petition and remitted the matter back, to the Appellate Authority, for reconsideration on the issue of discrimination on account of penalty imposed vis-a-vis Mr. Mohit Mahajan. The operative part of the order reads as under:- "Thus, in view of the above, the order dated 08.11.2016 (Annexure P-14) also suffers from a legal infirmity. Accordingly, the present writ petition is partly allowed, to the extent that the order dated 08.11.2016 (Annexure P-14) is quashed and the matter is remanded to the Appellate Authority, for reconsideration on the issue of discrimination qua Mr. Mohit Mahajan, as noticed above. Resultantly, the order dated 09.12.2015 (Annexure P-10) in pursuance of which, gratuity of the petitioner has also been forfeited, is also set aside." In compliance with the aforesaid order, the Appellate Authority constituted under Regulation 17 of the Bank of Baroda Officer Employees' (Discipline and Appeal) Regulation 1976 (hereinafter to be referred as "the Regulations of 1976"), reconsidered and again, penalized the petitioner with "dismissal which shall ordinarily be disqualification for future employment".
(2.) In the considered view of this court, the question which arises for adjudication is - "If in the first round before the High Court in a writ petition, the petitioner does address arguments on an issue, which might or ought to have litigated, and an order of limited remand is passed in the first round, whether it would be permissible for him to take up the issue already abandoned, subsequently, in the 2nd round or whether such plea would be barred on the basis of the doctrine of constructive res-judicata?" Certain facts are required to be noticed. The disciplinary proceedings, for major penalty, were initiated against the petitioner, for having committed serious lapses/irregularities while advancing various loans/advances when he was posted as a Senior Branch Manager at Phagwara Branch, from 18.06.2011 to 27.06.2012. It was alleged that due to serious lapses and irregularities, loans worth Rs. 10,561.75 lacs, were sanctioned and disbursed without proper documents and security resulting in compromising the position of the Bank, to recover the amount. The inquiring authority vide its report dated 08.08.2015, found him guilty of all the seven charges. Consequently, the disciplinary authority ordered penalty as noted above. It was further ordered that his suspension period shall be treated as period not spent on duty. An appeal, against the order of disciplinary authority, was dismissed, resulting in filing of the previous writ petition.
(3.) This Court has heard learned counsel for the petitioner at length and with his able assistance perused the paper book. Learned counsel for the petitioner has made the following submissions :- 1) Appellate Authority has failed to consider the scope of Regulation 17 (4) of the Regulations of 1976. 2) Appellate Authority has failed to consider the proportionality of the quantum of punishment. 3) There is discrimination on the quantum of punishment between the petitioner and Mr. Mohit Mahajan. Regulation 17 of the Regulations of 1976 reads as under:- "Regulation 17 (1) An officer employee may prefer an appeal to the Appellate Authority within forty five days from the date of receipt of the order imposing upon him any of the penalties specified in Regulation 4 or against the order of suspension referred to in regulation 12. Provided that the Appellate authority may entertain the appeal after expiry of the said period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time. (2) The appeal shall be presented to the Appellate Authority with a copy being forwarded by the appellant to the authority which made the order appealed against. It shall contain all material statements and arguments on which the appellant relies but shall not contain any disrespectful or improper language, and shall be complete in itself. (3) The authority which made the order appealed against shall, on receipt of a copy of the appeal from the appellant, forward the same with its comments thereon together with the relevant records to the Appellate Authority within a period not exceeding forty five days from the date of receipt of the appeal. (4) The Appellate authority shall on receipt of the comments and records of the case from the authority whose order is appealed against, consider whether the order of suspension/ findings are justified or whether penalty is excessive or inadequate and pass appropriate orders. The Appellate authority may pass an order confirming, enhancing, reducing or setting aside the penalty/suspension or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. Provided that: (i) If the enhanced penalty which the Appellate Authority proposed to impose is a major penalty specified in clauses (f), (g), (h), (i), and (j) of regulation 4 and an inquiry as provided in regulation 6 has not already been held in the case, the Appellate Authority shall direct that such an enquiry be held in accordance with the provisions of regulation 6 and thereafter consider the record of the inquiry and pass such orders as it may deem proper: (ii) if the Appellate Authority decides to enhance the punishment but an enquiry has already been held as provided in regulation 6, the Appellate Authority shall give a show-cause notice to the officer employee as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the officer employee. (5) The Appellate authority shall dispose of the appeal within a period of ninety days from the date of the receipt from the appellant: Provided that the time limit specified in this regulation shall not apply to cases having a vigilance angle and where major/minor penalty proceedings against the officer employee have commenced on recommendations of the Police or Central Bureau of Investigation or Central Vigilance Commission, as the case may be, investigating the matter. (6) The cases lying pending over ninety days shall be reviewed periodically by the Appellate authority and reasons for non-disposal of the cases shall be recorded in writing." On careful reading of the aforesaid Regulation, it is apparent that the Appellate Authority is required to examine the case once again. The Appellate Authority would examine, whether the findings are justified or whether the penalty is excessive or inadequate and thereafter pass an order. The argument of learned counsel is that the Appellate Authority has not reappraised the findings and, therefore, the order is liable to be set aside. In this regard, it may be noticed that the Appellate Authority was re-examining the appeal pursuant to the order, passed by the High Court, on 04.12.2019. The writ petition was only partly allowed and the matter was remitted, to the Appellate Authority, for reconsideration on the issue of discrimination with reference to penalty. On careful reading of the judgment passed by the High Court, in the 1st round, it is apparent that the petitioner did not urge that the decision, of the appellate authority, is in violation of Regulation 17 (4). It would not be in the interest of public policy to allow the parties to urge some of the issues, subsequently, which could have been taken up in the 1st round. The principle of Constructive resjudicata is applicable to the writ petitions. Reliance in this regard can be placed on judgment of the Supreme Court, in Forward Construction Co. and others Vs. Prabhat Mandal ( Re2d.) Andheri and others (1986) 1 SCC 100 which was followed by 5 Judges Bench, in Direct Recruits Class II Engg. Officers Assn. Vs. State of Maharashtra (1990) 2 SCC 715. It was held that an adjudication is conclusive and final not only to the actual matter determined but as to every other matter which the parties might or ought to have litigated and have had decided as incidental to or essentially covered with subject matter of the litigation and every matter coming into the legitimate purview of the original action, both in respect of the matters of claim and defence. Hence, this Court does not find substance in the arguments of learned counsel that the appellate authority has not complied with Regulation 17(4) and therefore, the order under challenge is liable to be set aside. It may be noted here that previously, the Appellate Authority had dismissed the appeal vide order dated 29.10.2016. The Appellate Authority, in the aforesaid order, had already discussed all the aspects of the matter in accordance with Regulation 17 (4). In this round, the Appellate Authority was required to re-examine the case only in the context of the order passed by the High Court. In that context, the Appellate Authority had re-examined the matter. The Appellate Authority has noticed the reasons for difference in the penalty between the two, in the following manner:- "After going through the relevant records and making analysis of the case in the light of the above judgement of the Hon'ble High Court of Punjab and Haryana at Chandigarh, it is revealed as follows:- (a) Charges held as proved against Mr. Kuldip Singh and Mr. Mohit Mahajan: ;