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Tuesday, March 4, 2014

Service matter - departmental enquiry - order to be removed from service in the year 1985 - High court set aside the same as general manger report on which he was removed not furnished and remitted for fresh disposal - but not removed at any stage pending enquiry till superannuated in the year 1992 - again the employee was order to be Removed from service in the year 2001 with retrospective 1985- High court closed the writ petition leaving issue open whether the superannuated person can be removed from service ? , with a direction to reinstate with back wages- Apex court held that Removal from service with retrospective is not correct and as such modified the High court order and directed to pay a lum some of Rs.5 lakhs to the legal heirs of Employee in addition to already deposited amounts if any = State Bank of Patiala and another … Appellants Versus Ram Niwas Bansal (Dead) through LRs. …Respondents = 2014 (March . Part) judis.nic.in/supremecourt/filename=41280

    Service matter - departmental enquiry - order to be removed from service in the year 1985 - High court set aside the same as general manger report on which he was removed not furnished  and remitted for fresh disposal - but not removed at any stage pending enquiry till superannuated in the year 1992  - again the employee was  order to be Removed  from service in the year 2001 with retrospective 1985- High court closed the writ petition leaving issue open whether the superannuated person can be removed from service ? , with a direction to reinstate with back wages- Apex court held that Removal from service with retrospective  is not correct and as such modified the High court order and directed to pay a lum some of Rs.5 lakhs to the legal heirs of Employee in addition to already deposited amounts if any =
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.=
Full bench decision 
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.-
Fresh rehearing as per Full Bench and it's result
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.-
the appointing authority  passed  the  order  of  removal  on
      22.11.2001 with effect from 23.4.1985.
In reinstatement writ  for clarification pending rehearing -
A contention was raised by the Bank that
      the respondent-employee stood superannuated in  the  year  1992  after
      completion  of  thirty  years  of  service.   

Full Bench observation -
“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.” 
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.
Apex court 
i) whether the employer Bank could have, in  law,  passed  an  order  of
      dismissal with retrospective  effect;  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.

(ii)  whether  the  delinquent
      officer stood superannuated  after  completion  of  thirty  years  as
      provided under the Regulations on 25.2.1992; and  

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.
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.  
(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.
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  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.
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.

  2014 (March . Part) judis.nic.in/supremecourt/filename=41280
H.L. GOKHALE, DIPAK MISRA
             
   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










                               J U D G M E N T




      Dipak Misra, J.





           Ram Niwas Bansal, the predecessor-in-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 others[1]  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 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 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  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
      Madras[2].  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
      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. Brahmbhatt[3].

  16. Mr. Vikas Singh, learned senior counsel  has  heavily  relied  on  the
      Constitution Bench decision  in  P.H.  Kalyani  v.  M/s.  Air  France,
      Calcutta[4], 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 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 appellant-employee 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 Khan[5] 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.”

 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  Singh[6]  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 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 another[7].  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 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 others[8]  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
      others[9] 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  conducting  due  domestic  enquiry,  the
      disciplinary authority dismissed him from service.  On reference,  the
      labour court found that the domestic enquiry conducted by the employer-
      appellant 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
      delinquent-respondent.  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 others[11], 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.”



  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 others[12], 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  Patnaik[13].   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 another[14] would be apt.  In the said case  a
      contention was canvassed on behalf of the workmen that the view  taken
      by 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
      Factory[15] 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 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
      others[17] 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 Chand[18].

  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  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 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 Capoor[19] , 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
      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 another[20] 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.”

  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
      another[21], 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 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  another[22]  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 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 Kareem[23], A.P.
      SRTC and another v. B.S. David Paul[24] and J.K. Synthetics  Ltd.  v.
      K.P. Agrawal and another[25] 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  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.




      -----------------------
[1] (1993) 4 SCC 727
[2] AIR 1966 SC 951
[3] (1974) 3 SCC 601
[4] AIR 1963 SC 1756
[5] AIR 1959 SC 923
[6] AIR 1959 SC 833
[7] (1997) 1 SCC 9
[8] (1980) 2 SCC 593
[9] (1997) 6 SCC 159
[10] (1991) 1 SCC 249
[11] AIR 1998 SC 185 : (1997) 8 SCC 713
[12] (2002) 10 SCC 437
[13] (2002) 1 SCC 1
[14] (2003) 12 SCC 1
[15] AIR 1965 SC 1803
[16] (1973) 1 SCC 813
[17] (2002) 2 SCC 244
[18] (1978) 2 SCC 144
[19] (2007) 6 SCC 694
[20] (2007) 9 SCC 15
[21] (2011) 10 SCC 249
[22] 1989 Supp (2) SCC 437
[23] (2005) 6 SCC 36
[24] (2006) 2 SCC 282
[25] (2007) 2 SCC 433


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