PAWAN KUMAR AGARWALAversusGENERAL MANAGER-II & APPOINTING AUTH. STATE BANK OF INDIA & ORS.

                   [2015) 15 S.C.R. 555


              PAWAN KUMARAGARWALA                             A
                             v.
  GENERAL MANAGER-II &APPOINTING AUTH. STATE
             BANK OF INDIA & ORS.
              (Civil Appeal No. 13448 of2015)                 B
                  NOVEMBER 17, 2015
      [V. GOPALA GOWDAAND AMITAVA_ ROY, JJ.]
      Service Law - Misconduct - Penalty - Allegation
against the appellant that he filled the loan application of a c
borrower and influenced the manager of another branch of
the bank to sanction loan despite knowing that the borrower
had earlier taken loan from his branch and thereby appellant
failed to protect the interests of the bank - Meanwhile, in the
disciplinary proceedings against the manager of the other D
branch, authority awarded minor penalty of one stage lower
in time scale for a period of one year - However in case of
appellant, order of dismissal passed - Appellant filed writ
petition - Single jutlge of High Court found that there was
unfairness in the enquiry as the list of witnesses and the . E
copies of the documents were not given to the appellant and
granted reinstatement with all service benefits and back
wages to the extent of 25% - On challenge by respondents,
Division Bench modified the punishment by imposing penalty
of reduction of one increment for one year and reinstatement F
without back wages since he was already drawing pension-
On appeal, held: It was a case of denial of fair opportunity to
 the appellant in gross violation of the procedural
requirements of the Service Rules. - The finding of the
 enquiry officer on the charges was vitiated on account of non- G
 compliance of the statutory Rules and principles of natural
justice - In the absence of evidence, the order of
 reinstatement without full back wages was unjustified in law-
 High Court should have made deduction of the amount of
                                                                H
                              555
556         SUPREME COURT REPORTS                     [2015] 15 S.C.R.


A      pension received by the appellant after awarding full back
      -wages for the period in question - Order of Division Bench
       set aside and order of single judge restored and modified
       with regard to award of reinstatement with full back wages.
            State Bank of India and Ors. vs. K.P. Narayanan
B           Kutty 2003 (1) SCR 391 : (2003) 2 sec 449; S.
            A. Venkataraman vs. U.0.1. andAnr. AIR 1954 SC
            375 : 1954 SCR 1150; Union of India vs. T.R.
            Varma AIR 1957 SC 882 : 1958 SCR 499;
            Punjab National Bank vs. Kunj 1998 (1) Suppl.
c           SCR 22 : (1998) 7 SCC 84; William Vincent
            Vita re/Ii v. Fred A. Seaton, Secretary of the Interior,
            et al 359 U.S. 535 (1959); R.D. Shetty vs.
            International Airport Authority 1979 (3)
            SCR 1014 :1979 (3) SCC 489; Deepali Gundu
D           Surwase vs. Kranti Junior Adhyapak
            Mahavidyalaya (D. ED.) & Ors. 2013 (9) SCR1 :
            (2013) 10 sec 324 - referred to.
                           Case Law Reference
E 2003 (1) SCR 391                   referred to            Para 11
      AIR 1954 SC 375                referred to            Para 11
      1958 SCR 499                   referred to            Para 12
      1998 (1) Suppl. SCR 22         referred to            Para 16
F
      (359 U.S. 535 (1959)           referred to            Para 17
      979 (3) SCR 1014               referred to            Para 18
      2013 (9) SCR 1                 referred to            Para 19
G         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      13448 of 2015.
           From the Judgment and Order dated 26.11.2014 of the
      High Court at Guahati Principal Seat at Guahati in W. A. No.
      192of2014.
H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II &                           557
  APPOINTINGAUTH. STATE BANK OF INDIA & ORS.

    Vijay Hansaria, Sr. Adv., Shailesh Madiyal, Gautam                A
Prabhakar, Ms. Sneha K., Avnish Pandey, Advs. for the
Appellant.
     Gaurav Agrawal, Adv., for the Respondents.
     The following Order of the Court was passed:                     B
                           ORDER
     1. Leave granted.
      2. This appeal by special leave is filed by the appellant
as he is aggrieved of the judgment and order dated 26.11.2014 C
passed by the Division Bench of the Gauhati High Court at
Guwahati in Writ Appeal No. 192 of 2014 holding that there
was no negligence on the part of the respondent (appellant
herein) in disbursing the loan and he had taken appropriate
steps, however, the other Manager of that Branch, who has             o
been found guilty and levied with lesser penalty, therefore, the
minor penalty would visit the respondent (appellant herein).
Accordingly, the Division Bench of the High Court modified the
penalty of dismissal to one of reduction of one increment for
one year and further directed the appellant to be reinstated in E
service with no back wages forthe reason that he had already
been taking pension for the period and further clarified that
the period of dismissal and the reinstatement shall be reckoned
as a continuity of service for the purpose of pension and,
accordingly, partly allowed the Writ Appeal preferred by the F
Bank.
      3. Aggrieved of the aforesaid portion of the finding and
the order of penalty imposed by the Division Bench of the High
Court by setting aside the order of reinstatement with 25%
back wages awarded by the learned Single Judge of the High            G
Court in the Writ Petition filed by the appellant questioning the
correctness of the impugned judgment and order, the present
appeal is filed by the appellant, urging various legal contentions.

                                                                      H
558         SUPREME COURT REPORTS                  [2015] 15S.C.R.


A       4. Brief facts necessary to appreciate the rival legal
  contentions urged on behalf of the parties to the lis are that the
  disciplinary proceedings were initiated against the appellant
  by issuing chargesheet dated 28.10.2004 alleging that he had
  influenced the Branch Manager of Hallydayganj Branch, against
B whom the disciplinary proceedings were initiated and upon
  finding him guilty, minor penalty of lesser punishment was
  imposed on him for being negligent in giving the loans. In the
  said proceedings, the appellant herein was Defence
  Representative of the said Manager Mr. Pradeep Kumar Das.
C The brief allegation contained in the chargesheet was that he
  had influenced the Branch Manager of Hallydayganj Branch to
  sanction cash credit facility sans disclosing earlier loan of Abdul
  Kuddus Mondal and, therefore, he had failed to protect the
  interests of the Bank. The second charge was about illegal
D grant of cash facility. The said charges were divided into six
  allegations, which were extracted in the chargesheet. The said
  charges were denied by the appellant herein, therefore, the
  enquiry officer was appointed by the disciplinary authority to
  enquire into the allegations made against him.
 E          5. The enquiry officer found that allegation Nos. 1, 2, 4
      and 6 are proved, huwe', ,-:r, allegation No. 3 is partly proved
      and allegation No. 5 is not proved. He found that the loan
      application of the loanee was written by the appellant herein
      despite the fact that it was within his knowledge that the
 F    borrower had earlier taken loan from his Branch and even then
      the appellant has helped the borrower to borrow more money
      from the neighbouring branch without disclosing the earlier
      transaction with the appellant's Branch.
 G     6. The discirlinary authority has taken the view that charge
  Nos. 3 and 5 also held to be proved from the material on record
  without giving an opportunity to the appellant herein to show
  cause as to why the finding on those charges should not be
  reversed. The disc!plinary authority forwarded to the appellant
H herein the enquiry report after taking tt1e view that charge Nos.
PAWAN KUMARAGARWALAv. GENERAL MANAGER-II & 559
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

3 and 5 were proved for which the appellant submitted a reply        A
on 22.11.2005.
      7. In the meantime, in the disciplinary proceedings
against Mr. Pradeep Kumar Das, Branch Manager of
Hallydayganj Branch, where the borrower got filled up the
application through the appellant and taken the loan without B
disclosing the borrowing/loan from the appellant's Branch of
the Bank, the disciplinary authority, after concluding the enquiry
against Mr. Pradeep Kumar Das, awarded penalty of one stage
lower in the time-scale for a period of one year without
cumulative effect. The penalty was imposed holding that the C
same will not adversely affect the pension of the said delinquent
Manager Mr. Pradeep Kumar Das.
      8. On 05.01.2006, the disciplinary authority, not accepting
the reply submitted by the appellant herein, imposed the penalty     0
of reduction of basic pay for 3 years. The Chief Vigilance Officer
("C.V.O.") was of the view that there was extreme mala fides
on the part of the appellant as he had acted against the interests
of the Bank, therefore, the stiff major penalty was directed to be
imposed upon him vide Order dated 01.02.2006.Accordingly,            E
the Appointing Authority passed the Order dated 24.04.2006
for removal of the appellant from service. Against the said order
of removal, the appellant filed an appeal before the Appellate
Authority, which came to be rejected vide Order dated
18.11.2006 sans examining the merits of the case and                 F
considering the legal contentions urged in the memorandum
of appeal. On 07.02.2007, the respondent- Bank sanctioned
pension and the appellant is drawing pension since then.
      9.Aggrieved of the order of the dismissal which is
affirmed by the Appellate Authority, the appellant herein filed a    G
writ petition before the Gauhati High Court in the month of
March, 2009. The Bank filed its affidavit by way of reply in the
said writ petition. After hearing both the parties, the learned
Single Judge of the High Court by Order dated 04.03.2014
                                                                     H
560         SUPREME COURT REPORTS                  [2015] 15 S.C.R.


A     allowed the writ petition and granted reinstatement with all
      service benefits and payment of back wages to the extent of
      25%. The learned Single Judge while granting such relief
      adverted to the rival legal contentions has recorded a finding
      of fact holding that there was unfairness in the enquiry as the
 B    list of witnesses and the copies of documents were not given
      to the appellant and the finding of the enquiry officer was held
      to be perverse.
           10. The correctness of the said judgment and order of
     the learned Single Judge of the High Court was challenged in
 C . the Writ Appeal filed by the respondents herein before the
     Gauhati High Court. The Division Bench of the High Court after
     considering the rival legal contentions substituted the order of
     the learned Single Judge by imposing penalty of reduction of
     one increment for one year and reinstatement without back
 D wages since he was already drawing pension. The said order
     passed by the Division Bench of the High Court modifying the
     order of the learned Single Judge is impugned in this civil
     appeal by the appellant, urging various legal contentions.
 E       11. It is contended by Mr. Vijay Hansaria, learned senior
   counsel for the appellant, that the finding is recorded by the
   learned Single Judg~ in the order passed in writ petition after
   considering the rival legal contentions that the statutory
   requirements to conduct fair and reasonable enquiry, list of
 F witnesses and copies of documents were not furnished to the
   appellant-officer, thereby conducting the enquiry proceedings
   are vitiated and the findings recorded against the appellant
   and the charges are perverse. The said finding is placed on
   undisputed fact of non furnishing of list of witnesses and copies
   of documents which are the statutory requirements for conduct
 G of disciplinary proceedings. The Division Bench of the High
   Court has erroneously set aside the same without there being
   any evidence on record that the appellant is negligentand other
   acts of misconduct in discharging his duties and reversed the

 H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 561
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

finding of the learned Single Judge in holding that the conduct      A
of the enquiry is not fair and reasonable and there is non-
compliance of the principles of natural justice in conducting
enquiry thereby grave prejudice has been caused to the
appellant herein. The learned Single Judge has also referred
to the judgment of this Court in the case of State Bank of India     B
and Ors. vs. K.P. Narayanan Kutty, (2003) 2 SCC 449, while
recording such a finding holding that the finding of fact recorded
by the enquiry officer that the charges are proved is perverse
in law. Learned senior counsel further contended that the
disciplinary authority has to follow the procedural safeguards       c
provided under the disciplinary Regulations. Not considering
the reply to the chargesheet given to the appellant herein by
the disciplinary authority, the action that would be taken upon
such disciplinary proceedings by recording the finding by the
enquiry officer holding that the charges are proved, on the basis    D
of evidence of the witnesses whose names were not notified
to the appellant and copies of documents were not furnished
to him which were relied upon by the enquiry officer, thereby
the case of the appellant was prejudiced, therefore, the same
will have serious civil consequences upon the Service                E
Conditions of the appellant, if the minor or major penalties are
imposed, including the order of removal that is passed by the
disciplinary authority. Therefore, the learned senior counsel
submitted that the Division Bench without application of mind
and assigning valid and cogent reasons, not noticing the             F
undisputed facts that list of witnesses and copies of documents
were not provided to the appellant in the enquiry proceeding,
it has erroneously set aside the order passed by the learned
Single Judge, who has assigned valid and cogent reasons in
rendering the finding of fact holding that the enquiry was not       G
fair and the same is not in accordance with the statutory
requirements of the Conduct and Disciplinary Regulations and
in compliance with the principles of natural justice. The said
conclusion arrived at by the learned Single Judge is supported
                                                                     H
562         SUPREME COURT REPORTS                      [2015]15S.C.R.


A     by the judgments of this Court rendered in a catena of cases,
      particularly in the case of S. A. Venkataraman vs. U.0.1. and
      Anr.,AIR 1954 SC 375, this Court observed as follows:
            "14. As the law stands at present, the only purpose,
            for which an enquiry under Act 37 of 1850 could be
 B          made, is to help the Government to come to a
            definite conclusion regarding the misbehavior of a
            public servant and thus enable it to determine
            provisionally the punishment which should be
            imposed upon him prior to giving him a reasonable
c           opportunity of showing cause, as is required under
            article 311 (2) of the Constitution. An enquiry under
            this Act is not at all compulsory and it is quite open
            to the Government to adopt any other method if it
            so chooses. It is a matter of convenience merely
 D          and nothing else. It is against this background that
            we will have to examine the material provisions of
            the Public Servants (Inquiries), Act of 1850 and see
            whether from the nature and result of the enquiry
            which the Act contemplates it is at all possible to
 E          say that the proceedings taken or concluded under
            the Act amount to prosecution and punishment for
            a criminal offence."
             12. In Union of India vs. T.R. Varma, AIR 1957 SC 882,
 F    this Court observed that if a person whose services have been
      wrongfully terminated is entitled to institute an action to vindicate
      his'rights.
            "6. At the very outset, we have to observe that a writ
            petition under Art. 226 is not the appropriate
 G          proceeding for adjudication of disputes like the
            present. Under the law, a person whose services
            have been wrongfully terminated, is entitled to
            institute an action to vindicate his rights, and in such
            an action, the Court will be competent to award all
 H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 563
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

   the relief's to which he may be entitled, including       A
   some which would not be admissible in a writ
   petition.
   It is well-settled that when an alternative and equally
   efficacious remedy is open to a litigant, he should
   be required to pursue that remedy and not invoke          B
   the special jurisdiction of the High Court to issue a
   prerogative writ. It is true that the existence of
   another remedy does not affect the jurisdiction of
   the Court to issue a writ; but, as observed by this
   Court in Rashid Ahmed vs. Municipal Board,                c
   Kairana, [1950] S.C.R. 566 (AIR 1950 SC 163(A)
   "the existence of an adequate legal remedy is a
   thing to be taken into consideration in the matter of
   granting writs". Vide also K. S. Rashid and Son
   vs. The Income-tax Investigation Commission, 1954         D
   SCR 738 at p.747: (AIR 1954 SC 207 at p.
   210)(B). And where such remedy exists, it will be a
   sound exercise of discretion to refuse to interfere
   in a petition under Art. 226, unless there are good
   grounds therefor. None such appears in the present        E
   case. On the other hand, the point for determination
   in this petition whether the respondent was denied
   a reasonable opportunity to present his case, turns
   mainly on the question whether he was prevented
   from cross- examining the witnesses, who gave             F
   evidence in support of the charge.
   That is a question on which there is a serious
   dispute, which cannot be satisfactorily decided
   without taking evidence. It is not the practice of
                                                             G
   Courts to decide questions of that character in a
   writ petition, and it would have been a proper
   exercise of discretion in the present case if the
   learned Judges had referred the respondent to a
   suit.
                                                             H
564   SUPREME COURT REPORTS                   [2015] 15 S.C.R.


A     In this appeal, we should have ourselves adopted
      that course, and passed the order which the learned
      Judges should have passed. But we feel pressed
      by the fact that the order dismissing the respondent
      having been made on September 16, 1954, an
B     action to set it aside would now be time-barred. As
      the High Court has gone into the matter on the
      merits, we propose to dispose of this appeal on a
      consideration of the merits.
      10. Now, it is no doubt true that the evidence of the
c     respondent and his witnesses was not taken in the
      mode prescribed in the Evidence Act; but that Act
      has no application to enquiries conducted by
      tribunals, even though they may be judicial in
      character. The law requires that such tribunals
D     should observe rules of natural justice in the conduct
      of the enquiry, and if they do so, their decision is
      not liable to be impeached on the ground that the
      procedure followed was not in accordance with that,
      which obtains in a Court of law.
 E
            Stating it broadly and without intending it to
      be exhaustive, it may be observed that rules of
      natural justice require that a party should have the
      opportunity of adducing all relevant evidence on
      which he relies, that the evidence of the opponent
 F
      should be taken in his presence, and that he should
      be given the opportunity of cross-examining the
      witnesses examined by that party, and that no
      materials should be relied on against him without
      his being given an opportunity of explaining them.
G
           If these rules are satisfied, the enquiry is not
      open to attack on the ground that the procedure
      laid down in the Evidence Act for taking evidence
      was not strictly followed."
H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 565
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

      13. Learned senior counsel forthe appellant vehemently A
challenged that the appellant is also aggrieved of the non-grant
of back wages by the Division Bench and setting aside the
grant of 25% back wages awarded by the learned Single Judge
and imposing penalty of reduction of one increment for one
year. The said finding is recorded without there being any B
evidence on record. He contended that because pension
amount does not substitute the grant of back wages, particularly
in the absence of any material with the respondent-Bank,
whatsoever, to deny the back wages, as he was gainfully
employed from the date of dismissal and till passing of the      c
impugned judgment and order by the learned Single Judge
and the Division Bench. Further the learned Single Judge and
the Division bench have not given any reason, whatsoever, in
depriving the back wages and imposing the penalty of
withholding increment without there being any evidence, D
therefore, the same is contrary to the law laid down by this
Court in a catena of cases.
      14. Per contra, Mr. Gaurav Agrawal, learned counsel
appearing for the respondents, sought to justify the order
passed by the Division Bench of the High Court and submitted E
that the correctness of the impugned judgment and order of
the Division Bench is challenged on various grounds by filing
a Special Leave Petition and further, alternatively, contended
that, even assuming the Special Leave Petition cannot be
entertained by this Court, even then the Division Bench of the F
High Court in exercise of its extraordinary and supervisory
jurisdiction has done justice to the parties in imposing minor
penalty and not granting back wages while awarding
reinstatement keeping in view that the appellant has been paid
the pension since 07.02.2007, therefore, he prayed for dismissal G
of the Civil Appeal filed by the appellant seeking for the reliefs,
as stated above.
       15. We have given our thoughtful considerations to the
rival contentions urged by the learned counsel for the parties
                                                                 H
566         SUPREME COURT REPORTS                   [2015] 15S.C.R.


A     to the lis and have carefully perused the materials on the record
      and examined the irr·r.:-ugried Orders passed by both the
      learned Single Judge and the Division Bench of the High Court.
        16. The chargesheet was issued on 28.10.2004 against
  the appellant making S allegations against him and it is
B undisputed fact that list of witnesses and the copies of
  documents were not furnished to the appellant. Further, the
  disciplinary authority has reversed the findings on charge Nos.
  3 and 5 without giving an opportunity to the appellant to show
  cause in the matter and, thereafter, the order of removal was
C passed by the Appointing Authority on the advice of the C.V.O.
  vide his opinion dated 01.02.2006 and further it is brought on
  record that similarly placed person, namely, Mr. Pradeep Kumar
  Das, the Manager of Hallydayganj Branch, who has loaned the
  loan to one Mr. Ta pan Kumar Sang ma, in his case they have
D imposed lesser punishment of withholding one increment
  thereby making discrimination in differently treating with the
  appellant herein, which is violation of Article 14 of the
  Constitution of India. Further, it is brought to our notice by Mr.
  Vijay Hansaria, learned senior counsel for the appellant that
E the loan amount lent by Mr. Pradeep Kumas Das, the Manager
  of Hallydayganj Branch, the same has been cleared by Mr.
  Tapan Kumar Sangma with interesfby paying Rs. 1,61,000/-.
  The overdraft is beyond the permissible limit is held to be not
  proved. The finding of the learned Single Judge while
F examining the entire enquiry report, on which strong reliance
  is placed by the respondent-Bank, the learned Single Judge
  in exercise of his extraordinary and Original Jurisdiction
  examined the case on merits and referred to Rule 68(1 )(IX)(a)
  of the State Bank of India Service Rules, wherein it mandates
G the disciplinary authority to furnish the delinquent the list of
  documents through which the charges are proposed to be ·
  proved. It is the case of the appellant that such a list of
  witnesses and copies of documents were not furnished either
  by the disciplinary authority or the enquiry officer which are vital
H
PAWAN KUMARAGARWALAv. GENERAL MANAGER-II & 567
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

3 ;pects of the case, based on which the finding is recorded         A
r,n the charges by the enquiry officer, referred to supra, holding
that the same are proved against the appellant. Further, with
regard to lending of loan in favour of Mr. Tapan Kumar Sangma,
the learned Single Judge examined and recorded the finding
of fact stating that a sum of Rs. 2, 13,595 was recovered from B
\lie said loanee and it is stated that the Power of Attorney
furnished by Abdul Kuddus Mondal was never utilized to
recover the balance loan due of Rs. 15,450/-, which will not be
the negligence on the part of the appellant, however, it will be
negligence of those responsible for loan recovery, a small C
unpaid amount had to be written off by the Bank. Further, with
reference to the opinion/report Exhibit D-4 furnished in support
of the disbursement of the loan clearly disclosed the previous
loans of the borrowers from the Phulbari Branch but surprisingly
neither the enquiry officer nor the disciplinary authority or the D
C.V.O. had taken note of the said opinion/report, which
establishes the bona fide of the appellant's action in rendering
assistance to his neighbouring Branch Manager to meet the
target for disbursal of contract finance by the Hallydayganj
 Branch Manager. Upon the contention urged on behalf of the E
appellant that taking multiple loans is not prohibited in the S.B.I.
and contract finance were sanctioned for the 2 borrowers by
the Hallydayganj Branch Manager with full knowledge of the
 previous loans taken by them from the Phulbari Branch, the
 learned Single Judge has referred to non-furnishing of the F
control return file of the Branch as well as the Bank's Ledger
 sheets of the J.N. High School account and Mr. Tapan Kumar
 Sangma accounts to the appellant at the time of conducting
 enquiry on the charges to defend the case by the appellant
 effectively, the same was projected as cause for serious G
 prejudice to the case of the appellant as the said documents
 established that the borrowers had availed similar overdraft
 facility earlier and, in any case, this was within the permissible
 discretionary capacity of the Manager of the Phulbari Branch.
 The learned Single Judge on the basis of reliance placed by H
568         SUPREME COURT REPORTS                    [2015] 15S.C.R.


A     the appellants's counsel upon the decision of this Court in the
      case of State Bank of India & Ors. vs. K.P. Narayanan Kutty,
      (supra), wherein it has been held the the non compliance of
      the statutory requirements as per the aforesaid rules, the action
      of the disciplinary authority is inconsistent with the principles
B     of natural justice and the settled principles of service
      jurisprudence. In the said case, while concurring with the
      decision of this Court in the case of Punjab National Bank vs.
      Kunj, (1998) 7  sec   84, para 19 was quoted, which reads as
      follows:
c           "19. The result of the aforesaid discussion would
            be that the principles of natural justice have to be
            read into Regulation 7(2). As a result thereof,
            whenever the disciplinary authority disagrees with
            the enquiry authority on any article of charge, then
D           before it records its own findings on such charge, it
            must record its. tentative reasons for such
            disagreement and give to the delinquent officer an
            opportunity to represent before it records its
            findings. The report of the enquiry officer containing
 E          its findings will have to be conveyed and the
            delinquent officer will have an opportunity to
            persuade the disciplinary authority to accept the
            favourable conclusion of the enquiry officer. The
            principles of natural justice, as we have already
 F          observed, require the authority which has to take a
            final decision and can impose a penalty, to give an
            opportunity to the officer charged of misconduct to
            file a representation before the disciplinary authority
            records its findings on the charges framed against
 G          the officer."
            17. While dealing with the similar fact situation in William
      Vincent Vitarelli v. Fred A. Seaton, Secretary of the Interior, et
      al (359 U.S. 535 (1959), the learned Judge observed as
      follows:
 H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 569
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

     "An executive agency must be rigorously held to                A
     the standards by which it professes its action to be
     judged. See Securities & Exchange Commission
     v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct.
     454, 459, 87 L.Ed.
     626. Accordingly, if dismissal from employment is              B
     based on a defined procedure, even though
     generous beyond the requirements that bind such
     agency, that procedure must be scrupulously
     observed. See Service v. Dulles, 354 U.S. 363, 77
     S.Ct. 1152, 1L.Ed.2nd1403.                                     c
     This judicially evolved rule of administrative law is
     now firmly established and, if I may add, rightly so.
     He that takes the procedural sword shall perish with
     that sword."                                                   D
      18. The said judgment in Vitarelli's case was referred to
by this Court in R.D. Shetty vs. International Airport Authority,
1979 (3)  sec    489, the relevant extract of which is quoted
herein under:
     "10 ...... lt is a well-settled rule of administrative law     E
     that an executive authority must be rigorously held
     to the standards by which it professes its actions
     to be judged and it must scrupulously observe those
     standards on pain of invalidation of an act in
     violation of them. This rule was enunciated by Mr.             F
     Justice Frankfurter in Viteralli v. Saton where the
     learned Judge said:
     'An executive agency must be rigorously held to the
     standards by which it professes its action to be               G
     judged. Accordingly, if dismissal from employment
     is based on a defined procedure, even though
     generous beyond the requirements that bind such
     agency, that procedure must be scrupulously
     observed. This judicially evolved rule of
                                                                    H
570   SUPREME COURT REPORTS                     [2015] 15 S.C.R.


A     administrative law is now firmly established and, if
      I may add, rightly so. He that takes the procedural
      sword shall perish with the sword.'
      This Court accepted the rule as valid and applicable
      in India in A.S. Ahluwalia v. Punjab and in
B     subsequent decision given in Sukhdev v.
      Bhagatram, Mathew, J., quoted the above-referred
      observations of Mr Justice Frankfurter with approval.·
      It may be noted that this rule, though supportable
      also as an emanation from Article 14, does not rest
c     merely on that article. It has an independent
      existence apart from Article 14. It is a rule of
      administrative law which has been judicially evolved
      as a check against exercise of arbitrary power by
      the executive authority. If we turn to the judgment of
D     Mr Justice Frankfurter and examine it, we find that
      he has not sought to draw support for the rule from
      the equality clause of the United States Constitution,
      but evolved it purely as a rule of administrative law.
      Even in England, the recenttrend in administrative
E     law is in that direction as is evident from what is
      stated at pp. 540-41 in Prof Wade's "Administrative
      Law", 4th Edn. There is no reason why we should
      hesitate to adopt this rule as a part of our continually
      expanding administrative law. Today with
F     tremendous expansion of welfare and social
      service functions, increasing control of material and
      economic resources and large scale assumption
      of industrial and commercial activities by the State,
      the power of the executive Government to affect the
G     lives of the people is steadily growing. The
      attainment of socio-economic justice being a
      conscious end of State policy, there is a vast and
      inevitable increase in the frequency with which
      ordinary citizens come into relationship of direct
H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 571
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

     encounter with State power-holders. This renders                A
     it necessary to structure and restrict the power of
     the executive Government so as to prevent its
     arbitrary application or exercise ..... "
      19. Further, the learned Single Judge has e~amined the
opinion sought forfrom the C.V.O. by the disciplinary authority      8
on the penalty to be imposed upon the appellant, the C.V.O.
has suggested the major penalty of removal, the same is
inconsistent with the norms applicable in the Bank's
disciplinary proceedings. The learned Single Judge examined
the action of the disciplinary authority in relation to the Branch   C
Manager Hallydayganj Branch that facilitating the second loan
to the loanee, Mr. Tapan Kumar Sangma, closely known to the
said Manager, the same allegation has been treated as a minor
lapse, but in the context of the appellant they have imposed
major penalty, which is a clear case of discrimination. The          D
appellant's admission with regard to writing the loan
applications of Abdul Kuddus Mondal and Hasanuzzaman to
enable them to avail contract finance from the Hallydayganj
Branch, the contention urged on behalf of the appellant is
examined and held that the said applicants had availed loans         E
to the extent of Rs. 10,000/- and Rs. 15,000/- respectively from
the Phulbari Branch of the S.B.I., projecting that minimal loss
and both the loans were cleared of, assuming that the
disciplinary proceedings were just and fair, learned senior
counsel for the appellant argued that the minor punishment           F
proposed by the disciplinary authority of pay reduction should
have been considered reasonable in the context of the charges.
The learned Single Judge, after considering the opinion/report
DEX-4, held that the enquiry officer did not base his conclusion
on any incriminatory materials and in fact the report DEX-4          G
was totally ignored which would have established the innocence
of the delinquent and further held that the enquiry officer
conducted the enquiry sans furnishing the copies of crucial
documents and furnishing the list of witnesses. It appears to
                                                                     H
572       SUPREME COURT REPORTS                  [2015] 15S.C.R.


A be a case of denial of fair opportunity to the delinquent in gross
  violation of the procedural requirernents of the Service Rules.
  That finding is based on factual, undisputed. facts and in
  conformity with the law, therefore, in our opinion, the learned
  Single Judge has rightly held that the enquiry conducted against
B the appellant was unfair and the findings recorded on the
  charges are perverse in law. While recording such a finding
  the learned Single Judge has also proceeded to hold that the
  enquiry was found to be vitiated for the reason that the then
  Branch Manager Mr. Pradeep Kumar Das of Hallydayganj
c Branch was never examined in the enquiry and without his
  evidence, conclusion on culpability of the delinquent on the
  loans disbursed by the Branch Manager of Hallydayganj to the
  loanee could not have been reasonably reached by anyone,
  including the enquiry officer and imposing major penalty on the
D basis of the C. V.O. without there being any legal evidence on
  record, the enquiry was not properly conducted due to non-
  f urnishing the list of witnesses and copies of the documents,
  therefore, the exercise of power on the basis of the C.V.O.'s
  opinion for removal of the appellant from service entail serious
E consequences. Therefore, placing reliance on K.P. Narayanan
  Kutty (supra), the learned Single Judge held that the action
  taken in accepting the C.V.O.'s view and passing order of
  removal is arbitrary, unreasonable and gross violation of Article
  14 of the Constitution of India. Having said so, the learned
F Single Judge has set aside the order of removal and granted
  reinstatement of the appellant with 25% back wages in the
  absence of any proof to show that he was gainfully employed
  from the date of order of removal till the date of the decision
  rendered by the learned Single Judge and the Division Bench
G of the High Court, therefore, the same is contrary to the law
  laid down by this Court in the case of Deepali Gundu Surwase
  vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors.,
  (2013) 10 sec 324, para 38 is quoted herein under:
         "38. The propositions which can be culled out from
 H       the aforementioned judgments are:
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 573
  APPOINTINGAUTH. STATE BANK OF IND!A& ORS.

   i) In cases of wrongful termination of service,             A
   reinstatement with continuity of service and back ·
   wages is the normal rule.
   ii) The aforesaid rule is subject to the rider that while
   deciding the issue of back wages, the adjudicating
   authority or the Court may take into consideration          B
   the length of service of the employee/workman, the
   nature of misconduct, if any, found proved against
   the employee/workman, the financial condition of
   the employer and similar ottierfactors.
                                                               c
   iii) Ordinarily, an employee or workman whose
   services are terminated and who is desirous of
   getting back wages is required to either plead or
   at least make a statement before the adjudicating
   authority or the Court of first instance that he/she
                                                               D
   was not gainfully employed or was employed on
   lesser wages. If the employer wants to avoid
   payment of full back wages, then it has to plead
   and also lead cogent evidence to prove.that the
   employee/workman was gainfully employed and
                                                               E
   was getting wages equal to the wages he/she was
   drawing prior to the termination of service. This is
   so because it ls settled law that the burden of proof
   of the existence of a particular fact lies on the
   person who makes a positive averments about its
   existence. It is always easier to prove a positive
                                                               F
   fact than to prove a negative fact. Therefore, once
   the employee shows that he was not employed,
   the onus lies on the employer to specifically plead
   and prove that the employee was gainfully employed
                                                               G
   and was getting the same or substantially similar
   emoluments.
   iv) The cases in which the Labour Court/Industrial
   Tribunal exercises power under Section 11-A of the
                                                               H
574     SUPREME COURT REPORTS                     [2015] 15S.C.R.


A       Industrial DisputesAct, 1947 and finds tha_t even
      · though the enquiry held against the employee/
        workman is consistent with the rules of natural
        justice and/or certified standing orders, if any, but
        holds that the punishment was disproportionate to
 B      the misconduct found proved, then it will have the
        discretion not to award full back wages. However,
        if the Labour Court/Industrial Tribunal finds that the
        employee or workman is not at all guilty of any
        misconduct or that the employer had foisted a false
c       charge, then there will be ample justification for
        award of full back wages.
       v) The cases in which the competent· Court or
       Tribunal finds that the employer has acted in gross
       violation of the statutory provisions and/or the
D      principles of natural justice or is guilty of victimizing
       the employee or workman, then the Court or Tribunal
       concerned will be fully justified in directing payment
       of full b.ack wages. In such cases, the superior
       Courts should not exercise power under Article 226
 E     or 136 of the Constitution and interfere with the
       award passed by the Labour Court, etc., merely
       because there is a possibility of forming a different
       opinion on the entitlement of the employee/
       workman to get full back wages or the employer's
 F     obligation to pay the same. The Courts must keep
       in view that in the cases of wrongful/illegal
       termination of service, the wrongdoer is the
       employer and the sufferer is the employee/workman
       and there is no justification to give a premium to
 G     the employer of his wrongdoings by relieving him
       of the burden to pay to the employee/workman his
       dues in the form of full back wages.
       vi) In a number of cases, the superior Courts have
       interfered with the award of the primary
 H
PAWAN KUMARAGARWALA v. GENERAL MANAGER-II & 575
  APPOINTINGAUTH. STATE BANK OF INDIA& ORS.

     adjudicatory authority on the premise that                  A
     finalization of litigation has taken long time ignoring
     that in majority of cases the parties are not
     responsible for such delays. Lack of
     infrastructure and manpower is the principal cause
     for delay in the disposal of cases. For this the·           B
     litigants cannot be blamed or penalised. It would
     amount to grave injustice to an employee or
     workman if he. is denied back wages simply
     because there is long lapse of time between the
     termination of his service and finality given to the        C
     order of reinstatement. The Courts should bear in
     mind that in most of these cases, the employer is ·
     in an advantageous position vis-a-vis the employee
     or workman. He can avail the services of best legal
     brain for prolonging the agony of the sufferer, i.e.,       o
     the employee or workman, who can ill afford the
     luxury of spending money on a lawyer with certain
     amount of fame. Therefore, in such cases it would
      be prudent to adopt the course suggested in.
     Hindustan Tin Works Private Limited vs. Employees           E
     of Hindustan Tin Works Private Limited, (1979) 2
     sec so.
     vii) The observation made in J.K. Synthetics ltd, v.
     K.P. Agrawal, (2007) 2 SCC 433 that on
     reinstatement the employee/workman cannot claim             F
     continuity of service as of right is contrary to the
     ratio of the judgments of three Judge Benches
     referred to hereinabove and cannot be treated as
     good law. This part of the judgment is also against
     the very concept of reinstatement of an employee/           G
     workman."
      20. For the reasons stated supra, we have examined the
case threadbare on the basis of the material placed on record
and rival legal contentions urged on behalf of the parties, we
                                                                 H
576          SUPREME COURT REPORTS                  [2015] 15 S.C.R.


A     hold that the finding of the enquiry officer on the charges is
      vitiated on account of non-compliance of the statutory Rules
      and the principles of natural justice. In the absence of evidence,
      the order of reinstatement sans full back wages is unjustified
      in law.At best, the High Court should have made deduction of
B     the amount of pension received by the appellant after awarding
      full back wages for the period in question. In not doing so, the
      orders of the learned Single Judge and the Division Bench of
      the High Court are liable to be set aside with regard to non-
      grant of full back wages. Accordingly, we set aside the Orders
C     of the Divisioh Bench imposing the penalty of reduction of one
      increment to the appellant for one year and restore and modify
      the order of the learned Single Judge with regard to award of
      reinstatement with full back wages for the period from the date
      of removal till the date of the appellant attaining the age of
o     superannuation, on the basis of periodical revisions of salary
      to the appellant herein and deduct the pension amount from
      the back wages payable to the appellant. The .same shall be
      paid to the appellant within eight weeks from the date of receipt
      of the copy of this order.
E           21. The appeal is allowed in the aforesaid terms,
      directions and observations.


      Devika Gujral                                       Appeal allowed.


                               END OF 2015
                                   *****