V RAMA KRISHNA Vs. ANDHRA BANK HYD

JUDGEMENT

(1.) This appeal is preferred, being aggrieved by the judgement and decree dated 15-4-1991 passed by the learned II Additional District Judge, Visakhapatnam, in AS No.52 of 1989. By the impugned judgement and decree, the lower appellate Court set aside the judgement and decree dated 29-01-1988 of the learned IV Additional District Munsif, Visakhapatnam passed in OS No.324 of 1985 and consequently the lower appellate Court dismissed the plaintiffs suit.

(2.) Learned Counsel for the appellant strenuously contended that the judgement and decree of the lower appellate Court are unsustainable. He submitted that the lower appellate Court is in error in holding that the suit filed by the plaintiff was not maintainable. The lower appellate Court has not given reasons in dismissing the plaintiffs suit. He further submitted that so far as the appellant-plaintiff is concerned, there is a concurrent finding of both the Courts below that the appellant was senior to defendant Nos.5 to 12 and 14 to 24; and as such appellate Court could not have reversed the judgement and decree of the trial Court. He submitted that as held by the trial Court no material or evidence of the proceedings of the Departmental Promotion Board have been produced by the bank to show as to why the plaintiff could not be promoted as on the date the defendant Nos.2 to 24 were promoted. In fact, the trial Court drew an adverse inference for not producing such material. He submitted that the lower appellate Court has simply reversed the judgement of the trial Court on the ground that no relief, as prayed for by the plaintiff, could be granted. Overlooking the position of law that the jurisdiction of the Civil Court under Section 9 of the Code of Civil Procedure (for short 'the CPC') is available in all the suits, except where such suit is barred by specific enactment either expressly or impliedly. In the instant case, no such law has been referred to so as to exclude the jurisdiction of civil Court under Section 9 of the CPC, except stating that the contract matters between the employer and employee cannot be enforced in the Court of law. This approach is totally erroneous. Hence the judgement and decree of the lower appellate Court are liable to be set aside.

(3.) On the other hand, learned Counsel appearing for the defendant-bank strenuously supported the judgement and decree of the lower appellate Court. He contended that the plaintiff himself has not produced necessary materials to show and demonstrate as to how he was entitled to be promoted as the Officer in MM-III grade as against defendant Nos.2 to 24. He further submitted that though, according to the findings by the Courts below that the plaintiff-appellant was senior to certain defendants, but the seniority alone would not be the sole factor for promotion to the next category. He stated that, admittedly, there were departmental proceedings against him and in view of those proceedings, the promotion of the appellant could be overlooked. He further submitted that, no doubt, the proceedings of the authority or the board which considered the cases of plaintiff and defendant Nos.2 to 24 for the purpose of promotion are not produced. But, as per the evidence of DW1, such authority did not recommend for promotion of the plaintiff keeping in view of his seniority and other service record and for the purpose of promotion, seniority is not the sole criteria. He further submitted that the petitioner has not challenged the fitment under the provisions of Andhra Bank (Officers') Service Regulations, 1982 (for short 'the Regulations') which have come into force with effect from 1-1-1983; and that without challenging the same, he could not have challenged the promotion of defendant Nos. 4 to 24. He also submitted, that having regard to the material now produced before the Court in pursuance of the directions of this Court on 17-6-1999 it would be clear that the petitioner was considered not fit for promotion in view of the pendency of the departmental proceedings on the basis of the charge sheets filed against him; and on the basis of one charge sheet, he was dismissed from service. But that order has been set aside by this Court in a writ petition. But his punishment regarding other charges is the subject- matter of another writ petition before this Court. In this view of the matter, he submitted, that the judgement and decree of the lower appellate Court in dismissing the plaintiffs suit do not call for any interference in this appeal and the appeal may be dismissed.