Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 32554 OF 2018
ALLAHABAD BANK & ORS. …APPELLANT(S)
VERSUS
AVTAR BHUSHAN BHARTIYA ...RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NO. 9096 OF 2019
O R D E R
1. Aggrieved by an order of reinstatement with 50% backwages,
but all other consequential benefits in full, passed by the High Court
of Judicature at Allahabad, the Management of the Allahabad Bank
has come up with one Special Leave Petition and the delinquent
Officer has come up with the other Special Leave Petition.
Signature Not Verified
2. We have heard the learned Counsel for the parties.
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2022.04.22
16:29:42 IST
Reason:
1
3. Since one of these Special Leave Petitions is by the Management
of the Bank and other SLP is by the delinquent Officer, we shall refer
to the parties as “the Bank” and “the Officeremployee”.
4. The Officeremployee was first appointed as a Clerk way back in
the year 1974. He was promoted to the post of Junior Manager Grade
II in 1982 and to the post of Manager in 1987. In July, 1988 he was
issued with a charge memorandum, comprising of 3 articles of
charges. A departmental enquiry followed and the Enquiry Officer held
the charges proved. After finding that the Report of the Enquiry Officer
was not very happily drafted, the disciplinary authority analysed the
evidence on record independently and passed an order of penalty of
dismissal from service on 31.03.1989.
5. The Officeremployee filed a departmental appeal under
Regulation 17 of the Allahabad Bank Officer Employees (Discipline
and Appeal) Regulations, 1976, contending among others, that the
findings of the Enquiry Officer were not even enclosed to the final
order of penalty.
6. The appellate authority, by an order dated 28.02.1990 dismissed
the appeal, despite recording a finding that the copy of the enquiry
2
report was not enclosed to the final order of penalty. However, the
Appellate Authority attempted to overcome this defect by holding that
after the Officeremployee filed the statutory appeal, a copy of the
enquiry report was sent to his address on 02.06.1989 and that the
same returned undelivered.
7. After filing a petition for Review and getting it dismissed, the
Officeremployee moved the High Court with a writ petition in
W.P.No.29426 of 1990. After referring to Regulation 9 of the Allahabad
Bank Officer Employees (Discipline and Appeal) Regulations, 1976
which provides for a supply of the copy of the enquiry report, the High
Court allowed the writ petition by an order dated 27.04.2011,
directing the Management to supply a copy of the enquiry report
within one month and giving liberty to the Officeremployee to file a
fresh Appeal with a further direction to the appellate authority to
decide the appeal expeditiously.
8. The Bank filed a Special Leave Petition (C) CC No. 13418 of 2011
and the same was dismissed by this Court by an Order dated
26.08.2011. The Bank then sought a review before the High Court but
the same also got rejected.
3
9. In an interesting twist, the Bank sent a letter dated 8.05.2012 to
the Officeremployee, claiming that the copy of the enquiry report was
not traceable and that he will be free to submit a statutory appeal,
raising all issues. Aggrieved by the stand so taken, the Officer
employee filed a fresh Writ Petition in W.P No.1403 of 2013. The said
Writ Petition was allowed by the High Court of Judicature at
Allahabad, setting aside the order of penalty and directing
reinstatement with 50% of the back wages, but with all consequential
benefits including post retirement benefits to which he would have
been entitled had he not been dismissed from service. This was for the
reason that the employee attained superannuation on 28.02.2013.
The operative portion of the Order dated 01.10.2018 passed by the
High Court of Judicature at Allahabad is reproduced as follows:
“... Resultantly, the writ petition is allowed.
The order dated 31.03.1989 whereby the
punishment of dismissal has been imposed upon the
petitioner is hereby quashed. We also quash the order
dated 15.09.2016 rejecting the statutory appeal preferred
by the petitioner against the order of dismissal.
The petitioner will thus be entitled to be given all
consequential benefits, including the post retirement
benefit to which he would have been entitled had he not
been dismissed from service of the bank, for the reason
that he has since attained the age of superannuation. We,
however, direct that so far as the back wages, including
the wages to be determined by giving notional promotions
to the petitioner, if any, are concerned, he shall be entitled
only to 50% of total back wages. The consequential
4
benefits arising out of this judgment and order shall be
made available to the petitioner within a period of two
months from the date a certified copy of this order is
furnished to the competent authority.
Having regard to the entire facts and circumstances
of the case and also considering that the petitioner has
been litigating since the year 1990, we also direct cost to
be paid by the respondentbank to the petitioner which we
quantify to be Rs.50,000/.”
10. It is against the aforesaid order that the Bank has come up
with Special Leave Petition (C) No.32554 of 2018. On 03.01.2019,
this Court directed the issue of notice in the said Special Leave
Petition limited to the quantum of back wages. The order dated
03.01.2019 passed by this Court reads as follows:
“Heard.
We are not inclined to interfere with the impugned
order of the High Court insofar as the petitionerBank has
been directed to pay all the retiral dues to the first
respondent.
Issue notice limited to the quantum of backwages.
In the meanwhile, there shall be stay of the
impugned order so far as the backwages are concerned.”
11. Thereafter the Officeremployee came up with Special Leave
Petition (C) No.9096 of 2019, challenging that portion of the
impugned order whereby he was deprived of 50% of the back wages.
Therefore, on 5.04.2019, this Court ordered the issue of notice in
5
the said Special Leave Petition also and directed the matter to be
tagged along with the Special Leave Petition of the Bank.
12. In view of the order passed by this Court on 3.01.2019, the
only question that we are called upon to decide is, whether the
Officeremployee is not entitled to back wages at all or whether he is
entitled only to 50% of the back wages as held by the High Court or
whether he is entitled to full back wages.
13. For finding an answer to the above question, we have to see
primarily, as to who was at fault.
14. Admittedly, the Bank initiated disciplinary proceedings in
terms of Allahabad Bank Officer Employees’ (Discipline and Appeal)
Regulations 1976, for a major misconduct. The three articles of
charges framed against the Officeremployee were as follows:
“ARTICLE OF CHARGE I
While posted and functioning as Manager, Nighasan
Branch during the year 198687 Shri Avtar Bhushan
Bhartiya failed to maintain integrity and devotion to duty
and did not act with diligence in as much as he allowed
advances to several borrowers in an indiscriminate
manner without observing the norms of the Bank and the
spirit of the scheme under which such advances were
allowed at a grave risk and has thereby violated
regulation 3(1) of Allahabad Bank Officer Employees'
(Conduct) Regulations amounting to a misconduct under
regulation 24 of the aforesaid regulations.
6
ARTICLE OF CHARGE II
While posted and functioning as Manager, Nighasan
Branch during the year 198687 Shri Avtar Bhushan
Bhartiya has failed to maintain integrity and devotion to
duty in as much as he allowed indiscriminate advances
for patthar udhyog in village Jhandi & Khairani in
complicity with one Shri Raj Kumar with intent to
misutilise the subsidy availed on such advances by not
observing the norms of the Bank and the rules of the
scheme under which advances were allowed. Shri
Bhartiya has thereby violated regulation 3(1) of Allahabad
Bank Officer Employees' violated Regulation, 1976
amounting to a misconduct under regulation 24 of the
aforesaid regulations.
ARTICLE OF CHARGE III
While posted and functioning as Manager, Tikonia
Branch in Distt. Lakhimpur during the year 1985, Shri
Bhartiya has failed to act with diligence and devotion to
duty in as much as he failed to conduct appraisal and
verification of the identity of Shri Tarsem and has thereby
violated regulation 3(1) of Allahabad Bank Officer
Employees' (Conduct) Regulations amounting to a
misconduct under regulation 24 of the aforesaid
regulations.”
15. The departmental enquiry commenced on 21.11.1988 and
concluded on 09.01.1989. The enquiry report dated 09.03.1989 was
forwarded to the disciplinary authority vide letter dated 13.03.1989.
The disciplinary authority passed an order of penalty on
31.03.1989. It is obvious from the order of penalty dated
31.03.1989 that the copy of the enquiry report was neither sent
beforehand nor even enclosed to the order of penalty. Interestingly,
the disciplinary authority agreed with the conclusions reached by
7
the enquiry officer but felt that the reasoning was deficient.
Therefore, the disciplinary authority chose to analyse the evidence
on record independently. The relevant portion of the order of the
disciplinary authority reads as follows:
“From the enquiry officer's report I find that while
holding the charges leveled against Shri Bhartiya in the
aforesaid charge sheet dated 26.7.88 as proved against
him he has not analysed the facts brought on the records
of the enquiry proceedings and has also not highlighted
the merits/demerits of the evidences brought on the
records of enquiry proceedings. Accordingly evidences on
records of the proceedings would first be discussed and
analysed by me chargewise separately each here under as
the same exercise has become necessary for the reasons
mentioned above.”
16. In the statutory appeal filed by the Officeremployee, he raised
a specific contention that the enquiry report was not furnished.
Despite recording a finding that the copy of the enquiry report was
not even enclosed to the final order of penalty, the Appellate
Authority attempted to overcome the same on the ground that after
the appeal was filed, the copy of enquiry report was sent by post
and that the same returned undelivered. The relevant portion of the
order of the Appellate Authority reads as follows:
Also, a copy of the Enquiry Officer's report/findings,
although not enclosed with the Disciplinary Authority's
Order, has been subsequently provided to the appellant.
However, the same, which was sent at the recorded
address of the appellant on 2.6.1989, has been returned
8
undelivered by the Post Office with the remark : "Pane
wale bar bar jane par nahi milte, intezar ke bad wapas."
17. At the time when the final order of penalty dated 31.03.1989
was passed and at the time when the appeal was dismissed by the
order dated 28.02.1990, the law in this regard was actually in a
state of flux. After the decision of the Constitution Bench of this
1
Court in Union of India and Another vs. Tulsiram Patel , a two
member Bench doubted its authenticity or applicability to cases
where a copy of the enquiry report was not supplied. Therefore, in
2
Union of India And Others vs. E. Bashyan , a reference was
made, which led to the decision in vs.
Union of India and Others
3
Mohd. Ramzan Khan . The position became very clear after the
decision in vs. .
Managing Director, ECIL , Hyderabad B
4
Karunakar .
18. Therefore, by the time the writ petition challenging the final
order of penalty was decided on 27.04.2011, the law in this regard
was no longer res integra .
1 (1985) 3 SCC 398
2 AIR 1988 SC 1000
3 (1991) 1 SCC 588
4 1994 SCC Supp.(2) 391
9
19. Dehors the development of law as aforesaid, the Officer
employee had an advantage in the form of Regulation 9 of the
Allahabad Bank Officer Employees (Discipline and Appeal)
Regulations 1976. This Regulation 9 reads as follows:
“9. COMMUNICATION OF ORDERS:
Orders made by the Disciplinary Authority under
Regulation 7 or Regulation 8 shall be communicated to
the officer employee concerned, who shall also be
supplied with a copy of the report of enquiry, if any.”
20. Therefore, by the order dated 27.04.2011, the High Court
allowed the writ petition of the Officeremployee, on the basis of the
above Regulation. The operative portion of the order of the High
Court dated 27.04.2011 reads as follows:
“In view of above, the writ petition is allowed. A writ
in the nature of certiorari is issued quashing the
impugned appellate order dated 28.2.1990 and the order
dated 3.7.1990 (Annexure8) passed on the review
petition. A cost of Rs.50,000/ is imposed upon the
respondents which shall be deposited in this Court within
a period of two months. The respondents shall supply a
copy of the enquiry report within one month from today.
Thereafter, the petitioner may prefer an appeal setting up
grounds and pointing procedural illegality including the
plea raised before this Court within the next one month.
The appellate authority shall decide the appeal,
expeditiously say within a period of two months from the
date of filing of fresh appeal. In case the cost is not
deposited, the same shall be realised through the District
Magistrate as arrears of land revenue. It shall be open for
the petitioner to withdraw an amount of Rs.25,000/ and
the rest shall be remitted to the Mediation Centre of this
Court at Lucknow. Registry to take followup action.”
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21. The aforesaid order of the High Court has attained finality with
the dismissal of the SLP on 26.08.2011. The order of dismissal of
the SLP reads as follows:
“Delay condoned.
Having considered the pleadings in the case, the
materials placed on record and the submissions of the
learned counsel, we do not find any merit in the Special
Leave Petition and hence the special leave petition is
dismissed.”
22. The Bank thereafter took a chance by filing a petition for
review before the High Court, but the same also got dismissed on
29.02.2012. Thereafter, the Bank took a very strange position by
holding out that the copy of the enquiry report was not traceable.
The communication dated 08.05.2012 sent by the Bank to the
Officeremployee in this regard reads as follows:
“In reference to the captioned matter we have to
advise that the copy of the finding of Enquiry Officer is
not traceable and this fact has been brought to the notice
of Hon'ble High Court in the writ petition, and also to you
vide letter No.ZOLK/INSPECTION/693 dated 08.09.2011.
You are requested to submit your statutory appeal and
the same will be considered and you will be provided all
reasonable opportunity to put forth your case even
personal hearing, if required, will also be afforded to you,
but since the copy of finding of Enquiry Officer is not
traceable we are unable to provide the same. Kindly bear
with us and submit your appeal which will be considered
by the Bank on the basis of records available.”
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23. In view of the aforesaid turn of events, the Officeremployee
moved a contempt petition before the High Court. Finding that the
Management of the Bank cannot be penalized for not being able to
trace the copy of the enquiry report, the High Court closed the
contempt petition with liberty to the employee to reagitate the issue
on the basis of the subsequent cause of action. The relevant portion
of the order dated 21.05.2013 passed by the High Court in the
contempt petition filed by the employee reads as follows:
“…Since by the letter dated 8.5.2012, the respondents
had communicated that inquiry report is not available in
absence of inquiry report, cause of action arose contrary
to finding recorded by the judgment and order dated
27.4.2011. It is open for the petitioner to approach this
Court again to ventilate his grievance on the basis of
subsequent cause of action…”
24. Therefore, the Officeremployee was driven to the necessity of
filing a fresh writ petition in W.P.No.1403(S/B) of 2013. During the
pendency of the said writ petition, an order was passed by the High
Court on 03.08.2016 holding that the stand of the Bank was
unacceptable and that in any case an appeal may be preferred and
the same may be decided by the Appellate Authority. Accordingly,
an appeal was preferred. The Appellate Authority considered the
appeal once again but obviously without the copy of the enquiry
12
report and rejected the appeal. This fact is borne out by the
impugned order itself, the relevant portion of which reads as
follows:
“…During pendency of this writ petition, an order
was passed by the Court in these proceedings on
03.08.2016 wherein it has been observed that the stand
of the respondentBank that enquiry report was not
available, cannot be accepted in view of the finding of this
Court recorded earlier i.e. the finding recorded in the
judgment and order dated 27.04.2011. It was further
observed that the obligation cast upon the respondent
Bank has not been carried out on the lame excuse. The
Court further observed that the Bank may, however,
decide the appeal preferred by the petitioner taking into
consideration the direction issued earlier, vide judgment
and order dated 27.04.2011…”
25. In the light of the aforesaid facts, no great deal of research was
necessary on the part of the High Court to arrive at the conclusion
that the Management of the Bank was clearly at fault. Therefore,
the High Court allowed the writ petition. The operative portion of
the impugned order is already extracted earlier.
26. It is not as though the High Court proceeded solely on the
basis of the failure of the Management to supply the copy of the
enquiry report. The High Court found that the charges related to a
Government sponsored Scheme and that the beneficiaries were
identified and were shortlisted by a Government agency, namely
13
the District Rural Development Agency. The High Court also found
that no bad motive was either attributed to the employee nor proved
in the departmental proceedings.
27. On the basis of the aforesaid findings, the High Court could
have granted all the reliefs in full, including full backwages. But
considering the fact that from the date of his dismissal namely,
31.03.1989, upto the date of his superannuation on 28.02.2013, a
period of nearly 24 years had passed, the High Court thought it fit
to limit the backwages to 50%. In such circumstances, we do not
think that the Management can make out any grievance, especially
after having violated Regulation 9; after their failure to point
(i) (ii)
out to the High Court in the first round of litigation that the copy of
the enquiry report was not available; and (iii) after their inability to
comply with the order of the High Court passed in the first round of
litigation, which was also confirmed by this Court.
28. Therefore, the Special Leave Petition filed by the Bank
deserves to be dismissed.
14
29. Having dealt with the SLP filed by the Management, let us now
come to the SLP filed by the Officeremployee with regard to the
grant of back wages only to the extent of 50%.
30. The learned counsel for the Officeremployee places heavy
reliance upon the decision of this Court in
Deepali Gundu
Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.)
5
. , in support of his contention that the grant of full back
& Ors
wages is a normal rule in cases of wrongful termination of service.
But the ratio laid down in the said decision cannot be pressed into
service by the Officeremployee in this case. This is for the reason
that the Officeremployee in this case was originally appointed as a
Clerk way back in the year 1974. He was promoted to the post of
Junior Management GradeII in the year 1982 and as Branch
Manager in the year 1987. This is why he was governed by the
Allahabad Bank Officer Employees (Discipline and Appeal)
Regulations, 1976. Courts should always keep in mind the different
yardsticks to be applied in the cases of workman category
employees and managerial category employees. In appropriate
5 (2013) 10 SCC 324
15
cases, the distinction between labour law and service law may also
have to be kept in mind. Many times, Courts wrongly apply, in
matters arising under service law, the principles laid down in
matters arising under labour laws.
31. As a matter of fact, the propositions elucidated in
Deepali
Gundu Surwase (supra), read as follows:
“38. The propositions which can be culled out from the
aforementioned judgments are:
38.1 In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
38.2 The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the nature
of misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
38.3 Ordinarily, an employee or workman whose
services are terminated and who is desirous of getting
back wages is required to either plead or at least make
a statement before the adjudicating authority or the
Court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the
employer wants to avoid payment of full back wages,
then it has to plead and also lead cogent evidence to
prove that the employee/workman was gainfully
employed and was getting wages equal to the wages
he/she was drawing prior to the termination of service.
This is so because it is settled law that the burden of
proof of the existence of a particular fact lies on the
person who makes a positive averments about its
16
existence. It is always easier to prove a positive fact
than to prove a negative fact. Therefore, once the
employee shows that he was not employed, the onus
lies on the employer to specifically plead and prove that
the employee was gainfully employed and was getting
the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the employee/workman
is consistent with the rules of natural justice and / or
certified standing orders, if any, but holds that the
punishment was disproportionate to the misconduct
found proved, then it will have the discretion not to
award full back wages. However, if the Labour
Court/Industrial Tribunal finds that the employee or
workman is not at all guilty of any misconduct or that
the employer had foisted a false charge, then there will
be ample justification for award of full back wages.
38.5 The cases in which the competent Court or
Tribunal finds that the employer has acted in gross
violation of the statutory provisions and/or the
principles of natural justice or is guilty of victimizing the
employee or workman, then the concerned Court or
Tribunal will be fully justified in directing payment of full
back wages. In such cases, the superior Courts should
not exercise power under Article 226 or 136 of the
Constitution and interfere with the award passed by the
Labour Court, etc., merely because there is a possibility
of forming a different opinion on the entitlement of the
employee/workman to get full back wages or the
employer’s obligation to pay the same. The Courts must
always be kept in view that in the cases of wrongful /
illegal termination of service, the wrongdoer is the
employer and sufferer is the employee/workman and
there is no justification to give premium to the employer
of his wrongdoings by relieving him of the burden to pay
to the employee/workman his dues in the form of full
back wages.
38.6 In a number of cases, the superior Courts have
interfered with the award of the primary adjudicatory
17
authority on the premise that finalization of litigation
has taken long time ignoring that in majority of cases
the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants
cannot be blamed or penalised. It would amount to
grave injustice to an employee or workman if he is
denied back wages simply because there is long lapse of
time between the termination of his service and finality
given to the order of reinstatement. The Courts should
bear in mind that in most of these cases, the employer is
in an advantageous position visàvis the employee or
workman. He can avail the services of best legal brain
for prolonging the agony of the sufferer, i.e., the
employee or workman, who can ill afford the luxury of
spending money on a lawyer with certain amount of
fame. Therefore, in such cases it would be prudent to
adopt the course suggested in Hindustan Tin Works
Private Limited v. Employees of Hindustan Tin Works
Private Limited (1979) 2 SCC 80 .
38.7 The observation made in J.K. Synthetics Ltd. v.
K.P. Agrawal (2007) 2 SCC 433 that on reinstatement
the employee/workman cannot claim continuity of
service as of right is contrary to the ratio of the
judgments of three Judge Benches referred to
hereinabove and cannot be treated as good law. This
part of the judgment is also against the very concept of
reinstatement of an employee/workman.”
32. Even if we apply the propositions enunciated by this Court in
Deepali Gundu Surwase (supra), the Officeremployee may not be
entitled to full back wages. This is for the reason that there is
nothing on record to show whether he was gainfully employed after
his dismissal from service. A careful look at the pleadings in the
writ petition W.P. No.1403 of 2013 would show that he has not
18
pleaded about his nonemployment. Though in paragraphs 36 to 38
of his writ petition, the employee has pleaded about the sudden set
back to his health in the year 2011 and the financial hardships he
was facing, there was no assertion about his nonemployment. The
employee had his pleadings amended after the dismissal of his
appeal during the pendency of the writ petition. Even in the
amended pleadings, there was no averment relating to his non
employment. Therefore, even if we apply the ratio in Deepali
(supra), the employee may not satisfy the third
Gundu Surwase
proposition found in para 38.3 thereof.
33. The reliance placed upon the decision in Pawan Kumar
vs.
Agarwala General ManagerII and Appointing Authority,
6
State Bank of India and Others may not also be of help to the
employee. It is a case where this Court applied the propositions laid
down in (supra). This Court found that
Deepali Gundu Surwase
there was nothing to show that the employee was gainfully
employed after the date of dismissal. It is needless to point out that
in the first instance, there is an obligation on the part of the
6 (2015) 15 SCC 184
19
employee to plead that he is not gainfully employed. It is only then
that the burden would shift upon the employer to make an
assertion and establish the same.
34. The decision in
Fisheries Department, State of Uttar
7
Pradesh vs. Charan Singh arose out of an award of the Industrial
Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore,
the same has no relevance to the case on hand.
35. In vs.
Jayantibhai Raojibhai Patel Municipal Council,
8
Narkhed and Others , this Court referred to the principles laid
9
down in and to the
Hindustan Tin Works (P) Ltd. vs. Employees
propositions culled out in the Deepali Gundu Surwase (supra).
Though this Court held that the denial of back wages in entirety
was not justified, this Court awarded only a lumpsum
compensation in that case.
36. Therefore, even applying the ratio laid down in various
decisions, we do not think that the employee could be granted
anything more than what the High Court has awarded.
7 (2015) 8 SCC 150
8 (2019) 17 SCC 184
9 (1979) 2 SCC 80
20
37. As we have pointed out at the beginning, the total period of
service rendered by the Officeremployee before his dismissal from
service, was about 15 years, from 1974 to 1989 and he attained the
age of superannuation in February, 2013, meaning thereby that he
was out of employment for 24 years. The High Court has taken this
factor into consideration for limiting the back wages only to 50%
and we find that the High Court has actually struck a balance. We
do not wish to upset this balance. Therefore, the Special Leave
Petition of the Officeremployee is also liable to be dismissed.
38. Accordingly, both the Special Leave Petitions are dismissed, no
costs.
………………………………….J.
(Indira Banerjee)
………………………………….J.
(V. Ramasubramanian)
New Delhi
April 22, 2022
21