REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 13448 OF 2015
(Arising out of S.L.P. (C) No. 9833 of 2015)
PAWAN KUMAR AGARWALA ... APPELLANT(S)
VERSUS
GENERAL MANAGER-II & APPOINTING AUTH.
STATE BANK OF INDIA & ORS. ...RESPONDENT(S)
O R D E R
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 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 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, 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 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 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 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
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 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 the merits, we
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 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 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 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 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 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 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 Airport Authority, 1979 (3) SCC 489,
the relevant 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 in
Prof Wade’s “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 applications of 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 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 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 to specifically 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 has taken long time ignoring that in majority of
cases the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be blamed or penalised. It
would amount to grave injustice to an employee or workman if he is denied
back wages simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The Courts should bear in mind that in most of these cases,
the employer is in an advantageous position 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 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.
...........................J.
(V. GOPALA GOWDA)
..........................J.
(AMITAVA ROY)
NEW DELHI,
NOVEMBER 17, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 13448 OF 2015
(Arising out of S.L.P. (C) No. 9833 of 2015)
PAWAN KUMAR AGARWALA ... APPELLANT(S)
VERSUS
GENERAL MANAGER-II & APPOINTING AUTH.
STATE BANK OF INDIA & ORS. ...RESPONDENT(S)
O R D E R
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 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 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, 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 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 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 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
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 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 the merits, we
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 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 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 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 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 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 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 Airport Authority, 1979 (3) SCC 489,
the relevant 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 in
Prof Wade’s “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 applications of 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 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 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 to specifically 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 has taken long time ignoring that in majority of
cases the parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be blamed or penalised. It
would amount to grave injustice to an employee or workman if he is denied
back wages simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The Courts should bear in mind that in most of these cases,
the employer is in an advantageous position 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 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.
...........................J.
(V. GOPALA GOWDA)
..........................J.
(AMITAVA ROY)
NEW DELHI,
NOVEMBER 17, 2015
