STATE BANK OF PATIALA & ORS. v.

VINESH KUMAR BHASIN (Civil Appeal No. 1718 of 2010)

JANUARY 22, 2010 [R.V. Raveendran and K.S. Radhakrishnan, JJ.]

2010 (2) SCR 6

The Order of the Court was delivered by

O R D E R

R. V. RAVEENDRAN J. 1. Leave granted. Heard.

2. The respondent was an employee of the State Bank of Patiala (‘Bank’  

for  short).  Regulation  19  of  the  State  Bank  of  Patiala  (Officers)  Service  

Regulations, 1979 provides that an officer shall retire from the service of the  

Bank on attaining the age of 58 years or upon the completion of thirty years  

service whichever occurs first. It also provides that an officer will retire on the  

last day of the month in which he completes the stipulated service or age of  

retirement. As respondent completed thirty years of service on 17.11.2006,  

the Bank made an order dated 17.11.2006 retiring the respondent with effect  

from 30.11.2006 under Regulation 19 of the said Regulations.

3. The Bank had formulated an ‘Exit Option Scheme’ on 1.12.2005 with  

the object of bringing down the staff strength of the Bank by providing an exit  

route  to  eligible  officers  who  may  be  demotivated  due  to  lack  of  career  

prospects.  The release  of  an  officer  from service  under  the  said  scheme  

becomes effective only after the approval of the request of an employee by  

the designated authority, is communicated to such officer.  The respondent  

who  joined  the  Bank’s  service  on  18.11.1976,  and  due  to  retirement  on  

17.11.2006, made an application dated 14.11.2006 for being relieved under  

the said scheme. As the said application was made hardly three days before  

the  completion  of  thirty  years  of  service,  there  was  obviously  no  time  to  

process  it,  and  before  it  could  be  processed,  he  retired  from  service.

According to the Bank, accepting such a request a few days before the due  

date of retirement does not arise, as there is no question of an employee  

feeling demotivated at that stage due to lack of career prospects.

4.  Alleging  that  the  non-acceptance  of  his  request  for  being  relieved  

under  the  ‘Exit  Option  Scheme’  was  illegal,  the  respondent  made  two  

complaints  the first dated 17.11.2006 to the Commissioner for Persons with  

Disabilities,  Dehradun,  and  a  second  dated  20.11.2006  to  the  Chief  

Commissioner for Persons with Disabilities, New Delhi (‘Chief Commissioner’  

for short) seeking a direction to the Bank to grant him relief under the ‘Exit  

Option Scheme’ of the Bank. He claimed in the said application that he was  

involved in a road accident on 26.5.1997 and as a result, became a person  

with  disability;  and  that  the  Bank,  by  not  accepting  his  application  for  

retirement under the Exit Policy Scheme, discriminated him on account of his  

disability.

5.  The  Deputy  Chief  Commissioner,  New Delhi  issued  a  show-cause  

notice dated 22.11.2006 to the Bank stating that the Chief Commissioner had  

directed issue of  a  show-cause notice under  the Persons with  Disabilities  

(Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,  

(‘Disabilities Act’ for short) calling upon the Bank to show cause why it should  

not  be  directed  to  accept  the  respondent’s  request  under  ‘Exit  Option  

Scheme’, instead of being retired under Regulation 19, with a further direction  

that the decision of the Bank to retire the respondent from service should not  

be implemented until further orders.

6.  The  Bank  filed  objections  dated  23.12.2006  contending  that  the  

complaint was not maintainable and did not have any merit. The Bank also  

pointed out that  the show cause notice dated 22.11.2006 sent by the Dy.  

Chief Commissioner, was not accompanied by either a copy of the complaint  

or a copy of the order said to have been made by the Chief Commissioner.

We are informed that the Chief Commissioner has not passed any further  

order in the matter.

7. On the ground that the Bank did not comply with the interim direction of  

Chief Commissioner, the respondent approached the Allahabad High Court  

on 10.1.2007 (by filing WP No. 40 (SB) of 2007) seeking a direction to the  

Bank  to  obey  the  order  of  the  Chief  Commissioner  and  a  mandamus  

commanding the Bank and its officers (that is the Dy. General Manager, Delhi  

Zone, Additional General  Manager,  III  (D) Lucknow, and Branch Manager,  

Dehradun who are appellants 2 to 4 herein), to pay him salary and allow him  

to work. The High Court on 12.1.2007 ordered notice to the appellants and  

also  issued  an  ex  parte  interim  order  that  the  direction  of  the  Chief  

Commissioner  be complied  with,  with  an observation  that  the  question of  

jurisdiction, if raised by the Bank, will be considered when the matter is next  

listed. No date was fixed for compliance with the said interim order.

8. On the ground that the said ex parte order dated 12.1.2007 was not  

complied, the respondent again rushed to the High Court with a Contempt  

Petition.  In  that  petition,  the  High  Court  made  an  ex  parte  order  dated  

13.2.2007 directing the Branch Manager of the Dehradun Branch of the Bank  

to appear in person on 3.4.2007 if the interim order dated 12.1.2007 issued in  

the writ petition was not by then compiled with.

9. Aggrieved by the order dated 12.1.2007, the Bank and its officers have  

filed SLP (C) No. 6124 of 2007. Aggrieved by the order of the High Court in  

the Contempt Proceedings, the two officers of the Bank to whom notice has  

been  issued  filed  SLP  (Crl.)  No.1870  of  2007.  This  Court  on  23.4.2007  

directed issue of notice in both the special  leave petitions.  As respondent  

appeared through counsel at the time of preliminary hearing, this Court also  

noted that the respondent had retired on completion of 30 years of service in  

November, 2006 and recorded the submission of the respondent that he was  

prepared  to  accept  the  retiral  benefits  without  prejudice  to  his  rights.

Accordingly, the retiral benefits have been released to the respondent and the  

contempt proceedings were stayed on 18.8.2008.

10. Ordinarily this Court would not interfere with an ex parte interim order  

of the High Court, as the respondent in a writ or contempt proceedings can  

appear and seek vacation, or discontinuance, or modification of such ex parte  

order. But where there are special and exceptional features or circumstances  

resulting in or leading to abuse of process of court, this Court, may interfere.  

This case falls under such special and rare category. The respondent, though  

retired in accordance with the rules of the Bank, using the tag of ‘person with  

disability’, has attempted to virtually terrorise the Bank and its senior officers  

by initiating a series of proceedings and securing ex parte interim orders by  

misrepresenting  the  facts.  The  Chief  Commissioner  acting  under  the  

Disabilities Act, the High Court in its writ jurisdiction and the High Court in its  

contempt jurisdiction, have passed ex parte interim orders, requiring the Bank  

and its officers to act contrary to the Bank’s Rules when no prima facie was  

made out. Let us deal with each of these successive ex parte interim orders.  

Interim direction of the Chief Commissioner

11. Under the Rules, an officer of the Bank, shall retire on completion of  

30 years of service. The respondent was accordingly retired on completion of  

thirty years. He was not denied any retiral benefits. He was not entitled, as of  

right, to continue beyond thirty years of service. In fact, he did not want to  

continue  in  service,  as  his  grievance  was  that  he  ought  to  have  been  

permitted  to  retire  under  the  Exit  Policy  Scheme.  The  grievance  of  the  

respondent  had  apparently  nothing  to  do  with  his  being  a  person  with  a  

disability.  Prima  facie  neither  section  47  nor  any  other  provision  of  the  

Disabilities Act was attracted. But, the Chief Commissioner chose to issue a  

show cause notice on the complaint and also issued an ex parte direction not  

to give effect to the order of retirement. He overlooked and ignored the fact  

that the retirement from service was on completion of the prescribed period of

service as per the service regulations, which was clearly mentioned in the  

letter of retirement dated 17.11.2006; and that when an employee was retired  

in accordance with the regulations, no interim order can be issued to continue  

him in service beyond the age of retirement. The Chief Commissioner also  

overlooked and ignored the fact that as an authority functioning under the  

Disabilities Act, he has no power or jurisdiction to issue a direction to the  

employer  not  to  retire  an  employee.  In  fact,  under  the  Scheme  of  the  

Disabilities Act, the Chief Commissioner (or the Commissioner) has no power  

to grant any interim direction.

12. The functions of the Chief Commissioner are set out in Sections 58  

and 59 of the Act.  Section 58 provides that the Chief Commissioner shall  

have the following functions:-

(a) coordinate the work of the Commissioners;

(b) monitor  the  utilisation  of  funds  disbursed  by  the  Central  

Government;

(c) take steps to safeguard the rights and facilities made available to  

persons with disabilities;

(d) submit reports to the Central Government on the implementation of  

the Act at such intervals as the Government may prescribe.

Section 59 provides that without prejudice to the provisions of Section 58, the  

Commissioner may of his own motion or on the application of any aggrieved  

person or  otherwise look into  complaints  and take up the matter  with  the  

appropriate  authorities,  any matters  relating  to  (a)  deprivation  of  rights  of  

persons with  disabilities;  and (b)  non-  implementation of  laws,  rules,  bye-

laws, regulations, executive orders, guidelines or instructions made or issued  

by the appropriate Governments and the local authorities for the welfare and  

protection of rights of persons with disabilities. The Commissioners appointed  

by the State Governments also have similar powers under Section 61 and 62.  

Section 63 provides that  the Chief  Commissioner  and the Commissioners

shall, for the purpose of discharging their functions under this Act, have the  

same powers as are vested in a court  under the Code of Civil  Procedure  

while  trying  a suit,  in regard to the following matters:  (a)  summoning and  

enforcing  the  attendance  for  witnesses;  (b)  requiring  the  discovery  and  

production  of  any  document;  (c)  requisitioning  any  public  record  or  copy  

thereof from any court or officer; (d) receiving evidence on affidavits; and (e)  

issuing commissions for the examination of witnesses or documents. Rule 42  

of the Persons with Disabilities (Equal opportunities, Protection of Rights and  

Full Participation) Rules, 1996 lays down the procedure to be followed by the  

Chief Commissioner.

13.  It  is  evident  from  the  said  provisions,  that  neither  the  Chief  

Commissioner nor any Commissioner functioning under the Disabilities Act  

has power to issue any mandatory or prohibitory injunction or other interim  

directions. The fact that the Disabilities Act clothes them with certain powers  

of a civil court for discharge of their functions (which include power to look  

into complaints), does not enable them to assume the other powers of a civil  

court which are not vested in them by the provisions of the Disabilities Act. In  

All India Indian Overseas Bank SC and ST Employees’ Welfare Association  

vs. Union of India  1996 (6) SCC 606, this Court, dealing with Article 338 (8)  

of  the  Constitution  of  India  (similar  to  section  63  of  the  Disabilities  Act),  

observed as follows :  

“It can be seen from a plain reading of clause (8) that the Commission  

has  the  power  of  the  civil  court  for  the  purpose  of  conducting  an  

investigation  contemplated  in  sub-clause  (a)  and  an  inquiry  into  a  

complaint referred to i sub-clause (b) of clause (5) of Article 338 of the  

Constitution. All the procedural powers of a civil  court are given to the  

Commission  for  the  purpose  of  investigating  and  inquiring  into  these  

matters and that too for that limited purpose only. The powers of a civil  

court of granting injunctions, temporary or permanent, do no inhere in the

Commission nor can such a power be inferred or derived from a reading  

of clause (8) of Article 338 of the Constitution.”

The  order  of  the  Chief  Commissioner,  not  to  implement  the  order  of  

retirement was illegal and without jurisdiction.

The interim order in the writ proceedings.

14. The principles relating to grant of interim ex parte orders by the High  

Court  in  writ  jurisdiction  are  well  settled.  Courts  should  not  grant  interim  

orders in a mechanical manner, on the assumption that the aggrieved party  

can  always  seek  vacation.  Grant  of  ex  parte  interim  orders,  that  too  

mandatory orders, routinely or merely for the asking, on ground of sympathy  

or otherwise, will interfere with justice leading to administrative chaos, rather  

than serving the interests of justice. Where the writ petition does not make out  

a prima facie case or where there is any doubt about the maintainability of the  

writ petition or the jurisdiction of the court or the tenability of the claim, the  

High  Court  will  not  issue  any  interim  order,  that  too  when  there  is  no  

irreparable loss or injury. At all events, the High Court will desist from issuing  

an ex parte mandatory injunction or direction which virtually has the effect of  

allowing the petition ex parte without  hearing the respondents.  Mandatory  

interim orders are issued in exceptional cases, only where failure to do so will  

lead to an irreversible or irretrievable situation. In service matters relating to  

retirement,  there is  no such need to  issue ex parte  mandatory directions.  

When the  writ  petition  disclosed that  the  respondent  was retired  after  30  

years  of  service  in  accordance with  the  Bank’s  regulations,  there was no  

question of any irreparable injury or urgency.

15. On the facts and circumstances we are of the view that the High Court  

while  directing  notice  on  the  writ  petition  filed  by  the  respondent  for  

implementation of the interim direction of the Chief Commissioner for Persons  

with Disabilities ought not to have issued an ex parte order which virtually  

amounts  to  allowing  the  writ  petition  without  hearing  the  Bank.  The

appropriate course would have been to give an opportunity to the Bank to  

explain its stand, particularly because the court itself felt a doubt about the  

jurisdiction  of  the  Chief  Commissioner  and  its  own jurisdiction.  The Chief  

Commissioner issued the order at New Delhi. The respondent was working at  

Dehradun and was retired from service at Dehradun. Apparently no part of  

cause of action arose in the State of Uttar Pradesh. Be that as it may. We  

therefore held that the order dated 12.1.2007 is unsustainable.

The interim order in the contempt proceedings.

16.  The respondent’s  complaint  in  the  contempt  petition  was  that  the  

Bank had disobeyed the ex parte interim order granted by the High Court on  

12.1.2007. No period was prescribed by the High Court for compliance with  

its interim order. The show cause notice in the writ  petition was issued on  

22.1.2007 returnable on 15.2.2007. But even before that date, the respondent  

filed the contempt petition complaining of non-compliance. Instead of issuing  

notice and giving an opportunity to the Bank or the Bank’s officers, the High  

Court passed the following orders on 13.2.2007 :

“Issue notice to Opposite Party No.2 (Branch Manager of the Bank) to  

show cause as to why he may not be punished under section 2 of the  

Contempt of Courts Act for disobeying the order passed by this Court on  

12.1.2007,which has so far not been complied with in letter and spirit. In  

case the order is not complied with, he shall appear on 3rd April, 2007  

along with record.”

Before issuing any interim direction in contempt proceedings, or proposing to  

hold anyone guilty of contempt, the High Court should at least satisfy itself  

that  person  to  whom  the  notice  is  issued  is  the  person  responsible  to  

implement the order. The order retiring the respondent was not passed by the  

Branch Manager and obviously he was not the officer who could implement  

the interim direction of theChief Commissioner or the High Court.

17. We are of the view that the contempt petition was premature. We are  

also of the view that the High Court at the stage of issuing notice, could not  

have  assumed  that  there  was  wilful  disobedience.  At  all  events,  as  a  

consequence  of  our  decision  that  the  order  dated  12.1.2007  was  

unwarranted, the direction for personal appearance on failure to comply with  

the order dated 12.1.2007 cannot be sustained.

Remarks warranted by the conduct of the respondent

18. The conduct of the respondent requires to be commented upon. He  

was retired with effect from 30.11.2006, by order dated 17.11.2006 after 30  

years of service. He gave a complaint to the Commissioner for Persons with  

Disabilities  at  Dehradun,  Uttarakhand,  on  17.11.2006.  He  made  another  

complaint  to  Chief  Commissioner,  New Delhi,  on  20.11.2006.  Though  he  

retired at Dehradun, he filed a writ petition in Allahabad High Court to enforce  

an interim order issued at New Delhi.  He filed successive complaints,  writ  

petition and contempt petition within a span of less than three months, without  

giving opportunity to the Bank to appear and show cause. He succeeded in  

evoking  sympathy  and  securing  ex  parte  interim  orders  repeatedly  by  

highlighting his position as a person with disability, but failed to disclose full or  

correct facts.

19. The grievances and complaints of persons with disabilities have to be  

considered by courts  and Authorities with  compassion,  understanding and  

expedition. They seek a life with dignity. The Disabilities Act seeks to provide  

them a level playing field, by certain affirmative actions so that they can have  

adequate opportunities in matters of education and employment. The Act also  

seeks to ensure non-discrimination of persons with disabilities, by reason of  

their disabilities. But the provisions of the Disabilities Act cannot be pressed  

into service to seek any relief or advantage where the complaint or grievance  

relates to an alleged discrimination, which has nothing to do with the disability

of  the  person.  Nor  do  all  grievances of  persons  with  disabilities  relate  to  

discrimination based on disability.

Illustration :

Let us assume a case where the age of retirement in an organisation is  

58 years for all class II officers and 60 years for all class I officers. When  

a class II  officer,  who happens to be a person with disability, raises a  

dispute that such disparity amounts to discrimination, it has nothing to do  

with disabilities. Persons with disability as also persons without disability  

may contend in a court of law that such a provision is discriminatory. But,  

such a provision, even if it is discriminatory, has nothing to do with the  

person’s  disability  and there is  no question of  a person with  disability  

invoking the provisions of  the Disabilities Act,  to  claim relief  regarding  

such discrimination.

Persons with disabilities are no less afflicted by human frailties like ego, pride,  

jealousy,  hate  or  misunderstanding,  when compared with  persons  without  

disabilities. Many of their grievances and disputes may have nothing to do  

with disability. The fact that respondent claimed to be person with disability  

appears  to  have swayed  the Chief  Commissioner  and the  High Court,  to  

ignore the absence of any legal right and grant an interim remedy which in  

the normal course would not have been considered. Issuing interim orders  

when not warranted, merely because the petitioner is a person with disability,  

is as insidious as failing to issue interim orders when warranted.

Conclusion

20. We therefore allow these appeals and set aside the interim directions  

contained in the order dated 12.1.2007 of the High Court in WP No. 40(SB) of  

2007 and the order dated 13.2.2007 in Crl. Misc. Case No.420(C) of 2007.  

We  request  the  High  Court  to  hear  the  appellants  herein  (Bank  and  its  

officers) and then dispose of the WP No. 40 (SB) of 2007 and Crl. Mis. Case  

No.420(C) of 2007 in accordance with law.

21. It is made clear that acceptance of retiral benefits by the respondent during  

the pendency before this court will not come in the way of his pursuing any remedy,  

in accordance with law by establishing that he is a person with disability and that he  

was discriminated, before a forum competent to consider his grievance/complaint.