Leave granted.
This appeal by special leave is filed by the
appellant as he is aggrieved of the judgment and order
dated 26.11.2014 passed by the Division Bench of the
Gauhati High Court at Guwahati in Writ Appeal No. 192
of 2014 holding that there was no negligence on the
part of the respondent (appellant herein) in
disbursing the loan and he had taken appropriate steps, however, the other Manager of that Branch, who has been
found guilty and levied with lesser penalty, therefore,
the minor penalty would visit the respondent
(appellant herein). Accordingly, the Division Bench of
the High Court modified the penalty of dismissal to one
of reduction of one increment for one year and further
directed the appellant to be reinstated in service with
no back wages for the reason that he had already been
taking pension for the period and further clarified
that the period of dismissal and the reinstatement
shall be reckoned as a continuity of service for the
purpose of pension and, accordingly, partly allowed the
Writ Appeal preferred by the Bank.
Aggrieved of the aforesaid portion of the
finding and the order of penalty imposed by the
Division Bench of the High Court by setting aside the
order of reinstatement with 25% back wages awarded by
the learned Single Judge of the High Court in the Writ
Petition filed by the appellant questioning the
correctness of the impugned judgment and order, the
present appeal is filed by the appellant, urging
various legal contentions.
Brief facts necessary to appreciate the rival
legal contentions urged on behalf of the parties to the
lis are that the disciplinary proceedings were
initiated against the appellant by issuing chargesheet
dated 28.10.2004 alleging that he had influenced the JUDGMENT Branch Manager of Hallydayganj Branch, against whom the
disciplinary proceedings were initiated and upon
finding him guilty, minor penalty of lesser punishment
was imposed on him for being negligent in giving the
loans. In the said proceedings, the appellant herein
was Defence Representative of the said Manager Mr.
Pradeep Kumar Das. The brief allegation contained in
the chargesheet was that he had influenced the Branch
Manager of Hallydayganj Branch to sanction cash credit
facility sans disclosing earlier loan of Abdul Kuddus
Mondal and, therefore, he had failed to protect the
interests of the Bank. The second charge was about
illegal grant of cash facility. The said charges were
divided into six allegations, which were extracted in
the chargesheet. The said charges were denied by the
appellant herein, therefore, the enquiry officer was
appointed by the disciplinary authority to enquire into
the allegations made against him.
The enquiry officer found that allegation Nos.
1, 2, 4 and 6 are proved, however, allegation No. 3 is
partly proved and allegation No. 5 is not proved. He
found that the loan application of the loanee was
written by the appellant herein despite the fact that
it was within his knowledge that the borrower had
earlier taken loan from his Branch and even then the
appellant has helped the borrower to borrow more money JUDGMENT from the neighbouring branch without disclosing the
earlier transaction with the appellant's Branch.
The disciplinary authority has taken the view
that charge Nos. 3 and 5 also held to be proved from
the material on record without giving an opportunity to
the appellant herein to show cause as to why the
finding on those charges should not be reversed. The
disciplinary authority forwarded to the appellant
herein the enquiry report after taking the view that
charge Nos. 3 and 5 were proved for which the appellant
submitted a reply on 22.11.2005.
In the meantime, in the disciplinary
proceedings against Mr. Pradeep Kumar Das, Branch
Manager of Hallydayganj Branch, where the borrower got
filled up the application through the appellant and
taken the loan without disclosing the borrowing/loan
from the appellant's Branch of the Bank, the
disciplinary authority, after concluding the enquiry
against Mr. Pradeep Kumar Das, awarded penalty of one
stage lower in the time-scale for a period of one year
without cumulative effect. The penalty was imposed
holding that the same will not adversely affect the
pension of the said delinquent Manager Mr. Pradeep
Kumar Das.
On 05.01.2006, the disciplinary authority, not
accepting the reply submitted by the appellant herein, JUDGMENT imposed the penalty of reduction of basic pay for 3
years. The Chief Vigilance Officer (“C.V.O.”) was of
the view that there was extreme mala fides on the part
of the appellant as he had acted against the interests
of the Bank, therefore, the stiff major penalty was
directed to be imposed upon him vide Order dated
01.02.2006. Accordingly, the Appointing Authority
passed the Order dated 24.04.2006 for removal of the
appellant from service. Against the said order of
removal, the appellant filed an appeal before the
Appellate Authority, which came to be rejected vide
Order dated 18.11.2006 sans examining the merits of the
case and considering the legal contentions urged in the
memorandum of appeal. On 07.02.2007, the respondent-
Bank sanctioned pension and the appellant is drawing
pension since then.
Aggrieved of the order of the dismissal which
is affirmed by the Appellate Authority, the appellant
herein filed a writ petition before the Gauhati High
Court in the month of March, 2009. The Bank filed its
affidavit by way of reply in the said writ petition.
After hearing both the parties, the learned Single
Judge of the High Court by Order dated 04.03.2014
allowed the writ petition and granted reinstatement
with all service benefits and payment of back wages to
the extent of 25%. The learned Single Judge while JUDGMENT granting such relief adverted to the rival legal
contentions has recorded a finding of fact holding that
there was unfairness in the enquiry as the list of
witnesses and the copies of documents were not given to
the appellant and the finding of the enquiry officer
was held to be perverse.
The correctness of the said judgment and order
of the learned Single Judge of the High Court was
challenged in the Writ Appeal filed by the respondents
herein before the Gauhati High Court. The Division
Bench of the High Court after considering the rival
legal contentions substituted the order of the learned
Single Judge by imposing penalty of reduction of one
increment for one year and reinstatement without back
wages since he was already drawing pension. The said
order passed by the Division Bench of the High Court
modifying the order of the learned Single Judge is
impugned in this civil appeal by the appellant, urging
various legal contentions.
It is contended by Mr. Vijay Hansaria, learned
senior counsel for the appellant, that the finding is
recorded by the learned Single Judge in the order
passed in writ petition after considering the rival
legal contentions that the statutory requirements to
conduct fair and reasonable enquiry, list of witnesses JUDGMENT and copies of documents were not furnished to the
appellant-officer, thereby conducting the enquiry
proceedings are vitiated and the findings recorded
against the appellant and the charges are perverse.
The said finding is placed on undisputed fact of non
furnishing of list of witnesses and copies of
documents which are the statutory requirements for
conduct of disciplinary proceedings. The Division
Bench of the High Court has erroneously set aside the
same without there being any evidence on record that
the appellant is negligent and other acts of misconduct
in discharging his duties and reversed the finding of
the learned Single Judge in holding that the conduct
of the enquiry is not fair and reasonable and there is
non-compliance of the principles of natural justice in
conducting enquiry thereby grave prejudice has been
caused to the appellant herein. The learned Single
Judge has also referred to the judgment of this Court
in the case of State Bank of India and Ors. vs. K.P.
Narayanan Kutty, (2003) 2 SCC 449, while recording such
a finding holding that the finding of fact recorded by
the enquiry officer that the charges are proved is
perverse in law. Learned senior counsel further
contended that the disciplinary authority has to follow
the procedural safeguards provided under the
disciplinary Regulations. Not considering the reply to JUDGMENT the chargesheet given to the appellant herein by the
disciplinary authority, the action that would be taken
upon such disciplinary proceedings by recording the
finding by the enquiry officer holding that the charges
are proved, on the basis of evidence of the witnesses
whose names were not notified to the appellant and
copies of documents were not furnished to him which
were relied upon by the enquiry officer, thereby the
case of the appellant was prejudiced, therefore, the
same will have serious civil consequences upon the
Service Conditions of the appellant, if the minor or
major penalties are imposed, including the order of
removal that is passed by the disciplinary authority.
Therefore, the learned senior counsel submitted that
the Division Bench without application of mind and
assigning valid and cogent reasons, not noticing the
undisputed facts that list of witnesses and copies of
documents were not provided to the appellant in the
enquiry proceeding, it has erroneously set aside the
order passed by the learned Single Judge, who has
assigned valid and cogent reasons in rendering the
finding of fact holding that the enquiry was not fair
and the same is not in accordance with the statutory
requirements of the Conduct and Disciplinary
Regulations and in compliance with the principles of
natural justice. The said conclusion arrived at by the JUDGMENT learned Single Judge is supported by the judgments of
this Court rendered in a catena of cases, particularly
in the case of S. A. Venkataraman vs. U.O.I. and Anr.,
AIR 1954 SC 375, this Court observed as follows:
“14. As the law stands at present, the only
purpose, for which an enquiry under Act 37
of 1850 could be made, is to help the
Government to come to a definite
conclusion regarding the misbehavior of a
public servant and thus enable it to
determine provisionally the punishment
which should be imposed upon him prior to
giving him a reasonable opportunity of
showing cause, as is required under article
311(2) of the Constitution. An enquiry
under this Act is not at all compulsory and
it is quite open to the Government to adopt
any other method if it so chooses. It is a
matter of convenience merely and nothing
else. It is against this background that we
will have to examine the material
provisions of the Public Servants
(Inquiries), Act of 1850 and see whether
from the nature and result of the enquiry
which the Act contemplates it is at all
possible to say that the proceedings taken
or concluded under the Act amount to
prosecution and punishment for a criminal
offence.”
In Union of India vs. T.R. Varma, AIR 1957 SC
882, this Court observed that if a person whose
services have been wrongfully terminated is entitled
to institute an action to vindicate his rights.
“6. At the very outset, we have to observe
that a writ petition under Art. 226 is not
the appropriate proceeding for adjudication
of disputes like the present. Under the law,
a person whose services have been wrongfully
terminated, is entitled to institute an JUDGMENT action to vindicate his rights, and in such
an action, the Court will be competent to
award all the relief's to which he may be
entitled, including some which would not be
admissible in a writ petition.
It is well-settled that when an
alternative and equally efficacious remedy is
open to a litigant, he should be required to
pursue that remedy and not invoke the special
jurisdiction of the High Court to issue a
prerogative writ. It is true that the
existence of another remedy does not affect
the jurisdiction of the Court to issue a
writ; but, as observed by this Court in
Rashid Ahmed vs. Municipal Board, Kairana,
[1950] S.C.R. 566 (AIR 1950 SC 163(A) ”the
existence of an adequate legal remedy is a
thing to be taken into consideration in the matter of granting writs ". Vide also K. S. Rashid and Son vs. The Income-tax Investigation Commission, 1954 SCR 738 at p.747: (AIR 1954 SC 207 at p. 210)(B). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. None such appears in the present case. On the other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross- examining the witnesses, who gave evidence in support of the charge.
That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judges had referred the respondent to a suit.
In this appeal, we should have ourselves adopted that course, and passed the order which the learned Judges should have passed. But we feel pressed by the fact that the order dismissing the respondent having been made on September 16, 1954, an action to set it aside would now be time-barred. As the High Court has gone into the matter on themerits,JUDGMENTwe propose to dispose of this appeal on a consideration of the merits.
10. Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law.
Stating it broadly and without
intending it to be exhaustive, it may be
observed that rules of natural justice
require that a party should have the
opportunity of adducing all relevant evidence
on which he relies, that the evidence of the
opponent should be taken in his presence, and
that he should be given the opportunity of
cross-examining the witnesses examined by
that party, and that no materials should be
relied on against him without his being given
an opportunity of explaining them.
If these rules are satisfied, the
enquiry is not open to attack on the ground
that the procedure laid down in the Evidence
Act for taking evidence was not strictly
followed.”
Learned senior counsel for the appellant
vehemently challenged that the appellant is also
aggrieved of the non-grant of back wages by the
Division Bench and setting aside the grant of 25% back
wages awarded by the learned Single Judge and imposing
penalty of reduction of one increment for one year. The
said finding is recorded without there being any JUDGMENT evidence on record. He contended that because pension
amount does not substitute the grant of back wages,
particularly in the absence of any material with the
respondent-Bank, whatsoever, to deny the back wages, as
he was gainfully employed from the date of dismissal
and till passing of the impugned judgment and order by
the learned Single Judge and the Division Bench.
Further the learned Single Judge and the Division
bench have not given any reason, whatsoever, in
depriving the back wages and imposing the penalty of
withholding increment without there being any evidence,
therefore, the same is contrary to the law laid down by
this Court in a catena of cases.
Per contra, Mr. Gaurav Agrawal, learned counsel
appearing for the respondents, sought to justify the
order passed by the Division Bench of the High Court
and submitted that the correctness of the impugned
judgment and order of the Division Bench is challenged
on various grounds by filing a Special Leave Petition
and further, alternatively, contended that, even
assuming the Special Leave Petition cannot be
entertained by this Court, even then the Division
Bench of the High Court in exercise of its
extraordinary and supervisory jurisdiction has done
justice to the parties in imposing minor penalty and
not granting back wages while awarding reinstatement JUDGMENT keeping in view that the appellant has been paid the
pension since 07.02.2007, therefore, he prayed for
dismissal of the Civil Appeal filed by the appellant
seeking for the reliefs, as stated above.
We have given our thoughtful considerations to
the rival contentions urged by the learned counsel for
the parties to the lis and have carefully perused the
materials on the record and examined the impugned
Orders passed by both the learned Single Judge and the
Division Bench of the High Court.
The chargesheet was issued on 28.10.2004
against the appellant making 6 allegations against him
and it is undisputed fact that list of witnesses and
the copies of documents were not furnished to the
appellant. Further, the disciplinary authority has
reversed the findings on charge Nos. 3 and 5 without
giving an opportunity to the appellant to show cause in
the matter and, thereafter, the order of removal was
passed by the Appointing Authority on the advice of the
C.V.O. vide his opinion dated 01.02.2006 and further it
is brought on record that similarly placed person,
namely, Mr. Pradeep Kumar Das, the Manager of
Hallydayganj Branch, who has loaned the loan to one
Mr. Tapan Kumar Sangma, in his case they have imposed
lesser punishment of withholding one increment thereby
making discrimination in differently treating with the JUDGMENT appellant herein, which is violation of Article 14 of
the Constitution of India. Further, it is brought to
our notice by Mr. Vijay Hansaria, learned senior
counsel for the appellant that the loan amount lent by
Mr. Pradeep Kumas Das, the Manager of Hallydayganj
Branch, the same has been cleared by Mr. Tapan Kumar
Sangma with interest by paying Rs. 1,61,000/-. The
overdraft is beyond the permissible limit is held to be
not proved. The finding of the learned Single Judge
while examining the entire enquiry report, on which
strong reliance is placed by the respondent-Bank, the
learned Single Judge in exercise of his extraordinary
and Original Jurisdiction examined the case on merits
and referred to Rule 68(1)(IX)(a) of the State Bank of
India Service Rules, wherein it mandates the
disciplinary authority to furnish the delinquent the
list of documents through which the charges are
proposed to be proved. It is the case of the appellant
that such a list of witnesses and copies of documents
were not furnished either by the disciplinary
authority or the enquiry officer which are vital
aspects of the case, based on which the finding is
recorded on the charges by the enquiry officer,
referred to supra, holding that the same are proved
against the appellant. Further, with regard to lending
of loan in favour of Mr. Tapan Kumar Sangma, the JUDGMENT learned Single Judge examined and recorded the finding
of fact stating that a sum of Rs. 2,13,595 was
recovered from the said loanee and it is stated that
the Power of Attorney furnished by Abdul Kuddus Mondal
was never utilized to recover the balance loan due of
Rs. 15,450/-, which will not be the negligence on the
part of the appellant, however, it will be negligence
of those responsible for loan recovery, a small unpaid
amount had to be written off by the Bank. Further, with
reference to the opinion/report Exhibit D-4 furnished
in support of the disbursement of the loan clearly
disclosed the previous loans of the borrowers from the
Phulbari Branch but surprisingly neither the enquiry
officer nor the disciplinary authority or the C.V.O.
had taken note of the said opinion/report, which
establishes the bona fide of the appellant's action in
rendering assistance to his neighbouring Branch Manager
to meet the target for disbursal of contract finance by
the Hallydayganj Branch Manager. Upon the contention
urged on behalf of the appellant that taking multiple
loans is not prohibited in the S.B.I. and contract
finance were sanctioned for the 2 borrowers by the
Hallydayganj Branch Manager with full knowledge of the
previous loans taken by them from the Phulbari Branch,
the learned Single Judge has referred to non-furnishing
of the control return file of the Branch as well as the JUDGMENT Bank's Ledger sheets of the J.N. High School account
and Mr. Tapan Kumar Sangma accounts to the appellant at
the time of conducting enquiry on the charges to
defend the case by the appellant effectively, the same
was projected as cause for serious prejudice to the
case of the appellant as the said documents
established that the borrowers had availed similar
overdraft facility earlier and, in any case, this was
within the permissible discretionary capacity of the
Manager of the Phulbari Branch. The learned Single
Judge on the basis of reliance placed by the
appellants's counsel upon the decision of this Court
in the case of State Bank of India & Ors. vs. K.P.
Narayanan Kutty, (supra), wherein it has been held the
the non compliance of the statutory requirements as
per the aforesaid rules, the action of the
disciplinary authority is inconsistent with the
principles of natural justice and the settled
principles of service jurisprudence. In the said case,
while concurring with the decision of this Court in
the case of Punjab National Bank vs. Kunj, (1998) 7
SCC 84, para 19 was quoted, which reads as follows:
“19. The result of the aforesaid discussion
would be that the principles of natural
justice have to be read into Regulation 7(2).
As a result thereof, whenever the
disciplinary authority disagrees with the
enquiry authority on any article of charge,
then before it records its own findings on JUDGMENT such charge, it must record its tentative
reasons for such disagreement and give to the
delinquent officer an opportunity to
represent before it records its findings. The
report of the enquiry officer containing its
findings will have to be conveyed and the
delinquent officer will have an opportunity
to persuade the disciplinary authority to
accept the favourable conclusion of the
enquiry officer. The principles of natural
justice, as we have already observed, require
the authority which has to take a final
decision and can impose a penalty, to give an
opportunity to the officer charged of
misconduct to file a representation before
the disciplinary authority records its
findings on the charges framed against the
officer."
While dealing with the similar fact situation in
William Vincent Vitarelli v. Fred A. Seaton, Secretary
of the Interior, et al (359 U.S. 535 (1959), the
learned Judge observed as follows:
“An executive agency must be rigorously held
to the standards by which it professes its
action to be judged. See Securities &
Exchange Commission v. Chenery Corp., 318
U.S. 80, 87—88, 63 S.Ct. 454, 459, 87 L.Ed.
626. Accordingly, if dismissal from
employment is based on a defined procedure,
even though generous beyond the requirements
that bind such agency, that procedure must be
scrupulously observed. See Service v. Dulles,
354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2nd 1403.
This judicially evolved rule of
administrative law is now firmly established
and, if I may add, rightly so. He that takes
the procedural sword shall perish with that
sword.”
The said judgment in Vitarelli's case was
referred to by this Court in R.D. Shetty vs. International JUDGMENTAirport Authority, 1979 (3) SCC 489, therelevant extract of which is quoted hereinunder:
“10……It is a well-settled rule of
administrative law that an executive
authority must be rigorously held to the
standards by which it professes its actions
to be judged and it must scrupulously observe
those standards on pain of invalidation of an
act in violation of them. This rule was
enunciated by Mr. Justice Frankfurter in
Viteralli v. Saton where the learned Judge
said:
‘An executive agency must be rigorously held
to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword.’
This Court accepted the rule as valid and applicable in India in A.S. Ahluwalia v. Punjab and in subsequent decision given in Sukhdev v. Bhagatram, Mathew, J., quoted the above-referred observations of Mr Justice Frankfurter with approval. It may be noted that this rule, though supportable also as an emanation from Article 14, does not rest merely on that article. It has an independent existence apart from Article 14. It is a rule of administrative law which has been judicially evolved as a check against exercise of arbitrary power by the executive authority. If we turn to the judgment of Mr Justice Frankfurter and examine it, we find that he has not sought to draw support for the rule from the equality clause of the United States Constitution, but evolved it purely as a rule of administrative law. Even in England, the recent trend in administrative law is in that direction as is evident from what is stated at pp. 540-41 inProf Wade’sJUDGMENT“Administrative Law”, 4th Edn. There is no reason why we should hesitate to adopt this rule as a part of our continually expanding administrative law. Today with tremendous expansion of welfare and social service functions, increasing control of material and economic resources and large scale assumption of industrial and commercial activities by the State, the power of the executive Government to affect the lives of the people is steadily growing. The attainment of socio-economic justice being a conscious end of State policy, there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with State power-holders. This renders it necessary to structure and restrict the power of the
executive Government so as to prevent its
arbitrary application or exercise…..”
Further, the learned Single Judge has examined
the opinion sought for from the C.V.O. by the
disciplinary authority on the penalty to be imposed
upon the appellant, the C.V.O. has suggested the major
penalty of removal, the same is inconsistent with the
norms applicable in the Bank's disciplinary
proceedings. The learned Single Judge examined the
action of the disciplinary authority in relation to the
Branch Manager Hallydayganj Branch that facilitating
the second loan to the loanee, Mr. Tapan Kumar Sangma,
closely known to the said Manager, the same allegation
has been treated as a minor lapse, but in the context
of the appellant they have imposed major penalty, which
is a clear case of discrimination. The appellant's admission with regard to writing the loan applicationsof Abdul Kuddus Mondal and Hasanuzzaman to enable them
to avail contract finance from the Hallydayganj Branch,
the contention urged on behalf of the appellant is
examined and held that the said applicants had availed
loans to the extent of Rs. 10,000/- and Rs. 15,000/-
respectively from the Phulbari Branch of the S.B.I.,
projecting that minimal loss and both the loans were
cleared of, assuming that the disciplinary proceedings
were just and fair, learned senior counsel for the
appellant argued that the minor punishment proposed by
the disciplinary authority of pay reduction should have
been considered reasonable in the context of the
charges. The learned Single Judge, after considering
the opinion/report DEX-4, held that the enquiry officer
did not base his conclusion on any incriminatory
materials and in fact the report DEX-4 was totally
ignored which would have established the innocence of
the delinquent and further held that the enquiry
officer conducted the enquiry sans furnishing the
copies of crucial documents and furnishing the list of
witnesses. It appears to be a case of denial of fair
opportunity to the delinquent in gross violation of
the procedural requirements of the Service Rules. That
finding is based on factual, undisputed facts and in
conformity with the law, therefore, in our opinion, the
learned Single Judge has rightly held that the enquiry
conducted against the appellant was unfair and the JUDGMENT findings recorded on the charges are perverse in law.
While recording such a finding the learned Single Judge
has also proceeded to hold that the enquiry was found
to be vitiated for the reason that the then Branch
Manager Mr. Pradeep Kumar Das of Hallydayganj Branch
was never examined in the enquiry and without his
evidence, conclusion on culpability of the delinquent
on the loans disbursed by the Branch Manager of
Hallydayganj to the loanee could not have been
reasonably reached by anyone, including the enquiry
officer and imposing major penalty on the basis of the
C.V.O. without there being any legal evidence on
record, the enquiry was not properly conducted due to
non-furnishing the list of witnesses and copies of the
documents, therefore, the exercise of power on the
basis of the C.V.O.'s opinion for removal of the
appellant from service entail serious consequences.
Therefore, placing reliance on K.P. Narayanan Kutty
(supra), the learned Single Judge held that the action
taken in accepting the C.V.O.'s view and passing order
of removal is arbitrary, unreasonable and gross
violation of Article 14 of the Constitution of India.
Having said so, the learned Single Judge has set aside
the order of removal and granted reinstatement of the
appellant with 25% back wages in the absence of any
proof to show that he was gainfully employed from the JUDGMENT date of order of removal till the date of the decision
rendered by the learned Single Judge and the Division
Bench of the High Court, therefore, the same is
contrary to the law laid down by this Court in the case
of Deepali Gundu Surwase vs. Kranti Junior Adhyapak
Mahavidyalaya (D. ED.) & Ors., (2013) 10 SCC 324, para
38 is quoted hereinunder:
“38. The propositions which can be culled
out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. ii) 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. iii) 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 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 tospecifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments. iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A 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. v) 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 Court or Tribunal concerned 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 keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a 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. vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation hastaken 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 vis-à-vis 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 vs. Employees of Hindustan Tin Works
Private Limited, (1979) 2 SCC 80.
vii) 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.”
For the reasons stated supra, we have examined
the case threadbare on the basis of the material placed
on record and rival legal contentions urged on behalf
of the parties, we hold that the finding of the
enquiry officer on the charges is vitiated on account
of non-compliance of the statutory Rules and the
principles of natural justice. In the absence of
evidence, the order of reinstatement sans full back JUDGMENT wages is unjustified in law. At best, the High Court
should have made deduction of the amount of pension
received by the appellant after awarding full back
wages for the period in question. In not doing so, the
orders of the learned Single Judge and the Division
Bench of the High Court are liable to be set aside
with regard to non-grant of full back wages.
Accordingly, we set aside the Orders of the Division
Bench imposing the penalty of reduction of one
increment to the appellant for one year and restore and
modify the order of the learned Single Judge with
regard to award of reinstatement with full back wages
for the period from the date of removal till the date
of the appellant attaining the age of superannuation,
on the basis of periodical revisions of salary to the
appellant herein and deduct the pension amount from
the back wages payable to the appellant. The same shall
be paid to the appellant within eight weeks from the
date of receipt of the copy of this order.
The appeal is allowed in the aforesaid terms,
directions and observations.