State Bank of Patiala Vs Ram Niwas Bansal (dead) Through Lrs.

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 239 OF 2003

State Bank of Patiala and another … Appellants

Versus

Ram Niwas Bansal (Dead) through LRs. …Respondents

WITH

TRANSFER CASE (C) NO. 79 OF 2013

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

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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

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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

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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.

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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

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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: -

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“Reverting back to the facts and circumstances of the present case, it is again not disputed before us that the delinquent officer was never placed under suspension. After the order of dismissal of his service dated 25.4.1985 was set aside by the Court on 22.5.1998, the disciplinary authority has neither concluded the disciplinary proceedings nor has it passed any other appropriate order till today, for the reasons best known to the concerned authority. The question before this Court is not whether the petitioner would or would not stand superannuated in February, 1992 after serving the Bank for a period of 30 years. This question, in any case, was beyond the purview and scope of the writ petition itself. Thus, the parties cannot call upon the Full Bench to decide this question in an application in this Writ Petition. The parties are free to agitate the question in this regard before the appropriate proceedings.”

9. Thereafter, the Full Bench referred to the decision in

Managing Director, ECIL, Hyderabad v. B. Karunakar

and others1 and came to hold that:

“The Full Bench having decided in no uncertain terms that serious prejudice was caused to the petitioner in the departmental proceedings, the Bench set aside the order of dismissal and remanded the matter to the authorities concerned granting permission to proceed further in the departmental enquiry in accordance with law and to pass appropriate orders. The disciplinary authority has miserably failed, over a period of more than three years, to pass any appropriate orders. We are unable to understand this conduct on the part of the respondent-authorities. Though

1 (1993) 4 SCC 727

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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

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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

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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

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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

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effect. Mr. Patwalia, learned senior counsel appearing for

the employee, has submitted that the disciplinary authority

could not have passed an order of removal by making it

operational from a retrospective date. He has commended

us to a three-Judge Bench decision in R. Jeevaratnam v.

State of Madras2. In the said case, the appellant-therein

instituted a suit for a declaration that the order of dismissal

from service was illegal and void. The trial Court dismissed

the suit and the said decree was affirmed in appeal by the

High Court. One of the contentions raised before this Court

that the order of dismissal dated October 17, 1950 having

been passed with retrospective effect, i.e., May 29, 1949,

was illegal and inoperative. This Court opined that an order

of dismissal with retrospective effect is, in substance, an

order of dismissal as from the date of the order with the

superadded direction that the order should operate

retrospectively as from an anterior date. The two parts of

the order are clearly severable. Assuming that the second

part of the order is invalid, there is no reason why the first

2 AIR 1966 SC 951

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part of the order should ot be given the fullest effect. The

said principle has been followed in The Gujarat Mineral

Development Corporation v. Shri P.H. Brahmbhatt3.

16. Mr. Vikas Singh, learned senior counsel has heavily

relied on the Constitution Bench decision in P.H. Kalyani v.

M/s. Air France, Calcutta4, wherein the employee had

challenged the order of the Labour Court relating to his

dismissal by the employer, the respondent company therein.

He was served a charge-sheet containing two charges of

gross dereliction of duty inasmuch as he had made mistakes

in the preparation of load-sheets on one day and a balance

chart on another day, which mistakes might have led to a

serious accident to the aircraft. An enquiry was fixed by the

Station Manager. His authority was questioned by the

appellant but his objection was overruled and the enquiry

was held and completed. The enquiry officer forwarded the

findings and his recommendations to the competent

authority of the company, on the basis of which he was

dismissed from service. The order of dismissal provided for 3 (1974) 3 SCC 601 4 AIR 1963 SC 1756

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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

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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 Khan5 wherein it was observed

as follows:-

“...as the management held no inquiry after suspending the workmen and proceedings under Section 33 were practically converted into the inquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under Section 33.”

5 AIR 1959 SC 923

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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).

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18. The larger Bench, in that context, made a reference to

the to the decision in Management of Ranipur Colliery v.

Bhuban Singh6 and thereafter held thus:-

“The present is a case where the employer has held an inquiry though it was defective and has passed an order of dismissal and seeks approval of that order. If the inquiry is not defective, the Labour Court has only to see whether there was a prima facie case for dismissal, and whether the employer had come to the bona fide conclusion that the employee was guilty of misconduct. Thereafter on coming to the conclusion that the employer had bona fide come to the conclusion that the employee was guilty i.e. there was no unfair labour practice and no victimisation, the Labour Court would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If the inquiry is defective for any reason, the Labour Court would also have to consider for itself on the evidence adduced before it whether the dismissal was justified. However, on coming to the conclusion on its own appraisal of evidence adduced before it that the dismissal was justified its approval of the order of dismissal made by the employer in a defective inquiry would still relate back to the date when the order was made. The observations therefore in Messrs. Sasa Musa Sugar Company on which the appellant relies apply only to a case where the employer had neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In that case the dismissal of the employee takes effect from

6 AIR 1959 SC 833

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the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail.”

19. In this regard, we may refer to a two-Judge Bench

decision in R. Thiruvirkolam v. Presiding Officer and

another7. In the said case, the appellant was dismissed

from service and a domestic enquiry was instituted on

18.11.1981 on proof of misconduct and he had challenged

his dismissal before the Labour Court which found that the

domestic enquiry to be defective and permitted the

Management to prove the misconduct before it. On the

basis of the evidence adduced before the Labour Court, it

came to the conclusion that the misconduct was duly

proved. When the matter travelled to this Court, leave

7 (1997) 1 SCC 9

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granted in the appeal was confined only to the question:

Whether the dismissal would take effect from the date of the

order of the Labour Court, namely, 11.12.1985 or it would

relate to the date of order of dismissal passed by the

employer, namely, 18.11.1981. The Court distinguished the

decision in Gujarat Steel Tubes Limited and others v.

Gujarat Steel Tubes Mazdoor Sabha and others8 on the

basis of the principles stated in P.H. Kalyani’s (supra).

20. At this stage, we may refer with profit to the authority

in Punjab Dairy Development Corporation Ltd. and

another v. Kala Singh and others9 wherein a three-Judge

Bench was dealing with a reference made by a Bench of

three Judges to consider the correctness of the decision in

Desh Raj Gupta v. Industrial Tribunal IV, U.P.10. The

three-Judge Bench referred to the necessitous facts that the

respondent therein, Kala Singh, was working as a Dairy

Helper-cum-Cleaner for collecting the milk from various

centres. He was charged with misconduct and after

8 (1980) 2 SCC 593 9 (1997) 6 SCC 159 10 (1991) 1 SCC 249

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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: -

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“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

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Iron and Steel Ltd. v. Abdul Gani and others11, a two-

Judge Bench observed as follows: -

“3. The moot question would arise whether the ratio of the Constitution Bench judgment in Kalyani case would almost automatically apply to such cases apart from the cases arising under Section 33 of the I.D. Act. We may, in this connection, mention that the decision of the three-Judge Bench of this Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha wherein Krishna Iyer, J., spoke for the majority, was an authority on the question of leading evidence before the Industrial Court in proceedings under Section 10-A of the Act and on the question of relation back of ultimate penalty order passed by the arbitrator on the basis of evidence led by the management for justification of its action before such Tribunal. Therefore, the question would arise whether the ratio of this decision would still apply to a case where the proceedings relate to Section 10 or 10-A of the Act apart from Section 33 of the Act. The later decisions of this Court have applied the ratio of the decision in Kalyani case to matters arising under Sections 10 and 10-A of the Act. In our view, therefore, the dispute in the present proceedings could be better resolved by a Constitution Bench of this Court which can consider the scope and ambit of the decision of the earlier Constitution Bench judgment in Kalyani case which has been the sheet-anchor of the subsequent cases referred to earlier on which a strong reliance has been placed by learned counsel for the petitioner and which had nothing to do with proceedings under Section 33 of the Act. The later decisions of this Court will also, therefore, require a re-look.”

11 AIR 1998 SC 185 : (1997) 8 SCC 713

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22. Thereafter, it granted leave and directed the appeals to

be placed for final disposal before a Constitution Bench.

When the matter came before the Constitution Bench in

Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani

and others12, the larger Bench, on 31.1.2002, passed the

following order: -

“The order of reference was made to a Constitution Bench by a Bench of two learned Judges for the reason that they found some difficulty in coming to a conclusion as to whether an earlier Constitution Bench judgment and judgments of Benches of three learned Judges resolved this question. In our view, a Bench of two learned Judges cannot make a reference directly to a Constitution Bench; this has been laid down in the judgment in Pradip Chandra Parija v. Pramod Chandra Patnaik13. It is, therefore, that this Constitution bench will not decide the reference.”

23. In this context, a reference to a three-Judge Bench

decision in Engineering Laghu Udyog Employees’ Union

v. Judge, Labour Court and Industrial Tribunal and

another14 would be apt. In the said case a contention was

canvassed on behalf of the workmen that the view taken by 12 (2002) 10 SCC 437 13 (2002) 1 SCC 1 14 (2003) 12 SCC 1

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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

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same is not set aside, it remains valid. But once whether on

the basis of the evidence brought on record in the domestic

inquiry or by reason of additional evidence, the employer

makes out a case justifying the order of dismissal the stand

that such order of dismissal can be given effect to only from

the date of the award and not from the date of passing of

the order of punishment was not legally acceptable. The

Court further ruled that the distinction sought to be made by

this Court in some of the matters including Gujarat Steel

Tubes was not based on a sound premise, particularly when

the binding decisions of the Court in Workmen v. Motipur

Sugar Factory15 and Workmen v. Firestone Tyre &

Rubber Co. of India (P) Ltd.16 had not been taken note of.

24. Thereafter, the three-Judge Bench referred to the

decision in Motipur Sugar Factory (P) Ltd. (supra) and it

was ruled that the employer has got a right to adduce

evidence before the tribunal justifying its action, even where

no domestic inquiry whatsoever has been held. Reference

was also made to the decision in Firestone Tyre & Rubber 15 AIR 1965 SC 1803 16 (1973) 1 SCC 813

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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) * * *”

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25. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.

Ram Gopal Sharma and others17 the Constitution Bench

reiterated the principles stated in P.H. Kalyani (supra) and

overruled a three-Judge Bench decision rendered in Punjab

Beverages (P) Ltd. v. Suresh Chand18.

26. We have referred to the aforesaid line of judgments to

highlight that these authorities pertain to the lis under the

Act. The doctrine of “relation back” of an imposition of

punishment in case of a labour court finding the domestic

enquiry as defective and granting opportunity to the

employer to substantiate the same either under Section 10A

or proceedings under Section 33 of the Act, in our

considered opinion, in the present case, need not be gone

into as the nature of controversy is quite different. Suffice it

to say, the aforesaid authorities have to be restricted to the

disputes under the Act.

27. At this juncture, we think it appropriate to state in detail

what the Full Bench had ruled on the first occasion on

17 (2002) 2 SCC 244 18 (1978) 2 SCC 144

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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

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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.”

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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

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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

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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

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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

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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

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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

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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

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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

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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

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regulations as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings.

Explanation: An officer will retire on the last day of the month in which he completes the stipulated service or age of retirement.”

34. The aforesaid Regulation, as it seems to us, deals with

a different situation altogether. It clearly lays down that if

the disciplinary proceedings have been initiated against an

officer during the period when he is in service, the said

proceedings can continue even after his retirement at the

discretion of the Managing Director and for the said limited

purpose the officer shall be deemed to be in service. In this

regard it is worthwhile to refer to the decision in UCO Bank

and another v. Rajinder Lal Capoor19 , wherein the

appellant-Bank was grieved by the decision of the High

Court whereby the order of punishment of removal imposed

on an officer was modified to one of compulsory retirement

with effect from the date of superannuation. In the said

case, the employee attained the age of superannuation on

1.11.1996 and charge-sheet was issued on 13.11.1998. The

19 (2007) 6 SCC 694

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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

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terminating his services ordinarily would not arise unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law.”

35. In this context, reference to the authority in Ramesh

Chandra Sharma v. Punjab National Bank and

another20 would be fruitful. In the said case the High Court

had ruled that the appellant therein could not have been

dismissed from service after his retirement. This Court

referred to Regulation 20(3)(iii) of the Punjab National Bank

Officer Employees’ (Discipline & Appeal) Regulations, 1977

which reads as follows: -

“20. (3)(iii) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The officer concerned will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPF.”

20 (2007) 9 SCC 15

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36. Interpreting the said Regulation the two-Judge Bench

held thus: -

“The said Regulation clearly envisages continuation of a disciplinary proceeding despite the officer ceasing to be in service on the date of superannuation. For the said purpose a legal fiction has been created providing that the delinquent officer would be deemed to be in service until the proceedings are concluded and final order is passed thereon. The said Regulation being statutory in nature should be given full effect.”

37. Slightly more recently in State Bank of India v. Ram

Lal Bhaskar and another21, a three-Judge Bench, placing

reliance on Rule 19(3) of the State Bank of India Officers

Service Rules, 1992, opined that in view of the language

employed in Rule 19 which stipulated that in case the

disciplinary proceedings under the relevant rules of service

have been initiated against an officer before he ceases to be

in the bank’s service by the operation of, or by virtue of, any

of the rules or the provisions of the Rules, the disciplinary

proceedings may, at the discretion of the Managing Director,

be continued and concluded by the authority by whom the

21 (2011) 10 SCC 249

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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

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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

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have been an intimation by the employer-Bank is founded

on the finding recorded by the High Court in the impugned

order that no order had been brought on record to show that

the delinquent officer had retired. As the facts would reveal,

in the year 1992 the concerned officer stood removed from

service and at that juncture to expect the Bank in law to

intimate him about his date of superannuation or to pass an

order would be an incorrect assumption. The conclusion

which appears logical and acceptable is that unless an

extension is granted by a positive or an affirmative act by

the competent authority, an officer of the Bank retires on

attaining age of 58 years or upon the completion of 30 years

of service, whichever occurs first. In this regard the

pronouncement in C.L. Verma v. State of Madhya

Pradesh and another22 is apt to refer. In the said case the

effect of Rule 29 of Madhya Pradesh State Municipal Service

(Executive) Rules, 1973 fell for interpretation. In the said

Rule it was provided that a member of the service shall

attain the age of superannuation on the date he completes

22 1989 Supp (2) SCC 437

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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

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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

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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

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Transport Corporation and others v. Abdul Kareem23,

A.P. SRTC and another v. B.S. David Paul24 and J.K.

Synthetics Ltd. v. K.P. Agrawal and another25 wherein

grant of back wages has been restricted on certain

parameters. He has also urged that in pursuance of the

order dated 15.12.2003 the Bank has deposited Rs.5.00 lacs

in the High Court which was permitted to be withdrawn by

the delinquent officer furnishing adequate security to the

satisfaction of the Registrar General of the High Court and

under the circumstances the said amount may be treated as

back wages and be paid to the legal heirs, if not withdrawn

by the original petitioner.

41. It is worthy to note here that during the continuance of

the disciplinary proceeding the delinquent officer was not

put under suspension. After the order of punishment passed

by the disciplinary authority and affirmed by the appellate

authority was quashed by the High Court on 22.5.1998, the

concerned officer has to be treated to be in service from his

23 (2005) 6 SCC 36 24 (2006) 2 SCC 282 25 (2007) 2 SCC 433

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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

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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.