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

Service matter – departmental enquiry – order to be removed from service in the year 1985 – High court set aside the same as general manger report on which he was removed not furnished  and remitted for fresh disposal – but not removed at any stage pending enquiry till superannuated in the year 1992  – again the employee was  order to be Removed  from service in the year 2001 with retrospective 1985- High court closed the writ petition leaving issue open whether the superannuated person can be removed from service ? , with a direction to reinstate with back wages– Apex court held that Removal from service with retrospective  is not correct and as such modified the High court order and directed to pay a lum some of Rs.5 lakhs to the legal heirs of Employee in addition to already deposited amounts if any =

The  disciplinary  authority

      concurred with the  findings  recorded  by  the  Enquiry  Officer  and

      recommended for removal of the  delinquent  officer  from  the  Bank’s

      service to the appointing  authority  in  accord  with  the  terms  of

      Regulation 68(1)(ii) of the State Bank of Patiala (Officers’)  Service

      Regulations,  1979  (for  short  “the  1979  Regulations”)   and   the

      appointing authority,  i.e.,  Managing  Director,  agreeing  with  the

      findings recorded by the Enquiry Officer and  the  recommendations  of

      the disciplinary authority, imposed the penalty of removal vide  order

      dated 23.4.1985. The order imposing punishment of removal from service

      along with a copy of the enquiry report was sent to  late  Bansal  who

      preferred an appeal under Regulation 70 of the 1979 Regulations before

      the Executive Committee which, vide order  dated  18.7.1986,  rejected

      the appeal.=

Full bench decision 

The Full Bench, vide order dated 22.5.1998, ruled that  non-supply  of

      comments of the General Manager had caused serious  prejudice  to  the

      delinquent officer  and  there  was  denial  of  fair  and  reasonable

      opportunity and on that basis  set  aside  the  order  of  punishment.

      However,  it  directed  the  disciplinary  authority   to   grant   an

      opportunity to the petitioner therein to reply to the  enquiry  report

      and pass appropriate orders after granting  personal  hearing  to  the

      petitioner therein in accordance with law.-

Fresh rehearing as per Full Bench and it’s result

As the factual score would further unfold, on 10.7.2000  the  Bank  in

      compliance with the order dated 22.5.1998 passed by the Full Bench  of

      the High Court, sent a copy of the  enquiry  report  to  the  employee

      wherein it was mentioned that he should appear before the disciplinary

      authority on the date fixed for personal hearing.-

the appointing authority  passed  the  order  of  removal  on

      22.11.2001 with effect from 23.4.1985.

In reinstatement writ  for clarification pending rehearing –

A contention was raised by the Bank that

      the respondent-employee stood superannuated in  the  year  1992  after

      completion  of  thirty  years  of  service.   

 

Full Bench observation –

“Reverting back to the facts and circumstances  of  the  present

           case, it is again not disputed before  us  that  the  delinquent

           officer was never placed under suspension.  After the  order  of

           dismissal of his service dated 25.4.1985 was set  aside  by  the

           Court on  22.5.1998,  the  disciplinary  authority  has  neither

           concluded the disciplinary proceedings nor  has  it  passed  any

           other appropriate order till today, for the reasons  best  known

           to the concerned authority.  The question before this  Court  is

           not  whether  the  petitioner   would   or   would   not   stand

           superannuated in February, 1992 after serving  the  Bank  for  a

           period of 30 years.  This question, in any case, was beyond  the

           purview and scope  of  the  writ  petition  itself.   Thus,  the

           parties cannot call upon the Full Bench to decide this  question

           in an application in this Writ Petition.  The parties  are  free

           to agitate the question in this regard  before  the  appropriate

           proceedings.” 

After so stating the Full Bench observed that  on  the  date  of  non-

      furnishing  of  enquiry  report  to  the  delinquent  officer  he  was

      admittedly not under suspension but was in service and, therefore, the

      inevitable conclusion was that he would continue in  service  till  he

      was dismissed from service in accordance with law or superannuated  in

      accordance with  Rules.   

However,  without  adverting  to  the  issue

      whether he stood superannuated in the year 1992 or not, was left to be

      agitated independently.  

Eventually, the application was  allowed  and

      the respondents therein  were  directed  to  pay  back  wages  to  the

      deceased-respondent from the date of dismissal  till  passing  of  the

      appropriate orders in the disciplinary proceedings  or  superannuation

      of the petitioner therein whichever was earlier.  

The  said  order  is

      under assail in Civil Appeal No. 239 of 2003.

Apex court 

i) whether the employer Bank could have, in  law,  passed  an  order  of

      dismissal with retrospective  effect;  The Bank has passed an order of dismissal on 22.11.2001 with effect from 23.4.1985.  

The said order, as  we  perceive,  is  not  in

      accord with the principle laid down by the Constitution Bench decision

      in B. Karunakar (supra), for it has been stated there that in case  of

      non-furnishing of an enquiry report the court can  deal  with  it  and

      pass as appropriate order or  set  aside  the  punishment  and  direct

      reinstatement for continuance of  the  departmental  proceedings  from

      that stage.  In the case at hand, on the earlier round the  punishment

      was set aside and direction for reinstatement was  passed.   Thus,  on

      the  face  of  the  said  order  it  is  absolutely  inexplicable  and

      unacceptable that the Bank in 2001 can pass an order with effect  from

      23.4.1985 which would amount to  annulment  of  the  judgment  of  the

      earlier Full Bench.   As has been  held  by  the  High  Court  in  the

      impugned judgment that when on  the  date  of  non-furnishing  of  the

      enquiry  report  the  delinquent  officer  was  admittedly  not  under

      suspension, but was in service and, therefore, he  would  continue  in

      service till he is dismissed from service in accordance  with  law  or

      superannuated in conformity with the Regulations.  How  far  the  said

      direction is justified or not or how  that  should  be  construed,  we

      shall deal with while addressing the other points but as  far  as  the

      order of removal being made retrospectively operational, there can  be

      no trace of doubt that it cannot be made retrospective.

 

(ii)  whether  the  delinquent

      officer stood superannuated  after  completion  of  thirty  years  as

      provided under the Regulations on 25.2.1992; and  

 

We  have

      referred to this decision to highlight  that  the  Regulation  herein

      also is couched in similar language and, therefore, the first proviso

      would have full play and it should be apposite to conclude  that  the

      delinquent officer stood superannuated on completion of 30  years  of

      service on 25.2.1992. It is because the conditions  stipulated  under

      the first proviso to the said  Regulation  deal  with  a  conditional

      situation to  cover  certain  categories  of  cases  and  require  an

      affirmative act and in the absence of that it is  difficult  to  hold

      that the delinquent officer did not retire on  completion  of  thirty

      years of service.

we  have  already

      ruled that the officer stood superannuated on  completion  of  thirty

      years and his continuance by virtue of the order passed by  the  High

      Court has to be treated as a deemed continuance for the  purposes  of

      finalization of the  disciplinary  proceeding.  

(iii)  whether  the

      legal heirs of the deceased-employee are entitled to get  the  entire

      salary computed till the actual passing of the  order  of  dismissal,

      that  is,  22.11.2001  or  for  that  matter   till   the   date   of

      superannuation, that is, 25.2.1992.

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

      disciplinary proceeding the delinquent  officer  was  not  put  under

      suspension.  After the order of punishment passed by the disciplinary

      authority and affirmed by the appellate authority was quashed by  the

      High Court on 22.5.1998, the concerned officer has to be  treated  to

      be in service from his  date  of  first  removal  till  his  date  of

      retirement.  Had the Bank brought to the notice  of  the  Full  Bench

      about the legal position under the Regulations, in  all  probability,

      the matter would have been dealt with differently.   Be  that  as  it

      may, grant of salary in entirety for the period as determined  by  us

      to be the period of continuance in service would not be apposite  and

      similarly, the submission advanced on behalf of the Bank that payment

      of rupees five lacs would meet the ends of justice does  not  deserve

      acceptance.  Ordinarily, we would have directed the Bank to pay fifty

      per cent of the back wages for the period commencing  23.4.1985  till

      the end of February, 1992, with some interest but we do not want that

      the legal heirs of the delinquent officer should further  go  through

      any kind of tribulation in computation and face further legal  hassle

      as regards the quantum.  We are of the considered  opinion  that  the

      controversy should be given a  quietus  and,  therefore,  instead  of

      fixing fifty per cent of the back wages we direct that the Bank shall

      deposit a further sum of rupees five lacs with the Registrar  General

      of the High Court within two months hence and the  respondents  shall

      be entitled to withdraw the same.  We may hasten to clarify  that  if

      the amount earlier deposited has not been withdrawn by  the  original

      respondent, Ram Niwas Bansal, the same shall also be withdrawn by the

      legal heirs.

In view of the aforesaid directions, the judgment and order passed by

the High Court is modified and the civil appeal and the transfer case

are disposed of leaving the parties to bear their respective costs.

 

2014 (March . Part) judis.nic.in/supremecourt/filename=41280

H.L. GOKHALE, DIPAK MISRA

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 239 OF 2003
State Bank of Patiala and another … Appellants
Versus
Ram Niwas Bansal (Dead) through LRs. …Respondents
WITH
TRANSFER CASE (C) NO. 79 OF 2013
J U D G M E N T
Dipak Misra, J.

Ram Niwas Bansal, the predecessor-in-interest of the respondents
1 to 4, the legal heirs who have been brought on record after his
death during the pendency of this appeal, while posted as Accountant
at the Narnaul Branch of the appellant-Bank in the Officer Cadre, was
served with a charge-sheet dated 20.10.1980 for certain financial
irregularities. Two supplementary charge-sheets dated 15.1.1981 and
8.1.1982 were also issued to the said officer. After explanation was
offered by late Ram Niwas Bansal, the disciplinary authority appointed
an Enquiry Officer who, after conducting the enquiry, submitted his
report to the General Manager (Operations) of the Bank holding that
certain charges had been proved, some charges had been partly proved
and some charges had not been proved. The disciplinary authority
concurred with the findings recorded by the Enquiry Officer and
recommended for removal of the delinquent officer from the Bank’s
service to the appointing authority in accord with the terms of
Regulation 68(1)(ii) of the State Bank of Patiala (Officers’) Service
Regulations, 1979 (for short “the 1979 Regulations”) and the
appointing authority, i.e., Managing Director, agreeing with the
findings recorded by the Enquiry Officer and the recommendations of
the disciplinary authority, imposed the penalty of removal vide order
dated 23.4.1985. The order imposing punishment of removal from service
along with a copy of the enquiry report was sent to late Bansal who
preferred an appeal under Regulation 70 of the 1979 Regulations before
the Executive Committee which, vide order dated 18.7.1986, rejected
the appeal.

2. Being grieved by the aforesaid orders, he preferred CWP No. 4929 of
1986 before the High Court for issuance of a writ of certiorari for
quashment of all the orders and for issue of appropriate direction to
reinstate him in service with full service benefits. On 1.10.1993 the
learned single Judge referred the matter to the larger Bench and
ultimately the matter was placed before the Full Bench.

3. The Full Bench, vide order dated 22.5.1998, ruled that non-supply of
comments of the General Manager had caused serious prejudice to the
delinquent officer and there was denial of fair and reasonable
opportunity and on that basis set aside the order of punishment.
However, it directed the disciplinary authority to grant an
opportunity to the petitioner therein to reply to the enquiry report
and pass appropriate orders after granting personal hearing to the
petitioner therein in accordance with law.

4. Dissatisfied with the aforesaid judgment and order, the appellant-Bank
preferred Special Leave Petition (C) No. 2442 of 1998 and after grant
of leave the same was registered as Civil Appeal No. 773 of 1998. On
12.4.1999 this Court directed stay of reinstatement of the respondent
therein with the direction that the Bank would comply with the
provisions of Section 17-B of the Industrial Disputes Act, 1947 (for
brevity, “the Act”’). It was further observed that the Bank and its
functionaries would be at liberty to proceed with the enquiry in terms
of the permission granted by the High Court and any decision taken
would be without prejudice to the outcome of the appeal. It may be
noted that this order was passed when a prayer for stay of the
contempt proceeding that was initiated by said Bansal before the High
Court was made before this Court. Be it stated, this Court directed
stay of further proceedings of the contempt petition.

5. On 20.8.1999 the Bank filed Interlocutory Application No. 4 of 1999
for modification of the order dated 12.4.1999 on the ground that
Section 17-B of the Act was not applicable. On 7.9.1999 the employee
filed another Contempt Petition No. 396 of 1999 for non-implementation
of the order passed by this Court. On 6.12.1999 this Court, leaving
the question of law open, dismissed the civil appeal as well as the
contempt petition.

6. As the factual score would further unfold, on 10.7.2000 the Bank in
compliance with the order dated 22.5.1998 passed by the Full Bench of
the High Court, sent a copy of the enquiry report to the employee
wherein it was mentioned that he should appear before the disciplinary
authority on the date fixed for personal hearing. In the meantime, on
24.7.2000 the application for contempt was dismissed by the High Court
on the foundation that there was no direction for payment of any
salary to the employee or grant of any consequential benefits in the
writ petition. Against the aforesaid order, the employee preferred
Special Leave Petition (C) No. 15098 of 2000 and the same stood
dismissed as withdrawn vide order dated 27.9.2000 granting liberty to
the employee to approach the High Court for consequential reliefs.

7. On 14.10.2000 CM No. 1965 of 2001 was filed by the writ petitioner
therein seeking clarification of the order dated 22.5.1998 with a
further direction to the Bank to reinstate him in service with full
back wages. During the pendency of the said application in the writ
petition the appointing authority passed the order of removal on
22.11.2001 with effect from 23.4.1985.

8. On 23.11.2001 the CM No. 1965 of 2001 was disposed of by the Full
Bench by the impugned order. A contention was raised by the Bank that
the respondent-employee stood superannuated in the year 1992 after
completion of thirty years of service. The Full Bench, after
adverting to the facts in chronology and referring to the observations
made by this Court in Special Leave Petition No. 15098 of 2000 and
placing reliance on various decisions, took note of certain aspects
which we think is necessary to be reproduced: –

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

9. Thereafter, the Full Bench referred to the decision in Managing
Director, ECIL, Hyderabad v. B. Karunakar and others[1] and came to
hold that:

“The Full Bench having decided in no uncertain terms that
serious prejudice was caused to the petitioner in the
departmental proceedings, the Bench set aside the order of
dismissal and remanded the matter to the authorities concerned
granting permission to proceed further in the departmental
enquiry in accordance with law and to pass appropriate orders.
The disciplinary authority has miserably failed, over a period
of more than three years, to pass any appropriate orders. We
are unable to understand this conduct on the part of the
respondent-authorities. Though it has been contended that the
petitioner has superannuated in the year 1992, but eventually,
no copy of such order has been placed on record of this Court.
The Hon’ble Apex Court had granted the interim stay during the
pendency of the Special Leave Petition subject to compliance of
provisions of Section 17-B of the Industrial Disputes Act, which
itself indicates that the respondent Bank was obliged to pay
salary in terms thereof to the petitioner. Admittedly at no
point of time, right from the commencement of the disciplinary
proceedings till today, the petitioner was ever placed under
suspension. Upon dismissal of the Special Leave Petition, the
judgment of the Full Bench has attained finality at least
interese the parties.”

10. After so stating the Full Bench observed that on the date of non-
furnishing of enquiry report to the delinquent officer he was
admittedly not under suspension but was in service and, therefore, the
inevitable conclusion was that he would continue in service till he
was dismissed from service in accordance with law or superannuated in
accordance with Rules. However, without adverting to the issue
whether he stood superannuated in the year 1992 or not, was left to be
agitated independently. Eventually, the application was allowed and
the respondents therein were directed to pay back wages to the
deceased-respondent from the date of dismissal till passing of the
appropriate orders in the disciplinary proceedings or superannuation
of the petitioner therein whichever was earlier. The said order is
under assail in Civil Appeal No. 239 of 2003.

11. At this juncture, it is essential to state the facts in Transfer Case
(C) No. 79 of 2013. Be it noted, when the Civil Appeal was listed for
hearing on 16.1.2013, this Court, while hearing the appeal, was
apprised about the subsequent development that had taken place in
pursuance of which the original respondent No. 1 had preferred Civil
Writ Petition No. 11412 of 2003 in the High Court of Punjab and
Haryana, Chandigarh. Learned counsel for the respondents agreed for
transfer of the writ petition to this Court and on that day learned
counsel for the Bank took time to obtain instructions and, eventually,
on 24.1.2013 agreed to the transfer of the writ petition to this Court
to be heard along with the civil appeal. Thereafter, by virtue of
order dated 30.4.2013 it has been registered as Transfer Case (C) No.
79 of 2013.

12. On a perusal of the writ petition it transpires that the petitioner
therein referred to the order passed by the Full Bench on 23.11.2001
and thereafter stated about the disciplinary action taken against him
after the initial judgment and order passed by the Full Bench on
22.5.1998 and receipt of the order dated 22.11.2001 along with a cover
letter dated 26.11.2001 whereby the Bank had removed him from service
with retrospective effect from 23.4.1985, i.e., the date of earlier
removal. It was contended in the writ petition that the said order
was unsustainable, because the order of termination could have not
been given retrospective effect; that the conduct of the Bank was far
from being laudable and replete with legal mala fide and colourable
exercise of power; that the order of dismissal was violative of
principles of natural justice and further the grounds mentioned in the
order were totally unjustified; and that an attempt had been made by
the Bank to overreach the judgment of the Full Bench. On the
aforesaid basis, a prayer was made for quashing the order dated
22.11.2001 and directing the Bank to reinstate him in service with
entire benefits with effect from 23.4.1985 along with interest and to
pass such other orders as it may deem fit and proper in the facts and
circumstances of the case.

13. We have heard Mr. Vikas Singh, learned senior counsel for the
appellant bank and Mr. P.S. Patwalia, learned senior counsel for the
legal heirs of the deceased-employee in the appeal as well as the in
the transfer petition.

14. The three issues that eminently emerge for consideration are, (i)
whether the employer Bank could have, in law, passed an order of
dismissal with retrospective effect; (ii) whether the delinquent
officer stood superannuated after completion of thirty years as
provided under the Regulations on 25.2.1992; and (iii) whether the
legal heirs of the deceased-employee are entitled to get the entire
salary computed till the actual passing of the order of dismissal,
that is, 22.11.2001 or for that matter till the date of
superannuation, that is, 25.2.1992.

15. Regard being had to nature of controversy, we shall proceed to deal
with first point first, that is, whether the order of removal could
have been made with retrospective effect. Mr. Patwalia, learned
senior counsel appearing for the employee, has submitted that the
disciplinary authority could not have passed an order of removal by
making it operational from a retrospective date. He has commended us
to a three-Judge Bench decision in R. Jeevaratnam v. State of
Madras[2]. In the said case, the appellant-therein instituted a suit
for a declaration that the order of dismissal from service was illegal
and void. The trial Court dismissed the suit and the said decree was
affirmed in appeal by the High Court. One of the contentions raised
before this Court that the order of dismissal dated October 17, 1950
having been passed with retrospective effect, i.e., May 29, 1949, was
illegal and inoperative. This Court opined that an order of dismissal
with retrospective effect is, in substance, an order of dismissal as
from the date of the order with the superadded direction that the
order should operate retrospectively as from an anterior date. The
two parts of the order are clearly severable. Assuming that the
second part of the order is invalid, there is no reason why the first
part of the order should ot be given the fullest effect. The said
principle has been followed in The Gujarat Mineral Development
Corporation v. Shri P.H. Brahmbhatt[3].

16. Mr. Vikas Singh, learned senior counsel has heavily relied on the
Constitution Bench decision in P.H. Kalyani v. M/s. Air France,
Calcutta[4], wherein the employee had challenged the order of the
Labour Court relating to his dismissal by the employer, the respondent
company therein. He was served a charge-sheet containing two charges
of gross dereliction of duty inasmuch as he had made mistakes in the
preparation of load-sheets on one day and a balance chart on another
day, which mistakes might have led to a serious accident to the
aircraft. An enquiry was fixed by the Station Manager. His authority
was questioned by the appellant but his objection was overruled and
the enquiry was held and completed. The enquiry officer forwarded the
findings and his recommendations to the competent authority of the
company, on the basis of which he was dismissed from service. The
order of dismissal provided for payment of one month’s wages for the
appellant and also stated that an application was made before the
industrial tribunal for the approval of the action taken, apparently
as some industrial dispute was pending before the tribunal. In
accordance with the order of dismissal, the respondent company filed
an application before the Labour Court seeking approval of the action.
The appellant thereafter filed an application under Section 33-A of
the Act challenging the legality of the actions taken on many a
ground. The grounds were considered by the Labour Court and all of
them were substantially decided against the appellant. The Labour
Court held that the dismissal of the appellant was justified and
accordingly accorded approval to the order of dismissal passed by the
Management. While dealing with various points raised by the
appellant, the Labour Court held that the application under Section
33(2)(b) of the Act was validly made even though it had been made
after the order of dismissal had been passed. It also opined that the
case was not covered by Section 33(1) of the Act and it was not
necessary to obtain the previous permission of the tribunal before
dismissing the appellant, for he was not a protected workman. After
dealing with the other legal facets, the Labour Court dismissed the
application of the appellant-employee under Section 33-A of the Act.
Before the Constitution Bench, it was urged that the domestic enquiry
held by the employer was defective as no approval of the action taken
in connection with enquiry and further the Labour Court, even if held
that the dismissal was justified, it should have held that the order
of dismissal would become operative from the date of the award. In
support of the said submission, reliance was placed on M/s. Sasa Musa
Sugar Works (P) Ltd. v. Shobrati Khan[5] wherein it was observed as
follows:-
“…as the management held no inquiry after suspending the
workmen and proceedings under Section 33 were practically
converted into the inquiry which normally the management should
have held before applying to the Industrial Tribunal, the
management is bound to pay the wages of the workmen till a case
for dismissal was made out in the proceedings under Section
33.”

17. Referring to the said case, the Constitution Bench observed that in
Shobrati Khan (supra), an application was made under Section 33(1) of
the Act for permission to dismiss the employees and such permission
was asked for though no enquiry whatsoever had been held by the
employer and no decision was taken that the employees be dismissed and
it was in those circumstances that a case for dismissal was made out
only in the proceedings under Section 33(1) and, therefore, the
employees were held entitled to their wages till the decision on the
application under Section 33 of the Act. The Constitution Bench
observed that the matter would have been different if in that case an
enquiry had been held and the employer had come to the conclusion that
dismissal was proper punishment and then they had applied under
Section 33(1) for permission to dismiss and, in those circumstances,
the permission would have related back to the date when the employer
came to the conclusion after an enquiry that the dismissal was the
proper punishment and had applied for removal of the ban by an
application under Section 33(1).

18. The larger Bench, in that context, made a reference to the to the
decision in Management of Ranipur Colliery v. Bhuban Singh[6] and
thereafter held thus:-
“The present is a case where the employer has held an inquiry
though it was defective and has passed an order of dismissal and
seeks approval of that order. If the inquiry is not defective,
the Labour Court has only to see whether there was a prima facie
case for dismissal, and whether the employer had come to the
bona fide conclusion that the employee was guilty of misconduct.
Thereafter on coming to the conclusion that the employer had
bona fide come to the conclusion that the employee was guilty
i.e. there was no unfair labour practice and no victimisation,
the Labour Court would grant the approval which would relate
back to the date from which the employer had ordered the
dismissal. If the inquiry is defective for any reason, the
Labour Court would also have to consider for itself on the
evidence adduced before it whether the dismissal was justified.
However, on coming to the conclusion on its own appraisal of
evidence adduced before it that the dismissal was justified its
approval of the order of dismissal made by the employer in a
defective inquiry would still relate back to the date when the
order was made. The observations therefore in Messrs. Sasa Musa
Sugar Company on which the appellant relies apply only to a case
where the employer had neither dismissed the employee nor had
come to the conclusion that a case for dismissal had been made
out. In that case the dismissal of the employee takes effect
from the date of the award and so until then the relation of
employer and employee continues in law and in fact. In the
present case an inquiry has been held which is said to be
defective in one respect and dismissal has been ordered. The
respondent had however to justify the order of dismissal before
the Labour Court in view of the defect in the inquiry. It has
succeeded in doing so and therefore the approval of the Labour
Court will relate back to the date on which the respondent
passed the order of dismissal. The contention of the appellant
therefore that dismissal in this case should take effect from
the date from which the Labour Court’s award came into operation
must fail.”

19. In this regard, we may refer to a two-Judge Bench decision in R.
Thiruvirkolam v. Presiding Officer and another[7]. In the said case,
the appellant was dismissed from service and a domestic enquiry was
instituted on 18.11.1981 on proof of misconduct and he had challenged
his dismissal before the Labour Court which found that the domestic
enquiry to be defective and permitted the Management to prove the
misconduct before it. On the basis of the evidence adduced before the
Labour Court, it came to the conclusion that the misconduct was duly
proved. When the matter travelled to this Court, leave granted in the
appeal was confined only to the question: Whether the dismissal would
take effect from the date of the order of the Labour Court, namely,
11.12.1985 or it would relate to the date of order of dismissal passed
by the employer, namely, 18.11.1981. The Court distinguished the
decision in Gujarat Steel Tubes Limited and others v. Gujarat Steel
Tubes Mazdoor Sabha and others[8] on the basis of the principles
stated in P.H. Kalyani’s (supra).

20. At this stage, we may refer with profit to the authority in Punjab
Dairy Development Corporation Ltd. and another v. Kala Singh and
others[9] wherein a three-Judge Bench was dealing with a reference
made by a Bench of three Judges to consider the correctness of the
decision in Desh Raj Gupta v. Industrial Tribunal IV, U.P.[10]. The
three-Judge Bench referred to the necessitous facts that the
respondent therein, Kala Singh, was working as a Dairy Helper-cum-
Cleaner for collecting the milk from various centres. He was charged
with misconduct and after conducting due domestic enquiry, the
disciplinary authority dismissed him from service. On reference, the
labour court found that the domestic enquiry conducted by the employer-
appellant was defective. Consequently, opportunity was granted to the
management to adduce evidence afresh to justify the order of dismissal
and, accordingly, the evidence was adduced by the appellant and the
delinquent-respondent. On consideration of the evidence the labour
court found that the charge had been proved against the respondent and
opined that the punishment was not disproportionate to the magnitude
of misconduct of the respondent. In a writ petition the High Court
set aside the award of the labour court to the extent of confirmation
of the dismissal from service with effect from the date of the
judgment of the labour court and not from any date earlier thereto.
The three-Judge Bench noted that subsequent to the reference
pertaining to correctness of the decision in Desh Raj Gupta (supra)
the decision has been rendered by a two-Judge Bench in R.
Thiruvirkolam (supra) and thereafter proceeded to state as follows: –

“In the decision of the Constitution Bench in P.H. Kalyani v.
Air France, this Court had held that once the labour court found
the domestic enquiry to be defective and gave opportunity to the
parties to adduce the evidence and also that the order of
termination of the service or dismissal from service is valid,
it would relate back to the original order of the dismissal. But
a discordant note was expressed by the three-Judge Bench in
Gujarat Steel Tubes Ltd. v. Mazdoor Sabha which was considered
by this Court in Thiruvirkolam case and it was held that in view
of the judgment of the Constitution Bench, the three-Judge Bench
judgment was not correct. Desh Raj Gupta case was also
considered and it was held that it has not been correctly
decided. Thus, we are relieved of reviewing the entire case-law
in that behalf.

In view of the aforesaid decisions and in view of the
findings recorded by the Labour Court, we are of the considered
opinion that the view expressed in Desh Raj Gupta case is not
correct. It is accordingly overruled. Following the judgment of
the Constitution Bench, we hold that on the Labour Court’s
recording a finding that the domestic enquiry was defective and
giving opportunity to adduce the evidence by the management and
the workman and recording of the finding that the dismissal by
the management was valid, it would relate back to the date of
the original dismissal and not from the date of the judgment of
the Labour Court.”

21. At this juncture, we may notice what was the perception at the
subsequent stage. In Vishweshwaraiah Iron and Steel Ltd. v. Abdul
Gani and others[11], a two-Judge Bench observed as follows: –
“3. The moot question would arise whether the ratio of the
Constitution Bench judgment in Kalyani case would almost
automatically apply to such cases apart from the cases arising
under Section 33 of the I.D. Act. We may, in this connection,
mention that the decision of the three-Judge Bench of this Court
in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha
wherein Krishna Iyer, J., spoke for the majority, was an
authority on the question of leading evidence before the
Industrial Court in proceedings under Section 10-A of the Act
and on the question of relation back of ultimate penalty order
passed by the arbitrator on the basis of evidence led by the
management for justification of its action before such Tribunal.
Therefore, the question would arise whether the ratio of this
decision would still apply to a case where the proceedings
relate to Section 10 or 10-A of the Act apart from Section 33 of
the Act. The later decisions of this Court have applied the
ratio of the decision in Kalyani case to matters arising under
Sections 10 and 10-A of the Act. In our view, therefore, the
dispute in the present proceedings could be better resolved by a
Constitution Bench of this Court which can consider the scope
and ambit of the decision of the earlier Constitution Bench
judgment in Kalyani case which has been the sheet-anchor of the
subsequent cases referred to earlier on which a strong reliance
has been placed by learned counsel for the petitioner and which
had nothing to do with proceedings under Section 33 of the Act.
The later decisions of this Court will also, therefore, require
a re-look.”

22. Thereafter, it granted leave and directed the appeals to be placed for
final disposal before a Constitution Bench. When the matter came
before the Constitution Bench in Vishweshwaraiah Iron and Steel Ltd.
v. Abdul Gani and others[12], the larger Bench, on 31.1.2002, passed
the following order: –

“The order of reference was made to a Constitution Bench by a
Bench of two learned Judges for the reason that they found some
difficulty in coming to a conclusion as to whether an earlier
Constitution Bench judgment and judgments of Benches of three
learned Judges resolved this question. In our view, a Bench of
two learned Judges cannot make a reference directly to a
Constitution Bench; this has been laid down in the judgment in
Pradip Chandra Parija v. Pramod Chandra Patnaik[13]. It is,
therefore, that this Constitution bench will not decide the
reference.”

23. In this context, a reference to a three-Judge Bench decision in
Engineering Laghu Udyog Employees’ Union v. Judge, Labour Court and
Industrial Tribunal and another[14] would be apt. In the said case a
contention was canvassed on behalf of the workmen that the view taken
by the High Court to the extent it held that the order of termination
would relate back to the date of the original order of termination,
was erroneous and to bolster the said submission reliance was placed
on Gujarat Steel Tubes Ltd. (supra). The Court, after referring to
earlier decisions, opined that Section 11-A of the Act confers a wide
power upon the Labour Court, Industrial Tribunal or the National
Tribunal to give appropriate relief in case of discharge or dismissal
of workman. While adjudicating on a reference made to it, the Labour
Court, Tribunal or the National Tribunal, as the case may be, if
satisfied that the order of discharge or dismissal was not justified,
may, while setting aside the same, direct reinstatement of the workman
on such terms and conditions, if any, as it thinks fit, or give such
other relief to the workman including the award of any lesser
punishment in lieu of discharge or dismissal as the circumstances of
the case may require. Only in a case where the satisfaction is
reached by the Labour Court or the Tribunal, as the case may be, that
an order of dismissal was not justified, the same can be set aside.
So long as the same is not set aside, it remains valid. But once
whether on the basis of the evidence brought on record in the domestic
inquiry or by reason of additional evidence, the employer makes out a
case justifying the order of dismissal the stand that such order of
dismissal can be given effect to only from the date of the award and
not from the date of passing of the order of punishment was not
legally acceptable. The Court further ruled that the distinction
sought to be made by this Court in some of the matters including
Gujarat Steel Tubes was not based on a sound premise, particularly
when the binding decisions of the Court in Workmen v. Motipur Sugar
Factory[15] and Workmen v. Firestone Tyre & Rubber Co. of India (P)
Ltd.[16] had not been taken note of.

24. Thereafter, the three-Judge Bench referred to the decision in Motipur
Sugar Factory (P) Ltd. (supra) and it was ruled that the employer has
got a right to adduce evidence before the tribunal justifying its
action, even where no domestic inquiry whatsoever has been held.
Reference was also made to the decision in Firestone Tyre & Rubber Co.
of India (P) Ltd. (supra) wherein the Court formulated the proposition
of law emerging from earlier decisions. The relevant propositions are
as follows: –

“32. From those decisions, the following principles broadly
emerge:

(1)-(3) * * *

(4) Even if no enquiry has been held by an employer or if the
enquiry held by him is found to be defective, the Tribunal in
order to satisfy itself about the legality and validity of the
order, has to give an opportunity to the employer and employee
to adduce evidence before it. It is open to the employer to
adduce evidence for the first time justifying his action, and it
is open to the employee to adduce evidence contra.

(5) * * *

(6) The Tribunal gets jurisdiction to consider the evidence
placed before it for the first time in justification of the
action taken only if no enquiry has been held or after the
enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should
straight away, without anything more, direct reinstatement of a
dismissed or discharged employee, once it is found that no
domestic enquiry has been held or the said enquiry is found to
be defective.

(8) * * *”

25. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and
others[17] the Constitution Bench reiterated the principles stated in
P.H. Kalyani (supra) and overruled a three-Judge Bench decision
rendered in Punjab Beverages (P) Ltd. v. Suresh Chand[18].

26. We have referred to the aforesaid line of judgments to highlight that
these authorities pertain to the lis under the Act. The doctrine of
“relation back” of an imposition of punishment in case of a labour
court finding the domestic enquiry as defective and granting
opportunity to the employer to substantiate the same either under
Section 10A or proceedings under Section 33 of the Act, in our
considered opinion, in the present case, need not be gone into as the
nature of controversy is quite different. Suffice it to say, the
aforesaid authorities have to be restricted to the disputes under the
Act.

27. At this juncture, we think it appropriate to state in detail what the
Full Bench had ruled on the first occasion on 22.5.1998. We have
already stated as to what directions it had passed and how the civil
appeal stood dismissed keeping the law open as far as applicability of
Section 17B of the Act is concerned. The fact remains, the said
judgment had attained finality inter se parties. The Full Bench took
note of the fact that the report of the enquiry officer which ran into
68 pages was not furnished to the delinquent officer as a result of
which he was deprived of the benefit of knowing the contents of the
report and submitting his version with regard to the correctness of
the findings of the enquiry report. The High Court opined that the
delinquent officer had suffered serious prejudice. Thereafter, the
Court referred to the order of punishment passed by the Managing
Director which apparently shows that the recommendations of the
General Manager (Operation) were taken into consideration. Proceeding
further it expressed as follows: –

“It is not disputed before us that the copy of the comments of
General Manager as afore referred were never furnished to the
delinquent officer, as such, he never had the occasion to see
this document which apparently has been taken into consideration
by the authorities concerned. The impugned order is the
cumulative result of all the 3 charge sheets and the comments of
the General Manager obviously related to the matter in issue.
Non furnishing of such material document to the petitioner is
also a flagrant violation of the principles of natural justice.
By no stretch of imagination it could be accepted that a
document prepared at the back of the petitioner, copy of which
was admittedly not furnished to him, can be permitted to be a
foundation of the order of punishment. Such an action would
certainly be contrary to fair play.”

And thereafter: –

“Non supply of this document certainly caused definite prejudice
to the case of the petitioner. The petitioner had every right
to comment or meet the points raised in the recommendation of
the General Manager. Thus, there is denial of fair and
reasonable opportunity to the delinquent officer in the present
case. The delinquent officer was not even aware as to what case
he was to meet as projected in the report of recommendations of
the General Manager which were considered by the authorities
while imposing punishment on him.

The cumulative effect of our above discussion is that the
impugned orders of punishment dated 25.4.1985 and dated
18.7.1986 are liable to be quashed, which we do hereby quash
without any hesitation. However, we would further direct the
Disciplinary Authority to grant opportunity to the petitioner to
reply to the enquiry report and pass appropriate orders after
granting personal hearing to the petitioner in accordance with
law.”

28. In this context, it is instructive to reproduce the observations made
by the Constitution Bench in B. Karunakar (supra) which adverted to
the question that relates to the effect on the order of punishment
when the report of the enquiry officer is not furnished to the
employee and what relief should be granted to him in such cases.
Answering the question, the Court observed that the answer to the said
question has to be relative to the punishment awarded. When the
employee is dismissed or removed from service and the inquiry is set
aside because the report is not furnished to him, in some cases the
non-furnishing of the report may have prejudiced him gravely while in
other cases it may have made no difference to the ultimate punishment
awarded to him and hence, to direct reinstatement of the employee with
back-wages in all cases is to reduce the rules of justice to a
mechanical ritual. The theory of reasonable opportunity and the
principles of natural justice have been evolved to uphold the rule of
law and to assist the individual to vindicate his just rights. They
are neither incantations to be invoked nor rites to be performed on
all and sundry occasions. Whether in fact, prejudice has been caused
to the employee or not on account of the denial to him of the report,
has to be considered on the facts and circumstances of each case. In
case where even after the furnishing of the report, no different
consequence would have followed, it would be a perversion of justice
to permit the employee to resume duty and to get all the consequential
benefits as it would amount to rewarding the dishonest and the guilty
and stretching the concept of justice to illogical and exasperating
limits.

29. After so stating the larger Bench proceeded to rule that in all cases
where the enquiry officer’s report is not furnished to the delinquent
employee in the disciplinary proceedings, the Courts and Tribunals
should cause the copy of the report to be furnished to the aggrieved
employee if he has not already secured it before coming to the
Court/Tribunal and give the employee an opportunity to show how his or
her case was prejudiced because of the non-supply of the report. If
after hearing the parties, the Court/Tribunal comes to the conclusion
that the non-supply of the report would have made no difference to the
ultimate findings and the punishment given, the Court/Tribunal should
not interfere with the order of punishment. The Court/Tribunal should
not mechanically set aside the order of punishment on the ground that
the report was not furnished. This Court further observed that since
it is the Courts/Tribunals which will apply their judicial mind to the
question and give their reasons for setting aside or not setting aside
the order of punishment, there would be neither a breach of the
principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the
furnishing of the report would have made a difference to the result in
the case that it should set aside the order of punishment. Thereafter,
the Constitution Bench opined thus:-

“Where after following the above procedure, the Court/Tribunal
sets aside the order of punishment, the proper relief that
should be granted is to direct reinstatement of the employee
with liberty to the authority/management to proceed with the
inquiry, by placing the employee under suspension and continuing
the inquiry from the stage of furnishing him with the report.
The question whether the employee would be entitled to the back-
wages and other benefits from the date of his dismissal to the
date of his reinstatement if ultimately ordered, should
invariably be left to be decided by the authority concerned
according to law, after the culmination of the proceedings and
depending on the final outcome. If the employee succeeds in the
fresh inquiry and is directed to be reinstated, the authority
should be at liberty to decide according to law how it will
treat the period from the date of dismissal till the
reinstatement and to what benefits, if any and the extent of the
benefits, he will be entitled. The reinstatement made as a
result of the setting aside of the inquiry for failure to
furnish the report, should be treated as a reinstatement for the
purpose of holding the fresh inquiry from the stage of
furnishing the report and no more, where such fresh inquiry is
held. That will also be the correct position in law.”

30. In the case at hand, the said stage is over. The Full Bench on the
earlier occasion had already rendered a verdict that the serious
prejudice had been caused and, accordingly, had directed for
reinstatement. The said direction, if understood and appreciated on
the principles stated in B. Karunakar (supra), is a direction for
reinstatement for the purpose of holding a fresh enquiry from the
stage of furnishing the report and no more. In the case at hand, the
direction for reinstatement was stayed by this Court. The Bank
proceeded to comply with the order of the High Court from the stage of
reply of enquiry. The High Court by the impugned order had directed
payment of back wages to the delinquent officer from the date of
dismissal till passing of the appropriate order in the disciplinary
proceeding/superannuation of the petitioner therein whichever is
earlier. The Bank has passed an order of dismissal on 22.11.2001 with
effect from 23.4.1985. The said order, as we perceive, is not in
accord with the principle laid down by the Constitution Bench decision
in B. Karunakar (supra), for it has been stated there that in case of
non-furnishing of an enquiry report the court can deal with it and
pass as appropriate order or set aside the punishment and direct
reinstatement for continuance of the departmental proceedings from
that stage. In the case at hand, on the earlier round the punishment
was set aside and direction for reinstatement was passed. Thus, on
the face of the said order it is absolutely inexplicable and
unacceptable that the Bank in 2001 can pass an order with effect from
23.4.1985 which would amount to annulment of the judgment of the
earlier Full Bench. As has been held by the High Court in the
impugned judgment that when on the date of non-furnishing of the
enquiry report the delinquent officer was admittedly not under
suspension, but was in service and, therefore, he would continue in
service till he is dismissed from service in accordance with law or
superannuated in conformity with the Regulations. How far the said
direction is justified or not or how that should be construed, we
shall deal with while addressing the other points but as far as the
order of removal being made retrospectively operational, there can be
no trace of doubt that it cannot be made retrospective.

31. Presently, we shall proceed to deal with the issue of superannuation
as envisaged under the Regulations. Regulation 19(1) deals with
superannuation of an employee. The relevant part of Regulation 19(1)
is as follows: –

“19. Age of retirement. – (1) An officer shall retire from the
service of the Bank on attaining the age of fifty eight years or
upon the completion of thirty years’ service whichever occurs
first.

Provided that the Competent Authority may, at its discretion,
extend the period of service of an officer who has attained the
age of fifty eight years or has completed thirty years’ service
as the case may be, should such extension be deemed desirable in
the interest of the Bank.

Provided further that an officer who had joined the service of
the Bank either as an officer or otherwise on or after the 19th
July, 1969 and attained the age of 58 years shall not be granted
any further extension in service.

Provided further that an officer may, at the discretion of the
Executive Committee, be retired from the Bank’s service after he
has attained 50 years of age or has completed 25 years service
as the case may be, by giving him three months notice in writing
or pay in lieu thereof.”

32. On a careful reading of the first proviso to Regulation 19(1) it is
quite clear that the period of service can be extended by the
discretion of the competent authority and such extension has to be
desirable in the interest of the Bank. The second proviso provides
that an officer who has joined the service of the bank either as an
officer or otherwise on or after 19.7.1969 and attained the age of 58
years shall not be granted any further extension in service. By this
proviso the power of the competent authority in respect of officers
who had joined as officers or otherwise after the cut-off date, i.e.
19.7.1969 and have attained the age of 58 years of service, is
curtailed. The delinquent officer joined the service as a clerk in
the Bank on 26.2.1962 and was promoted as Grade-II Officer in 1971
and as Grade-I Officer in 1977. Even if this provision is extended
to him, he could not have been granted extension of service after
completion of 58 years of age. The said officer attained the age of
58 years on 24.2.2002. Be that as it may, the grant of extension is
dependent on satisfaction the conditions as laid down in the first
proviso. As is seen from the earlier round of litigation, the Full
Bench had quashed the punishment and directed for reinstatement. In
the second round in CM No. 1965 of 2000 the High Court has directed
that the employee shall continue till passing of the appropriate
orders in the disciplinary proceedings or superannuated as per rules.
It has not commented on the validity of superannuation in the year
1992 as pleaded by the Bank and left it to be agitated in appropriate
proceeding. Mr. Vikas Singh, learned senior counsel appearing for
the employer-Bank, has submitted that the delinquent employee
completed thirty years of service in 1992 and regard being had to the
stipulation in the Regulation 19(1), he stood superannuated. Learned
senior counsel would further submit that for extension of the period
an affirmative act by the competent authority of the Bank is
imperative. Mr. Patwalia, learned senior counsel appearing for the
employee submitted that the delinquent officer could not have been
superannuated on completion of thirty years of service as it was
obligatory on the part of the Bank to intimate the officer that he
had reached the stage of superannuation and, in any case, as the Bank
continued the proceedings in pursuance of the liberty granted by the
High Court, the relationship between the employer and employee had
not come to an end.

33. At this juncture, it is noteworthy to refer to Regulation 19(2) of
the Regulations. It reads as follows: –

“19 (2) In case disciplinary proceedings under the relevant
regulations of service have been initiated against an officer
before he ceases to be in the Bank’s service by the operation
of, or by virtue of any of the said regulations or the
provisions of these regulations the disciplinary proceedings
may, at the discretion of the Managing Director, be continued
and concluded by the authority by which the proceedings were
initiated in the manner provided for in the said regulations as
if the officer continues to be in service, so however, that he
shall be deemed to be in service only for the purpose of the
continuance and conclusion of such proceedings.

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

34. The aforesaid Regulation, as it seems to us, deals with a different
situation altogether. It clearly lays down that if the disciplinary
proceedings have been initiated against an officer during the period
when he is in service, the said proceedings can continue even after
his retirement at the discretion of the Managing Director and for the
said limited purpose the officer shall be deemed to be in service.
In this regard it is worthwhile to refer to the decision in UCO Bank
and another v. Rajinder Lal Capoor[19] , wherein the appellant-Bank
was grieved by the decision of the High Court whereby the order of
punishment of removal imposed on an officer was modified to one of
compulsory retirement with effect from the date of superannuation.
In the said case, the employee attained the age of superannuation on
1.11.1996 and charge-sheet was issued on 13.11.1998. The
disciplinary proceeding was initiated against the employee in terms
of Regulation 20(3)(iii) of the UCO Bank Officer Employees’ Service
Regulations, 1979 which reads as follows: –
“20. (3)(iii) The officer against whom disciplinary proceedings
have been initiated will cease to be in service on the date of
superannuation but the disciplinary proceedings will continue as
if he was in service until the proceedings are concluded and
final order is passed in respect thereof. The officer concerned
will not receive any pay and/or allowance after the date of
superannuation. He will also not be entitled for the payment of
retirement benefits till the proceedings are completed and final
order is passed thereon except his own contributions to CPF.”
Interpreting the said Regulation, the Court opined that a bare
reading of the said Regulation would clearly show that by reason
thereof a legal fiction has been created, but the said legal fiction
could be invoked only when the disciplinary proceedings had clearly
been initiated prior to the respondent’s ceasing to be in service.
Further proceeding, the two-Judge Bench observed thus: –

“An order of dismissal or removal from service can be passed
only when an employee is in service. If a person is not in
employment, the question of terminating his services ordinarily
would not arise unless there exists a specific rule in that
behalf. As Regulation 20 is not applicable in the case of the
respondent, we have no other option but to hold that the entire
proceeding initiated against the respondent became vitiated in
law.”

35. In this context, reference to the authority in Ramesh Chandra Sharma
v. Punjab National Bank and another[20] would be fruitful. In the
said case the High Court had ruled that the appellant therein could
not have been dismissed from service after his retirement. This
Court referred to Regulation 20(3)(iii) of the Punjab National Bank
Officer Employees’ (Discipline & Appeal) Regulations, 1977 which
reads as follows: –
“20. (3)(iii) The officer against whom disciplinary proceedings
have been initiated will cease to be in service on the date of
superannuation but the disciplinary proceedings will continue as
if he was in service until the proceedings are concluded and
final order is passed in respect thereof. The officer concerned
will not receive any pay and/or allowance after the date of
superannuation. He will also not be entitled for the payment of
retirement benefits till the proceedings are completed and final
order is passed thereon except his own contribution to CPF.”

36. Interpreting the said Regulation the two-Judge Bench held thus: –
“The said Regulation clearly envisages continuation of a
disciplinary proceeding despite the officer ceasing to be in
service on the date of superannuation. For the said purpose a
legal fiction has been created providing that the delinquent
officer would be deemed to be in service until the proceedings
are concluded and final order is passed thereon. The said
Regulation being statutory in nature should be given full
effect.”
37. Slightly more recently in State Bank of India v. Ram Lal Bhaskar and
another[21], a three-Judge Bench, placing reliance on Rule 19(3) of
the State Bank of India Officers Service Rules, 1992, opined that in
view of the language employed in Rule 19 which stipulated that in
case the disciplinary proceedings under the relevant rules of service
have been initiated against an officer before he ceases to be in the
bank’s service by the operation of, or by virtue of, any of the rules
or the provisions of the Rules, the disciplinary proceedings may, at
the discretion of the Managing Director, be continued and concluded
by the authority by whom the proceedings were initiated in the manner
provided for in the Rules as if the officer continues to be in
service. He shall be deemed to be in service only for the purpose of
the continuance and conclusion of such proceedings and the punishment
could be imposed.

38. In the case at hand, the disciplinary proceeding was initiated
against the delinquent officer while he was in service. The first
order of dismissal was passed on 23.4.1985. The said order of
punishment was set aside by the High Court and the officer concerned
was directed to be reinstated for the limited purpose, i.e., supply
of enquiry report and to proceed in the disciplinary proceeding from
that stage. The said order was not interfered with by this Court.
The Bank continued the proceeding. Needless to emphasise, the said
continuance was in pursuance of the order of the Court. Under these
circumstances, it has to be accepted that the concept of deemed
continuance in service of the officer would have full play and,
therefore, an order of removal could have been passed after
finalization of the departmental proceeding on 22.11.2001. We have
already held that the said order would not have been made
retrospectively operative, but that will not invalidate the order of
dismissal but it would only have prospective effect as has been held
in R. Jeevaratnam (supra).

39. Having said that, it becomes necessary to determine the date of
retirement and thereafter delve into how the period from the date of
first removal and date of retirement would be treated. We may hasten
to add that for the purpose of deemed continuance the delinquent
officer would not be entitled to get any benefit for the simple
reason, i.e., the continuance is only for finalisation of the
disciplinary proceedings, as directed by the Full Bench of the High
Court. Hence, the effect and impact of Regulation 19(1) of the
Regulations comes into full play. On a seemly construction of the
first proviso we are of the considered view that it requires an
affirmative act by the competent authority, for it is an exercise of
power of discretion and further the said discretion has to be
exercised where the grant of extension is deemed desirable in the
interest of the Bank. The submission of Mr. Patwalia to the effect
that there should have been an intimation by the employer-Bank is
founded on the finding recorded by the High Court in the impugned
order that no order had been brought on record to show that the
delinquent officer had retired. As the facts would reveal, in the
year 1992 the concerned officer stood removed from service and at
that juncture to expect the Bank in law to intimate him about his
date of superannuation or to pass an order would be an incorrect
assumption. The conclusion which appears logical and acceptable is
that unless an extension is granted by a positive or an affirmative
act by the competent authority, an officer of the Bank retires on
attaining age of 58 years or upon the completion of 30 years of
service, whichever occurs first. In this regard the pronouncement in
C.L. Verma v. State of Madhya Pradesh and another[22] is apt to
refer. In the said case the effect of Rule 29 of Madhya Pradesh
State Municipal Service (Executive) Rules, 1973 fell for
interpretation. In the said Rule it was provided that a member of
the service shall attain the age of superannuation on the date he
completes his 58 years of age. The proviso to the said Rule
stipulated that the State Government may allow a member of the
service to continue in employment in the interest of Municipal
Council or in public interest and, however, no member of service
shall continue in service after he attains the age of 60 years. The
appellant therein had attained the age of 58 years two days prior to
the order of dismissal. The Court opined that the tenor of the
proviso clearly indicates that it is intended to cover specific cases
and individual employees. Be it noted, on behalf of the Government a
notification was issued by the concerned Department. The Court
opined that the said circular was not issued under the proviso to
Rule 29 but was administrative in character and that on the face of
mandate in Rule 29 the administrative order could not operate. The
Court further ruled that as the appellant therein had attained the
age of superannuation prior to the date of passing the order of
dismissal, the Government had no right to deal with him in its
disciplinary jurisdiction available in regard to employees. We have
referred to this decision to highlight that the Regulation herein
also is couched in similar language and, therefore, the first proviso
would have full play and it should be apposite to conclude that the
delinquent officer stood superannuated on completion of 30 years of
service on 25.2.1992. It is because the conditions stipulated under
the first proviso to the said Regulation deal with a conditional
situation to cover certain categories of cases and require an
affirmative act and in the absence of that it is difficult to hold
that the delinquent officer did not retire on completion of thirty
years of service.

40. The next issue pertains to how the period from the date of order of
first removal, i.e., 23.4.1985 till 25.2.1992 would be treated and to
what benefits the officer concerned would be entitled to. The order
of removal from service, as we have already opined, would come into
effect from the date of passing of the order, i.e., 22.11.2001 as it
has to be prospectively operative and, therefore, as a natural
corollary he remained in service from 23.4.1985 till he attained the
age of superannuation, i.e., 25.2.1992 or till the end of February,
1992, being the last day of the month. In the transfer case relief
has been sought for grant of full salary for the whole period. Mr.
Patwalia, learned senior counsel appearing for the legal
representatives of the original petitioner, would contend that they
should be entitled to get the full salary till the order of removal.
We are unable to accept the said submission because we have already
ruled that the officer stood superannuated on completion of thirty
years and his continuance by virtue of the order passed by the High
Court has to be treated as a deemed continuance for the purposes of
finalization of the disciplinary proceeding. The submission put
forth by Mr. Vikas Singh that the order of removal would relate back
to the date of the earlier order, i.e., 23.4.1985 has already been
repelled by us. Thus, we are to restrict the period for grant of
benefit till the date of retirement. Mr. Singh in course of hearing
has alternatively submitted that under no circumstances back wages in
entirety should be paid as the concerned officer had not worked. To
bolster his submission he has commended us to the decisions in A.P.
State Road Transport Corporation and others v. Abdul Kareem[23], A.P.
SRTC and another v. B.S. David Paul[24] and J.K. Synthetics Ltd. v.
K.P. Agrawal and another[25] wherein grant of back wages has been
restricted on certain parameters. He has also urged that in
pursuance of the order dated 15.12.2003 the Bank has deposited
Rs.5.00 lacs in the High Court which was permitted to be withdrawn by
the delinquent officer furnishing adequate security to the
satisfaction of the Registrar General of the High Court and under the
circumstances the said amount may be treated as back wages and be
paid to the legal heirs, if not withdrawn by the original petitioner.

41. It is worthy to note here that during the continuance of the
disciplinary proceeding the delinquent officer was not put under
suspension. After the order of punishment passed by the disciplinary
authority and affirmed by the appellate authority was quashed by the
High Court on 22.5.1998, the concerned officer has to be treated to
be in service from his date of first removal till his date of
retirement. Had the Bank brought to the notice of the Full Bench
about the legal position under the Regulations, in all probability,
the matter would have been dealt with differently. Be that as it
may, grant of salary in entirety for the period as determined by us
to be the period of continuance in service would not be apposite and
similarly, the submission advanced on behalf of the Bank that payment
of rupees five lacs would meet the ends of justice does not deserve
acceptance. Ordinarily, we would have directed the Bank to pay fifty
per cent of the back wages for the period commencing 23.4.1985 till
the end of February, 1992, with some interest but we do not want that
the legal heirs of the delinquent officer should further go through
any kind of tribulation in computation and face further legal hassle
as regards the quantum. We are of the considered opinion that the
controversy should be given a quietus and, therefore, instead of
fixing fifty per cent of the back wages we direct that the Bank shall
deposit a further sum of rupees five lacs with the Registrar General
of the High Court within two months hence and the respondents shall
be entitled to withdraw the same. We may hasten to clarify that if
the amount earlier deposited has not been withdrawn by the original
respondent, Ram Niwas Bansal, the same shall also be withdrawn by the
legal heirs.

42. In view of the aforesaid directions, the judgment and order passed by
the High Court is modified and the civil appeal and the transfer case
are disposed of leaving the parties to bear their respective costs.
……………………….J.
[H.L. Gokhale]
……………………….J.
[Dipak Misra]
New Delhi;
March 3, 2014.
———————–
[1] (1993) 4 SCC 727
[2] AIR 1966 SC 951
[3] (1974) 3 SCC 601
[4] AIR 1963 SC 1756
[5] AIR 1959 SC 923
[6] AIR 1959 SC 833
[7] (1997) 1 SCC 9
[8] (1980) 2 SCC 593
[9] (1997) 6 SCC 159
[10] (1991) 1 SCC 249
[11] AIR 1998 SC 185 : (1997) 8 SCC 713
[12] (2002) 10 SCC 437
[13] (2002) 1 SCC 1
[14] (2003) 12 SCC 1
[15] AIR 1965 SC 1803
[16] (1973) 1 SCC 813
[17] (2002) 2 SCC 244
[18] (1978) 2 SCC 144
[19] (2007) 6 SCC 694
[20] (2007) 9 SCC 15
[21] (2011) 10 SCC 249
[22] 1989 Supp (2) SCC 437
[23] (2005) 6 SCC 36
[24] (2006) 2 SCC 282
[25] (2007) 2 SCC 433

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