The next issue pertains to how the period from the date
of order of first removal, i.e., 23.4.1985 till 25.2.1992 would
be treated and to what benefits the officer concerned would
be entitled to. The order of removal from service, as we
have already opined, would come into effect from the date
of passing of the order, i.e., 22.11.2001 as it has to be
prospectively operative and, therefore, as a natural corollary
he remained in service from 23.4.1985 till he attained the
age of superannuation, i.e., 25.2.1992 or till the end of
February, 1992, being the last day of the month. In the
transfer case relief has been sought for grant of full salary
for the whole period. Mr. Patwalia, learned senior counsel
appearing for the legal representatives of the original
petitioner, would contend that they should be entitled to get
the full salary till the order of removal. We are unable to
accept the said submission because we have already ruled
that the officer stood superannuated on completion of thirty
years and his continuance by virtue of the order passed by
the High Court has to be treated as a deemed continuance
for the purposes of finalization of the disciplinary
proceeding. The submission put forth by Mr. Vikas Singh
that the order of removal would relate back to the date of
the earlier order, i.e., 23.4.1985 has already been repelled
by us. Thus, we are to restrict the period for grant of benefit
till the date of retirement.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 239 OF 2003
State Bank of Patiala and another … Appellants
Versus
Ram Niwas Bansal (Dead) through LRs. …Respondents
WITH
TRANSFER CASE (C) NO. 79 OF 2013
Read original Judgment here;http://bit.ly/1jkWTP8
Citation;2014(3) ALLMR480 SC
Dipak Misra, J.
Ram Niwas Bansal, the predecessor-interest of the
respondents 1 to 4, the legal heirs who have been brought
on record after his death during the pendency of this appeal,
while posted as Accountant at the Narnaul Branch of the
appellant-Bank in the Officer Cadre, was served with a
charge-sheet dated 20.10.1980 for certain financial
irregularities. Two supplementary charge-sheets dated
15.1.1981 and 8.1.1982 were also issued to the said officer.
After explanation was offered by late Ram Niwas Bansal, the
disciplinary authority appointed an Enquiry Officer who, after
conducting the enquiry, submitted his report to the General
Manager (Operations) of the Bank holding that certain
charges had been proved, some charges had been partly
proved and some charges had not been proved. The
disciplinary authority concurred with the findings recorded
by the Enquiry Officer and recommended for removal of the
delinquent officer from the Bank’s service to the appointing
authority in accord with the terms of Regulation 68(1)(ii) of
the State Bank of Patiala (Officers’) Service Regulations,
1979 (for short “the 1979 Regulations”) and the appointing
authority, i.e., Managing Director, agreeing with the findings
recorded by the Enquiry Officer and the recommendations of
the disciplinary authority, imposed the penalty of removal
vide order dated 23.4.1985. The order imposing punishment
of removal from service along with a copy of the enquiry
report was sent to late Bansal who preferred an appeal
under Regulation 70 of the 1979 Regulations before the
Executive Committee which, vide order dated 18.7.1986,
rejected the appeal.
2. Being grieved by the aforesaid orders, he preferred
CWP No. 4929 of 1986 before the High Court for issuance of
a writ of certiorari for quashment of all the orders and for
issue of appropriate direction to reinstate him in service with
full service benefits. On 1.10.1993 the learned single Judge
referred the matter to the larger Bench and ultimately the
matter was placed before the Full Bench.
3. The Full Bench, vide order dated 22.5.1998, ruled that
non-supply of comments of the General Manager had caused
serious prejudice to the delinquent officer and there was
denial of fair and reasonable opportunity and on that basis
set aside the order of punishment. However, it directed the
disciplinary authority to grant an opportunity to the
petitioner therein to reply to the enquiry report and pass
appropriate orders after granting personal hearing to the
petitioner therein in accordance with law.
4. Dissatisfied with the aforesaid judgment and order, the
appellant-Bank preferred Special Leave Petition (C) No. 2442
of 1998 and after grant of leave the same was registered as
Civil Appeal No. 773 of 1998. On 12.4.1999 this Court
directed stay of reinstatement of the respondent therein with
the direction that the Bank would comply with the provisions
of Section 17-B of the Industrial Disputes Act, 1947 (for
brevity, “the Act”’). It was further observed that the Bank
and its functionaries would be at liberty to proceed with the
enquiry in terms of the permission granted by the High Court
and any decision taken would be without prejudice to the
outcome of the appeal. It may be noted that this order was
passed when a prayer for stay of the contempt proceeding
that was initiated by said Bansal before the High Court was
made before this Court. Be it stated, this Court directed stay
of further proceedings of the contempt petition.
5. On 20.8.1999 the Bank filed Interlocutory Application
No. 4 of 1999 for modification of the order dated 12.4.1999
on the ground that Section 17-B of the Act was not
applicable. On 7.9.1999 the employee filed another
Contempt Petition No. 396 of 1999 for non-implementation
of the order passed by this Court. On 6.12.1999 this Court,
leaving the question of law open, dismissed the civil appeal
as well as the contempt petition.
6. As the factual score would further unfold, on 10.7.2000
the Bank in compliance with the order dated 22.5.1998
passed by the Full Bench of the High Court, sent a copy of
the enquiry report to the employee wherein it was
mentioned that he should appear before the disciplinary
authority on the date fixed for personal hearing. In the
meantime, on 24.7.2000 the application for contempt was
dismissed by the High Court on the foundation that there
was no direction for payment of any salary to the employee
or grant of any consequential benefits in the writ petition.
Against the aforesaid order, the employee preferred Special
Leave Petition (C) No. 15098 of 2000 and the same stood
dismissed as withdrawn vide order dated 27.9.2000 granting
liberty to the employee to approach the High Court for
consequential reliefs.
7. On 14.10.2000 CM No. 1965 of 2001 was filed by the
writ petitioner therein seeking clarification of the order dated
22.5.1998 with a further direction to the Bank to reinstate
him in service with full back wages. During the pendency of
the said application in the writ petition the appointing
authority passed the order of removal on 22.11.2001 with
effect from 23.4.1985.
8. On 23.11.2001 the CM No. 1965 of 2001 was disposed
of by the Full Bench by the impugned order. A contention
was raised by the Bank that the respondent-employee stood
superannuated in the year 1992 after completion of thirty
years of service. The Full Bench, after adverting to the facts
in chronology and referring to the observations made by this
Court in Special Leave Petition No. 15098 of 2000 and
placing reliance on various decisions, took note of certain
aspects which we think is necessary to be reproduced: -
“Reverting back to the facts and circumstances of
the present case, it is again not disputed before us
that the delinquent officer was never placed under
suspension. After the order of dismissal of his
service dated 25.4.1985 was set aside by the
Court on 22.5.1998, the disciplinary authority has
neither concluded the disciplinary proceedings nor
has it passed any other appropriate order till
today, for the reasons best known to the
concerned authority. The question before this
Court is not whether the petitioner would or would
not stand superannuated in February, 1992 after
serving the Bank for a period of 30 years. This
question, in any case, was beyond the purview
and scope of the writ petition itself. Thus, the
parties cannot call upon the Full Bench to decide
this question in an application in this Writ Petition.
The parties are free to agitate the question in this
regard before the appropriate proceedings.”
9. Thereafter, the Full Bench referred to the decision in
Managing Director, ECIL, Hyderabad v. B. Karunakar
and others1 and came to hold that:
“The Full Bench having decided in no uncertain
terms that serious prejudice was caused to the
petitioner in the departmental proceedings, the
Bench set aside the order of dismissal and
remanded the matter to the authorities concerned
granting permission to proceed further in the
departmental enquiry in accordance with law and
to pass appropriate orders. The disciplinary
authority has miserably failed, over a period of
more than three years, to pass any appropriate
orders. We are unable to understand this conduct
on the part of the respondent-authorities. Though
1 (1993) 4 SCC 727
it has been contended that the petitioner has
superannuated in the year 1992, but eventually,
no copy of such order has been placed on record
of this Court. The Hon’ble Apex Court had granted
the interim stay during the pendency of the
Special Leave Petition subject to compliance of
provisions of Section 17-B of the Industrial
Disputes Act, which itself indicates that the
respondent Bank was obliged to pay salary in
terms thereof to the petitioner. Admittedly at no
point of time, right from the commencement of
the disciplinary proceedings till today, the
petitioner was ever placed under suspension.
Upon dismissal of the Special Leave Petition, the
judgment of the Full Bench has attained finality at
least interese the parties.”
10. After so stating the Full Bench observed that on the
date of non-furnishing of enquiry report to the delinquent
officer he was admittedly not under suspension but was in
service and, therefore, the inevitable conclusion was that he
would continue in service till he was dismissed from service
in accordance with law or superannuated in accordance with
Rules. However, without adverting to the issue whether he
stood superannuated in the year 1992 or not, was left to be
agitated independently. Eventually, the application was
allowed and the respondents therein were directed to pay
back wages to the deceased-respondent from the date of
dismissal till passing of the appropriate orders in the
disciplinary proceedings or superannuation of the petitioner
therein whichever was earlier. The said order is under assail
in Civil Appeal No. 239 of 2003.
11. At this juncture, it is essential to state the facts in
Transfer Case (C) No. 79 of 2013. Be it noted, when the Civil
Appeal was listed for hearing on 16.1.2013, this Court, while
hearing the appeal, was apprised about the subsequent
development that had taken place in pursuance of which the
original respondent No. 1 had preferred Civil Writ Petition
No. 11412 of 2003 in the High Court of Punjab and Haryana,
Chandigarh. Learned counsel for the respondents agreed for
transfer of the writ petition to this Court and on that day
learned counsel for the Bank took time to obtain instructions
and, eventually, on 24.1.2013 agreed to the transfer of the
writ petition to this Court to be heard along with the civil
appeal. Thereafter, by virtue of order dated 30.4.2013 it has
been registered as Transfer Case (C) No. 79 of 2013.
12. On a perusal of the writ petition it transpires that the
petitioner therein referred to the order passed by the Full
Page 10
10
Bench on 23.11.2001 and thereafter stated about the
disciplinary action taken against him after the initial
judgment and order passed by the Full Bench on 22.5.1998
and receipt of the order dated 22.11.2001 along with a cover
letter dated 26.11.2001 whereby the Bank had removed him
from service with retrospective effect from 23.4.1985, i.e.,
the date of earlier removal. It was contended in the writ
petition that the said order was unsustainable, because the
order of termination could have not been given retrospective
effect; that the conduct of the Bank was far from being
laudable and replete with legal mala fide and colourable
exercise of power; that the order of dismissal was violative
of principles of natural justice and further the grounds
mentioned in the order were totally unjustified; and that an
attempt had been made by the Bank to overreach the
judgment of the Full Bench. On the aforesaid basis, a prayer
was made for quashing the order dated 22.11.2001 and
directing the Bank to reinstate him in service with entire
benefits with effect from 23.4.1985 along with interest and
Page 11
11
to pass such other orders as it may deem fit and proper in
the facts and circumstances of the case.
13. We have heard Mr. Vikas Singh, learned senior counsel
for the appellant bank and Mr. P.S. Patwalia, learned senior
counsel for the legal heirs of the deceased-employee in the
appeal as well as the in the transfer petition.
14. The three issues that eminently emerge for
consideration are, (i) whether the employer Bank could
have, in law, passed an order of dismissal with retrospective
effect; (ii) whether the delinquent officer stood
superannuated after completion of thirty years as provided
under the Regulations on 25.2.1992; and (iii) whether the
legal heirs of the deceased-employee are entitled to get the
entire salary computed till the actual passing of the order of
dismissal, that is, 22.11.2001 or for that matter till the date
of superannuation, that is, 25.2.1992.
15. Regard being had to nature of controversy, we shall
proceed to deal with first point first, that is, whether the
order of removal could have been made with retrospective
effect. Mr. Patwalia, learned senior counsel appearing for
the employee, has submitted that the disciplinary authority
could not have passed an order of removal by making it
operational from a retrospective date. He has commended
us to a three-Judge Bench decision in R. Jeevaratnam v.
State of Madras2. In the said case, the appellant-therein
instituted a suit for a declaration that the order of dismissal
from service was illegal and void. The trial Court dismissed
the suit and the said decree was affirmed in appeal by the
High Court. One of the contentions raised before this Court
that the order of dismissal dated October 17, 1950 having
been passed with retrospective effect, i.e., May 29, 1949,
was illegal and inoperative. This Court opined that an order
of dismissal with retrospective effect is, in substance, an
order of dismissal as from the date of the order with the
superadded direction that the order should operate
retrospectively as from an anterior date. The two parts of
the order are clearly severable. Assuming that the second
part of the order is invalid, there is no reason why the first
2 AIR 1966 SC 951
part of the order should ot be given the fullest effect. The
said principle has been followed in The Gujarat Mineral
Development Corporation v. Shri P.H. Brahmbhatt3.
16. Mr. Vikas Singh, learned senior counsel has heavily
relied on the Constitution Bench decision in P.H. Kalyani v.
M/s. Air France, Calcutta4, wherein the employee had
challenged the order of the Labour Court relating to his
dismissal by the employer, the respondent company therein.
He was served a charge-sheet containing two charges of
gross dereliction of duty inasmuch as he had made mistakes
in the preparation of load-sheets on one day and a balance
chart on another day, which mistakes might have led to a
serious accident to the aircraft. An enquiry was fixed by the
Station Manager. His authority was questioned by the
appellant but his objection was overruled and the enquiry
was held and completed. The enquiry officer forwarded the
findings and his recommendations to the competent
authority of the company, on the basis of which he was
dismissed from service. The order of dismissal provided for
3 (1974) 3 SCC 601
4 AIR 1963 SC 1756
payment of one month’s wages for the appellant and also
stated that an application was made before the industrial
tribunal for the approval of the action taken, apparently as
some industrial dispute was pending before the tribunal. In
accordance with the order of dismissal, the respondent
company filed an application before the Labour Court
seeking approval of the action. The appellant thereafter
filed an application under Section 33-A of the Act challenging
the legality of the actions taken on many a ground. The
grounds were considered by the Labour Court and all of
them were substantially decided against the appellant. The
Labour Court held that the dismissal of the appellant was
justified and accordingly accorded approval to the order of
dismissal passed by the Management. While dealing with
various points raised by the appellant, the Labour Court held
that the application under Section 33(2)(b) of the Act was
validly made even though it had been made after the order
of dismissal had been passed. It also opined that the case
was not covered by Section 33(1) of the Act and it was not
necessary to obtain the previous permission of the tribunal
before dismissing the appellant, for he was not a protected
workman. After dealing with the other legal facets, the
Labour Court dismissed the application of the appellantemployee
under Section 33-A of the Act. Before the
Constitution Bench, it was urged that the domestic enquiry
held by the employer was defective as no approval of the
action taken in connection with enquiry and further the
Labour Court, even if held that the dismissal was justified, it
should have held that the order of dismissal would become
operative from the date of the award. In support of the said
submission, reliance was placed on M/s. Sasa Musa Sugar
Works (P) Ltd. v. Shobrati Khan5 wherein it was observed
as follows:-
“...as the management held no inquiry after
suspending the workmen and proceedings
under Section 33 were practically converted
into the inquiry which normally the
management should have held before
applying to the Industrial Tribunal, the
management is bound to pay the wages of the
workmen till a case for dismissal was made
out in the proceedings under Section 33.”
5 AIR 1959 SC 923
17. Referring to the said case, the Constitution Bench
observed that in Shobrati Khan (supra), an application was
made under Section 33(1) of the Act for permission to
dismiss the employees and such permission was asked for
though no enquiry whatsoever had been held by the
employer and no decision was taken that the employees be
dismissed and it was in those circumstances that a case for
dismissal was made out only in the proceedings under
Section 33(1) and, therefore, the employees were held
entitled to their wages till the decision on the application
under Section 33 of the Act. The Constitution Bench
observed that the matter would have been different if in that
case an enquiry had been held and the employer had come
to the conclusion that dismissal was proper punishment and
then they had applied under Section 33(1) for permission to
dismiss and, in those circumstances, the permission would
have related back to the date when the employer came to
the conclusion after an enquiry that the dismissal was the
proper punishment and had applied for removal of the ban
by an application under Section 33(1).
18. The larger Bench, in that context, made a reference to
the to the decision in Management of Ranipur Colliery v.
Bhuban Singh6 and thereafter held thus:-
“The present is a case where the employer has
held an inquiry though it was defective and has
passed an order of dismissal and seeks
approval of that order. If the inquiry is not
defective, the Labour Court has only to see
whether there was a prima facie case for
dismissal, and whether the employer had come
to the bona fide conclusion that the employee
was guilty of misconduct. Thereafter on coming
to the conclusion that the employer had bona
fide come to the conclusion that the employee
was guilty i.e. there was no unfair labour
practice and no victimisation, the Labour Court
would grant the approval which would relate
back to the date from which the employer had
ordered the dismissal. If the inquiry is defective
for any reason, the Labour Court would also
have to consider for itself on the evidence
adduced before it whether the dismissal was
justified. However, on coming to the conclusion
on its own appraisal of evidence adduced
before it that the dismissal was justified its
approval of the order of dismissal made by the
employer in a defective inquiry would still
relate back to the date when the order was
made. The observations therefore in Messrs.
Sasa Musa Sugar Company on which the
appellant relies apply only to a case where the
employer had neither dismissed the employee
nor had come to the conclusion that a case for
dismissal had been made out. In that case the
dismissal of the employee takes effect from
6 AIR 1959 SC 833
the date of the award and so until then the
relation of employer and employee continues
in law and in fact. In the present case an
inquiry has been held which is said to be
defective in one respect and dismissal has
been ordered. The respondent had however to
justify the order of dismissal before the Labour
Court in view of the defect in the inquiry. It has
succeeded in doing so and therefore the
approval of the Labour Court will relate back to
the date on which the respondent passed the
order of dismissal. The contention of the
appellant therefore that dismissal in this case
should take effect from the date from which
the Labour Court's award came into operation
must fail.”
19. In this regard, we may refer to a two-Judge Bench
decision in R. Thiruvirkolam v. Presiding Officer and
another7. In the said case, the appellant was dismissed
from service and a domestic enquiry was instituted on
18.11.1981 on proof of misconduct and he had challenged
his dismissal before the Labour Court which found that the
domestic enquiry to be defective and permitted the
Management to prove the misconduct before it. On the
basis of the evidence adduced before the Labour Court, it
came to the conclusion that the misconduct was duly
proved. When the matter travelled to this Court, leave
7 (1997) 1 SCC 9
granted in the appeal was confined only to the question:
Whether the dismissal would take effect from the date of the
order of the Labour Court, namely, 11.12.1985 or it would
relate to the date of order of dismissal passed by the
employer, namely, 18.11.1981. The Court distinguished the
decision in Gujarat Steel Tubes Limited and others v.
Gujarat Steel Tubes Mazdoor Sabha and others8 on the
basis of the principles stated in P.H. Kalyani’s (supra).
20. At this stage, we may refer with profit to the authority
in Punjab Dairy Development Corporation Ltd. and
another v. Kala Singh and others9 wherein a three-Judge
Bench was dealing with a reference made by a Bench of
three Judges to consider the correctness of the decision in
Desh Raj Gupta v. Industrial Tribunal IV, U.P.10. The
three-Judge Bench referred to the necessitous facts that the
respondent therein, Kala Singh, was working as a Dairy
Helper-cum-Cleaner for collecting the milk from various
centres. He was charged with misconduct and after
8 (1980) 2 SCC 593
9 (1997) 6 SCC 159
10 (1991) 1 SCC 249
conducting due domestic enquiry, the disciplinary authority
dismissed him from service. On reference, the labour court
found that the domestic enquiry conducted by the employerappellant
was defective. Consequently, opportunity was
granted to the management to adduce evidence afresh to
justify the order of dismissal and, accordingly, the evidence
was adduced by the appellant and the delinquentrespondent.
On consideration of the evidence the labour
court found that the charge had been proved against the
respondent and opined that the punishment was not
disproportionate to the magnitude of misconduct of the
respondent. In a writ petition the High Court set aside the
award of the labour court to the extent of confirmation of the
dismissal from service with effect from the date of the
judgment of the labour court and not from any date earlier
thereto. The three-Judge Bench noted that subsequent to
the reference pertaining to correctness of the decision in
Desh Raj Gupta (supra) the decision has been rendered by
a two-Judge Bench in R. Thiruvirkolam (supra) and
thereafter proceeded to state as follows: -
“In the decision of the Constitution Bench in P.H.
Kalyani v. Air France, this Court had held that
once the labour court found the domestic enquiry
to be defective and gave opportunity to the
parties to adduce the evidence and also that the
order of termination of the service or dismissal
from service is valid, it would relate back to the
original order of the dismissal. But a discordant
note was expressed by the three-Judge Bench in
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha which
was considered by this Court in Thiruvirkolam
case and it was held that in view of the judgment
of the Constitution Bench, the three-Judge Bench
judgment was not correct. Desh Raj Gupta case
was also considered and it was held that it has not
been correctly decided. Thus, we are relieved of
reviewing the entire case-law in that behalf.
In view of the aforesaid decisions and in view
of the findings recorded by the Labour Court, we
are of the considered opinion that the view
expressed in Desh Raj Gupta case is not correct. It
is accordingly overruled. Following the judgment
of the Constitution Bench, we hold that on the
Labour Court’s recording a finding that the
domestic enquiry was defective and giving
opportunity to adduce the evidence by the
management and the workman and recording of
the finding that the dismissal by the management
was valid, it would relate back to the date of the
original dismissal and not from the date of the
judgment of the Labour Court.”
21. At this juncture, we may notice what was the
perception at the subsequent stage. In Vishweshwaraiah
Iron and Steel Ltd. v. Abdul Gani and others11, a two-
Judge Bench observed as follows: -
“3. The moot question would arise whether the
ratio of the Constitution Bench judgment in Kalyani
case would almost automatically apply to such
cases apart from the cases arising under Section
33 of the I.D. Act. We may, in this connection,
mention that the decision of the three-Judge Bench
of this Court in Gujarat Steel Tubes Ltd. v. Gujarat
Steel Tubes Mazdoor Sabha wherein Krishna Iyer,
J., spoke for the majority, was an authority on the
question of leading evidence before the Industrial
Court in proceedings under Section 10-A of the Act
and on the question of relation back of ultimate
penalty order passed by the arbitrator on the basis
of evidence led by the management for
justification of its action before such Tribunal.
Therefore, the question would arise whether the
ratio of this decision would still apply to a case
where the proceedings relate to Section 10 or 10-A
of the Act apart from Section 33 of the Act. The
later decisions of this Court have applied the ratio
of the decision in Kalyani case to matters arising
under Sections 10 and 10-A of the Act. In our view,
therefore, the dispute in the present proceedings
could be better resolved by a Constitution Bench of
this Court which can consider the scope and ambit
of the decision of the earlier Constitution Bench
judgment in Kalyani case which has been the
sheet-anchor of the subsequent cases referred to
earlier on which a strong reliance has been placed
by learned counsel for the petitioner and which
had nothing to do with proceedings under Section
33 of the Act. The later decisions of this Court will
also, therefore, require a re-look.”
11 AIR 1998 SC 185 : (1997) 8 SCC 713
22. Thereafter, it granted leave and directed the appeals to
be placed for final disposal before a Constitution Bench.
When the matter came before the Constitution Bench in
Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani
and others12, the larger Bench, on 31.1.2002, passed the
following order: -
“The order of reference was made to a
Constitution Bench by a Bench of two learned
Judges for the reason that they found some
difficulty in coming to a conclusion as to whether
an earlier Constitution Bench judgment and
judgments of Benches of three learned Judges
resolved this question. In our view, a Bench of
two learned Judges cannot make a reference
directly to a Constitution Bench; this has been laid
down in the judgment in Pradip Chandra Parija v.
Pramod Chandra Patnaik13. It is, therefore, that
this Constitution bench will not decide the
reference.”
23. In this context, a reference to a three-Judge Bench
decision in Engineering Laghu Udyog Employees’ Union
v. Judge, Labour Court and Industrial Tribunal and
another14 would be apt. In the said case a contention was
canvassed on behalf of the workmen that the view taken by
12 (2002) 10 SCC 437
13 (2002) 1 SCC 1
14 (2003) 12 SCC 1
the High Court to the extent it held that the order of
termination would relate back to the date of the original
order of termination, was erroneous and to bolster the said
submission reliance was placed on Gujarat Steel Tubes
Ltd. (supra). The Court, after referring to earlier decisions,
opined that Section 11-A of the Act confers a wide power
upon the Labour Court, Industrial Tribunal or the National
Tribunal to give appropriate relief in case of discharge or
dismissal of workman. While adjudicating on a reference
made to it, the Labour Court, Tribunal or the National
Tribunal, as the case may be, if satisfied that the order of
discharge or dismissal was not justified, may, while setting
aside the same, direct reinstatement of the workman on
such terms and conditions, if any, as it thinks fit, or give
such other relief to the workman including the award of any
lesser punishment in lieu of discharge or dismissal as the
circumstances of the case may require. Only in a case
where the satisfaction is reached by the Labour Court or the
Tribunal, as the case may be, that an order of dismissal was
not justified, the same can be set aside. So long as the
same is not set aside, it remains valid. But once whether on
the basis of the evidence brought on record in the domestic
inquiry or by reason of additional evidence, the employer
makes out a case justifying the order of dismissal the stand
that such order of dismissal can be given effect to only from
the date of the award and not from the date of passing of
the order of punishment was not legally acceptable. The
Court further ruled that the distinction sought to be made by
this Court in some of the matters including Gujarat Steel
Tubes was not based on a sound premise, particularly when
the binding decisions of the Court in Workmen v. Motipur
Sugar Factory15 and Workmen v. Firestone Tyre &
Rubber Co. of India (P) Ltd.16 had not been taken note of.
24. Thereafter, the three-Judge Bench referred to the
decision in Motipur Sugar Factory (P) Ltd. (supra) and it
was ruled that the employer has got a right to adduce
evidence before the tribunal justifying its action, even where
no domestic inquiry whatsoever has been held. Reference
was also made to the decision in Firestone Tyre & Rubber
15 AIR 1965 SC 1803
16 (1973) 1 SCC 813
Co. of India (P) Ltd. (supra) wherein the Court formulated
the proposition of law emerging from earlier decisions. The
relevant propositions are as follows: -
“32. From those decisions, the following principles
broadly emerge:
(1)-(3) * * *
(4) Even if no enquiry has been held by an
employer or if the enquiry held by him is found to
be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, has to
give an opportunity to the employer and employee
to adduce evidence before it. It is open to the
employer to adduce evidence for the first time
justifying his action, and it is open to the employee
to adduce evidence contra.
(5) * * *
(6) The Tribunal gets jurisdiction to consider the
evidence placed before it for the first time in
justification of the action taken only if no enquiry
has been held or after the enquiry conducted by
an employer is found to be defective.
(7) It has never been recognised that the Tribunal
should straight away, without anything more,
direct reinstatement of a dismissed or discharged
employee, once it is found that no domestic
enquiry has been held or the said enquiry is found
to be defective.
(8) * * *”
25. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.
Ram Gopal Sharma and others17 the Constitution Bench
reiterated the principles stated in P.H. Kalyani (supra) and
overruled a three-Judge Bench decision rendered in Punjab
Beverages (P) Ltd. v. Suresh Chand18.
26. We have referred to the aforesaid line of judgments to
highlight that these authorities pertain to the lis under the
Act. The doctrine of “relation back” of an imposition of
punishment in case of a labour court finding the domestic
enquiry as defective and granting opportunity to the
employer to substantiate the same either under Section 10A
or proceedings under Section 33 of the Act, in our
considered opinion, in the present case, need not be gone
into as the nature of controversy is quite different. Suffice it
to say, the aforesaid authorities have to be restricted to the
disputes under the Act.
27. At this juncture, we think it appropriate to state in detail
what the Full Bench had ruled on the first occasion on
17 (2002) 2 SCC 244
18 (1978) 2 SCC 144
22.5.1998. We have already stated as to what directions it
had passed and how the civil appeal stood dismissed
keeping the law open as far as applicability of Section 17B of
the Act is concerned. The fact remains, the said judgment
had attained finality inter se parties. The Full Bench took
note of the fact that the report of the enquiry officer which
ran into 68 pages was not furnished to the delinquent officer
as a result of which he was deprived of the benefit of
knowing the contents of the report and submitting his
version with regard to the correctness of the findings of the
enquiry report. The High Court opined that the delinquent
officer had suffered serious prejudice. Thereafter, the Court
referred to the order of punishment passed by the Managing
Director which apparently shows that the recommendations
of the General Manager (Operation) were taken into
consideration. Proceeding further it expressed as follows: -
“It is not disputed before us that the copy of the
comments of General Manager as afore referred
were never furnished to the delinquent officer, as
such, he never had the occasion to see this
document which apparently has been taken into
consideration by the authorities concerned. The
impugned order is the cumulative result of all the
3 charge sheets and the comments of the General
Manager obviously related to the matter in issue.
Non furnishing of such material document to the
petitioner is also a flagrant violation of the
principles of natural justice. By no stretch of
imagination it could be accepted that a document
prepared at the back of the petitioner, copy of
which was admittedly not furnished to him, can be
permitted to be a foundation of the order of
punishment. Such an action would certainly be
contrary to fair play.”
And thereafter: -
“Non supply of this document certainly caused
definite prejudice to the case of the petitioner.
The petitioner had every right to comment or
meet the points raised in the recommendation of
the General Manager. Thus, there is denial of fair
and reasonable opportunity to the delinquent
officer in the present case. The delinquent officer
was not even aware as to what case he was to
meet as projected in the report of
recommendations of the General Manager which
were considered by the authorities while imposing
punishment on him.
The cumulative effect of our above
discussion is that the impugned orders of
punishment dated 25.4.1985 and dated 18.7.1986
are liable to be quashed, which we do hereby
quash without any hesitation. However, we would
further direct the Disciplinary Authority to grant
opportunity to the petitioner to reply to the
enquiry report and pass appropriate orders after
granting personal hearing to the petitioner in
accordance with law.”
28. In this context, it is instructive to reproduce the
observations made by the Constitution Bench in B.
Karunakar (supra) which adverted to the question that
relates to the effect on the order of punishment when the
report of the enquiry officer is not furnished to the employee
and what relief should be granted to him in such cases.
Answering the question, the Court observed that the answer
to the said question has to be relative to the punishment
awarded. When the employee is dismissed or removed from
service and the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing of the
report may have prejudiced him gravely while in other cases
it may have made no difference to the ultimate punishment
awarded to him and hence, to direct reinstatement of the
employee with back-wages in all cases is to reduce the rules
of justice to a mechanical ritual. The theory of reasonable
opportunity and the principles of natural justice have been
evolved to uphold the rule of law and to assist the individual
to vindicate his just rights. They are neither incantations to
be invoked nor rites to be performed on all and sundry
occasions. Whether in fact, prejudice has been caused to the
employee or not on account of the denial to him of the
report, has to be considered on the facts and circumstances
of each case. In case where even after the furnishing of the
report, no different consequence would have followed, it
would be a perversion of justice to permit the employee to
resume duty and to get all the consequential benefits as it
would amount to rewarding the dishonest and the guilty and
stretching the concept of justice to illogical and exasperating
limits.
29. After so stating the larger Bench proceeded to rule that
in all cases where the enquiry officer’s report is not furnished
to the delinquent employee in the disciplinary proceedings,
the Courts and Tribunals should cause the copy of the report
to be furnished to the aggrieved employee if he has not
already secured it before coming to the Court/Tribunal and
give the employee an opportunity to show how his or her
case was prejudiced because of the non-supply of the report.
If after hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
punishment given, the Court/Tribunal should not interfere
with the order of punishment. The Court/Tribunal should not
mechanically set aside the order of punishment on the
ground that the report was not furnished. This Court further
observed that since it is the Courts/Tribunals which will apply
their judicial mind to the question and give their reasons for
setting aside or not setting aside the order of punishment,
there would be neither a breach of the principles of natural
justice nor a denial of the reasonable opportunity. It is only if
the Court/Tribunal finds that the furnishing of the report
would have made a difference to the result in the case that it
should set aside the order of punishment. Thereafter, the
Constitution Bench opined thus:-
“Where after following the above procedure, the
Court/Tribunal sets aside the order of punishment,
the proper relief that should be granted is to
direct reinstatement of the employee with liberty
to the authority/management to proceed with the
inquiry, by placing the employee under
suspension and continuing the inquiry from the
stage of furnishing him with the report. The
question whether the employee would be entitled
to the back-wages and other benefits from the
date of his dismissal to the date of his
reinstatement if ultimately ordered, should
invariably be left to be decided by the authority
concerned according to law, after the culmination
of the proceedings and depending on the final
outcome. If the employee succeeds in the fresh
inquiry and is directed to be reinstated, the
authority should be at liberty to decide according
to law how it will treat the period from the date of
dismissal till the reinstatement and to what
benefits, if any and the extent of the benefits, he
will be entitled. The reinstatement made as a
result of the setting aside of the inquiry for failure
to furnish the report, should be treated as a
reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and
no more, where such fresh inquiry is held. That
will also be the correct position in law.”
30. In the case at hand, the said stage is over. The Full
Bench on the earlier occasion had already rendered a verdict
that the serious prejudice had been caused and, accordingly,
had directed for reinstatement. The said direction, if
understood and appreciated on the principles stated in B.
Karunakar (supra), is a direction for reinstatement for the
purpose of holding a fresh enquiry from the stage of
furnishing the report and no more. In the case at hand, the
direction for reinstatement was stayed by this Court. The
Bank proceeded to comply with the order of the High Court
from the stage of reply of enquiry. The High Court by the
impugned order had directed payment of back wages to the
delinquent officer from the date of dismissal till passing of
the appropriate order in the disciplinary
proceeding/superannuation of the petitioner therein
whichever is earlier. The Bank has passed an order of
dismissal on 22.11.2001 with effect from 23.4.1985. The
said order, as we perceive, is not in accord with the principle
laid down by the Constitution Bench decision in B.
Karunakar (supra), for it has been stated there that in case
of non-furnishing of an enquiry report the court can deal with
it and pass as appropriate order or set aside the punishment
and direct reinstatement for continuance of the
departmental proceedings from that stage. In the case at
hand, on the earlier round the punishment was set aside and
direction for reinstatement was passed. Thus, on the face of
the said order it is absolutely inexplicable and unacceptable
that the Bank in 2001 can pass an order with effect from
23.4.1985 which would amount to annulment of the
judgment of the earlier Full Bench. As has been held by the
High Court in the impugned judgment that when on the date
of non-furnishing of the enquiry report the delinquent officer
was admittedly not under suspension, but was in service
and, therefore, he would continue in service till he is
dismissed from service in accordance with law or
superannuated in conformity with the Regulations. How far
the said direction is justified or not or how that should be
construed, we shall deal with while addressing the other
points but as far as the order of removal being made
retrospectively operational, there can be no trace of doubt
that it cannot be made retrospective.
31. Presently, we shall proceed to deal with the issue of
superannuation as envisaged under the Regulations.
Regulation 19(1) deals with superannuation of an employee.
The relevant part of Regulation 19(1) is as follows: -
“19. Age of retirement. – (1) An officer shall retire
from the service of the Bank on attaining the age
of fifty eight years or upon the completion of
thirty years’ service whichever occurs first.
Provided that the Competent Authority may, at its
discretion, extend the period of service of an
officer who has attained the age of fifty eight
years or has completed thirty years’ service as
the case may be, should such extension be
deemed desirable in the interest of the Bank.
Provided further that an officer who had joined the
service of the Bank either as an officer or
otherwise on or after the 19th July, 1969 and
attained the age of 58 years shall not be granted
any further extension in service.
Provided further that an officer may, at the
discretion of the Executive Committee, be retired
from the Bank’s service after he has attained 50
years of age or has completed 25 years service as
the case may be, by giving him three months
notice in writing or pay in lieu thereof.”
32. On a careful reading of the first proviso to Regulation
19(1) it is quite clear that the period of service can be
extended by the discretion of the competent authority and
such extension has to be desirable in the interest of the
Bank. The second proviso provides that an officer who has
joined the service of the bank either as an officer or
otherwise on or after 19.7.1969 and attained the age of 58
years shall not be granted any further extension in service.
By this proviso the power of the competent authority in
respect of officers who had joined as officers or otherwise
after the cut-off date, i.e. 19.7.1969 and have attained the
age of 58 years of service, is curtailed. The delinquent
officer joined the service as a clerk in the Bank on 26.2.1962
and was promoted as Grade-II Officer in 1971 and as Grade-I
Officer in 1977. Even if this provision is extended to him, he
could not have been granted extension of service after
completion of 58 years of age. The said officer attained the
age of 58 years on 24.2.2002. Be that as it may, the grant
of extension is dependent on satisfaction the conditions as
laid down in the first proviso. As is seen from the earlier
round of litigation, the Full Bench had quashed the
punishment and directed for reinstatement. In the second
round in CM No. 1965 of 2000 the High Court has directed
that the employee shall continue till passing of the
appropriate orders in the disciplinary proceedings or
superannuated as per rules. It has not commented on the
validity of superannuation in the year 1992 as pleaded by
the Bank and left it to be agitated in appropriate proceeding.
Mr. Vikas Singh, learned senior counsel appearing for the
employer-Bank, has submitted that the delinquent employee
completed thirty years of service in 1992 and regard being
had to the stipulation in the Regulation 19(1), he stood
Page 38
38
superannuated. Learned senior counsel would further
submit that for extension of the period an affirmative act by
the competent authority of the Bank is imperative. Mr.
Patwalia, learned senior counsel appearing for the employee
submitted that the delinquent officer could not have been
superannuated on completion of thirty years of service as it
was obligatory on the part of the Bank to intimate the officer
that he had reached the stage of superannuation and, in any
case, as the Bank continued the proceedings in pursuance of
the liberty granted by the High Court, the relationship
between the employer and employee had not come to an
end.
33. At this juncture, it is noteworthy to refer to Regulation
19(2) of the Regulations. It reads as follows: -
“19 (2) In case disciplinary proceedings under
the relevant regulations of service have been
initiated against an officer before he ceases to be
in the Bank’s service by the operation of, or by
virtue of any of the said regulations or the
provisions of these regulations the disciplinary
proceedings may, at the discretion of the
Managing Director, be continued and concluded by
the authority by which the proceedings were
initiated in the manner provided for in the said
regulations as if the officer continues to be in
service, so however, that he shall be deemed to be
in service only for the purpose of the continuance
and conclusion of such proceedings.
Explanation: An officer will retire on the last day
of the month in which he completes the stipulated
service or age of retirement.”
34. The aforesaid Regulation, as it seems to us, deals with
a different situation altogether. It clearly lays down that if
the disciplinary proceedings have been initiated against an
officer during the period when he is in service, the said
proceedings can continue even after his retirement at the
discretion of the Managing Director and for the said limited
purpose the officer shall be deemed to be in service. In this
regard it is worthwhile to refer to the decision in UCO Bank
and another v. Rajinder Lal Capoor19 , wherein the
appellant-Bank was grieved by the decision of the High
Court whereby the order of punishment of removal imposed
on an officer was modified to one of compulsory retirement
with effect from the date of superannuation. In the said
case, the employee attained the age of superannuation on
1.11.1996 and charge-sheet was issued on 13.11.1998. The
19 (2007) 6 SCC 694
disciplinary proceeding was initiated against the employee
in terms of Regulation 20(3)(iii) of the UCO Bank Officer
Employees’ Service Regulations, 1979 which reads as
follows: -
“20. (3)(iii) The officer against whom disciplinary
proceedings have been initiated will cease to be in
service on the date of superannuation but the
disciplinary proceedings will continue as if he was
in service until the proceedings are concluded and
final order is passed in respect thereof. The officer
concerned will not receive any pay and/or
allowance after the date of superannuation. He will
also not be entitled for the payment of retirement
benefits till the proceedings are completed and
final order is passed thereon except his own
contributions to CPF.”
Interpreting the said Regulation, the Court opined that
a bare reading of the said Regulation would clearly show that
by reason thereof a legal fiction has been created, but the
said legal fiction could be invoked only when the disciplinary
proceedings had clearly been initiated prior to the
respondent’s ceasing to be in service. Further proceeding,
the two-Judge Bench observed thus: -
“An order of dismissal or removal from service can
be passed only when an employee is in service. If
a person is not in employment, the question of
terminating his services ordinarily would not arise
unless there exists a specific rule in that behalf.
As Regulation 20 is not applicable in the case of
the respondent, we have no other option but to
hold that the entire proceeding initiated against
the respondent became vitiated in law.”
35. In this context, reference to the authority in Ramesh
Chandra Sharma v. Punjab National Bank and
another20 would be fruitful. In the said case the High Court
had ruled that the appellant therein could not have been
dismissed from service after his retirement. This Court
referred to Regulation 20(3)(iii) of the Punjab National Bank
Officer Employees’ (Discipline & Appeal) Regulations, 1977
which reads as follows: -
“20. (3)(iii) The officer against whom disciplinary
proceedings have been initiated will cease to be in
service on the date of superannuation but the
disciplinary proceedings will continue as if he was
in service until the proceedings are concluded and
final order is passed in respect thereof. The officer
concerned will not receive any pay and/or
allowance after the date of superannuation. He
will also not be entitled for the payment of
retirement benefits till the proceedings are
completed and final order is passed thereon
except his own contribution to CPF.”
20 (2007) 9 SCC 15
36. Interpreting the said Regulation the two-Judge Bench
held thus: -
“The said Regulation clearly envisages
continuation of a disciplinary proceeding despite
the officer ceasing to be in service on the date of
superannuation. For the said purpose a legal
fiction has been created providing that the
delinquent officer would be deemed to be in
service until the proceedings are concluded and
final order is passed thereon. The said Regulation
being statutory in nature should be given full
effect.”
37. Slightly more recently in State Bank of India v. Ram
Lal Bhaskar and another21, a three-Judge Bench, placing
reliance on Rule 19(3) of the State Bank of India Officers
Service Rules, 1992, opined that in view of the language
employed in Rule 19 which stipulated that in case the
disciplinary proceedings under the relevant rules of service
have been initiated against an officer before he ceases to be
in the bank’s service by the operation of, or by virtue of, any
of the rules or the provisions of the Rules, the disciplinary
proceedings may, at the discretion of the Managing Director,
be continued and concluded by the authority by whom the
21 (2011) 10 SCC 249
proceedings were initiated in the manner provided for in the
Rules as if the officer continues to be in service. He shall be
deemed to be in service only for the purpose of the
continuance and conclusion of such proceedings and the
punishment could be imposed.
38. In the case at hand, the disciplinary proceeding was
initiated against the delinquent officer while he was in
service. The first order of dismissal was passed on
23.4.1985. The said order of punishment was set aside by
the High Court and the officer concerned was directed to be
reinstated for the limited purpose, i.e., supply of enquiry
report and to proceed in the disciplinary proceeding from
that stage. The said order was not interfered with by this
Court. The Bank continued the proceeding. Needless to
emphasise, the said continuance was in pursuance of the
order of the Court. Under these circumstances, it has to be
accepted that the concept of deemed continuance in service
of the officer would have full play and, therefore, an order of
removal could have been passed after finalization of the
departmental proceeding on 22.11.2001. We have already
held that the said order would not have been made
retrospectively operative, but that will not invalidate the
order of dismissal but it would only have prospective effect
as has been held in R. Jeevaratnam (supra).
39. Having said that, it becomes necessary to determine
the date of retirement and thereafter delve into how the
period from the date of first removal and date of retirement
would be treated. We may hasten to add that for the
purpose of deemed continuance the delinquent officer would
not be entitled to get any benefit for the simple reason, i.e.,
the continuance is only for finalisation of the disciplinary
proceedings, as directed by the Full Bench of the High Court.
Hence, the effect and impact of Regulation 19(1) of the
Regulations comes into full play. On a seemly construction
of the first proviso we are of the considered view that it
requires an affirmative act by the competent authority, for it
is an exercise of power of discretion and further the said
discretion has to be exercised where the grant of extension
is deemed desirable in the interest of the Bank. The
submission of Mr. Patwalia to the effect that there should
have been an intimation by the employer-Bank is founded
on the finding recorded by the High Court in the impugned
order that no order had been brought on record to show that
the delinquent officer had retired. As the facts would reveal,
in the year 1992 the concerned officer stood removed from
service and at that juncture to expect the Bank in law to
intimate him about his date of superannuation or to pass an
order would be an incorrect assumption. The conclusion
which appears logical and acceptable is that unless an
extension is granted by a positive or an affirmative act by
the competent authority, an officer of the Bank retires on
attaining age of 58 years or upon the completion of 30 years
of service, whichever occurs first. In this regard the
pronouncement in C.L. Verma v. State of Madhya
Pradesh and another22 is apt to refer. In the said case the
effect of Rule 29 of Madhya Pradesh State Municipal Service
(Executive) Rules, 1973 fell for interpretation. In the said
Rule it was provided that a member of the service shall
attain the age of superannuation on the date he completes
22 1989 Supp (2) SCC 437
his 58 years of age. The proviso to the said Rule stipulated
that the State Government may allow a member of the
service to continue in employment in the interest of
Municipal Council or in public interest and, however, no
member of service shall continue in service after he attains
the age of 60 years. The appellant therein had attained the
age of 58 years two days prior to the order of dismissal. The
Court opined that the tenor of the proviso clearly indicates
that it is intended to cover specific cases and individual
employees. Be it noted, on behalf of the Government a
notification was issued by the concerned Department. The
Court opined that the said circular was not issued under the
proviso to Rule 29 but was administrative in character and
that on the face of mandate in Rule 29 the administrative
order could not operate. The Court further ruled that as the
appellant therein had attained the age of superannuation
prior to the date of passing the order of dismissal, the
Government had no right to deal with him in its disciplinary
jurisdiction available in regard to employees. We have
referred to this decision to highlight that the Regulation
herein also is couched in similar language and, therefore,
the first proviso would have full play and it should be
apposite to conclude that the delinquent officer stood
superannuated on completion of 30 years of service on
25.2.1992. It is because the conditions stipulated under the
first proviso to the said Regulation deal with a conditional
situation to cover certain categories of cases and require an
affirmative act and in the absence of that it is difficult to
hold that the delinquent officer did not retire on completion
of thirty years of service.
40. The next issue pertains to how the period from the date
of order of first removal, i.e., 23.4.1985 till 25.2.1992 would
be treated and to what benefits the officer concerned would
be entitled to. The order of removal from service, as we
have already opined, would come into effect from the date
of passing of the order, i.e., 22.11.2001 as it has to be
prospectively operative and, therefore, as a natural corollary
he remained in service from 23.4.1985 till he attained the
age of superannuation, i.e., 25.2.1992 or till the end of
February, 1992, being the last day of the month. In the
transfer case relief has been sought for grant of full salary
for the whole period. Mr. Patwalia, learned senior counsel
appearing for the legal representatives of the original
petitioner, would contend that they should be entitled to get
the full salary till the order of removal. We are unable to
accept the said submission because we have already ruled
that the officer stood superannuated on completion of thirty
years and his continuance by virtue of the order passed by
the High Court has to be treated as a deemed continuance
for the purposes of finalization of the disciplinary
proceeding. The submission put forth by Mr. Vikas Singh
that the order of removal would relate back to the date of
the earlier order, i.e., 23.4.1985 has already been repelled
by us. Thus, we are to restrict the period for grant of benefit
till the date of retirement. Mr. Singh in course of hearing
has alternatively submitted that under no circumstances
back wages in entirety should be paid as the concerned
officer had not worked. To bolster his submission he has
commended us to the decisions in A.P. State Road
Transport Corporation and others v. Abdul Kareem23,
A.P. SRTC and another v. B.S. David Paul24 and J.K.
Synthetics Ltd. v. K.P. Agrawal and another25 wherein
grant of back wages has been restricted on certain
parameters. He has also urged that in pursuance of the
order dated 15.12.2003 the Bank has deposited Rs.5.00 lacs
in the High Court which was permitted to be withdrawn by
the delinquent officer furnishing adequate security to the
satisfaction of the Registrar General of the High Court and
under the circumstances the said amount may be treated as
back wages and be paid to the legal heirs, if not withdrawn
by the original petitioner.
41. It is worthy to note here that during the continuance of
the disciplinary proceeding the delinquent officer was not
put under suspension. After the order of punishment passed
by the disciplinary authority and affirmed by the appellate
authority was quashed by the High Court on 22.5.1998, the
concerned officer has to be treated to be in service from his
23 (2005) 6 SCC 36
24 (2006) 2 SCC 282
25 (2007) 2 SCC 433
date of first removal till his date of retirement. Had the
Bank brought to the notice of the Full Bench about the legal
position under the Regulations, in all probability, the matter
would have been dealt with differently. Be that as it may,
grant of salary in entirety for the period as determined by us
to be the period of continuance in service would not be
apposite and similarly, the submission advanced on behalf
of the Bank that payment of rupees five lacs would meet the
ends of justice does not deserve acceptance. Ordinarily, we
would have directed the Bank to pay fifty per cent of the
back wages for the period commencing 23.4.1985 till the
end of February, 1992, with some interest but we do not
want that the legal heirs of the delinquent officer should
further go through any kind of tribulation in computation
and face further legal hassle as regards the quantum. We
are of the considered opinion that the controversy should be
given a quietus and, therefore, instead of fixing fifty per cent
of the back wages we direct that the Bank shall deposit a
further sum of rupees five lacs with the Registrar General of
the High Court within two months hence and the
respondents shall be entitled to withdraw the same. We
may hasten to clarify that if the amount earlier deposited
has not been withdrawn by the original respondent, Ram
Niwas Bansal, the same shall also be withdrawn by the legal
heirs.
42. In view of the aforesaid directions, the judgment and
order passed by the High Court is modified and the civil
appeal and the transfer case are disposed of leaving the
parties to bear their respective costs.
……………………….J.
[H.L. Gokhale]
……………………….J.
[Dipak Misra]
New Delhi;
March 3, 2014.
Print Page
of order of first removal, i.e., 23.4.1985 till 25.2.1992 would
be treated and to what benefits the officer concerned would
be entitled to. The order of removal from service, as we
have already opined, would come into effect from the date
of passing of the order, i.e., 22.11.2001 as it has to be
prospectively operative and, therefore, as a natural corollary
he remained in service from 23.4.1985 till he attained the
age of superannuation, i.e., 25.2.1992 or till the end of
February, 1992, being the last day of the month. In the
transfer case relief has been sought for grant of full salary
for the whole period. Mr. Patwalia, learned senior counsel
appearing for the legal representatives of the original
petitioner, would contend that they should be entitled to get
the full salary till the order of removal. We are unable to
accept the said submission because we have already ruled
that the officer stood superannuated on completion of thirty
years and his continuance by virtue of the order passed by
the High Court has to be treated as a deemed continuance
for the purposes of finalization of the disciplinary
proceeding. The submission put forth by Mr. Vikas Singh
that the order of removal would relate back to the date of
the earlier order, i.e., 23.4.1985 has already been repelled
by us. Thus, we are to restrict the period for grant of benefit
till the date of retirement.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 239 OF 2003
State Bank of Patiala and another … Appellants
Versus
Ram Niwas Bansal (Dead) through LRs. …Respondents
WITH
TRANSFER CASE (C) NO. 79 OF 2013
Read original Judgment here;http://bit.ly/1jkWTP8
Citation;2014(3) ALLMR480 SC
Dipak Misra, J.
Ram Niwas Bansal, the predecessor-interest of the
respondents 1 to 4, the legal heirs who have been brought
on record after his death during the pendency of this appeal,
while posted as Accountant at the Narnaul Branch of the
appellant-Bank in the Officer Cadre, was served with a
charge-sheet dated 20.10.1980 for certain financial
irregularities. Two supplementary charge-sheets dated
15.1.1981 and 8.1.1982 were also issued to the said officer.
After explanation was offered by late Ram Niwas Bansal, the
disciplinary authority appointed an Enquiry Officer who, after
conducting the enquiry, submitted his report to the General
Manager (Operations) of the Bank holding that certain
charges had been proved, some charges had been partly
proved and some charges had not been proved. The
disciplinary authority concurred with the findings recorded
by the Enquiry Officer and recommended for removal of the
delinquent officer from the Bank’s service to the appointing
authority in accord with the terms of Regulation 68(1)(ii) of
the State Bank of Patiala (Officers’) Service Regulations,
1979 (for short “the 1979 Regulations”) and the appointing
authority, i.e., Managing Director, agreeing with the findings
recorded by the Enquiry Officer and the recommendations of
the disciplinary authority, imposed the penalty of removal
vide order dated 23.4.1985. The order imposing punishment
of removal from service along with a copy of the enquiry
report was sent to late Bansal who preferred an appeal
under Regulation 70 of the 1979 Regulations before the
Executive Committee which, vide order dated 18.7.1986,
rejected the appeal.
2. Being grieved by the aforesaid orders, he preferred
CWP No. 4929 of 1986 before the High Court for issuance of
a writ of certiorari for quashment of all the orders and for
issue of appropriate direction to reinstate him in service with
full service benefits. On 1.10.1993 the learned single Judge
referred the matter to the larger Bench and ultimately the
matter was placed before the Full Bench.
3. The Full Bench, vide order dated 22.5.1998, ruled that
non-supply of comments of the General Manager had caused
serious prejudice to the delinquent officer and there was
denial of fair and reasonable opportunity and on that basis
set aside the order of punishment. However, it directed the
disciplinary authority to grant an opportunity to the
petitioner therein to reply to the enquiry report and pass
appropriate orders after granting personal hearing to the
petitioner therein in accordance with law.
4. Dissatisfied with the aforesaid judgment and order, the
appellant-Bank preferred Special Leave Petition (C) No. 2442
of 1998 and after grant of leave the same was registered as
Civil Appeal No. 773 of 1998. On 12.4.1999 this Court
directed stay of reinstatement of the respondent therein with
the direction that the Bank would comply with the provisions
of Section 17-B of the Industrial Disputes Act, 1947 (for
brevity, “the Act”’). It was further observed that the Bank
and its functionaries would be at liberty to proceed with the
enquiry in terms of the permission granted by the High Court
and any decision taken would be without prejudice to the
outcome of the appeal. It may be noted that this order was
passed when a prayer for stay of the contempt proceeding
that was initiated by said Bansal before the High Court was
made before this Court. Be it stated, this Court directed stay
of further proceedings of the contempt petition.
5. On 20.8.1999 the Bank filed Interlocutory Application
No. 4 of 1999 for modification of the order dated 12.4.1999
on the ground that Section 17-B of the Act was not
applicable. On 7.9.1999 the employee filed another
Contempt Petition No. 396 of 1999 for non-implementation
of the order passed by this Court. On 6.12.1999 this Court,
leaving the question of law open, dismissed the civil appeal
as well as the contempt petition.
6. As the factual score would further unfold, on 10.7.2000
the Bank in compliance with the order dated 22.5.1998
passed by the Full Bench of the High Court, sent a copy of
the enquiry report to the employee wherein it was
mentioned that he should appear before the disciplinary
authority on the date fixed for personal hearing. In the
meantime, on 24.7.2000 the application for contempt was
dismissed by the High Court on the foundation that there
was no direction for payment of any salary to the employee
or grant of any consequential benefits in the writ petition.
Against the aforesaid order, the employee preferred Special
Leave Petition (C) No. 15098 of 2000 and the same stood
dismissed as withdrawn vide order dated 27.9.2000 granting
liberty to the employee to approach the High Court for
consequential reliefs.
7. On 14.10.2000 CM No. 1965 of 2001 was filed by the
writ petitioner therein seeking clarification of the order dated
22.5.1998 with a further direction to the Bank to reinstate
him in service with full back wages. During the pendency of
the said application in the writ petition the appointing
authority passed the order of removal on 22.11.2001 with
effect from 23.4.1985.
8. On 23.11.2001 the CM No. 1965 of 2001 was disposed
of by the Full Bench by the impugned order. A contention
was raised by the Bank that the respondent-employee stood
superannuated in the year 1992 after completion of thirty
years of service. The Full Bench, after adverting to the facts
in chronology and referring to the observations made by this
Court in Special Leave Petition No. 15098 of 2000 and
placing reliance on various decisions, took note of certain
aspects which we think is necessary to be reproduced: -
“Reverting back to the facts and circumstances of
the present case, it is again not disputed before us
that the delinquent officer was never placed under
suspension. After the order of dismissal of his
service dated 25.4.1985 was set aside by the
Court on 22.5.1998, the disciplinary authority has
neither concluded the disciplinary proceedings nor
has it passed any other appropriate order till
today, for the reasons best known to the
concerned authority. The question before this
Court is not whether the petitioner would or would
not stand superannuated in February, 1992 after
serving the Bank for a period of 30 years. This
question, in any case, was beyond the purview
and scope of the writ petition itself. Thus, the
parties cannot call upon the Full Bench to decide
this question in an application in this Writ Petition.
The parties are free to agitate the question in this
regard before the appropriate proceedings.”
9. Thereafter, the Full Bench referred to the decision in
Managing Director, ECIL, Hyderabad v. B. Karunakar
and others1 and came to hold that:
“The Full Bench having decided in no uncertain
terms that serious prejudice was caused to the
petitioner in the departmental proceedings, the
Bench set aside the order of dismissal and
remanded the matter to the authorities concerned
granting permission to proceed further in the
departmental enquiry in accordance with law and
to pass appropriate orders. The disciplinary
authority has miserably failed, over a period of
more than three years, to pass any appropriate
orders. We are unable to understand this conduct
on the part of the respondent-authorities. Though
1 (1993) 4 SCC 727
it has been contended that the petitioner has
superannuated in the year 1992, but eventually,
no copy of such order has been placed on record
of this Court. The Hon’ble Apex Court had granted
the interim stay during the pendency of the
Special Leave Petition subject to compliance of
provisions of Section 17-B of the Industrial
Disputes Act, which itself indicates that the
respondent Bank was obliged to pay salary in
terms thereof to the petitioner. Admittedly at no
point of time, right from the commencement of
the disciplinary proceedings till today, the
petitioner was ever placed under suspension.
Upon dismissal of the Special Leave Petition, the
judgment of the Full Bench has attained finality at
least interese the parties.”
10. After so stating the Full Bench observed that on the
date of non-furnishing of enquiry report to the delinquent
officer he was admittedly not under suspension but was in
service and, therefore, the inevitable conclusion was that he
would continue in service till he was dismissed from service
in accordance with law or superannuated in accordance with
Rules. However, without adverting to the issue whether he
stood superannuated in the year 1992 or not, was left to be
agitated independently. Eventually, the application was
allowed and the respondents therein were directed to pay
back wages to the deceased-respondent from the date of
dismissal till passing of the appropriate orders in the
disciplinary proceedings or superannuation of the petitioner
therein whichever was earlier. The said order is under assail
in Civil Appeal No. 239 of 2003.
11. At this juncture, it is essential to state the facts in
Transfer Case (C) No. 79 of 2013. Be it noted, when the Civil
Appeal was listed for hearing on 16.1.2013, this Court, while
hearing the appeal, was apprised about the subsequent
development that had taken place in pursuance of which the
original respondent No. 1 had preferred Civil Writ Petition
No. 11412 of 2003 in the High Court of Punjab and Haryana,
Chandigarh. Learned counsel for the respondents agreed for
transfer of the writ petition to this Court and on that day
learned counsel for the Bank took time to obtain instructions
and, eventually, on 24.1.2013 agreed to the transfer of the
writ petition to this Court to be heard along with the civil
appeal. Thereafter, by virtue of order dated 30.4.2013 it has
been registered as Transfer Case (C) No. 79 of 2013.
12. On a perusal of the writ petition it transpires that the
petitioner therein referred to the order passed by the Full
Page 10
10
Bench on 23.11.2001 and thereafter stated about the
disciplinary action taken against him after the initial
judgment and order passed by the Full Bench on 22.5.1998
and receipt of the order dated 22.11.2001 along with a cover
letter dated 26.11.2001 whereby the Bank had removed him
from service with retrospective effect from 23.4.1985, i.e.,
the date of earlier removal. It was contended in the writ
petition that the said order was unsustainable, because the
order of termination could have not been given retrospective
effect; that the conduct of the Bank was far from being
laudable and replete with legal mala fide and colourable
exercise of power; that the order of dismissal was violative
of principles of natural justice and further the grounds
mentioned in the order were totally unjustified; and that an
attempt had been made by the Bank to overreach the
judgment of the Full Bench. On the aforesaid basis, a prayer
was made for quashing the order dated 22.11.2001 and
directing the Bank to reinstate him in service with entire
benefits with effect from 23.4.1985 along with interest and
Page 11
11
to pass such other orders as it may deem fit and proper in
the facts and circumstances of the case.
13. We have heard Mr. Vikas Singh, learned senior counsel
for the appellant bank and Mr. P.S. Patwalia, learned senior
counsel for the legal heirs of the deceased-employee in the
appeal as well as the in the transfer petition.
14. The three issues that eminently emerge for
consideration are, (i) whether the employer Bank could
have, in law, passed an order of dismissal with retrospective
effect; (ii) whether the delinquent officer stood
superannuated after completion of thirty years as provided
under the Regulations on 25.2.1992; and (iii) whether the
legal heirs of the deceased-employee are entitled to get the
entire salary computed till the actual passing of the order of
dismissal, that is, 22.11.2001 or for that matter till the date
of superannuation, that is, 25.2.1992.
15. Regard being had to nature of controversy, we shall
proceed to deal with first point first, that is, whether the
order of removal could have been made with retrospective
effect. Mr. Patwalia, learned senior counsel appearing for
the employee, has submitted that the disciplinary authority
could not have passed an order of removal by making it
operational from a retrospective date. He has commended
us to a three-Judge Bench decision in R. Jeevaratnam v.
State of Madras2. In the said case, the appellant-therein
instituted a suit for a declaration that the order of dismissal
from service was illegal and void. The trial Court dismissed
the suit and the said decree was affirmed in appeal by the
High Court. One of the contentions raised before this Court
that the order of dismissal dated October 17, 1950 having
been passed with retrospective effect, i.e., May 29, 1949,
was illegal and inoperative. This Court opined that an order
of dismissal with retrospective effect is, in substance, an
order of dismissal as from the date of the order with the
superadded direction that the order should operate
retrospectively as from an anterior date. The two parts of
the order are clearly severable. Assuming that the second
part of the order is invalid, there is no reason why the first
2 AIR 1966 SC 951
part of the order should ot be given the fullest effect. The
said principle has been followed in The Gujarat Mineral
Development Corporation v. Shri P.H. Brahmbhatt3.
16. Mr. Vikas Singh, learned senior counsel has heavily
relied on the Constitution Bench decision in P.H. Kalyani v.
M/s. Air France, Calcutta4, wherein the employee had
challenged the order of the Labour Court relating to his
dismissal by the employer, the respondent company therein.
He was served a charge-sheet containing two charges of
gross dereliction of duty inasmuch as he had made mistakes
in the preparation of load-sheets on one day and a balance
chart on another day, which mistakes might have led to a
serious accident to the aircraft. An enquiry was fixed by the
Station Manager. His authority was questioned by the
appellant but his objection was overruled and the enquiry
was held and completed. The enquiry officer forwarded the
findings and his recommendations to the competent
authority of the company, on the basis of which he was
dismissed from service. The order of dismissal provided for
3 (1974) 3 SCC 601
4 AIR 1963 SC 1756
payment of one month’s wages for the appellant and also
stated that an application was made before the industrial
tribunal for the approval of the action taken, apparently as
some industrial dispute was pending before the tribunal. In
accordance with the order of dismissal, the respondent
company filed an application before the Labour Court
seeking approval of the action. The appellant thereafter
filed an application under Section 33-A of the Act challenging
the legality of the actions taken on many a ground. The
grounds were considered by the Labour Court and all of
them were substantially decided against the appellant. The
Labour Court held that the dismissal of the appellant was
justified and accordingly accorded approval to the order of
dismissal passed by the Management. While dealing with
various points raised by the appellant, the Labour Court held
that the application under Section 33(2)(b) of the Act was
validly made even though it had been made after the order
of dismissal had been passed. It also opined that the case
was not covered by Section 33(1) of the Act and it was not
necessary to obtain the previous permission of the tribunal
before dismissing the appellant, for he was not a protected
workman. After dealing with the other legal facets, the
Labour Court dismissed the application of the appellantemployee
under Section 33-A of the Act. Before the
Constitution Bench, it was urged that the domestic enquiry
held by the employer was defective as no approval of the
action taken in connection with enquiry and further the
Labour Court, even if held that the dismissal was justified, it
should have held that the order of dismissal would become
operative from the date of the award. In support of the said
submission, reliance was placed on M/s. Sasa Musa Sugar
Works (P) Ltd. v. Shobrati Khan5 wherein it was observed
as follows:-
“...as the management held no inquiry after
suspending the workmen and proceedings
under Section 33 were practically converted
into the inquiry which normally the
management should have held before
applying to the Industrial Tribunal, the
management is bound to pay the wages of the
workmen till a case for dismissal was made
out in the proceedings under Section 33.”
5 AIR 1959 SC 923
17. Referring to the said case, the Constitution Bench
observed that in Shobrati Khan (supra), an application was
made under Section 33(1) of the Act for permission to
dismiss the employees and such permission was asked for
though no enquiry whatsoever had been held by the
employer and no decision was taken that the employees be
dismissed and it was in those circumstances that a case for
dismissal was made out only in the proceedings under
Section 33(1) and, therefore, the employees were held
entitled to their wages till the decision on the application
under Section 33 of the Act. The Constitution Bench
observed that the matter would have been different if in that
case an enquiry had been held and the employer had come
to the conclusion that dismissal was proper punishment and
then they had applied under Section 33(1) for permission to
dismiss and, in those circumstances, the permission would
have related back to the date when the employer came to
the conclusion after an enquiry that the dismissal was the
proper punishment and had applied for removal of the ban
by an application under Section 33(1).
18. The larger Bench, in that context, made a reference to
the to the decision in Management of Ranipur Colliery v.
Bhuban Singh6 and thereafter held thus:-
“The present is a case where the employer has
held an inquiry though it was defective and has
passed an order of dismissal and seeks
approval of that order. If the inquiry is not
defective, the Labour Court has only to see
whether there was a prima facie case for
dismissal, and whether the employer had come
to the bona fide conclusion that the employee
was guilty of misconduct. Thereafter on coming
to the conclusion that the employer had bona
fide come to the conclusion that the employee
was guilty i.e. there was no unfair labour
practice and no victimisation, the Labour Court
would grant the approval which would relate
back to the date from which the employer had
ordered the dismissal. If the inquiry is defective
for any reason, the Labour Court would also
have to consider for itself on the evidence
adduced before it whether the dismissal was
justified. However, on coming to the conclusion
on its own appraisal of evidence adduced
before it that the dismissal was justified its
approval of the order of dismissal made by the
employer in a defective inquiry would still
relate back to the date when the order was
made. The observations therefore in Messrs.
Sasa Musa Sugar Company on which the
appellant relies apply only to a case where the
employer had neither dismissed the employee
nor had come to the conclusion that a case for
dismissal had been made out. In that case the
dismissal of the employee takes effect from
6 AIR 1959 SC 833
the date of the award and so until then the
relation of employer and employee continues
in law and in fact. In the present case an
inquiry has been held which is said to be
defective in one respect and dismissal has
been ordered. The respondent had however to
justify the order of dismissal before the Labour
Court in view of the defect in the inquiry. It has
succeeded in doing so and therefore the
approval of the Labour Court will relate back to
the date on which the respondent passed the
order of dismissal. The contention of the
appellant therefore that dismissal in this case
should take effect from the date from which
the Labour Court's award came into operation
must fail.”
19. In this regard, we may refer to a two-Judge Bench
decision in R. Thiruvirkolam v. Presiding Officer and
another7. In the said case, the appellant was dismissed
from service and a domestic enquiry was instituted on
18.11.1981 on proof of misconduct and he had challenged
his dismissal before the Labour Court which found that the
domestic enquiry to be defective and permitted the
Management to prove the misconduct before it. On the
basis of the evidence adduced before the Labour Court, it
came to the conclusion that the misconduct was duly
proved. When the matter travelled to this Court, leave
7 (1997) 1 SCC 9
granted in the appeal was confined only to the question:
Whether the dismissal would take effect from the date of the
order of the Labour Court, namely, 11.12.1985 or it would
relate to the date of order of dismissal passed by the
employer, namely, 18.11.1981. The Court distinguished the
decision in Gujarat Steel Tubes Limited and others v.
Gujarat Steel Tubes Mazdoor Sabha and others8 on the
basis of the principles stated in P.H. Kalyani’s (supra).
20. At this stage, we may refer with profit to the authority
in Punjab Dairy Development Corporation Ltd. and
another v. Kala Singh and others9 wherein a three-Judge
Bench was dealing with a reference made by a Bench of
three Judges to consider the correctness of the decision in
Desh Raj Gupta v. Industrial Tribunal IV, U.P.10. The
three-Judge Bench referred to the necessitous facts that the
respondent therein, Kala Singh, was working as a Dairy
Helper-cum-Cleaner for collecting the milk from various
centres. He was charged with misconduct and after
8 (1980) 2 SCC 593
9 (1997) 6 SCC 159
10 (1991) 1 SCC 249
conducting due domestic enquiry, the disciplinary authority
dismissed him from service. On reference, the labour court
found that the domestic enquiry conducted by the employerappellant
was defective. Consequently, opportunity was
granted to the management to adduce evidence afresh to
justify the order of dismissal and, accordingly, the evidence
was adduced by the appellant and the delinquentrespondent.
On consideration of the evidence the labour
court found that the charge had been proved against the
respondent and opined that the punishment was not
disproportionate to the magnitude of misconduct of the
respondent. In a writ petition the High Court set aside the
award of the labour court to the extent of confirmation of the
dismissal from service with effect from the date of the
judgment of the labour court and not from any date earlier
thereto. The three-Judge Bench noted that subsequent to
the reference pertaining to correctness of the decision in
Desh Raj Gupta (supra) the decision has been rendered by
a two-Judge Bench in R. Thiruvirkolam (supra) and
thereafter proceeded to state as follows: -
“In the decision of the Constitution Bench in P.H.
Kalyani v. Air France, this Court had held that
once the labour court found the domestic enquiry
to be defective and gave opportunity to the
parties to adduce the evidence and also that the
order of termination of the service or dismissal
from service is valid, it would relate back to the
original order of the dismissal. But a discordant
note was expressed by the three-Judge Bench in
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha which
was considered by this Court in Thiruvirkolam
case and it was held that in view of the judgment
of the Constitution Bench, the three-Judge Bench
judgment was not correct. Desh Raj Gupta case
was also considered and it was held that it has not
been correctly decided. Thus, we are relieved of
reviewing the entire case-law in that behalf.
In view of the aforesaid decisions and in view
of the findings recorded by the Labour Court, we
are of the considered opinion that the view
expressed in Desh Raj Gupta case is not correct. It
is accordingly overruled. Following the judgment
of the Constitution Bench, we hold that on the
Labour Court’s recording a finding that the
domestic enquiry was defective and giving
opportunity to adduce the evidence by the
management and the workman and recording of
the finding that the dismissal by the management
was valid, it would relate back to the date of the
original dismissal and not from the date of the
judgment of the Labour Court.”
21. At this juncture, we may notice what was the
perception at the subsequent stage. In Vishweshwaraiah
Iron and Steel Ltd. v. Abdul Gani and others11, a two-
Judge Bench observed as follows: -
“3. The moot question would arise whether the
ratio of the Constitution Bench judgment in Kalyani
case would almost automatically apply to such
cases apart from the cases arising under Section
33 of the I.D. Act. We may, in this connection,
mention that the decision of the three-Judge Bench
of this Court in Gujarat Steel Tubes Ltd. v. Gujarat
Steel Tubes Mazdoor Sabha wherein Krishna Iyer,
J., spoke for the majority, was an authority on the
question of leading evidence before the Industrial
Court in proceedings under Section 10-A of the Act
and on the question of relation back of ultimate
penalty order passed by the arbitrator on the basis
of evidence led by the management for
justification of its action before such Tribunal.
Therefore, the question would arise whether the
ratio of this decision would still apply to a case
where the proceedings relate to Section 10 or 10-A
of the Act apart from Section 33 of the Act. The
later decisions of this Court have applied the ratio
of the decision in Kalyani case to matters arising
under Sections 10 and 10-A of the Act. In our view,
therefore, the dispute in the present proceedings
could be better resolved by a Constitution Bench of
this Court which can consider the scope and ambit
of the decision of the earlier Constitution Bench
judgment in Kalyani case which has been the
sheet-anchor of the subsequent cases referred to
earlier on which a strong reliance has been placed
by learned counsel for the petitioner and which
had nothing to do with proceedings under Section
33 of the Act. The later decisions of this Court will
also, therefore, require a re-look.”
11 AIR 1998 SC 185 : (1997) 8 SCC 713
22. Thereafter, it granted leave and directed the appeals to
be placed for final disposal before a Constitution Bench.
When the matter came before the Constitution Bench in
Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani
and others12, the larger Bench, on 31.1.2002, passed the
following order: -
“The order of reference was made to a
Constitution Bench by a Bench of two learned
Judges for the reason that they found some
difficulty in coming to a conclusion as to whether
an earlier Constitution Bench judgment and
judgments of Benches of three learned Judges
resolved this question. In our view, a Bench of
two learned Judges cannot make a reference
directly to a Constitution Bench; this has been laid
down in the judgment in Pradip Chandra Parija v.
Pramod Chandra Patnaik13. It is, therefore, that
this Constitution bench will not decide the
reference.”
23. In this context, a reference to a three-Judge Bench
decision in Engineering Laghu Udyog Employees’ Union
v. Judge, Labour Court and Industrial Tribunal and
another14 would be apt. In the said case a contention was
canvassed on behalf of the workmen that the view taken by
12 (2002) 10 SCC 437
13 (2002) 1 SCC 1
14 (2003) 12 SCC 1
the High Court to the extent it held that the order of
termination would relate back to the date of the original
order of termination, was erroneous and to bolster the said
submission reliance was placed on Gujarat Steel Tubes
Ltd. (supra). The Court, after referring to earlier decisions,
opined that Section 11-A of the Act confers a wide power
upon the Labour Court, Industrial Tribunal or the National
Tribunal to give appropriate relief in case of discharge or
dismissal of workman. While adjudicating on a reference
made to it, the Labour Court, Tribunal or the National
Tribunal, as the case may be, if satisfied that the order of
discharge or dismissal was not justified, may, while setting
aside the same, direct reinstatement of the workman on
such terms and conditions, if any, as it thinks fit, or give
such other relief to the workman including the award of any
lesser punishment in lieu of discharge or dismissal as the
circumstances of the case may require. Only in a case
where the satisfaction is reached by the Labour Court or the
Tribunal, as the case may be, that an order of dismissal was
not justified, the same can be set aside. So long as the
same is not set aside, it remains valid. But once whether on
the basis of the evidence brought on record in the domestic
inquiry or by reason of additional evidence, the employer
makes out a case justifying the order of dismissal the stand
that such order of dismissal can be given effect to only from
the date of the award and not from the date of passing of
the order of punishment was not legally acceptable. The
Court further ruled that the distinction sought to be made by
this Court in some of the matters including Gujarat Steel
Tubes was not based on a sound premise, particularly when
the binding decisions of the Court in Workmen v. Motipur
Sugar Factory15 and Workmen v. Firestone Tyre &
Rubber Co. of India (P) Ltd.16 had not been taken note of.
24. Thereafter, the three-Judge Bench referred to the
decision in Motipur Sugar Factory (P) Ltd. (supra) and it
was ruled that the employer has got a right to adduce
evidence before the tribunal justifying its action, even where
no domestic inquiry whatsoever has been held. Reference
was also made to the decision in Firestone Tyre & Rubber
15 AIR 1965 SC 1803
16 (1973) 1 SCC 813
Co. of India (P) Ltd. (supra) wherein the Court formulated
the proposition of law emerging from earlier decisions. The
relevant propositions are as follows: -
“32. From those decisions, the following principles
broadly emerge:
(1)-(3) * * *
(4) Even if no enquiry has been held by an
employer or if the enquiry held by him is found to
be defective, the Tribunal in order to satisfy itself
about the legality and validity of the order, has to
give an opportunity to the employer and employee
to adduce evidence before it. It is open to the
employer to adduce evidence for the first time
justifying his action, and it is open to the employee
to adduce evidence contra.
(5) * * *
(6) The Tribunal gets jurisdiction to consider the
evidence placed before it for the first time in
justification of the action taken only if no enquiry
has been held or after the enquiry conducted by
an employer is found to be defective.
(7) It has never been recognised that the Tribunal
should straight away, without anything more,
direct reinstatement of a dismissed or discharged
employee, once it is found that no domestic
enquiry has been held or the said enquiry is found
to be defective.
(8) * * *”
25. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.
Ram Gopal Sharma and others17 the Constitution Bench
reiterated the principles stated in P.H. Kalyani (supra) and
overruled a three-Judge Bench decision rendered in Punjab
Beverages (P) Ltd. v. Suresh Chand18.
26. We have referred to the aforesaid line of judgments to
highlight that these authorities pertain to the lis under the
Act. The doctrine of “relation back” of an imposition of
punishment in case of a labour court finding the domestic
enquiry as defective and granting opportunity to the
employer to substantiate the same either under Section 10A
or proceedings under Section 33 of the Act, in our
considered opinion, in the present case, need not be gone
into as the nature of controversy is quite different. Suffice it
to say, the aforesaid authorities have to be restricted to the
disputes under the Act.
27. At this juncture, we think it appropriate to state in detail
what the Full Bench had ruled on the first occasion on
17 (2002) 2 SCC 244
18 (1978) 2 SCC 144
22.5.1998. We have already stated as to what directions it
had passed and how the civil appeal stood dismissed
keeping the law open as far as applicability of Section 17B of
the Act is concerned. The fact remains, the said judgment
had attained finality inter se parties. The Full Bench took
note of the fact that the report of the enquiry officer which
ran into 68 pages was not furnished to the delinquent officer
as a result of which he was deprived of the benefit of
knowing the contents of the report and submitting his
version with regard to the correctness of the findings of the
enquiry report. The High Court opined that the delinquent
officer had suffered serious prejudice. Thereafter, the Court
referred to the order of punishment passed by the Managing
Director which apparently shows that the recommendations
of the General Manager (Operation) were taken into
consideration. Proceeding further it expressed as follows: -
“It is not disputed before us that the copy of the
comments of General Manager as afore referred
were never furnished to the delinquent officer, as
such, he never had the occasion to see this
document which apparently has been taken into
consideration by the authorities concerned. The
impugned order is the cumulative result of all the
3 charge sheets and the comments of the General
Manager obviously related to the matter in issue.
Non furnishing of such material document to the
petitioner is also a flagrant violation of the
principles of natural justice. By no stretch of
imagination it could be accepted that a document
prepared at the back of the petitioner, copy of
which was admittedly not furnished to him, can be
permitted to be a foundation of the order of
punishment. Such an action would certainly be
contrary to fair play.”
And thereafter: -
“Non supply of this document certainly caused
definite prejudice to the case of the petitioner.
The petitioner had every right to comment or
meet the points raised in the recommendation of
the General Manager. Thus, there is denial of fair
and reasonable opportunity to the delinquent
officer in the present case. The delinquent officer
was not even aware as to what case he was to
meet as projected in the report of
recommendations of the General Manager which
were considered by the authorities while imposing
punishment on him.
The cumulative effect of our above
discussion is that the impugned orders of
punishment dated 25.4.1985 and dated 18.7.1986
are liable to be quashed, which we do hereby
quash without any hesitation. However, we would
further direct the Disciplinary Authority to grant
opportunity to the petitioner to reply to the
enquiry report and pass appropriate orders after
granting personal hearing to the petitioner in
accordance with law.”
28. In this context, it is instructive to reproduce the
observations made by the Constitution Bench in B.
Karunakar (supra) which adverted to the question that
relates to the effect on the order of punishment when the
report of the enquiry officer is not furnished to the employee
and what relief should be granted to him in such cases.
Answering the question, the Court observed that the answer
to the said question has to be relative to the punishment
awarded. When the employee is dismissed or removed from
service and the inquiry is set aside because the report is not
furnished to him, in some cases the non-furnishing of the
report may have prejudiced him gravely while in other cases
it may have made no difference to the ultimate punishment
awarded to him and hence, to direct reinstatement of the
employee with back-wages in all cases is to reduce the rules
of justice to a mechanical ritual. The theory of reasonable
opportunity and the principles of natural justice have been
evolved to uphold the rule of law and to assist the individual
to vindicate his just rights. They are neither incantations to
be invoked nor rites to be performed on all and sundry
occasions. Whether in fact, prejudice has been caused to the
employee or not on account of the denial to him of the
report, has to be considered on the facts and circumstances
of each case. In case where even after the furnishing of the
report, no different consequence would have followed, it
would be a perversion of justice to permit the employee to
resume duty and to get all the consequential benefits as it
would amount to rewarding the dishonest and the guilty and
stretching the concept of justice to illogical and exasperating
limits.
29. After so stating the larger Bench proceeded to rule that
in all cases where the enquiry officer’s report is not furnished
to the delinquent employee in the disciplinary proceedings,
the Courts and Tribunals should cause the copy of the report
to be furnished to the aggrieved employee if he has not
already secured it before coming to the Court/Tribunal and
give the employee an opportunity to show how his or her
case was prejudiced because of the non-supply of the report.
If after hearing the parties, the Court/Tribunal comes to the
conclusion that the non-supply of the report would have
made no difference to the ultimate findings and the
punishment given, the Court/Tribunal should not interfere
with the order of punishment. The Court/Tribunal should not
mechanically set aside the order of punishment on the
ground that the report was not furnished. This Court further
observed that since it is the Courts/Tribunals which will apply
their judicial mind to the question and give their reasons for
setting aside or not setting aside the order of punishment,
there would be neither a breach of the principles of natural
justice nor a denial of the reasonable opportunity. It is only if
the Court/Tribunal finds that the furnishing of the report
would have made a difference to the result in the case that it
should set aside the order of punishment. Thereafter, the
Constitution Bench opined thus:-
“Where after following the above procedure, the
Court/Tribunal sets aside the order of punishment,
the proper relief that should be granted is to
direct reinstatement of the employee with liberty
to the authority/management to proceed with the
inquiry, by placing the employee under
suspension and continuing the inquiry from the
stage of furnishing him with the report. The
question whether the employee would be entitled
to the back-wages and other benefits from the
date of his dismissal to the date of his
reinstatement if ultimately ordered, should
invariably be left to be decided by the authority
concerned according to law, after the culmination
of the proceedings and depending on the final
outcome. If the employee succeeds in the fresh
inquiry and is directed to be reinstated, the
authority should be at liberty to decide according
to law how it will treat the period from the date of
dismissal till the reinstatement and to what
benefits, if any and the extent of the benefits, he
will be entitled. The reinstatement made as a
result of the setting aside of the inquiry for failure
to furnish the report, should be treated as a
reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and
no more, where such fresh inquiry is held. That
will also be the correct position in law.”
30. In the case at hand, the said stage is over. The Full
Bench on the earlier occasion had already rendered a verdict
that the serious prejudice had been caused and, accordingly,
had directed for reinstatement. The said direction, if
understood and appreciated on the principles stated in B.
Karunakar (supra), is a direction for reinstatement for the
purpose of holding a fresh enquiry from the stage of
furnishing the report and no more. In the case at hand, the
direction for reinstatement was stayed by this Court. The
Bank proceeded to comply with the order of the High Court
from the stage of reply of enquiry. The High Court by the
impugned order had directed payment of back wages to the
delinquent officer from the date of dismissal till passing of
the appropriate order in the disciplinary
proceeding/superannuation of the petitioner therein
whichever is earlier. The Bank has passed an order of
dismissal on 22.11.2001 with effect from 23.4.1985. The
said order, as we perceive, is not in accord with the principle
laid down by the Constitution Bench decision in B.
Karunakar (supra), for it has been stated there that in case
of non-furnishing of an enquiry report the court can deal with
it and pass as appropriate order or set aside the punishment
and direct reinstatement for continuance of the
departmental proceedings from that stage. In the case at
hand, on the earlier round the punishment was set aside and
direction for reinstatement was passed. Thus, on the face of
the said order it is absolutely inexplicable and unacceptable
that the Bank in 2001 can pass an order with effect from
23.4.1985 which would amount to annulment of the
judgment of the earlier Full Bench. As has been held by the
High Court in the impugned judgment that when on the date
of non-furnishing of the enquiry report the delinquent officer
was admittedly not under suspension, but was in service
and, therefore, he would continue in service till he is
dismissed from service in accordance with law or
superannuated in conformity with the Regulations. How far
the said direction is justified or not or how that should be
construed, we shall deal with while addressing the other
points but as far as the order of removal being made
retrospectively operational, there can be no trace of doubt
that it cannot be made retrospective.
31. Presently, we shall proceed to deal with the issue of
superannuation as envisaged under the Regulations.
Regulation 19(1) deals with superannuation of an employee.
The relevant part of Regulation 19(1) is as follows: -
“19. Age of retirement. – (1) An officer shall retire
from the service of the Bank on attaining the age
of fifty eight years or upon the completion of
thirty years’ service whichever occurs first.
Provided that the Competent Authority may, at its
discretion, extend the period of service of an
officer who has attained the age of fifty eight
years or has completed thirty years’ service as
the case may be, should such extension be
deemed desirable in the interest of the Bank.
Provided further that an officer who had joined the
service of the Bank either as an officer or
otherwise on or after the 19th July, 1969 and
attained the age of 58 years shall not be granted
any further extension in service.
Provided further that an officer may, at the
discretion of the Executive Committee, be retired
from the Bank’s service after he has attained 50
years of age or has completed 25 years service as
the case may be, by giving him three months
notice in writing or pay in lieu thereof.”
32. On a careful reading of the first proviso to Regulation
19(1) it is quite clear that the period of service can be
extended by the discretion of the competent authority and
such extension has to be desirable in the interest of the
Bank. The second proviso provides that an officer who has
joined the service of the bank either as an officer or
otherwise on or after 19.7.1969 and attained the age of 58
years shall not be granted any further extension in service.
By this proviso the power of the competent authority in
respect of officers who had joined as officers or otherwise
after the cut-off date, i.e. 19.7.1969 and have attained the
age of 58 years of service, is curtailed. The delinquent
officer joined the service as a clerk in the Bank on 26.2.1962
and was promoted as Grade-II Officer in 1971 and as Grade-I
Officer in 1977. Even if this provision is extended to him, he
could not have been granted extension of service after
completion of 58 years of age. The said officer attained the
age of 58 years on 24.2.2002. Be that as it may, the grant
of extension is dependent on satisfaction the conditions as
laid down in the first proviso. As is seen from the earlier
round of litigation, the Full Bench had quashed the
punishment and directed for reinstatement. In the second
round in CM No. 1965 of 2000 the High Court has directed
that the employee shall continue till passing of the
appropriate orders in the disciplinary proceedings or
superannuated as per rules. It has not commented on the
validity of superannuation in the year 1992 as pleaded by
the Bank and left it to be agitated in appropriate proceeding.
Mr. Vikas Singh, learned senior counsel appearing for the
employer-Bank, has submitted that the delinquent employee
completed thirty years of service in 1992 and regard being
had to the stipulation in the Regulation 19(1), he stood
Page 38
38
superannuated. Learned senior counsel would further
submit that for extension of the period an affirmative act by
the competent authority of the Bank is imperative. Mr.
Patwalia, learned senior counsel appearing for the employee
submitted that the delinquent officer could not have been
superannuated on completion of thirty years of service as it
was obligatory on the part of the Bank to intimate the officer
that he had reached the stage of superannuation and, in any
case, as the Bank continued the proceedings in pursuance of
the liberty granted by the High Court, the relationship
between the employer and employee had not come to an
end.
33. At this juncture, it is noteworthy to refer to Regulation
19(2) of the Regulations. It reads as follows: -
“19 (2) In case disciplinary proceedings under
the relevant regulations of service have been
initiated against an officer before he ceases to be
in the Bank’s service by the operation of, or by
virtue of any of the said regulations or the
provisions of these regulations the disciplinary
proceedings may, at the discretion of the
Managing Director, be continued and concluded by
the authority by which the proceedings were
initiated in the manner provided for in the said
regulations as if the officer continues to be in
service, so however, that he shall be deemed to be
in service only for the purpose of the continuance
and conclusion of such proceedings.
Explanation: An officer will retire on the last day
of the month in which he completes the stipulated
service or age of retirement.”
34. The aforesaid Regulation, as it seems to us, deals with
a different situation altogether. It clearly lays down that if
the disciplinary proceedings have been initiated against an
officer during the period when he is in service, the said
proceedings can continue even after his retirement at the
discretion of the Managing Director and for the said limited
purpose the officer shall be deemed to be in service. In this
regard it is worthwhile to refer to the decision in UCO Bank
and another v. Rajinder Lal Capoor19 , wherein the
appellant-Bank was grieved by the decision of the High
Court whereby the order of punishment of removal imposed
on an officer was modified to one of compulsory retirement
with effect from the date of superannuation. In the said
case, the employee attained the age of superannuation on
1.11.1996 and charge-sheet was issued on 13.11.1998. The
19 (2007) 6 SCC 694
disciplinary proceeding was initiated against the employee
in terms of Regulation 20(3)(iii) of the UCO Bank Officer
Employees’ Service Regulations, 1979 which reads as
follows: -
“20. (3)(iii) The officer against whom disciplinary
proceedings have been initiated will cease to be in
service on the date of superannuation but the
disciplinary proceedings will continue as if he was
in service until the proceedings are concluded and
final order is passed in respect thereof. The officer
concerned will not receive any pay and/or
allowance after the date of superannuation. He will
also not be entitled for the payment of retirement
benefits till the proceedings are completed and
final order is passed thereon except his own
contributions to CPF.”
Interpreting the said Regulation, the Court opined that
a bare reading of the said Regulation would clearly show that
by reason thereof a legal fiction has been created, but the
said legal fiction could be invoked only when the disciplinary
proceedings had clearly been initiated prior to the
respondent’s ceasing to be in service. Further proceeding,
the two-Judge Bench observed thus: -
“An order of dismissal or removal from service can
be passed only when an employee is in service. If
a person is not in employment, the question of
terminating his services ordinarily would not arise
unless there exists a specific rule in that behalf.
As Regulation 20 is not applicable in the case of
the respondent, we have no other option but to
hold that the entire proceeding initiated against
the respondent became vitiated in law.”
35. In this context, reference to the authority in Ramesh
Chandra Sharma v. Punjab National Bank and
another20 would be fruitful. In the said case the High Court
had ruled that the appellant therein could not have been
dismissed from service after his retirement. This Court
referred to Regulation 20(3)(iii) of the Punjab National Bank
Officer Employees’ (Discipline & Appeal) Regulations, 1977
which reads as follows: -
“20. (3)(iii) The officer against whom disciplinary
proceedings have been initiated will cease to be in
service on the date of superannuation but the
disciplinary proceedings will continue as if he was
in service until the proceedings are concluded and
final order is passed in respect thereof. The officer
concerned will not receive any pay and/or
allowance after the date of superannuation. He
will also not be entitled for the payment of
retirement benefits till the proceedings are
completed and final order is passed thereon
except his own contribution to CPF.”
20 (2007) 9 SCC 15
36. Interpreting the said Regulation the two-Judge Bench
held thus: -
“The said Regulation clearly envisages
continuation of a disciplinary proceeding despite
the officer ceasing to be in service on the date of
superannuation. For the said purpose a legal
fiction has been created providing that the
delinquent officer would be deemed to be in
service until the proceedings are concluded and
final order is passed thereon. The said Regulation
being statutory in nature should be given full
effect.”
37. Slightly more recently in State Bank of India v. Ram
Lal Bhaskar and another21, a three-Judge Bench, placing
reliance on Rule 19(3) of the State Bank of India Officers
Service Rules, 1992, opined that in view of the language
employed in Rule 19 which stipulated that in case the
disciplinary proceedings under the relevant rules of service
have been initiated against an officer before he ceases to be
in the bank’s service by the operation of, or by virtue of, any
of the rules or the provisions of the Rules, the disciplinary
proceedings may, at the discretion of the Managing Director,
be continued and concluded by the authority by whom the
21 (2011) 10 SCC 249
proceedings were initiated in the manner provided for in the
Rules as if the officer continues to be in service. He shall be
deemed to be in service only for the purpose of the
continuance and conclusion of such proceedings and the
punishment could be imposed.
38. In the case at hand, the disciplinary proceeding was
initiated against the delinquent officer while he was in
service. The first order of dismissal was passed on
23.4.1985. The said order of punishment was set aside by
the High Court and the officer concerned was directed to be
reinstated for the limited purpose, i.e., supply of enquiry
report and to proceed in the disciplinary proceeding from
that stage. The said order was not interfered with by this
Court. The Bank continued the proceeding. Needless to
emphasise, the said continuance was in pursuance of the
order of the Court. Under these circumstances, it has to be
accepted that the concept of deemed continuance in service
of the officer would have full play and, therefore, an order of
removal could have been passed after finalization of the
departmental proceeding on 22.11.2001. We have already
held that the said order would not have been made
retrospectively operative, but that will not invalidate the
order of dismissal but it would only have prospective effect
as has been held in R. Jeevaratnam (supra).
39. Having said that, it becomes necessary to determine
the date of retirement and thereafter delve into how the
period from the date of first removal and date of retirement
would be treated. We may hasten to add that for the
purpose of deemed continuance the delinquent officer would
not be entitled to get any benefit for the simple reason, i.e.,
the continuance is only for finalisation of the disciplinary
proceedings, as directed by the Full Bench of the High Court.
Hence, the effect and impact of Regulation 19(1) of the
Regulations comes into full play. On a seemly construction
of the first proviso we are of the considered view that it
requires an affirmative act by the competent authority, for it
is an exercise of power of discretion and further the said
discretion has to be exercised where the grant of extension
is deemed desirable in the interest of the Bank. The
submission of Mr. Patwalia to the effect that there should
have been an intimation by the employer-Bank is founded
on the finding recorded by the High Court in the impugned
order that no order had been brought on record to show that
the delinquent officer had retired. As the facts would reveal,
in the year 1992 the concerned officer stood removed from
service and at that juncture to expect the Bank in law to
intimate him about his date of superannuation or to pass an
order would be an incorrect assumption. The conclusion
which appears logical and acceptable is that unless an
extension is granted by a positive or an affirmative act by
the competent authority, an officer of the Bank retires on
attaining age of 58 years or upon the completion of 30 years
of service, whichever occurs first. In this regard the
pronouncement in C.L. Verma v. State of Madhya
Pradesh and another22 is apt to refer. In the said case the
effect of Rule 29 of Madhya Pradesh State Municipal Service
(Executive) Rules, 1973 fell for interpretation. In the said
Rule it was provided that a member of the service shall
attain the age of superannuation on the date he completes
22 1989 Supp (2) SCC 437
his 58 years of age. The proviso to the said Rule stipulated
that the State Government may allow a member of the
service to continue in employment in the interest of
Municipal Council or in public interest and, however, no
member of service shall continue in service after he attains
the age of 60 years. The appellant therein had attained the
age of 58 years two days prior to the order of dismissal. The
Court opined that the tenor of the proviso clearly indicates
that it is intended to cover specific cases and individual
employees. Be it noted, on behalf of the Government a
notification was issued by the concerned Department. The
Court opined that the said circular was not issued under the
proviso to Rule 29 but was administrative in character and
that on the face of mandate in Rule 29 the administrative
order could not operate. The Court further ruled that as the
appellant therein had attained the age of superannuation
prior to the date of passing the order of dismissal, the
Government had no right to deal with him in its disciplinary
jurisdiction available in regard to employees. We have
referred to this decision to highlight that the Regulation
herein also is couched in similar language and, therefore,
the first proviso would have full play and it should be
apposite to conclude that the delinquent officer stood
superannuated on completion of 30 years of service on
25.2.1992. It is because the conditions stipulated under the
first proviso to the said Regulation deal with a conditional
situation to cover certain categories of cases and require an
affirmative act and in the absence of that it is difficult to
hold that the delinquent officer did not retire on completion
of thirty years of service.
40. The next issue pertains to how the period from the date
of order of first removal, i.e., 23.4.1985 till 25.2.1992 would
be treated and to what benefits the officer concerned would
be entitled to. The order of removal from service, as we
have already opined, would come into effect from the date
of passing of the order, i.e., 22.11.2001 as it has to be
prospectively operative and, therefore, as a natural corollary
he remained in service from 23.4.1985 till he attained the
age of superannuation, i.e., 25.2.1992 or till the end of
February, 1992, being the last day of the month. In the
transfer case relief has been sought for grant of full salary
for the whole period. Mr. Patwalia, learned senior counsel
appearing for the legal representatives of the original
petitioner, would contend that they should be entitled to get
the full salary till the order of removal. We are unable to
accept the said submission because we have already ruled
that the officer stood superannuated on completion of thirty
years and his continuance by virtue of the order passed by
the High Court has to be treated as a deemed continuance
for the purposes of finalization of the disciplinary
proceeding. The submission put forth by Mr. Vikas Singh
that the order of removal would relate back to the date of
the earlier order, i.e., 23.4.1985 has already been repelled
by us. Thus, we are to restrict the period for grant of benefit
till the date of retirement. Mr. Singh in course of hearing
has alternatively submitted that under no circumstances
back wages in entirety should be paid as the concerned
officer had not worked. To bolster his submission he has
commended us to the decisions in A.P. State Road
Transport Corporation and others v. Abdul Kareem23,
A.P. SRTC and another v. B.S. David Paul24 and J.K.
Synthetics Ltd. v. K.P. Agrawal and another25 wherein
grant of back wages has been restricted on certain
parameters. He has also urged that in pursuance of the
order dated 15.12.2003 the Bank has deposited Rs.5.00 lacs
in the High Court which was permitted to be withdrawn by
the delinquent officer furnishing adequate security to the
satisfaction of the Registrar General of the High Court and
under the circumstances the said amount may be treated as
back wages and be paid to the legal heirs, if not withdrawn
by the original petitioner.
41. It is worthy to note here that during the continuance of
the disciplinary proceeding the delinquent officer was not
put under suspension. After the order of punishment passed
by the disciplinary authority and affirmed by the appellate
authority was quashed by the High Court on 22.5.1998, the
concerned officer has to be treated to be in service from his
23 (2005) 6 SCC 36
24 (2006) 2 SCC 282
25 (2007) 2 SCC 433
date of first removal till his date of retirement. Had the
Bank brought to the notice of the Full Bench about the legal
position under the Regulations, in all probability, the matter
would have been dealt with differently. Be that as it may,
grant of salary in entirety for the period as determined by us
to be the period of continuance in service would not be
apposite and similarly, the submission advanced on behalf
of the Bank that payment of rupees five lacs would meet the
ends of justice does not deserve acceptance. Ordinarily, we
would have directed the Bank to pay fifty per cent of the
back wages for the period commencing 23.4.1985 till the
end of February, 1992, with some interest but we do not
want that the legal heirs of the delinquent officer should
further go through any kind of tribulation in computation
and face further legal hassle as regards the quantum. We
are of the considered opinion that the controversy should be
given a quietus and, therefore, instead of fixing fifty per cent
of the back wages we direct that the Bank shall deposit a
further sum of rupees five lacs with the Registrar General of
the High Court within two months hence and the
respondents shall be entitled to withdraw the same. We
may hasten to clarify that if the amount earlier deposited
has not been withdrawn by the original respondent, Ram
Niwas Bansal, the same shall also be withdrawn by the legal
heirs.
42. In view of the aforesaid directions, the judgment and
order passed by the High Court is modified and the civil
appeal and the transfer case are disposed of leaving the
parties to bear their respective costs.
……………………….J.
[H.L. Gokhale]
……………………….J.
[Dipak Misra]
New Delhi;
March 3, 2014.
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