State Bank of India, Mumbai and others vs Arjun Devi Anand

In the writ petition, counteraffidavit was filed by the appellant. The Hon''ble Single Judge after considering the material on record and after hearing the learned Counsel for the parties allowed the writ petition preferred by the respondent and quashed the removal order dated 18.1.1988 and the appellate order dated 24.3.1990.

Sri Sudeep Seth, learned Counsel for the appellants submits that for irregularities comm tted by the espondent a cha ge sheet dated 8.6.1985 was issued to him but no reply to the chargesheet was submitted by the respondent and the disciplinary authority after considering the inquiry report submitted by the Enquiry Officer passed the removal order against the respondent against which an appeal was preferred by the respondent which was dismissed by the order dated 24.3.1990 and the Hon''ble Single Judge in a most arbitrary end illegal manner has quashed the impugned orders assailed in the writ petition. The learned Counsel for the appellants has relied upon the decisions of the Hon''ble Supreme Court in the cases of U.P.S.R.T.C. and others v. Har Narain Singh and others, (1998) 9 S.C.C. 220 and T.N. C. S. Corpn. Ltd. and others v. K. Meerabai, (2006) 2 S.C.C. 255. He further submits that no prejudice was caused to the respondent by non perusal of records as sought by him vide letters dated 16.7.1985, 7.3.1986 and 14.3.1986 as an order was passed by the Inquiry Officer on 14.3.1986 to permit the respondent to inspect the documents and submit his defence. He further submits that Hon''ble the Single Judge while passing the impugned judgment and order failed to consider that the respondent had produced the defence documents and examined himself and Sri Y.S. Kashyap as the defence witness and as such it cannot be said that reasonable opportunity of defence was not provided to the respondent by the appellants and the impugned removal order was passed in violation of the principles of natural justice. Learned Counsel for the appellants has relied upon the decisions in the cases of Syed Rahimuddin v. Director General, CSIR and others, (2001) 9 S.C.C. 575; Secretary to Government and others v. A.C.J. Britto, (1997) 3 S.C.C. 387; State of U.P. and others v. Ramesh Chandra Mangalik, (2002) 3 S.C.C. 443 and Syndicate Bank and others v. Venkatesh Gururao Kurati, (2006) 3 S.C.C. 150. He further submits that the ground regarding noninspection of documents was not raised by the respondent in his appeal and it was raised for the first time in the writ petition and this aspect of the matter was not considered by Hon''ble the Single Judge while passing the impugned judgment and order. In support of his submission, the learned Counsel for the appellants has relied upon the decisions in the cases of High Court of Judicature at Bombay through its Registrar v. Shashikant S. Patil and another, (2000) 1 S.C.C. 416; State of Haruana and another v. Ratan Singh, A.I.R. 1977 S.C. 1512; Deokinandan Sharma v. Union of India and others, (2001) 5 S.C.C. 340; State Bank of India, Bhopal v. S.S. Koshal, 1994 Supp (2) S.C.C. 468 and State Bank of Bikaner & Jaipur and others v. Prabhu Daual Grover, (1995) 6 S.C.C. 279. He further submits that Hon''ble the Single Judge has passed the impugned judgment and order giving all consequential benefits with back wages in an arbitrary and mechanical manner, when admittedly, the respondent has not placed any document to prove that he was not gainfully employed. Learned Counsel for the appellant has relied upon the decisions of the Hon''ble Supreme Court in the cases of State of Punjab and others v. Dr. Harbhaian Singh Greasy, (1996) 9 S.C.C. 322, Kendriya Vidyalaya Sangathan and another v. S.C. Sharma, (2005) 2 S.C.C. page 363 and U.P. State Brassware Corpn. Ltd. and another v. Udau Narain Pandeu, (2006) 1 S.C.C. page 479. He further submits that the respondent who was an officer of the Bank had been negligent in discharging his duty and after the departmental inquiry the punishment of removal from service was awarded to the respondent and Hon''ble the Single Judge failed to consider and appreciate that the recommendation of the punishing authority with respect to the appeal of the respondent was not binding upon the appellate authority and the appellate authority decided the appeal in an independent and impartial manner. Learned Counsel for the appellant has relied upon the decisions of the Hon''ble Supreme Court in the cases of State Bank of India and others v. T.J. Paul, (1999) 4 S.C.C. 759; Tara Chand Vyas v. Chairman & Disciplinary Authority and others, (1907HS.C.C. 565 and Chairman and Managing Director, United Commercial Bank and others v. PC. Kakkar, (2003) 4 S.C.C. 364.

Sri Anupam Mehrotra, learned Counsel for the respondent submits that Hon''ble the Single Judge has passed the impugned judgment and order after considering the entire material on record and after hearing both the parties at length and there is no illegality or infirmity in the impugned judgment and order. He further submits that the respondent was not allowed to inspect the documents prior to inquiry, although, the request was made soon after the chargesheet was served on 9.7.1985. He further submits that during the course of inquiry the Bank refused to give documents on the ground that they are untraceable and as such the impugned order of removal as well as the order passed on the appeal were in violation of principles of natural justice. He further submits that the respondent always participated in the inquiry and failure to allow defence witnesses to appear and refusal to adjourn inquiry to enable defence representative to appear has violated the principles of natural justice.

Learned Counsel for the respondent has relied upon the decisions of Hon''ble the Supreme Court in the cases of Kashinath Dikshita v. Union of India and others, A.I.R. 1986 S.C. 2118; Committee of Management, Kisan Degree College v. Shambhu Saran Pandey and others, (1995) 1 S.C.C. 404; State of U.P. and another v. C.S. Sharma, A.I.R. 1968 S.C. 158; K.N. Gupta S/o. Behari Lal v. Union of India through Secretary Railway Board and another, A.I.R. 1968 Del 85.

He further submits that the respondent was neither heard by the disciplinary authority nor by the appellate authority and no show cause notice was given to the respondent as admitted by the appellants and as such the impugned order of removal and order passed by the appellate authority have rightly been quashed by Hon''ble the Single Judge and there is no illegality in the impugned judgment and order. He has relied upon the decisions of the Hon''ble the Supreme Court in the cases of Yoginath D. Bade v. State of Maharashtra and another, (1999) 7 S.C.C. 739 and Associated Cement Companies Ltd. v. P.N. Sharma and another, A.I.R. 1965 S.C. 1595 (V 52 C 273).

He further submits that relevant factors having bearing on quantum of punishment were not considered by the Bank and admittedly the Bank suffered no loss and the order of removal of respondent was unjust, illegal which was rightly quashed by the Hon''ble Single Judge. Learned Counsel for the respondent has relied upon the decision of the Hon''ble Supreme Court in the case of KashiNath Gupta v. Enquiry Officer (R.K. Rai) Allahabad Bank and others, A.I.R. 2003 S.C. 1377.

He further submits that the respondent attained the age of superannuation in the year 2002 and Hon''ble the Single Judge has rightly granted back wages to the respondent. He has relied upon the decisions of the Hon''ble Supreme Court in the cases of Mohan Lal v. Management of M/s. Bharat Electronics Ltd., Vikramaditya Pandey M. Industrial Tribunal, Lucknow, (2001) 2 S.C.C. 423; State of Punjab v. Khemi Ram, AIR 1970 SC 214; B.J. Shelat v. State of Gujarat and Brothers, A.I.R. 1978 S.C. 1109; State of West Bengal and another Nripendra Nath Bagchi, A.I.R. 1966 S.C. 447; State of Assam and others v. Padma Ram Borah, 1965 S.C. 473 and the State Bank of India v. S. Vijaya Kumar, A.I.R. 1991 S.C. 79.

We have considered the submissions made by the learned Counsel for the parties and gone through the record.

By the orderdated 11.10.1983, the respondent was placed under suspension on the ground that during his posting at Khalilabad Branch in District Basti, he has committed certain acts of misconduct. The respondent was served with a chargesheet dated 8.6.1985 on 9.7.1985. The respondent has alleged that after receiving the chargesheet he requested the Regional Manager, State Bank of India to permit inspection of relevant records of Khalilabad Branch as provided under Rule 50 (1) and (2) of the State Bank of India Supervising Staff Service Rules, 1975. The respondent has also alleged that the Regional Manager did not grant the permission, which was in utter violation of the principles of natural justice. Sri R.P. Srivastava was appointed as the Inquiry Officer who fixed 14.3.1986 for the preliminary inquiry into the matter.

On 14.3.1986, the Inquiry Officer during the course of the preliminary inquiry told the petitioner that the stage of perusal of the record was over and the preliminary inquiry was being conducted as per order of the disciplinary authority. In these circumstances, the respondent could not file reply to the chargesheet and the inquiry officer proceeded without taking the reply of the respondent. During the inquiry proceedings on 14.4.1987, the defence representative requested the inquiry officer for production of Sarvshri S.R. Misra and Y.S. Kashyap, the Bank employees as defence witnesses. The Presenting Officer was accordingly ordered by the inquiry officer who issued letters to the appellant for relieving of the witness at the proper time. The appellant No. 4 relieved Sri S.R. Misra at Sultanpur in the afternoon of 24.4.1987 while he was the main witness of defence and therefore, he could not appear during the inquiry. Sri S.R. Misra reported on 25.4.1987 to the Presenting Officer but the Inquiry Officer without providing another chance to examine Sri S.R. Misra concluded the inquiry proceedings on 24.4.1987. The Inquiring Officer after finding certain charges proved submitted the inquiry report. The appellant No. 2 Chief General Manager, State Bank of India while passing the final order dated 18.1.1988 did not agree with the finding of the inquiry officer on Charge No. 1 (b) which was held partially proved but the disciplinary authority without affording opportunity to the respondent found the charge No. I (b) apparently proved. The appellant No. 2 removed the respondent from Bank service on 18.1.1988. The respondent preferred an appeal. The appellant No. 2 while submitting his comments on the appeal stated that lapses on the part of the respondent in the sanction and recommendations of the sanction of the advances were contributory and these were sanctioned by the Branch Manager who has also been dismissed and that no malafide on the part of the respondent could be proved/established in the departmental inquiry.

The appeal against the removal order dated 18.1.1988 was rejected by the appellate authority on 24.3.1990. Hon''ble the Single Judge in the impugned judgment has held that the material documents mentioned at Serial Nos. 39 and 56 were not traceable and were not made available to the respondent for his defence. The Hon''ble Single Judge has also held that Sri S.R. Misra, who defence witness was relieved at Sultanpur by superiors on 24.4.1987 at 11.45 a.m. to attend proceedings at Lucknow fixed for 11.00 a.m. on the same day and as such he could not appear before the Inquiry Officer on the date fixed and thereafter appeared before the Enquiry Officer on 25.4.1987 but the Enquiry Officer without waiting for the statement of Sri S.R. Misra concluded the inquiry. The services of the respondent are governed by the State Bank of India (Supervising) Staff Service Rules, 1975. The Hon''ble Single Judge has held that during the inquiry the rules were not followed by the Inquiry Officer and it is a case of violation of the principles of natural justice. The Hon''ble Single Judge has quashed the order of removal as well as the appellate order after considering various judgments of Hon''ble Supreme Court as the impugned order of removal as well as the order passed by the appellate authority were in violation of the service rules and the principles of natural justice.

The Hon''ble Supreme Court in the cases Kashinath Dikshita v. Union of India and others and Committee of Management, Kisan Degree College v. Shambhu Saran Pandey and others (supra) has held that principles of natural justice irrespective of any rules required that inspection of the documents should be allowed prior to enquiry.

In the instant case during the course of enquiry the Bank refused to give documents on the ground that they are untraceable and the Enquiry Officer held the respondent guilty of the charges based on the same untraceable documents. The respondent always participated in the enquiry and even on oral information he appeared. The Bank knowingly well that Sri S.R. Misra is a defence witness has not allowed him to appear before the Enquiry Officer. The respondent was neither heard by the disciplinary authority nor by the appellate authority. The Bank has admitted that no show cause notice was given to the respondent.

The Hon''ble Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra and another (supra) in para 31 and 52 has held as under: Para31. "In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311 (2) of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not being about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the "disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309 of the Constitution." Para52 "In the instant case, we have scrutinized the reasons of the Disciplinary Committee and have found that it has taken its final decision without giving an opportunity of hearing to the appellant at the stage at which it proposed to differ with the findings of the enquiry officer. We have also found that the complainant''s story with regard to the place at which the demand was allegedly made by the appellant was inconsistent. We have also noticed that the trap laid by ACB, Nagpur against the appellant had failed and was held by the enquiry officer to be a farce and not having been laid with the permission of the Chief Justice. We have also noticed that there was absolute nonconsideration of the statements of defence witnesses, namely, Dr. Naranje and Mr. Bapat, Advocate, by the Disciplinary Committee. This factor in itself was sufficient to vitiate the findings recorded, by that Committee contrary to the findings of the enquiry officer."

The Hon''ble Supreme Court in the case of Kashinath Dikshita v. Union India and others, while quashing the order of dismissal has held in para 13 asunder:

"In view of the pronouncements of this Court it is impossible to take any other view. As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311 (2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending himself and is on that account null and void. We accordingly allow the appeal. The judgment of the High Court is set aside. The impugned order of dismissal dated 10.11.1967 passed against the appellant is quashed and set aside. We further declare that the impugned order of dismissal is a nullity and nonexistent in the eye of law and the appellant must be treated as having continued in service till the date of his superannuation on January 31, 1983. Taking into account the facts and circumstances of this case and the time which has elapsed we are of the opinion that the State Government should not be permitted to hold a fresh inquiry against the appellant on the charges in question. We therefore direct the State Government not to do so."

The Hon''ble Single Judge has rightly setaside the order of removal as well as the order passed by the appellate authority, as the impugned orders were passed in violation of principles of natural justice.

We have to examine whether the respondent is entitled for full back wages or not. The writ petition was filed in the year 1990 against the removal order was allowed by Hon''ble the Single Judge in the year 2005. During the pendency of the writ petition, the respondent has attained the age of superannuation in the year 2002.

The contention of the learned Counsel for the appellant is that the respondent is not entitled for full back wages as the respondent failed to adduce any evidence that he was not gainfully employed after the removal order was passed and during the pendency of the writ petition.

The contention of the learned Counsel for the respondent is that the respondent is entitled for full back wages and Hon''ble the Single Judge has rightly granted the same. Both the parties have relied upon various case laws of Hon''ble the Supreme Court. Hon''ble the Supreme Court has held that no precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It should not be granted mechanically only because on technical ground or other wise an order of termination is found to be contravention of the provisions of the Act.

The Hon''ble Supreme Court in the case of Vikramaditya Pandey v. Industrial Tribunal Lucknow, and another, (2001) 2 S.C.C. 423 has held that once the termination of service of an employee is held to be wrongful or illegal the normal relief of reinstatement with full back wages shall be available to an employee; it is open to the employer to specifically plead and establish that there were special circumstances which warranted either nonreinstatement or nonpayment of back wages.

Under circumstances of the present case, we are of the view that the respondent is entitled for 50% back wages from the date, the suspension order was passed, and till the respondent has attained the age of superannuation along with other post retiral benefits.

In the result, the Special Appeal partly succeeds and is allowed. The judgment and order dated 30.8.2005 passed by Hon''ble the Single Judge in Writ Petition No. 10009 (S/S) of 1990 is modified to the extent that the respondent shall be entitled for 50% back wages from the date of suspension to the date of superannuation with other consequential benefits. The Despondent shall also be entitled for retiral benefits after the age of superannuation as if the respondent was never removed from service.

The parties shall bear their own costs.