in banking business absolute devotion, integrity and honesty is a sine qua non for every bank employee. It requires the employee to maintain good conduct and discipline and he deals with money of the depositors and the customers and if it is not observed, the confidence of the public/depositors would be impaired. It is for this additional reason, we are of the opinion that the High Court has committed an apparent error in setting aside the order of dismissal of the respondent dated 24th July, 1999 confirmed in departmental appeal by order dated 15th November, 1999.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).                        OF 2021

(Arising out of SLP(C) No(s). 32067­32068 of 2018)

DEPUTY GENERAL MANAGER (APPELLATE

AUTHORITY) AND OTHERS           ...APPELLANT(S)

VERSUS

AJAI KUMAR SRIVASTAVA                          ...RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. Dissatisfied   with   the   judgment   and   order   dated   13th

September, 2018 passed by the Division Bench of the High Court

of  Allahabad,  the  instant  appeals  have  been  preferred  at  the

instance of the appellant Bank.

1

3. Brief facts of the case which are relevant for the purpose are

that   the   appellant   is   a   statutory   body   incorporated   and

constituted   under   the   State   Bank   of   India   Act,   1955.   The

respondent joined service as a Cashier/Clerk in Mumfordganj

Branch Allahabad on 07th  December, 1981. While on duty, a

misconduct   was   committed   by   him   for   which   he   was   placed

under suspension in the first place by order dated 14th August,

1995   and   later   the   charge­sheet   dated   11th  April,   1996   was

served upon him detailing seven charges of misappropriation of

funds which he had committed in discharge of his duties as an

employee of the Bank. 

4. It   may   be   relevant   to   note   that   for   the   self­same

misappropriation of bank’s money by affording fake credits in his

various accounts maintained at the Branch where he was posted,

a criminal case was also instituted against him for offences under

Sections 420, 467, 468, 471 IPC read with Section 120­B IPC and

Section   13(2)   read   with   Section   13(1)(d)   of   Prevention   of

Corruption Act, 1988. 

5. After the charge­sheet dated 11th April, 1996 was served, the

respondent delinquent submitted his reply dated 08th May, 1996

2

denying   all   the   charges.   The   enquiry   officer   was   thereafter

appointed by the competent authority to hold enquiry in terms of

Bipartite Settlement applicable for award staff of Nationalized

Bank.     The   respondent   had   participated   in   the   disciplinary

enquiry   and   the   enquiry   officer   after   holding   enquiry   in

accordance with the procedure prescribed under the Bipartite

Settlement   applicable   for   award   staff   of   Nationalized   Bank

furnished  his  report  of  enquiry  dated  22nd  May,  1999  to  the

disciplinary authority holding that Charge No.1 was not proved,

at the same time, held the Charge Nos. 2 to 7 proved against him.

In his report dated 22nd  May, 1999, it has been noticed by the

enquiry officer that respondent delinquent stated in the course of

enquiry   that   he   neither   wants   to   say   anything   about   the

prosecution documents nor he wants to ask any question to the

presenting officer and did not produce any documentary evidence

to   substantiate   his   statement   in   defence   regarding   fictitious

credits in his account which was the allegation against him for

misappropriation of funds of the Bank and the fact remains that

all the allegations levelled against the respondent were supported

with the documentary evidence duly audited by the Bank.

3

6. The extract of the charges with the documents on which the

enquiry officer placed reliance and held the charge to be proved

after discussion in detail against the respondent are reproduced

hereunder:­ 

Allegation/Charge No.1:

On   16.02.1994,   saving   bank   account   no.12215   of   Shri   I.S.

Verma (an account holder) was debited with Rs.1,09,600/­ and

part amount of Rs.89,600/­ was credited to his current account

No. P­51 without the consent of account holder.

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:­

PEX­1

Debit voucher dated 16.02.1994 for Rs.1,09,600.00 relating to

savings bank account No.12215 of Shri I.S. Verma.

PEX­2

Current account credit voucher dated 16.02.1994 for Rs.89,600

pertaining to current account No. P­15 of Shri Srivastava (E.P.A).

PEX­3

Ledger sheet of current account No. P­51.

The Charge is not proved.

Allegation/Charge No.2:

On 25.03.1994, Shri Srivastava entered into a conspiracy with

some staff members at the Branch with a view in defraud the

bank and accordingly a fake debit was raised in branch clearing

general account through schedule No.4 for Rs.4,87,300 and this

amount was first posted in saving bank account No.7547 in

favor   of   Shri   K.C.   Miglani.   This   amount   was   subsequently

withdrawn in instalments on 25.03.1994 and 04.04.1994 and

amount of Rs.89,150 and Rs.10,000 were misappropriated by

him   through   credit   to   his   current   account   No.   P­15   on   the

aforesaid dates.

4

To prove the above allegations/charges, the presenting officer

produced the following documents:

PEX­4:

Branch   clearing   general   account   schedule   No.4   dated

25.03.1994 for Rs.4,87,300.

PEX­5:

Saving bank credit voucher dated 25.03.1994 for Rs.4,87,300

pertaining   to   saving   bank   account   No.7547   of   Shri   K.C.

Minglani.

PEX­6:

Debit voucher dated 25.03.1994 for Rs.2,36,550 pertaining to

savings bank account No.7547 of Shri K.C. Miglani.

PEX­7:

Current account credit voucher dated 25.03.1994 for Rs.89,150

pertaining   to   current   account   No.   P­51   of   Shri   Ajay   Kumar

Srivastava.

PEX­8:   Debit   voucher   dated   04.04.1994   for   Rs.2,40,750

pertaining to saving bank account No.7547 of Shri K.C. MIglani.

PEX­9

Current Account credit voucher dated 04.04.1994 for Rs.10600

pertaining   to   current   account   No.   P­51   of   Shri   Ajay   Kumar

Srivastava, actually the voucher is for Rs.10000.

PEX­10

Current account day book dated 04.04.1994.

PEX­11

Ledger sheet of current account No. P­15 of Shri Ajay Kumar

Shrivastava

The Charge is proved.

Allegation/Charge No.3:

On   22.09.1994,   Shri   Srivastava   conspired   with   some   staff

members at the branch with a view to defraud the bank and

accordingly a fake debit of Rs.5,00,000/­ was raised in branch’s

saving   bank   a/c   and   out   of   the   above   an   amount   of

Rs.2,00,000/­ was misappropriated by him through credit to his

current account No. P­51.

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:

PEX­12 – Saving Bank day book dated 22.09.1994

PEX­13 – Current A/c day book dated 22.09.1994

5

PEX­14 – Ledger sheet of current a/c No. P­51 pertaining to Shri

Ajay Kumar Srivastava.

The charge is proved. 

Allegation/Charge No.4:

On 30.12.1994, Shri Srivastava entered into a conspiracy with

some staff members at the branch with a view to defraud the

Bank and accordingly a fake debit of Rs.5,30,000 was raised in

Branch’s   current   Account   and   out   of   the   above   amount   an

amount   of   Rs.2,50,000.00   and   Rs.25,000/­   were

misappropriated   by   him   through   affording   of   credit   to   his

current   Account   No.   P­51   and   Saving   Bank   A/c.   No.11068

favoring Smt. Rashmi Srivastava (his wife).

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:

PEX­15   –   Debit   voucher   dated   30.12.1994   for   Rs.5,30,000/­

pertaining to current account ledger no.2.

PEX­16 – Current A/c day book dated 30.12.1994

PEX­17   –   Saving   bank   credit   voucher   dated   30.12.1994

Rs.25,000/­ pertaining to saving bank a/c no.11068 of Smt.

Rashmi Srivastava.

PEX­18 – Ledger sheet of saving bank a/c no.11068 of Smt.

Rashmi Srivastava (page no.70/16).

The charge is proved.

Allegation/Charge No.5:

On 30.05.1995, Shri Srivastava fraudulently raised a fake debit

of   Rs.2,30,000   in   the   S.B.   A.C.   No.11068   fvg.   Smt.   Rashmi

Srivastava (his wife) wherein no credit balance was available and

credited to his current account No. P­51 with the above amount

with a view to defraud the Bank.

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:

PEX­18 – Ledge sheet of saving bank a/c no.11068

PEX­19   –   Debit   voucher   dated   30.05.1995   for   Rs.2,30,000/­

pertaining to saving bank account no.11068 of Smt. Rashmi

Srivastava

6

PEX­20   –   Current   A/c   credit   voucher   dated   30.05.1995

Rs.2,30,000/­   pertaining   to   current   a/c   no.   P­51   of   Smt.

Srivastava. 

PEX­21 – Saving bank daybook dated 30.05.1995

The charge is proved.

Allegation/Charge No.6:

On 31.05.1995, Shri Srivastava fraudulently raised a fake debit

of   Rs.3,60,000   in   the   S.B.   A/c   No.11068   fvg.   Smt.   Rashmi

Srivastava (his wife) wherein no credit balance was available and

got   its   part   amount   of   Rs.3,00,000   credited   to   his   current

account no.P­51 with a view to defraud the Bank.

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:

PEX­22   –   Current   A/c   credit   vouchers   dated   31.05.1995   for

Rs.3,00,000/­ pertaining to current a/c no. P­51 of Sri Ajay

Kumar Srivastava

PEX­23 – Ledger sheet pertaining to saving bank a/c no.11068

PEX­24 – Ledger sheet pertaining to current a/c no. P­51.

PEX­25 – Saving bank daybook dated 31.05.1995

PEX­26 – Current a/c daybook dated 31.05.1995

The charge is proved.

Allegation/Charge No.7:

On   20.10.1993,   Shri   Srivastava   borrowed   Rs.35,000.00   from

Shri K.C. Miglani S.B. Account No.7547, an account holder at

the branch without the permission of the Bank.

To   prove   the   above   allegation/charge,   the   presenting   officer

produced the following documents:

PEX­25A – Photocopy of the ch. No.775157 dated 29.10.1993 for

Rs.35,000/­

PEX­26A – Saving bank credit voucher dated 29.10.1993 for

Rs.35,000/­ pertaining to a/c no.7547

PEX­27   –   Debit   voucher   dated   20.10.1993   for   Rs.35,000/­

pertaining to saving bank a/c no.7547 of Shri K.C. Miglani.

7

PEX­28   –   Current   a/c   credit   vouchers   dated   20.10.1993   for

Rs.35,000/­  pertaining  to  current   a/c   no.  P­51   of  Shri  Ajay

Kumar Srivastava.

The charge is proved.

7. After   copy   of   the   detailed   report   of   enquiry   was   made

available,   the   disciplinary   authority   took   pains   to   revisit   the

report of enquiry and while concurring with the finding of fact in

reference   to   Charge   Nos.2­7   proved   by   the   enquiry   officer

disagreed with the finding recorded by the enquiry officer as of

charge no. 1 and assigning his reasons of disagreement held the

Charge No.1 to be proved and served the copy of enquiry report

dated 29th June, 1999 along with his finding of disagreement(for

charge no. 1) with the prima facie opinion based on the record of

enquiry   to   the   respondent   delinquent   calling   for   his   written

explanation. 

8. The reply was submitted by the respondent in reference to

communication   made   by   the   disciplinary   authority   dated   29th

June, 1999 raising objection to the note of disagreement which

was recorded by the disciplinary authority as of Charge no. 1, at

the same time, in reference to other Charge Nos. 2 to 7 which

were   held   to   be   proved   and   prima   facie   accepted   by   the

8

disciplinary authority, no specific objection  was raised of any

prejudice being caused during the course of enquiry or defence in

rebuttal not been considered by the enquiry officer or of any

breach   of   the   procedure   prescribed   in   holding   disciplinary

enquiry or violation of the principles of natural justice, raised

vague objections of  general  in nature without  supporting any

documentary/oral   evidence   and   one   of   the   objection   of   the

respondent delinquent was that there was no requirement to hold

a disciplinary enquiry when a criminal case was instituted and

pending   trial/investigation   by   the   CBI   and   the   conclusion   of

departmental   enquiry   without   awaiting   the   outcome   of   the

investigation/trial instituted against him in a pending criminal

case, has caused great prejudice to him. 

9. Despite no specific objection being raised by the respondent

delinquent in reply to the show­cause notice, still the disciplinary

authority revisited the record of enquiry including the enquiry

report,   the   explanation   furnished   by   the   respondent   while

affirming the finding by the enquiry officer in its report, confirmed

its   prima­facie   opinion   which   he   has   expressed   in   his

communication   dated   29th  June,   1999   and   in   terms   of   Para

9

521(5)(a) of the Sastry Award  read with Para 18, 28 of the Desai

Award as modified by the 12th  Bipartite Settlement dated 14th

February, 1995 between the State Bank of India and All India

State Bank of India Staff Federation, confirmed the penalty of

dismissal from service by its order dated 24th July, 1999. 

10. The respondent preferred departmental appeal against his

dismissal from service. A bare perusal of the appeal preferred by

the respondent would indicate that it was just a reflection of the

general objection raised in reply to the show­cause notice with no

specific averment in the appeal as to what was the procedural

error   being   committed   by   the   enquiry   officer   in   holding

disciplinary enquiry or of any violation of the principles of natural

justice or any prejudice being caused to him of a kind during the

course of enquiry or the action being bias or malafide initiated for

certain   ulterior   reasons   if   any,   and  no   specific   objection   was

raised in reference to the charge nos. 2­7 stands proved against

him   other   than   general   objections   which   are   vague   and

ambiguous without any foundation. 

11. The   departmental   appeal   was   examined   by  the   appellate

authority and taking note of the record of enquiry, the appellate

10

authority noticed the alleged objections raised by the respondent

being so vague with no supporting foundation as reflected from

para 2 of the order of the appellate authority and after going

through   record   of   enquiry   and   taking   note   of   the   nature   of

allegations levelled by the respondent delinquent in his appeal,

the appellate authority assigned reasons in its order as reflected

from para 3(i) to (viii) and finally holding the appeal having no

merit and the punishment being commensurate to the charges

levelled   against   him,   confirmed   the   punishment   of   dismissal

which was the subject matter of challenge in a writ petition before

the   High   Court   of   Allahabad   filed   at   the   instance   of   the

respondent delinquent.

12. The learned Single Judge of the High Court although has

passed a detailed judgment but the focus was throughout on

charge no.1 which was not found to be proved by the enquiry

officer in his report but the disciplinary authority recorded its

note of disagreement which according to the learned Single Judge

of the High Court has caused great prejudice and that apart, the

disciplinary/appellate authority has passed a non­speaking order

which is in violation of the principles of natural justice and the

11

view expressed by the learned Single Judge came to be affirmed

by   the   Division   Bench   of   the   High   Court   by   its   impugned

judgment   dated   13th  September,   2018,   which   is   the   subject

matter of challenge before us. 

13. During   the   course   of   arguments,   it   was   brought   to   our

notice that in the criminal case instituted against the respondent

for offences under Sections  420, 467, 468, 471 IPC read with

Section 120­B IPC and Section 13(2) read with Section 13(1)(d) of

Prevention of Corruption Act, 1988, the respondent employee was

held guilty and convicted by the learned Court of Special Judge,

CBI Court No. 1, Lucknow, by a judgment dated 31st May, 2019

and sentenced to ten year rigorous imprisonment with fine and in

default to undergo imprisonment of three months.

14. Learned   counsel   for   the   appellants   submits   that   fair

opportunity of hearing was afforded to the respondent delinquent

in   the   course   of   enquiry   and   it   was   never   the   case   of   the

respondent   that   either   the   procedure   prescribed   under   the

disciplinary rules have not been followed or the enquiry was held

by   the   authority   who   was   not   competent   under   law   or   the

findings or conclusions which have been arrived at by the enquiry

12

Officer in his report and confirmed by the disciplinary authority

are  not   supported  by  the   evidence   on   record  or   there   was  a

violation   of   the  principles  of  natural  justice.     In  the   absence

whereof,   the   plea   raised   by   the   respondent   holding   that   the

disciplinary authority has passed a non­speaking order without

application of mind lacks merit and is not substantiated from the

material on record.  

15. To the contrary, the Enquiry Officer in his detailed report

recorded cogent reasons in holding the Charge nos. 2­7 proved

against the delinquent employee.  The disciplinary authority while

expressing   its   prima   facie   opinion   and   after   the   copy   of   the

enquiry report along with the tentative view of the disciplinary

authority being served and affording a reasonable opportunity of

hearing to the respondent and having taken note of his written

reply   into   consideration,   has   dealt   with   so   called   alleged

objections   raised,   confirmed   its   tentative   view   expressed   in

upholding   penalty   of   dismissal   from   service   after   assigning

reasons supported by the documents on record.   In the given

circumstances, the order of the learned Single Judge confirmed in

13

LPA by the Division Bench of the High Court is unsustainable in

law.

16. Learned counsel further submits that so far as Charge no. 1

is concerned, it is true that the enquiry officer has not found

charge no. 1 proved but the disciplinary authority has recorded

its   reasons   for   disagreement   while   expressing   a   prima   facie

opinion, a copy of the note of disagreement recorded of charge no.

1 along with the report of enquiry was served on the delinquent

employee,   no   justification   was   tendered   by   the   delinquent

respondent   in   his   written   reply   to   the   note   of   disagreement

recorded by the disciplinary authority.  Thus, a fair opportunity

was afforded to him and taking assistance of the Constitution

Bench Judgment of this Court in  State  of  Orissa and  Others

Vs.   Bidyabhushan Mohapatra1

 which was further considered by

this   Court   in  P.D.   Agrawal  Vs.  State   Bank   of   India   and

    Others2

, learned counsel submitted that the order of dismissal

based on the finding of Charge nos. 2­7, which were proved by

the enquiry officer and confirmed by the disciplinary/appellate

authority   holds   the   respondent   delinquent   guilty   of   grave

1 AIR 1963 SC 779

2 2006(8) SCC 776

14

delinquency   in   upholding   the   penalty   of   dismissal   and

interference in the order of penalty inflicted upon the respondent

delinquent   by   the   High   Court   was   not   justified   and   needs

interference of this Court.

17. Per   contra,   learned   counsel   for   the   respondent   while

supporting the impugned judgment submits that the disciplinary

authority reiterated the finding recorded by the enquiry officer in

his   report   and   failed   to   examine   the   record   of   enquiry

independently and rejected the written objections raised by the

respondent cursorily and inflicted penalty upon him of dismissal

from   service   by   passing   a   non­speaking   order   without   due

application of mind has been rightly interfered by the High Court

in the impugned judgment.

18. Learned   counsel   further   submits   that   when   the   enquiry

officer has not found charge no. 1 proved and the disciplinary

authority   disagreed   with   the   finding   recorded   by   the   enquiry

officer in his report, should have served in the first place, a note

of disagreement, calling for his explanation and only thereafter it

was open for him to examine the record of enquiry independently

in taking its decision in accordance with law and the procedure

15

which was adopted by the disciplinary authority in holding the

respondent guilty in reference to Charge no. 1 was not only a

procedural error but is a great prejudice being caused to the

respondent and such defect could not have been cured by the

post­decisional hearing, which has been rightly upheld by the

High Court in the impugned judgment and needs no interference

by this Court.

19. We have heard learned counsel for the parties and with their

assistance perused the material available on record.

20. At the outset, it may be noted that the enquiry officer has

noticed   in   his   enquiry   report   that   the   respondent   delinquent

neither produced any document nor witness in self­defence.  At

the same time, he never requested to allow him to defend him by

a   representative   of   his   choice.     He   further   stated   during   the

course of enquiry that he neither wanted to say anything about

the prosecution documents nor he wanted to ask any question to

the   presenting   officer.     Taking   note   of   the   record   of   enquiry

including the documents produced by the presenting officer, brief

of the presenting officer, defence and the submission made by the

respondent employee, the enquiry officer examined each of the

16

charge   nos.   1   to   7   and   after   detailed   analysis,   recorded   his

finding in reference to each charge separately and found charge

no. 1 not proved, at the same time charges nos. 2­7 were proved

based on the documentary evidence placed on record.

21. The disciplinary authority, after the report of enquiry was

furnished by the enquiry officer, took pains to revisit the record of

enquiry including charge­sheet, reply to the charge­sheet, enquiry

proceedings, findings of the enquiry officer dated 22nd May, 1999,

brief of the presenting officer, brief of the defence (respondent

delinquent)   and   further   noticing   28   documents   which   were

exhibited PEX­1 to PEX­28 relied by the presenting officer and

taking note of the written submissions made by the respondent

employee, after due application of mind recorded its finding in

upholding the finding of fact recorded by the enquiry officer in his

report including the note of disagreement in reference to charge

no. 1 holding to be proved.   The detailed reasons assigned in

confirming the order of penalty by its order dated 24th July, 1999

are as under:­

“O R D E R

Staff: AWARD

SRI AJAY KUMAR SRIVASTAVA, CLERK

17

DISCIPLINARY ACTION

    Placed   before   me   are   the   submissions/show   cause

notice dated the 15th  July, 1999 of Shri A.K. Srivastava,

Cashier­cum­Clerk, under suspension, presently posted at

Daryaganj branch in respect of the Disciplinary Authority’s

tentative order dated 29.6.1999 wherein it was decided to

dismiss   him   without   notice   for   his   gross   misconduct

relating   to   the   fraudulent   transactions   perpetrated   at

Mumfordganj branch due to which the bank has suffered

substantive loss in addition to loss of public image.  It was

also decided that the period spent by Shri Srivastava as

suspended   will   be   treated   as   such   and   no   salary   and

allowance, except the subsistence allowance already paid,

will be payable to him.  The above order was passed against

him on the charges contained in the charge­sheet dated

11.4.1996   and   he   was   given   an   opportunity   to   make

submissions, if any, against the above punishment within 7

days of its receipt, extended to 15 days on his request,

failing which it would be deemed that he has nothing to

submit in this regard and final order will be passed without

any further reference to him.

2.   Shri A.K. Srivastava has submitted that it is highly

illegal to have passed the tentative order of dismissal dated

29.6.1999 on the basis of the findings of the Enquiry Officer

without seeking his comments thereon.   In his view, the

report of the Enquiry Officer must have been forwarded to

him for seeking his submissions, if any, which has not been

done.  No such procedure is laid down followed in the bank

to   forward   the   enquiry   report   to   the   charged   employees

before   finalization   of   the   proposed   punishment.     The

procedure   in   this   regard   has   been   followed   by   enquiry

report and related documents have been forwarded to him

along with the tentative order to enable him to submit his

defence as to why the proposed punishment should not be

imposed on him as per the system and procedure in the

bank.

3.  His allegation that prosecution documents had not been

given to him earlier which deprived him of the reasonable

opportunity of proving himself not guilty as not based on

facts as all the documents had been made available to him

for perusal/comments during the enquiry proceedings.  The

copies of the enquiry proceedings had been given to him on

the same day on the conclusion of the day’s proceedings

and the allegation has no substance.  On the perusal of the

page 16 and 17 of the enquiry proceedings, it is evident that

18

the Enquiry Officer had asked Shri Srivastava whether he

wants to say anything regarding the prosecution documents

to which he had replied in the negative, he had also stated

that he will submit his defence brief within a week, for the

receipt   of   the   prosecution   brief.     Likewise   the   Enquiry

Officer has already clarified on the points raised by Shri

Srivastava in his letter dated 10.11.1998 which has been

found by myself­explicit and satisfactory.

4.   The   other   points   raised   by   Shri   Srivastava   in   his

submission   dated   15.7.1999   sent   to   the   Disciplinary

Authority as ‘show cause notice’ are found irrelevant after

close scrutiny.  The enquiry started on 2.11.1997 and Shri

Srivastava   neither   asked   any   document   not   desired   to

produce   any   witnesses/defence   evidence,   during   the

enquiry   proceeding   till   its   conclusion   on   12.5.1998.

However, when he left that the prosecution has produced

enough evidences as per enquiry proceedings which will

prove   his   involvement   in   the   conspiracy   to   defraud   the

bank, he started levelling the baseless allegations against

the bank to delay the decision against him.

5.     I   have   perused   all   the   relevant   documents   again

including the enquiry report, his letters dated 10.11.1998

and   15.12.1998   and   do   not   find   any   substance   for   reopening the enquiry as Shri Srivastava had already been

given ample opportunity to defend himself.   The proposed

punishment is commensurate to the charges levelled and

proved against him as discussed in detail in tentative order.

I, therefore, confirm my tentative order dated 29.6.1999 to

dismiss Shri Ajay Kumar Srivastava without notice in terms

of para 521(5)(a) of the Sastry Award read with para 18,28

of   the   Desai   Award   as   modified   by   the   12th  Bipartite

Settlement dated 14.2.1995 made between State Bank of

India and All India State Bank of India Staff Federation.  I

also   order   that   the   period   spent   by   Shri   Srivastava   as

suspended   be   treated   as   such   and   no   salary   and

allowances, except the subsistence allowance already paid,

will be payable to him.

I order accordingly.

Sd/­

ASSTT. GENERAL MANAGER(IV)

DISCIPLINARY AUTHORITY,

DATED: 24th July, 1999”

19

22. The   departmental   appeal   which   was   preferred   by   the

respondent employee was revisited by the appellate authority and

taking note of the objections, all have been separately dealt with

by the appellate authority in its order dated 15th November, 1999,

the relevant portion of which is extracted as under:­

“3.   In   order   to   examine   the   aforesaid   points   by   the

appellant, I have gone through the charge­sheets, reply of

charge­sheets submitted by the charged employee, enquiry

proceedings, findings of the Enquiry Officer, tentative order

dated the 29th June, 1999, final order dated the 24th July,

1999, his service sheet and other relevant records of the

case.  My views are as under:­

i) Almost all points raised by Shri Srivastava, as

above, have been suitably replied in the Enquiry

Officer’s reply and in the final order dated the 24th

July,   1999.     The   clarification   given   are   quite

reasonable and I am satisfied with the same.  He

was given full opportunity to defend himself and

there was no ground for re­opening the enquiry.

The charges contained in the charge­sheet were

not vague, as alleged by him, and all the charges,

except one, have been proved in the enquiry.

ii) The   contention   of   Shri   Srivastava   that   the

Enquiry Officer should be above the rank of the

Disciplinary Authority, the officer who has issued

the charge­sheet, is not correct.  The Disciplinary

Authority should be above the rank of the Enquiry

Officer who has been appointed by him for fact

finding on his behalf.

iii) There is no bar on initiation of the domestic

enquiries, if the police/investigating agency do not

submit their reports within a reasonable time and

Supreme Court  has given several judgments in

this regard.

20

iv) The   Disciplinary   Authority   reviews   the

pending   suspension   cases   and   can   order

reinstatement   of   any   suspended   employee   after

the review.  Two employees had been reinstated as

the   charges   against   them   were   not   serious

enough.

v) The   charges   of   double   standards   and

discriminatory   treatment   are   not   correct   as

disciplinary   proceedings   have   been   initiated

against all the erring employees/officers and the

penalties have been imposed on the basis of the

Enquiry Officer’s report and due consideration of

the malafide/bonafide conduct of the employees.

Supplementary charge­sheets have already been

served on some of the employees against whom

penalties   have   been   imposed   on   the   basis   of

earlier charge­sheets.

vi) The   payment   of   suspension   period   has   not

been made, in terms of their service rules, to any

charge­sheeted   employee   and   none   has   been

discriminated.

vii) The appellant has already accepted that he

prepared   to   take   vouchers   without   any   real

cash/transfer   transaction   for   regularizing   his

overdrawn   current   account   and   deposit   of

fraudulently drawn amount partly cannot absolve

him of perpetration of fraudulent transactions and

none   had   promised   him   penalty   short   of

dismissal.

viii) Non­reply   of   his   letters/representations,

meant   for   delay   in   the   domestic   enquiry   and

resultant   punishment,   cannot   be   treated   as

violation of natural justice.   The enquiry started

on 30.11.1997 and he defended his case himself

while other charged employees opted for defence

representative.   It appears that he could not get

any representative to defend his case in view of

serious charges against him.   He neither asked

21

any   document   nor   desired   to   produce   any

witness/defence   evidence   during   the   enquiry

proceedings   till   its   conclusion   on   12.5.1998.

When he felt that the prosecution has produced

enough   evidences   as   per   enquiry   proceedings

which will prove his involvement in the conspiracy

to   defraud   the   bank,   he   started   levelling   the

baseless allegations against the bank to delay the

decision against him.

4. Thus, the points raised by Sri Srivastava in his appeal

have no merit.  The punishment ordered by the Disciplinary

Authority is commensurate to the charges levelled against

him and the contention of the appellant does not hold good

in view of the charges proved otherwise as discussed in the

preceding paragraphs.   After careful consideration of the

matter in its entirety, I am of the view that the Disciplinary

Authority is fully justified in awarding the punishment of

dismissal without notice and treating the period spent by

Shri Srivastava as suspended as such and no payment of

salary and  allowances,  except   the  subsistence  allowance

already paid, to him.   I, therefore, hold the order of the

Disciplinary Authority.

I order accordingly.”

23. The power of judicial review in the matters of disciplinary

inquiries,   exercised   by   the   departmental/appellate   authorities

discharged by constitutional Courts under Article 226 or Article

32 or Article 136 of the Constitution of India is circumscribed by

limits of correcting errors of law or procedural errors leading to

manifest injustice or violation of principles of natural justice and

it is not akin to adjudication of the case on merits as an appellate

authority which has been earlier examined by this Court in State

22

    of Tamil Nadu Vs. T.V. Venugopalan3

 and later in Government

    of T.N. and Another Vs. A. Rajapandian4 and further examined

by the three Judge Bench of this Court in B.C. Chaturvedi Vs.

    Union of India and Others5

  wherein it has been held as under:­

“13. The disciplinary authority is the sole judge of facts.

Where   appeal   is   presented,   the   appellate   authority   has

coextensive   power   to   reappreciate   the   evidence   or   the

nature of punishment. In a disciplinary enquiry, the strict

proof of legal evidence and findings on that evidence are not

relevant.   Adequacy   of   evidence   or   reliability   of   evidence

cannot   be   permitted   to   be   canvassed   before   the

Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR

718] this Court held at p. 728 that if the conclusion, upon

consideration of the evidence reached by the disciplinary

authority, is perverse or suffers from patent error on the

face of the record or based on no evidence at all, a writ of

certiorari could be issued.”

24. It has been consistently followed in the later decision of this

Court in  Himachal  Pradesh  State  Electricity  Board  Limited

    Vs. Mahesh Dahiya6

 and recently by the three Judge Bench of

this Court in     Pravin Kumar Vs. Union of India and Others7

.

25. It is thus settled that the power of judicial review, of the

Constitutional Courts, is an evaluation of the decision­making

3 1994(6) SCC 302

4 1995(1) SCC 216

5 1995(6) SCC 749

6 2017(1) SCC 768

7 2020(9) SCC 471

23

process and not the merits of the decision itself.  It is to ensure

fairness in treatment and not to ensure fairness of conclusion.

The Court/Tribunal may interfere in the proceedings held against

the delinquent if it is, in any manner, inconsistent with the rules

of natural justice or in violation of the statutory rules prescribing

the mode of enquiry or where the conclusion or finding reached

by the disciplinary authority if based on no evidence.   If the

conclusion or finding be such as no reasonable person would

have ever reached or where the conclusions upon consideration of

the evidence reached by the disciplinary authority is perverse or

suffers from patent error on the face of record or based on no

evidence at all, a writ of certiorari could be issued.  To sum up,

the   scope   of   judicial   review   cannot   be   extended   to   the

examination of correctness or reasonableness of a decision of

authority as a matter of fact.

26. When the disciplinary enquiry is conducted for the alleged

misconduct against the public servant, the Court is to examine

and determine: (i) whether the enquiry was held by the competent

authority; (ii) whether rules of natural justice are complied with;

(iii)   whether   the   findings   or   conclusions   are   based   on   some

24

evidence   and   authority   has   power   and   jurisdiction   to   reach

finding of fact or conclusion.

27. It is well settled that where the enquiry officer is not the

disciplinary   authority,   on   receiving   the   report   of   enquiry,   the

disciplinary authority may or may not agree with the findings

recorded by the former, in case of disagreement, the disciplinary

authority has to record the reasons for disagreement and after

affording an opportunity of hearing to the delinquent may record

his own findings if the evidence available on record be sufficient

for such exercise or else to remit the case to the enquiry officer for

further enquiry.

28. It is true that strict rules of evidence are not applicable to

departmental   enquiry   proceedings.     However,   the   only

requirement of law is that the allegation against the delinquent

must   be   established   by   such   evidence   acting   upon   which   a

reasonable  person  acting  reasonably  and  with  objectivity  may

arrive at a finding upholding the gravity of the charge against the

delinquent employee.  It is true that mere conjecture or surmises

cannot   sustain   the   finding   of   guilt   even   in   the   departmental

enquiry proceedings.

25

29. The Constitutional Court while exercising its jurisdiction of

judicial review under Article 226 or Article 136 of the Constitution

would not interfere with the findings of fact arrived at in the

departmental enquiry proceedings except in a case of malafides or

perversity, i.e., where there is no evidence to support a finding or

where a finding is such that no man acting reasonably and with

objectivity could have arrived at that findings and so long as there

is some evidence to support the conclusion arrived at by the

departmental authority, the same has to be sustained.

30. In the case on hand, the charge­sheet was served upon the

respondent delinquent for misappropriation of public funds by

affording fake credits in his various accounts maintained at the

branch where he was serving (Mumfordganj Branch) during the

relevant period.   In all, 7 charges were levelled against him of

grave misconduct which he had committed in discharge of his

official duty and after affording an opportunity of hearing to the

respondent delinquent and due compliance of the principles of

natural justice, the enquiry officer in his report while dealing with

the preliminary objections raised by the respondent delinquent

specifically indicated that the details of enquiry report contained

26

22   pages   along   with   documents   produced   by   the   presenting

officer   marked   as   PEX­1   to   PEX­28   to   establish   the

allegations/charges   levelled   against   the   respondent   delinquent

who neither produced any document nor witness in his defence.

It was further indicated that the respondent stated in the course

of   enquiry   that   he   neither   wants   to   say   anything   about   the

prosecution document nor he wants to ask any question to the

presenting   officer   and   never   requested   to   seek   permission   to

defend the representative of his choice.

31. After affording an opportunity of hearing at the conclusion of

the departmental enquiry, along with the written note submitted

by the presenting officer and by the respondent delinquent, the

enquiry officer marshalled the record of enquiry and based on the

documentary   evidence   produced   by   the   presenting   officer   in

reference to each charge recorded a finding in holding charge no.1

not   proved   and   charges   nos.   2­7   stood   proved   against   the

delinquent respondent.

32. It was later revisited by the disciplinary authority and apart

from the note of disagreement in reference to charge no. 1, the

disciplinary authority accepted the finding of fact recorded by the

27

enquiry officer in his report for charge nos. 2 to 7 and with its

prima facie opinion, called upon the respondent to submit his

explanation and after affording an opportunity of hearing and

dealing   with   the   objections   raised   by   the   respondent   in   his

written   reply   expressed   its   brief   reasons   while   upholding   the

finding   recorded   by   the   enquiry   officer   in   his   report   and

confirmed   its   opinion   of   inflicting   penalty   of   dismissal   from

service by order dated 24th July, 1999 and the appellate authority

also   later   revisited   on   the   appeal   being   preferred   and   after

assigning reasons confirmed the finding of fact in upholding the

order of penalty inflicted upon the respondent delinquent.

33. The   submission   which   persuaded  the   High  Court   in  the

impugned judgment is basically for two reasons. Firstly, before

the finding of disagreement being recorded by the disciplinary

authority in reference to Charge no. 1, fair opportunity of hearing

was   not   afforded   to   the   respondent   delinquent   and   that   has

caused   prejudice   to   him.     Secondly,   the   disciplinary

authority/appellate   authority   has   not   examined   the   record   of

disciplinary enquiry independently and passed a non­speaking

order without due application of mind and this what prevailed

28

upon the High Court in the impugned judgment in setting aside

the penalty inflicted upon the respondent delinquent.

34. The submission which was made in regard to the note of

disagreement not being served upon the respondent delinquent as

to Charge no. 1 is concerned, this Court do find substance to

hold that the disciplinary authority on receiving the report of

enquiry, if was not in agreement with the finding recorded by the

enquiry officer, was under an obligation to record its reasons of

disagreement and call upon the delinquent for his explanation in

the   first   place   before   recording   his   finding   of   guilt   and

indisputedly the procedure as prescribed by law was not followed

and that has caused prejudice to the respondent and indeed it

was in violation of the principles of natural justice.  We are of the

considered view that so far as the finding of guilt recorded by the

disciplinary authority in reference to Charge No. 1 is concerned,

that could not be held to be justified in holding him guilty.  

35. But this may not detain us any further for the reason that

Charge no. 1 in reference to which the finding recorded by the

enquiry officer has been overturned by the disciplinary authority

is   severable   from   the   other   charges(Charge   nos.   2­7)   levelled

29

against the respondent which were found proved by the Enquiry

Officer   and   the   finding   of   fact   was   confirmed   by   the

disciplinary/appellate   authority   after   meeting   out   objections

raised by the respondent delinquent in his written brief furnished

at different stages.

36. If the order of dismissal was based on the findings of charge

no. 1 alone, it would have been possible for the Court to declare

the order of dismissal illegal but on the finding of guilt being

recorded   by   the   Enquiry   Officer   in   his   report   in   reference   to

charges   nos.2­7   and   confirmed   by   the   disciplinary/appellate

authority   was   not   liable   to   be   interfered   and   those   findings

established the guilt of grave delinquency which, in our view, was

an   apparent   error   being   committed   by   the   High   Court   while

interfering with the order of penalty of dismissal inflicted upon

the respondent employee.

37. It is supported by the judgment of the Constitution Bench of

this Court in  State  of  Orissa  and  Others  Vs.  Bidyabhushan

Mohapatra (supra) wherein it has been observed as under:­

“9. The High Court has held that there was evidence to

support the findings on heads (c) and (d) of Charge (1) and

on Charge (2). In respect of Charge 1(b) the respondent was

30

acquitted   by   the   Tribunal   and   it   did   not   fall   to   be

considered by the Governor. In respect of Charges 1(a) and

1(e) in the view of the High Court “the rules of natural

justice had not been observed”. The recommendation of the

Tribunal   was   undoubtedly   founded   on   its   findings   on

Charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court

was of the opinion that the findings on two of the heads

under   Charge   (1)   could   not   be   sustained,   because   in

arriving at the findings the Tribunal had violated rules of

natural justice. The High Court therefore directed that the

Government of the State of Orissa should decide whether

“on the basis of those charges, the punishment of dismissal

should be maintained or else whether a lesser punishment

would   suffice”.   It   is   not   necessary   for   us   to   consider

whether   the   High   Court   was   right   in   holding   that   the

findings   of   the   Tribunal   on   Charges   1(a)   and   1(e)   were

vitiated for reasons set out by it, because in our judgment

the order of the High Court directing the Government to

reconsider the question of punishment cannot, for reasons

we   will   presently   set   out,   be   sustained.   If   the   order   of

dismissal was based on the findings on Charges 1(a) and

1(e) alone the Court would have jurisdiction to declare the

order   of   dismissal   illegal   but   when   the   findings   of   the

Tribunal relating to the two out of five heads of the first

charge and the second charge was found not liable to be

interfered   with   by   the   High   Court   and   those   findings

established that the respondent was prima facie guilty of

grave delinquency, in our view the High Court had no power

to direct the Governor of Orissa to reconsider the order of

dismissal….”

38. This was further considered by this Court in Binny Ltd. Vs.

    Workmen8

  as under:­

“..It was urged that the Court should not have assumed

that   the   General   Manager   would   have   inflicted   the

punishment of dismissal solely on the basis of the second

charge and consequently the punishment  should not be

sustained if it was held that one of the two charges on the

basis of which it was imposed was unsustainable. This was

rejected   following   the   decision   in State   of

8 1972(3) SCC 806

31

Orissa v. Bidyabhushan   Mohapatra [AIR   1963   SC   779],

where it was said that if an order in an enquiry under

Article 311 can be supported on any finding as substantial

misdemeanour for which punishment imposed can lawfully

be given, it is not for the Court to consider whether that

ground  alone would  have  weighed  with  the  authority in

imposing   the   punishment   in   question.   In   our   view   that

principle can have no application to the facts of this case.

Although   the   enquiry   officer   found   in   fact   that   the

respondent had behaved insolently towards the Warehouse

Master, he did not come to the conclusion that this act of

indiscipline on a solitary occasion was sufficient to warrant

an order of dismissal….”

39. Yet again, in  Sawarn   Singh   and   Another   Vs.   State   of

    Punjab and Others9

, this Court held:­

  19. In view of this, the deficiency or reference to some

irrelevant matters in the order of the Commissioner, had

not prejudiced the decision of the case on merits either at

the appellate or revisional stage. There is authority for the

proposition   that   where   the   order   of   a   domestic   tribunal

makes   reference   to   several   grounds,   some   relevant   and

existent, and others irrelevant and non­existent, the order

will be sustained if the Court is satisfied that the authority

would have passed the order on the basis of the relevant

and existing grounds, and the exclusion of irrelevant or

non­existing grounds could not have affected the ultimate

decision   [see  State   of   Orissa v. Bidyabhushan

Mohapatra [AIR 1963 SC 779].

40. The Constitution Bench has clearly laid down that even after

the charges which have been proved, justify imposition of penalty,

the Court may not exercise its power of judicial review.

9 AIR 1976 SC 232

32

41. So far as the submission which has prevailed upon the High

Court holding that the order passed by the disciplinary/appellate

authority was a non­speaking order passed with non­application

of mind, in our considered view, is not factually supported by the

material available on record.

42. In the case on hand, the disciplinary/appellate authority

was not supposed to pass a judgment however while passing the

order dated 24th July, 1999, the disciplinary authority had taken

note of the record of enquiry, including self­contained enquiry

report dated 22nd  May, 1999 and his prima facie opinion dated

29th   June, 1999 which was made available to the respondent

employee and after affording reasonable opportunity of hearing

and meeting out the written objections raised by the delinquent,

expressed its brief reasons in upholding the finding of guilt and

penalty of dismissal by its order dated 24th  July, 1999.   That

apart, the appeal preferred by  the  respondent  delinquent  was

examined  by  the  appellate 

authority as it reveals under para 3(i) to (viii) in upholding the

finding   of   guilt   recorded   by   the   enquiry   officer   in   his   report

dismissing   the   respondent   employee   from   service,   rejected   by

33

order dated 15th November, 1999.  After detailed discussion, we

are unable  to  accept  the  finding recorded by the  High  Court

under its impugned judgment setting aside the orders passed by

the   disciplinary/appellate   authority   which   deserves   to   be   set

aside.

43. Before we conclude, we need to emphasize that in banking

business absolute devotion, integrity and honesty is a  sine qua

non  for   every   bank   employee.     It   requires   the   employee   to

maintain good conduct and discipline and he deals with money of

the depositors and the customers and if it is not observed, the

confidence of the public/depositors would be impaired.  It is for

this additional reason, we are of the opinion that the High Court

has committed an apparent error in setting aside the order of

dismissal of the respondent dated 24th  July, 1999 confirmed in

departmental appeal by order dated 15th November, 1999.

44. Consequently,   the   appeals   deserve   to   succeed   and   are

accordingly   allowed   and   the   judgment   of   the   High   Court

impugned dated 13th  September, 2018 is hereby set aside.   No

costs.   

34

45. Pending application(s), if any, stand disposed of.

…………….………………………….J.

(L. NAGESWARA RAO)

……………..…………………………J.

(HEMANT GUPTA)

……………………………………….J.

(AJAY RASTOGI)

NEW DELHI

JANUARY 05, 2021

35

sec.151 CPC - But not sec.144 - Indisputedly, the possession was handed over to the appellant­plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful possession of the subject property to respondentsdefendants.

sec.151 CPC -  But not sec.144 - Indisputedly,   the   possession   was handed over to the appellant­plaintiff pursuant to the interim order passed by the High Court, pending first appeal which finally came to be dismissed, its logical consequence was to restore back the peaceful   possession   of   the   subject   property   to   respondentsdefendants. 

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 8400  OF 2019

(ARISING OUT OF SLP(CIVIL) No(s). 23679 OF 2019)

BANSIDHAR SHARMA(SINCE DECEASED)

REP BY HIS LEGAL REPRESENTATIVE    …...APPELLANT(S)

VERSUS

THE STATE OF RAJASTHAN & ORS. …..RESPONDENT(S)

J U D G M E N T

Rastogi, J.

1. Leave granted.

2. This appeal arises from the order dated 21st  August, 2019

passed by the High Court of Rajasthan Bench at Jaipur.

3. The seminal facts relevant for the purpose are that late Shri

Bansidhar Sharma(predecessor of the appellant) filed a suit on 15th

July, 1961 for possession, rendition of accounts and permanent

1

injunction before the Additional District and Session Judge, No. 1,

Jaipur City in which following issues were framed:­

1. Whether the suit temples were founded by the plaintiffs

ancestors and his ancestors were Shebeit and Mahant of

the temples entitled to manage the same?

2. Whether the said temples and 24 shops attached to them

were founded, built and maintained by the former Jaipur

State and managed through their servants?

3. Whether the plaintiff is in possession and management of

the suit temples in his own rights and not on behalf of the

state as their Pujari or servant?

4. Whether Pandit Mahadev Ji was the Mahant or Shebait of

the suit temples and he handed over management of the

temples   and   shock   attached   to   them   to   the   Dharmarth

Vibhag of the former Jaipur estate in the year 1925 for

safety   and   security   and   proper   management   as   he   was

going on long pilgrimage?

5. Whether the plaintiff is the descendant of Pandit Mahadev

Ji and entitled to claim the possession of the temple and

shops and the account of the income thereof for the period

since 1925 from the defendants?

6. Whether the notice under Section 80 of C.P.C. is defective?

7. Whether the suit is within time?

8. Relief?

4. After the matter being heard, trial Court vide its judgment

dated 26th November, 1977 holding that there was no substance in

the suit dismissed it with costs.   The judgment of the trial Court

2

dated 26th November, 1977 came to be assailed in S.B. Civil First

Appeal No. 86/1979.   During pendency of the appeal, the High

Court of Rajasthan passed an ad­interim order on 11th  January,

1978:­

“Issue   notice   to   the   G.A.   and   the   respondents.

Meanwhile   the   appellant   shall   not   be   dispossessed

from the premises where he resides.   The rest of the

relief claimed by the appellant will be considered after

the notices are served.”

5. In furtherance of the ad­interim order dated 11th  January,

1978, S.B. Civil second stay application no. 163/96 came to be filed

at the instance of the appellant­plaintiff on 9th October, 1996 and

the Single Judge of the High Court passed a further interim order

on   second   stay   application   on   10th  October,   1996   which   is   as

under:­

“I   have   heard   learned   counsel   for   the   parties   on   the

second stay application.

During the course of hearing, learned counsel for the

appellant has placed at large upon the copy of the Order

dated 11.1.78 whereby the learned Division Bench of this

Court had directed that “in the meanwhile the party will not

be dispossessed.”

This   fact   has   also   not   been   controverted   by   the

respondents in their reply to the application, since the same

has been reproduced in the reply.

3

Shri Mathur, learned counsel for the respondents has

placed on record some documents along with his affidavit.

The   copies   of   the   said   document   have   already   been

supplied to the learned counsel for the appellant.

Let  reply  to the said  affidavit  be  filed by the learned

counsel for the appellant within one week from today.

In the meanwhile the status quo which existed as on the

date of passing of the order dated 11.1.78 in respect of the

premises in question shall continue pending the hearing

and disposal of this appeal.

Let this appeal be listed on 20th October, 1996.”

6. In sequel thereof, further interim order came to be passed on

22nd November, 1996.  The operative part of the Order dated 22nd

November, 1996 is referred hereunder:­

“Consequently   the   second   stay   application   is   allowed.

The respondents are directed not to interfere with the rights

of the applicants to perform sewa Pooja of the idols in the

said temple and also not to dispossess the applicants from

the   premises   of   the   temple   in   which   they   are   residing.

Respondents are further directed to restore the possession

of   the   temple   of   Lord   Laxminarainji,   i.e.,   the   temple   in

question to the applicants/appellants forthwith or in any

case   not   later   than   3rd  of   December,   1996   and   the

compliance report be submitted by the respondents in this

regard immediately since the possession of the aforesaid

temple was taken by the respondents in 1988 from late

Bansidhar   forcibly   and   without   due   process   of   law   and

without obtaining any decree of possession or an order of

eviction   against   late   Bansidhar   or   the   present

applicant/appellants from a competent court.  The interim

order, dated 10.10.1996 passed by this Court clarifying the

earlier order dated 11.1.1978 passed by learned Division

bench of this Court is confirmed pending hearing and final

disposal of the appeal.  Let the appeal be listed for hearing

and final disposal on 17.12.1996.”

4

7. Later, the S.B. Civil First Appeal no. 86/1979 after finally

being heard, came to be dismissed vide judgment dated 20th April,

2018 and the learned Single Judge was conscious of the fact that

certain interim orders had been passed pending first appeal and

noticing the order dated 10th  October, 1996 and 22nd  November,

1996, while dismissing the appeal, passed the following operative

order:­

“ In compliance of the said order, appellant had been given

the possession of the suit property.   Through the instant

application, it is prayed that the position as existed prior to

10.10.1996 be restored or the order dated 10.10.1996 be

recalled or modified.  In the opinion of this Court, when the

appeal   has   been   dismissed   and   the   appellant   has   been

found   to   have   no   rights   whatsoever   over   the   disputed

temple  and properties appurtenant  to it, the application

deserves to be allowed and the position as existed before

10.10.1996 deserves to be restored.  Application is allowed

accordingly.

Resultantly,   this   appeal   is   dismissed   with   a   cost   of

Rupees One Lakh and the plaintiff is directed to hand over

the possession of the disputed property to the defendantsrespondents   within   a   period   of   two  months   from  today,

failing which, the defendants­respondents will be entitled to

get   the   possession   through   the   Court.     Further,   the

defendant­respondents are also entitled to get the cost of

litigation from the plaintiff­appellant.”

5

8. The judgment dated 20th April, 2018 was further challenged in

SLP(C ) No. 13439 of 2018 before this Court and that came to be

dismissed on 17th May, 2018.  After dismissal of the special leave

petition by this Court, the respondents sent an intimation to the

appellant­plaintiff to hand over the possession in compliance of the

order of the Single Judge of the High Court dated 20th April, 2018,

but   when   no   action   was   taken   by   the   appellant,   interlocutory

application was filed under Section 151 read with Section 144 of

Code of Civil Procedure, 1908(hereinafter being referred to as CPC)

before the Single Judge of the High Court.

9.   After hearing the parties, the Single Judge of the High Court

noticing the rival contention of the parties allowed the application

vide   its   order   dated   21st  August,   2019,   with   a   liberty   to   the

respondent­State to take possession of the suit property and to take

police or other aid, if necessary, in taking possession of the subject

property in question which is under challenge in appeal before us.

6

10. Basic   bone   of   contention   of   the   learned   counsel   for   the

appellant is that the execution application under Section 144 CPC

would   lie   only   before   the   Court   of   first   instance   which,   in   the

instant case, is the Court of Additional District and Session Judge,

No. 1, Jaipur City and not the High Court and according to the

learned counsel, the impugned order passed by the High Court

dated 21st August, 2019 is without jurisdiction.  

11. Learned counsel further submits that  appellant  has lost a

valuable right of appeal in view of exercise of jurisdiction by the

High Court and submits that the order being not sustainable in law

deserves to be set aside and the respondents may be permitted to

adopt and avail the remedy prescribed under the law.

12. Learned counsel for the respondents, on the other hand, while

supporting   the   finding   recorded   by   the   learned   Single   Judge

submits that there was no decree or order of the trial Court by

virtue of which the appellant was given possession of the subject

property as the suit came to be dismissed in the first instance by

the trial Court which came to be affirmed in first appeal and also by

7

this Court.  In the present circumstances, the provisions of Section

144 CPC are not attracted as there being no variation or reversal of

a decree or order as contemplated by Section 144 CPC.

13. Learned counsel further submits that since the possession

was handed over to the appellant under the interim order passed by

the Single Judge of the High Court pending first appeal, which

finally came to be dismissed and thus, in the given circumstances,

it was imperative upon the appellant to restore possession of the

subject property and mere mentioning of Section 144 would not

denude   the   rights   of   the   parties   in   adopting   an   appropriate

admissible   mechanism   under   the   law   and   this   what   has   been

considered by the High Court under the impugned order dated 21st

August, 2019 and that needs no interference by this Court.

14. Before   evaluating   the   rival   submissions,   it   would   be

appropriate to advert to Section 144 CPC:­

 “144.  Application for restitution – (1) Where and in so far

as a decree or an order is varied or reversed in any appeal,

8

revision or other proceeding or is set aside or modified in

any suit instituted for the purpose, the Court which passed

the decree or order shall, on the application of any party

entitled in any benefit by way of restitution or otherwise,

cause such restitution to be made as will, so far as may be,

place the parties in the position which they would have

occupied but for such decree or order or such part thereof

as has been varied, reversed, set aside or modified; and, for

this purpose, the Court may make any orders, including

orders   for   the   refund   of   costs   and   for   the   payment   of

interest, damages, compensation and mesne profits, which

are   properly   consequential   on   such   variation,   reversal,

setting aside or modification of the decree or order.”

15. The scope of post 1976 amended Section 144 CPC has been

considered by this Court in  Neelathupara  Kummi  Seethi  Koya

Phangal(Dead)  by  LRs  Vs.  Montharapalla Padippua  Attakoya  &

    Ors.1

in paragraph 3 as under:­

“3. In the 1976 Amendment Act suitable amendment was

made and Explanations (a) to (c) were added but they have

no   relevance   for   the   purpose   of   the   case.   The   question

therefore, is whether the transferee executing court is a

“court   of   first   instance”   within   the   meaning   of   Section

144(1) CPC. A bare reading of sub­section (1) does indicate

that   the   application   for   restitution   would   lie   when   the

decree   executed   is   reversed   or   varied   or   modified.   The

doctrine   of   restitution   is   based   upon   the   high   cardinal

principle that the acts of the court should not be allowed to

work   in   injury   or   injustice   to   the   suitors.   Section   144,

therefore, contemplates restitution in a case where property

has been received by the decree­holder under the decree,

which was subsequently either reversed or varied wholly or

partly in those proceedings or other proceedings. In those

set of circumstances law raised an obligation on the party

that   received   the   benefit   of   such   reversed   judgment   to

1 1995 Supp(3) SCC 760

9

restitute the property to the person who had lost it. In that

behalf in sub­section (2) a right of suit was taken out and

an application under sub­section (1) was contemplated for

execution of the decree by way of restitution. Sub­section

(1) clearly indicates that it is a “court of first instance” in

which the proceedings in the suit had been initiated and a

decree   was   passed   or   the   suit   was   dismissed,   but

subsequently on appeal decreed or vice versa. The court of

first   instance   would,   therefore,   mean   the   court   which

passed the decree or order. The transferee executing court

is not the court that passed the decree or order, but the

decree was transmitted to facilitate execution of that decree

or order since the property sought to be executed or the

person who is liable for execution is situated or residing

within the jurisdiction of that executing court. Therefore,

the court which is competent to entertain the application

for   restitution   is   the   court   of   first   instance   i.e.

Administrator's Court (Subordinate Judge) that decreed the

suit, and not the court to which the decree was transmitted

for   execution.   The   court   of   first   instance   of   the

administrator is now designated as Court of Subordinate

Judge, but application for restitution was filed in executing

court,   namely,   the   Court   of   District   Munsif   at   Androth.

Thus in the face of the language of Section 144, the District

Munsif   at   Androth,   by   no   stretch   of   imagination   be

considered   to   be   court   of   first   instance.   Its   order   of

restitution   is   without   jurisdiction   and,   therefore,   it   is   a

nullity. The High Court is accordingly right in its conclusion

that the order for restitution is clearly vitiated by error of

law and lack of jurisdiction. We do not find any ground

warranting interference. The appeal is dismissed, but in the

circumstances without costs.”

16. It has been further considered by other coordinate Bench of

this Court in the recent past in Murti Bhawani Mata Mandir Rep.

Through Pujari Ganeshi Lal(D ) Through LR Kailash Vs. Rajesh

    & Ors.2

 as under:­

2 2019(3) SCC 707

10

“Section 144 applies to a situation where a decree or an

order is varied or reversed in appeal, revision or any other

proceeding or is set aside or modified in any suit instituted

for the purpose.   In that situation, the Court which has

passed the decree may cause restitution to be made, on an

application of any party entitled, so as to place the parties

in the position which they would have occupied but for the

decree or order or such part thereof as has been varied,

reversed, set aside or modified.  The court is empowered to

pass orders which are consequential in nature to the decree

or order being varied or reversed.”

17. It clearly transpires that Section 144 applies to a situation

where a decree or order is varied or reversed in appeal, revision or

any   other   proceeding   or   is   set   aside   or   modified   in   any   suit

instituted for the purpose.  The principle of doctrine of restitution is

that on the reversal of a decree, the law imposes an obligation on

the party to the suit who received the benefit of the decree to make

restitution to the other party for what he has lost.  This obligation

arises automatically on the reversal or modification of the decree

and necessarily carries with it the right to restitution of all that has

been done under the decree which has been set aside or an order is

varied or reversed and the Court in making restitution is bound to

restore the parties, so far as they can be restored, to the same

11

position as they were in at the time when the Court by its action

had displaced them.

18. Indisputedly, in the instant case, there was no decree or order

of   the   trial   Court   by   virtue   of   which   the   appellant   was   given

possession of the subject property.  On the contrary, the suit filed

at the instance of the appellant­plaintiff came to be dismissed with

costs and that came to be confirmed on dismissal of the first appeal

by the Single Judge of the High Court and special leave petition

filed before this Court also came to be dismissed.  The possession

was handed over to the appellant of the subject property under the

interim order passed by the High Court pending first appeal of

which a reference has been made and after the appeal came to be

dismissed, its logical consequence was noticed by the High Court in

its judgment dated 20th April, 2018 directing the appellant to hand

over   possession   of   the   subject   property   to   the   respondentsdefendants obviously for the reason that on dismissal of the first

appeal preferred by the appellant, he was under an obligation to

12

restore back peaceful possession to the respondents on vacation of

the interim orders .

19.   In the present facts and circumstances, the respondents have

not   committed   any   error   in   taking   decision   to   call   upon   the

appellant for handing over possession of the subject property at

least after the special leave petition filed at the instance of the

appellant came to be dismissed under order dated 17th May, 2018

and in sequel thereto, there was no other remedy left with the

respondents than to file an application under Section 151 CPC

before the High Court for restoration of possession of the subject

property. 

20. After we have heard the parties, find no error being committed

by the High Court in passing of the order dated 21st August, 2019

directing   the   appellant   to   hand   over   possession   of   the   subject

property in question which was handed over to the appellant under

the interim orders passed by the High Court pending S.B. Civil First

13

Appeal   No.   86/1979   which   finally   came   to   be   dismissed   vide

judgment dated 20th April, 2018.

21. The submission of the learned counsel for the appellant that

execution application under Section 144 CPC would lie only before

the Court of first instance, which in the instant case is Additional

District and Session Judge, No. 1, Jaipur City and not the High

Court   and   the   impugned   judgment   is   without   jurisdiction,   is

without substance for the reason that there was no decree or order

of the trial Court which is varied or reversed in appeal, revision or

any   other   proceeding   or   is   set   aside   or   modified   in   any   suit

instituted   for   the   purpose.     Indisputedly,   the   possession   was

handed over to the appellant­plaintiff pursuant to the interim order

passed by the High Court, pending first appeal which finally came

to be dismissed, its logical consequence was to restore back the

peaceful   possession   of   the   subject   property   to   respondentsdefendants.   In the given circumstances, the provisions of Section

144 CPC, in our view, are not attracted as there being no variation

14

or reversal of a decree or order as contemplated by Section 144

CPC.

22.  Before parting with the order, taking note of the fact that the

proceedings were initiated at the instance of the appellant­plaintiff

way back in the year 1961 and almost 59 years have rolled by now,

to give a quietus to the litigation and also the fact that the appellant

had failed at all the stages, having no authority to hold possession

of the subject property, we, therefore, consider it appropriate to

direct the appellant to hand over peaceful possession of the subject

property   to   the   respondents­defendants   in   compliance   of   the

judgment of the High Court dated 20th  April, 2018 followed with

order dated 21st  August, 2019 positively within a period of eight

weeks from today failing which this Court will take serious note of

the matter and proceedings may be instituted against the appellantplaintiff for deliberate defiance of the order of this Court.

15

23. The appeal is without substance and accordingly dismissed

with the observations as indicated above.  No costs.

24. Pending application(s), if any, stand disposed of.

……………………………………………J.

(MOHAN M. SHANTANAGOUDAR)

..………………………………………….J.

(AJAY RASTOGI)

NEW DELHI

NOVEMBER 05, 2019

16

Tansfer petitions in respect of writs -validity of Chapter VI of Guidelines No.1- CA(7)/02/2008 dated 08.08.2008 issued by the Council of petitioner Institute on the ground that the same is violative of Article 19(1)(g) of the Constitution of India. The said Chapter VI of the Guidelines dated 08.08.2008 stipulates that a member of the Institute in practice shall not accept, in a financial year, more than the “specified number of tax audit assignments”, which is at present 60 under Section 44AB of the Income-tax Act, 1961. Further, Section 22 of the Chartered Accountants Act, 1949 defines “professional or other misconduct” to include 2 any act or omission provided in any of the Schedules to the Act. Clause (1) of Part II of the Second Schedule to the Act stipulates that a member of the Institute, whether in practice or not, shall be deemed to be guilty of professional misconduct if he contravenes any of the provisions of the Act or the regulations made thereunder or any guidelines issued by the Council of the Institute. As such, if a member of the Institute contravenes the provisions of the aforesaid Chapter VI of the Guidelines dated 08.08.2008, he shall be deemed to be guilty of professional misconduct under the Chartered Accountants Act, 1949.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO(S). 2849-2859/2019

THE INSTITUTE OF CHARTERED

ACCOUNTANTS OF INDIA & ORS. ...PETITIONER (S)

VERSUS

SHAJI POULOSE & ORS. ...RESPONDENT(S)

WITH

TRANSFER PETITION (CIVIL) NO(S). 727-728/2020

J U D G M E N T

 ASHOK BHUSHAN,J.

These transfer petitions have been filed by the

Institute of Chartered Accountants of India under

Article 139-A(1) of the Constitution of India read

with Order XL Rule 1 of the Supreme Court Rules, 2013

for transfer of several writ petitions pending in the

Kerala High Court, Madras High Court and Calcutta

High Court.

1

2. Notices were issued in the transfer petitions. A

counter affidavit has also been filed by one of the

respondents, i.e., respondent No.1.

3. We have heard Shri Arvind Datar, learned senior

counsel for the petitioners and Shri R. Basant,

learned senior counsel and other counsel appearing

for respondents.

4. In the writ petitions, which are sought to be

transferred, writ petitioners have challenged

validity of Chapter VI of Guidelines No.1-

CA(7)/02/2008 dated 08.08.2008 issued by the Council

of petitioner Institute on the ground that the same

is violative of Article 19(1)(g) of the Constitution

of India. The said Chapter VI of the Guidelines

dated 08.08.2008 stipulates that a member of the

Institute in practice shall not accept, in a

financial year, more than the “specified number of

tax audit assignments”, which is at present 60 under

Section 44AB of the Income-tax Act, 1961. Further,

Section 22 of the Chartered Accountants Act, 1949

defines “professional or other misconduct” to include

2

any act or omission provided in any of the Schedules

to the Act. Clause (1) of Part II of the Second

Schedule to the Act stipulates that a member of the

Institute, whether in practice or not, shall be

deemed to be guilty of professional misconduct if he

contravenes any of the provisions of the Act or the

regulations made thereunder or any guidelines issued

by the Council of the Institute. As such, if a

member of the Institute contravenes the provisions of

the aforesaid Chapter VI of the Guidelines dated

08.08.2008, he shall be deemed to be guilty of

professional misconduct under the Chartered

Accountants Act, 1949.

5. Learned senior counsel submits that in order to

avoid multiplicity of proceedings, conflict of

decisions and also settle the law comprehensively,

which is a question of law of general public

importance, the Institute of Chartered Accountants of

India being the regulatory body for the profession of

Chartered Accountants has filed the present transfer

petitions for transfer of all the aforesaid writ

3

petitions to this Court for final and conclusive

determination of the issues involved.

6. Shri R. Basant, learned senior counsel appearing

for the respondent and other counsels have submitted

that there is no good reason for transfer of the writ

petitions pending in the different High Courts. it

is submitted that the only reason of transfer of the

writ petitions is convenience of the petitioners,

whereas the constitutional protection and right

availed by the writ petitioners under Article 226 of

the Constitution will be taken away, if the transfer

is allowed. The provisions of Article 139A is an

exception to the general rule of law, which can be

exercised only rarely and in exceptional

circumstances. By the impugned Guidelines, the

applicants have introduced a cap on the number of

audit assignments that can be taken up by each

Chartered Accountant throughout the country

irrespective of the nature of the audit, the nature

and volume of business of the clients, the local

conditions, local laws, the place of practice of each

Chartered Accountant etc., all these questions are

4

important while deciding the question of breach of

Articles 14 and 19(1)(g) of the Constitution. It is

necessary that this Court may have the advantage of

the judgments of different High Courts in different

parts of the country. It is submitted that there are

earlier occasions where such transfer petitions have

been dismissed. It is further submitted that in

event, it is found necessary to transfer all writ

petitions be transferred to one High Court instead of

transferring petitions to this Court. It is lastly

submitted by learned counsel for the respondent that

in several writ petitions, various interim orders are

operating in favour of the writ petitioners, which

may be allowed to continue.

7. We have heard the learned counsel for the parties

and have perused the records.

8. Section 44AB of the Income-tax Act, 1961 was

inserted in the statute book by the Finance Act, 1984

and the same came into force w.e.f. 01.04.1985.

Section 44AB provides that every person carrying on

business, if his total sales, turnover or gross

5

receipts exceed Rs.1 crore, and every person carrying

on a profession, if his gross receipts exceed Rs.50

lakhs, in any previous year, is required to get his

accounts of such previous year audited by a Chartered

Accountant, and obtain before the specified date, a

report of the audit in the prescribed form duly

signed and verified by such Chartered Accountant.

The said provisions are popularly called “compulsory

tax audits”. The said Section 44AB had been enacted

to prevent evasion of taxes, plug loopholes enabling

tax avoidance and also facilitate tax administration,

which would ensure that the economic system does not

result in concentration of wealth to the common

detriment. The said section therefore fulfilled the

directive principles laid down under Article 39(c) of

the Constitution of India.

9. In exercise of the powers conferred by Clause

(ii) of Part II of the Second Schedule to the Act,

the council of the Institute issued a notification

bearing No.1-CA(7)/3/88 dated 13.01.1989 specifying

that a member of the Institute in practice shall be

deemed to be guilty of professional misconduct, if he

6

accepts in a financial year, more than specified

number of tax audit assignments under Section 44AB of

the Income-tax Act, 1961. The specified number being

30 in a financial year, whether in respect of

corporate or non-corporate assesses. One K.

Bhagavatheeswaran, who was a practicing Chartered

Accountant, filed Writ Petition No.5925 of 1989

before the Madras High Court challenging the legality

and validity of the Notification dated 13.01.1989 and

Writ Petition No.5926 of 1989 challenging the

legality and validity of the Notification dated

25.05.1987 being violative of Article 19(1)(g) of the

Constitution. Misc. Petition No.2844 of 1989 - Prem

Chand & Ors. Vs. Institute of Chartered Accountants

of India & Anr. was filed before the High Court of

Madhya Pradesh at Jabalpur, challenging the validity

and legality of the Notification dated 13.01.1989.

10. There were other writ petitions filed in

different High Courts. The transfer petitions were

filed by Institute of Chartered Accountants of India

being Transfer Petition Nos. 614-615 of 1990, which

were rejected by this Court on 03.04.1991 observing

7

that the concerned High Courts may dispose of the

writ petitions at an early date. A Writ Petition

No.2085 of 1993 – Prakash Mehta Vs. ICAI where

validity and legality of the Notification dated

13.01.1989 was challenged, was dismissed on

16.05.2005. Madhya Pradesh High Court vide its

judgments dated 18.04.1995 in Writ Petition No.2844

of 1989 had held that the Notification dated

13.01.1989 does not take away the right of a

Chartered Accountant to carry on profession, against

which judgment, a Special Leave Petition No.21988 of

1995 was filed, in which leave was granted but Civil

Appeal was dismissed as withdrawn by order dated

04.05.1999. Madras High Court vide its judgment

dated 13.07.1998 had allowed the Writ Petition

No.5925 of 1989 – K. Bhagavatheeswaran Vs. Vs.

Institute of Chartered Accountants of India and Ors.,

which judgment was also confirmed by the Division

Bench in a writ appeal.

11. The Chartered Accountants Act, 1949 was amended

by the Parliament by the Chartered Accountants

(Amendment) Act, 2006, after which amendment, the

8

erstwhile Notifications were superseded by Guidelines

dated 08.08.2008. After the above Guidelines, this

Court by order dated 01.04.2013 dismissed the Civil

Appeal Nos.7208-7209 of 2005 having become

infructuous, which order was to the following

effect:-

“In view of the above, we do not

propose to hear the appeals on merit and

the same are dismissed as having become

infructuous. However, in case any member

is aggrieved of the existing guidelines

and files a representation before the

appellant, the appellant shall consider it

and pass appropriate order, and if any

member is aggrieved thereof whether he has

made representation or not, would have

right to challenge it before the

appropriate forum.”

12. After issuance of the Guidelines dated

08.08.2008, various writ petitions have been filed in

different High Courts, details of various writ

petitions as given in the transfer petition are as

follows:-

“(1) W.P. (C) No.25662/2016 titled as

'Shaji Poulose vs. The Institute of

Chartered Accountants of India & Ors.'

Pending before the Hon’ble High Court

of Judicature of Kerala at Ernakulam;

9

(2) W.P. (C) No.12963/2017 titled as ‘T.R.

Mohan Das vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(3) W.P. (C) No.19026/2017 titled as 'E.

Hrishikesan vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(4) W.P. Nos.17956 to 17958/2017 titled as

'Mr. R. Murlidharan vs. The

Comptroller & Auditor General of India

& Ors.' pending before the Hon'ble

High Court of Judicature at Madras;

(5) W.P. NO.22771/2017 titled as 'Radha

Kanta Das vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature at Calcutta;

(6) W.P. (C) No.12273/2019 titled as 'C.

Suresh Kumar vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature of Kerala at Ernakulam;

(7) W.P. No.19162/2019 titled as 'Ms. V.

Gayathri Devi vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon'ble High Court

of Judicature at Madras;

(8) W.P. No.18124/2019 titled as 'Kamalesh

Mitra vs. The Institute of Chartered

Accountants of India & Ors.' pending

10

bolero the Hon’ble High Court at

Calcutta, and

(9) W.P. No.18590/2019 titled as 'Pralay

Chakraborty vs. The Institute of

Chartered Accountants of India & Ors.'

pending before the Hon’ble High Court

at Calcutta.

13. In various writ petitions filed in different High

Courts apart from challenging the guidelines dated

08.08.2008, disciplinary proceedings initiated

against the writ petitioner for violation of the

guidelines dated 08.08.2008 were also challenged. For

example, in writ petition No.25662 of 2016, Shaji

Poulose versus Institute of Chartered Accountant of

India and others, the guidelines dated 08.08.2008 as

well as communication dated 28.03.2015, 23.06.2016

and 13.07.2016 were under challenge. The High Court

issued notice and stayed the disciplinary proceeding

against the writ petitioner therein.

14. Learned counsel for the respondents have also

relied on the judgment of this Court in Institute of

Chartered Accountants of India versus Southern

Petrochemical Industries Corporation Limited and

another, (2007) 15 SCC 649, in which case the

11

Transfer petition was filed in this Court by the

Institute of Chartered Accountants of India for

transferring writ petitions filed in different High

Courts challenging Constitutional validity of

paragraph 33 of Accounting Standard 22 framed by

Institute of Chartered Accountant of India. This

Court allowed the Transfer petition and directed all

the writ petitions to be heard by Calcutta High

Court. Learned counsel for the respondent submits

that this Court may consider transferring all the

writ petitions to any one High Court in the present

matter also.

15. The fact that this Court on 03.04.1991 had

dismissed the Transfer Petition Nos.614-615 of 1990

observing that the concerned High Courts may dispose

of the writ petition on early date cannot be treated

any kind of bar in transferring the writ petition in

the present batch of cases. At the time when the

earlier transfer petition was dismissed, conflicting

judgments on subject in issue by different High

Courts had not come. As noted above, with respect to

the cap on the number of audits, there are

12

conflicting judgments of different High Courts taking

different views on the similar guidelines. Further,

this Court’s judgment in Institute of Chartered

Accountants of India versus Southern Petrochemical

Industries Corporation Limited and another (supra),

transferring the writ petition to one High Court i.e.

Calcutta High Court does not preclude the

consideration of prayer of the petitioner for

transferring the writ petitions to this Court in

present matter.

16. The guidelines which are impugned in the High

Court and consequent disciplinary proceedings

initiated against various chartered accountants

throughout the country is an issue of public

importance affecting Chartered Accountants as well as

the citizens who have to obtain compulsory tax

audits. We are satisfied that to settle the law and

to clear the uncertainty among tax professionals and

citizens, it is appropriate that this Court may

transfer the writ petition, to authoritatively

pronounce the law on the subject.

17. We, however, find substance in the submissions

made by learned counsel for the respondents-writ

13

petitioners that the interim orders operating in

different writ petitions which are sought to be

transferred should be allowed to be continued till

this Court considers the matter and passes any other

order.

18. In result, these Transfer Petitions are allowed.

The writ petitions mentioned above are withdrawn to

this Court.

19. The Registry should transmit this order to the

respective High Courts immediately. The interim

orders passed in the writ petitions which are being

transferred to this Court shall continue till any

other order is passed by this Court.

......................J.

 (ASHOK BHUSHAN )

......................J.

 ( R. SUBHASH REDDY )

......................J.

 ( M .R. SHAH )

New Delhi,

December 09, 2020.

14