Supreme Court of India
STATE BANK OF PATIALA AND ANOTHERversusRAM NIWAS BANSAL (DEAD) THROUGH LRS.
- Citation
- 2014 INSC 159
- Decided
- 3 March 2014
- Disposal
- Disposed off
- Bench
- H L GOKHALE
Holding
A dismissal order cannot be made retrospective; the officer was deemed superannuated on completing thirty years of service, and back‑wages are limited to half salary up to superannuation with a prescribed deposit for the heirs.
Summary
Ram Niwas Bansal, a bank officer, was charged with financial irregularities and dismissed on 23 April 1985. The High Court set aside the dismissal, directing reinstatement only to enable a fresh enquiry because the enquiry report had not been furnished, and ordered back‑wages until the earlier of superannuation or final order. The Bank later issued a dismissal order on 22 November 2001 with retrospective effect from 23 April 1985. The Supreme Court held that a dismissal order cannot operate retrospectively, that the officer became superannuated on completing 30 years of service on 25 February 1992, and that back‑wages are limited to half the salary for the period up to superannuation, with a further Rs 5 lakh to be deposited for the legal heirs. The appeal was disposed of with these directions.
Issues considered
- Whether an employer can pass a dismissal order with retrospective effect.
- Whether the officer stood superannuated after completing thirty years of service on 25‑02‑1992 under the 1979 Regulations.
- Whether the legal heirs are entitled to full back wages up to the date of the later dismissal order or only up to the date of superannuation.
Legislation cited
Subjects
disciplinary proceedingsretrospective dismissalsuperannuationback wagesnatural justiceState Bank of Patiala Officers' Service RegulationsIndustrial Disputes Actdeemed continuancereinstatement
Judgment
[2014] 3 S.C.R. 984
A STATE BANK OF PATIALA AND ANOTHER
v.
RAM NIWAS BANSAL (DEAD) THROUGH LRS.
(Civil Appeal No. 239 of 2003)
MARCH 3, 2014
B
[H.L. GOKHALE AND DIPAK MISRA, JJ.]
SERVICE LAW:
C Disciplinary proceedings - Punishment of dismissal from
service on 23.4.1985 - Full Bench of High Court ordered
reinstatement on the ground that non-supply of enquiry report
had caused serious prejudice to the delinquent employee and
on that basis set aside the order of punishment and directed
the disciplinary authority to grant an opportunity to the
0 employee to reply to enquiry report and pass appropriate
orders after granting personal hearing to him - The Bank
completed the disciplinary proceedings and passed an order
of dismissal with retrospective effect - Challenged - Held: The
direction of Full Bench of High Court for reinstatement was a
E direction for reinstatement for the purpose of holding a fresh
enquiry from the stage of furnishing the report and no more -
The Bank passed an order of dismissal on 22.11.2001 with
effect from 23. 4. 1985 - On the face of the said order, it is
absolutely unacceptable that the Bank in 2001 can pass an
F order with effect from 23. 4. 1985 which would amount to
annulment of the earlier judgment of the Full Bench of High
Court - When on the date of non-furnishing of the enquiry
report, the delinquent officer was admittedly not under
suspension, but was in service, fie would continue in service
G till he is dismissed from service in accordance with law or
superannuated in conformity with the Regulations - The order
of removal cannot be made retrospective.
H 984
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 985
(DEAD) THROUGH LRS.
STATE BANK OF PAT/ALA (OFFICERS') SERVICE A
REGULATIONS, 1979:
Regulation 19(1), provisos - Date of superannuation -
Entitlement to back wages - Whether till the date of
superannuation or till the date of dismissal - Held: The first B
proviso to Regulation 19(1) states 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 - Unless an extension is granted by a positive or an
affirmative act by the competent authority, an officer of the C
Bank retires on attaining age of 58 years or upon the
completion of 30 years of service, whichever occurs first -
Order of dismissal was passed on 22. 11.2001 while the
employee completed 30 years of service on 25.2.1992 - The
claim for grant of full salary for the whole period till the order
of removal is, therefore, not sustainable as the officer stood D
superannuated on completion of 30 years - 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 only.
E
The delinquent employee was bank officer in the
appellant-bank. He was charge-sheeted in the year 1980.
for certain financial irregularities. Two supplementary.
charge-sheet were also issued to him in 1981 and 1982.
The Enquiry Officer submitted his report to the General F
Manager 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 gave recommendation for removal of G
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. The appointing authority
agreeing with the findings recorded by the Enquiry H
986 SUPREME COURT REPORTS [2014] 3 S.C.R.
A Officer and the recommendations of the disciplinary
authority, imposed the penalty of removal by order dated
23.4.1985. The order imposing punishment of removal
and a copy of the enquiry report was sent to the
delinquent who then unsuccessfully who filed an appeal
B under Regulation 70 of the 1979 Regulations. He then
filed writ petition before the High Court.
On 22.5.1998, the Full Bench of the High Court held
that non-supply of comments of the General Manager had
C 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 respondent to reply to the enquiry
report and pass appropriate orders after granting
D personal hearing to him in accordance with law. The
appellant-Bank challenged the said order before the
Supreme Court. On 12.4.1999, Supreme Court directed
stay of reinstatement of the respondent with the direction
that the Bank would comply with the provisions of
E Section 17-B of the Industrial Disputes Act, 1947. 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
F of the appeal.
On 20.8.1999 the Bank filed application for
modification of the order dated 12.4.1999 on the ground
that Section 17-B of the Act was not applicable. On
G 6.12.1999, the Supreme Court, leaving the question of law
open, dismissed the appeal of Bank. 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
H
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 987
(DEAD) THROUGH LRS.
date fixed for personal hearing. The respondent filed an A
application CM No. 1965 of 2001 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 B
removal on 22.11.2001 with effect from 23.4.1985.
On 23.11.2001, CM No. 1965 of 2001 was disposed of
by the Full Bench by the impugned order wherein it was
held that the delinquent officer was never placed under C
suspension; that 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 for the reasons best known
to the concerned authority. D
The three issues for consideration in the instant
appeal were, (i) whether the employer Bank could have,
in law, passed an order of dismissal with retrospective
effect; (ii) whether the delinquent officer stood E
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 F
for that matter till the date of superannuation, that is,
25.2.1992.
Disposing of the appeal, the Court
HELD: 1. The judgment by Full Court passed on ~
22.5.1998 had attained finality inter se parties. The Full
Bench took note of the fact that the report of the enquiry
officer was not furnished to the delinquent officer as a
result of whi~h he was deprived of the benefit of knowing
the contents of the report and submitting his version with H
988 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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 showed that the
B recommendations of the General Manager (Operation)
were taken into consideration. The said direction of Full
Court for reinstatement is a direction for reinstatement for
the purpose of holding a fresh enquiry from the stage of
furnishing the report and no more. The direction for
c reinstatement was stayed by the Supreme 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 di~ciplinary
0
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. On the
earlier round the punishment was set aside and direction
for reinstatement was passed. Thus, on the face of the
E 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
F 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
G Regulations. The order of removal cannot be made
retrospective. [para 27, 30) [1011-D-F; 1014-H; 1015-A-G]
Managing Director, ECIL, Hyderabad v. B. Karunakar
and Ors. (1993) 4 SCC 727: 1993 (2) Suppl. SCR 576 R.
H Jeevaratnam v. State of Madras AIR 1966 SC 951: 1966 SCR
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 989
(DEAD) THROUGH LRS.
404 - relied on. A
The Gujarat Mineral Development Corporation v. Shri
P.H. Brahmbhatt (1974) 3 SCC 601: 1974 (2) SCR 128; P.H.
Kalyani v. Mis. Air France, Calcutta AIR 1963 SC 1756 :
1964 SCR 104 ; Mis. Sasa Musa Sugar Works (P) Ltd. v. B
Shobrati Khan AIR 1959 SC 923: 1959 Suppl. SCR 836;
Management of Ranipur Colliery v. Bhuban Singh AIR 1959
SC 833: 1959 Suppl. SCR 719; R. Thiruvirkolam v.
Presiding Officer and Anr. (1997) 1 SCC 9: 1996 (8) Suppl.
SCR 687; Gujarat Steel Tubes Limited and Ors. v. Gujarat C
Steel Tubes Mazdoor Sabha and Ors. (1980) 2 SCC 593:
1980 (2) SCR 146; Punjab Dairy Development Corporation
Ltd. and Anr. v. Kala Singh and Ors. (1997) 6 SCC 159: 1997
(1) Suppl. SCR 235; Desh Raj Gupta v. Industrial Tribunal
IV, U.P. (1991) 1 sec 249: 1990 (1) Suppl. SCR 411;
Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani and Ors. D
AIR 1998 SC 185: (1997) 8 SCC 713; Vishweshwaraiah Iron
and Steel Ltd. v. Abdul Gani and Ors. (2002) 10 SCC 437;
Pradip Chandra Parija v. Pramod Chandra Patnaik (2002) 1
SCC 1: 2001 (5) Suppl. SCR 460 ; Engineering Laghu
Udyog Employees' Union v. Judge,Labour Court and E
Industrial Tribunal and Anr. (2003) 12 SCC 1: 2003 (6) Suppl.
SCR 253; Workmen v. Motipur Sugar Factory AIR 1965 SC
1803: 1965 SCR 588; Workmen v. Firestone Tyre & Rubber
Co. of India (P) Ltd. (1973) 1 SCC 813: 1973 (3) SCR 587;
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal F
Sharma and Ors. (2002) 2 SCC 244: 2002 (1) SCR 284;
Punjab Beverages (P) Ltd. v. Suresh Chand (1978) 2 SCC
144: 1978 (3) SCR 370 - referred to.
2.1. The first proviso to Regulation 19(1) states that G
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
H
990 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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,
B 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
C 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
0
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
E the Bank and left it to be agitated in appropriate
proceeding. [Para 32] [1016-F-H; 1017-A-C]
2.2. Regulation 19(2) lays down that if the disciplinary
proceedings have been initiated against an officer during
F 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 the case
at hand, the disciplinary proceeding was initiated against
G 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
H proceed in the disciplinary proceeding from that stage.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 991
(DEAD) THROUGH LRS.
The said order was not interfered with by this Court. The A
Bank continued the proceeding. 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 B
been passed after finalization of the departmental
proceeding on 22.11.2001. 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. [Paras 34, 38] [1018-C-D; 1020-G-H; c
1021•A-D]
2.3. For the purpos~ 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 D
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, it
requires an affirmative act by the competent authority, for
it is an exercise of power of discretion and further the E
said discretion has to be exercised where the grant of
extension is deemed desirable in the interest of the Bank.
As the facts would reveal, in the year 1992 the concerned
officer stood removed from serifice and at that juncture
to expect the Bank in law to intimate him about his date F
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 G
attaining age of 58 years or upon the completion of 30
years of service, whichever occurs first. The first proviso
would have full play and it should be apposite to
conclude that the delinquent officer stood superannuated
on completio_n of 30 years of service on 25.2.1992. It is H
992 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B completion of thirty years of service. [Para 39] [1021-E-
G, H; 1022-A-B, G-H; 1023-A-B]
UCO Bank and Anr. v. Rajinder Lal Capoor (2007) 6
SCC 694: 2007 (7) SCR 543; Ramesh Chandra Sharma v.
Punjab National Bank and Anr. (2007) 9 SCC 15: 2007 (7)
C SCR 585; State Bank of India v. Ram Lal Bhaskar and Anr.
(2011) 10 SCC 249: 2011 (12) SCR 1036 - relied on.
3. The order of removal from service would come
into effect from the date of passing of the order, i.e.,
0 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. The claim made by employee for
E grant of full salary for the whole period till the order of
removal is not sustainable as 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.
F 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
G 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, lhe
matter would have been dealt with differently. Be that as
H it may, grant of salary in entirety for the period as
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 993
(DEAD) THROUGH LRS.
determined to be the period of continuance in service A
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, the Bank would have been asked
to pay fifty per cent of the back wages for the period B
commencing 23.4.1985 till the end of February, 1992, with
some interest but to give quietus to the controversy and,
the Bank is directed to 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 c
entitled to withdraw the same. If the amount earlier
deposited has not been withdrawn by the original
respondent, the same shall also be withdrawn by the
legal heirs. [Paras 40, 41) (1023-C-F; 1024-C-H; 1025-A]
C.L. Verma v. State of Madhya Pradesh and Anr. 1989 D
Supp (2) SCC 437; A.P. State Road Transport Corporation
and Ors. v. Abdul Kareem (2005) 6 SCC 36: 2005 (1) Suppl.
SCR 918; A.P. SRTC and Anr. v. B.S. David Paul (2006) 2
SCC 282: 2006 (1) SCR 2006; J.K. Synthetics Ltd. v. K.P.
Agrawal and Anr. (2007) 2 SCC 433: 2007 (2) SCR 60 • E
relied on.
Case Law Reference:
1993 (2) Suppl. SCR 576 relied on Para 9
F
1966 SCR 404 relied on Para 15
1974 (2) SCR 128 referred to Para 15
1964 SCR 104 referred to Para 16
1959 Suppl. SCR 836 referred to Para 16 G
1959 Suppl. SCR 719 referred to Para 18
1996 (8) Suppl. SCR 687 referred to Para 19
1980 (2) SCR 146 referred to Para 19 H
994 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 1997 (1) Suppl. SCR 235 referred to Para 20
1990 (1) Suppl. SCR 411 referred to Para 20
(1997) 8 sec 113 referred to Para 21
(2002) 1o sec 437 referred to Para 22
B
2001 (5) Suppl. SCR 460 referred to Para 22
2003 (6) Suppl. SCR 253 referred to Para 23
1965 SCR 588 referred to Para 23
c
1973 (3) SCR 587 referred to Para 23
2002 (1) SCR 284 referred to Para 25
1978 (3) SCR 370 referred to Para 25
D 2007 (7) SCR 543 relied on Para 34
2007 (7) SCR 585 relied on Para 35
2011 (12) SCR 1036 relied on Para 37
E 1989 Supp (2) sec 437 relied on Para 39
2005 (1) Suppl. SCR 918 relied on Para 40
2006 (1) SCR 2006 relied on Para 40
2007 (2) SCR 60 relied on Para 40
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 239
of 2003.
From the Judgment and Order dated 23.11.2001 of the
G High Court for the States of Punjab and Haryana at Chandigarh
in CM No. 1965 of 2001 in C.W.P. No. 4929 of 1986.
WITH
T.C. (C) No. 79 of 2013.
H Vil<as Singh, Sanjay Kapur, Lekha Vishwanath, Priyanka
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 995
(DEAD) THROUGH LRS.
Das for the Appellants. A
P.S. Patwali (for Nikhil Nayyar) for the Respondent.
The Judgment of the Court was delvered by
DIPAK MISRA, J. 1. Ram Niwas Bansal, predecessor-in- B
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 c
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 o
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 O~icer and
recommended for removal of the delinquent officer from the E
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, F
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 G
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 H
996 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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.
B 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
C 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
D 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
E 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
F the appeal. H 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.
G 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
H Court. On 6.12.1999 this Court, leaving the question of law
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 997
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
open, dismissed the civil appeal as well as the contempt A
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 8
report to the employee wherein it was mentioned that he should
appear before the disciplinary authority on the date fixed for
personal hearing. lri 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 C
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. 0
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 E
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
F
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 fac_ts 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 G
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. H
998 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
c 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
D Managing Director, EC/L, Hyderabad v. B. Karunakar and
others1 and came to hold that:
"The Full Bench having decided in no uncertain terms that
serious prejudice was caused to the petitioner in the
E 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
F 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
G
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
H 1. (1993) 4 sec 121.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 999
. (DEAD) THROUGH LRS: [DIPAK MISRA, J.)
the respondent Bank was obliged to pay salary in terms A
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 B
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 C
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 D
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. E
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 F
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 G
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.
H
1000 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 12. On a perusal of the writ petition it transpires that the
petitioner therein referred to the order passed by the Futl 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
B 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
c 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
0
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
E 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
F 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;
G (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.
H
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1001
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
15. Regard being had to nature of controversy, we shall A
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 B
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 c
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,
0
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 E
of the order should ot be given the fullest effect. The said
principle has been followed in The Gujarat Mineral
Development Corporation v. Shri P.H. Brahmbhatt3.
16. Mr. Vikas Singh, learned senior counsel has heavily
relied on the Constitution Bench decision in P.H. Kalyani v. F
Mis. 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 G
preparation of load-sheets on one day and a balance chart on
another day, which mistakes might have led to a serious
2. AIR 1966 SC 951.
3. (1974) 3 sec 601.
4. AIR 1963 SC 1756. H
1002 SUPREME COURT REPORTS [2014] 3 S.C.R.
A accident to the aircraft. An enquiry was fixed by the Station
Manag_er. 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,
B 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
c 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
D 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
E 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
F 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
G 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 Mis. Sasa Musa
H
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1003
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
Sugar Works (P) Ltd. v. Shobrati Khan 5 wherein it was A
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 B
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 C
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 D
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 E
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 F
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. G
Bhuban Singh6 and thereafter held thus:-
5. AIR 1959 SC 923.
6. AIR 1959 SC 833. H
1004 SUPREME COURT REPORTS [2014] 3 S.C.R.
A "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 pnma facie case for dismissal, and whether
B 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,
c 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
D
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
E 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
F 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
G 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
H case should take effect from the date from which the
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1005
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
Labour Court's award came into operation must fail." A
19. In this regard, we may refer to a two-Judge Bench
decision in R. Thiruvirkolam v. Presiding Officer and another.
In the said case, the appellant was dismissed from service and
a domestic enquiry was instituted on 18.11.1981 on proof of B
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 C
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 D
Gujarat Steel Tubes Limited and others v. Gujarat Steel
· Tubes Mazdoor Sabha and others 6 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 E
in Punjab Dairy Development Corporation Ltd. and another
v. Kala Singh and others9 wherein a three-Judge Bench was
dealing with a reference made by a Bench of three Judges to
consider the correctness of the decision in Desh Raj Gupta v.
Industrial Tribunal IV, U.P. 10• The thfee-Judge Bench referred F
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 G
found that the domestic enquiry conducted by the employer-
?. (1997) 1 sec 9.
8. (1980) 2 sec 593.
9. (1997) 6 sec 159.
10. (1991) 1 sec 249. H
1006 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 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
B 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
c 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: -
0
"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
E 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
F 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
G 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.
H
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1007
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
Following the judgment of the Constitution Bench, we hold A
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 B
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 C
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 D
arising under Section 33 of the l.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 E.
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 F
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 G
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
11. AIR 1998 SC 185. (1197) 8 sec 713. H
1008 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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
C 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
D 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
E cannot make a reference directly to a Constitution Bench;
this has been laid down in the judgment in Pradip Chandra
Parija v. Pramod Chandra Patnaik13 • It is, therefore, that
this Constitution bench will not decide the reference."
23. In this context, a reference to a three-Judge Bench
F decision in Engineering Laghu Udyog Employees' Union v.
Judge, Labour Court and Industrial Tribunal and another14
would be apt. In the said case a contention was canvassed on
behalf of the workmen that the view taken by the High Court to
the extent it held that the order of termination would relate back
G 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
12. (2002) 10 sec 437.
13. (2002) 1 sec 1.
H 14. (2003) 12 sec 1.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1009
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
earlier decisions, opined that Section 11-A of the Act confers A
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 B
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 c
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 D
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 E
in some of the matters including Gujarat Steel Tubes was not
based on a sound premise, particularly when the binding
decisions of the Court in Workmen v. Motipur Sugar Factory15
and Workmen v. Firestone Tyre & Rubber Co. of India (P)
Ltd. 16 had not been taken note of. F
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 G
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
15. AIR 1965 SC 1803.
16. (1973) 1 sec 813. H
1010 SUPREME COURT REPORTS [2014] 3 S.C.R.
A emerging from earlier decisions. The relevant propositions are
as follows: -
"32. From those decisions, the following principles broadly
emerge:
B (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
c order, has to give an opportunity to th~ 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.
D (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
E 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
F
is found to be defective.
(8) * * *"
25. In Jaipur Zita Sahakari Bhoomi Vikas Bank Ltd. v.
G 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 Chand18•
17. c2002) 2 sec 244.
H 18. (1978) 2 sec 144.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1011
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
26. We have referred to the aforesaid line of judgments A
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 B
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 C
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 D
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 E
findings of the enquiry report. The High Court opined that the
delinquent officer had suffered serious prejudice. Thereafter,
the Court referre~ to the order of punishment passed· by the
Managing Director which apparently shows that the
recommendations of the General Manager (Operation) were F
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 G
furnished to the delinquent officer, as such, he ne,ver 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 H
1012 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B 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: -
c "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
D 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.
E 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
F 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
G 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
H Court observed that the answer to the said question has to be
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1013
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
relative to the punishment awarded. When the employee is A
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 B
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 c
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 D
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.
E
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 F
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 G
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 H
1014 SUPREME COURT REPORTS (2014) 3 S.C.R
A 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 Courtrrribunal finds that the furnishing of the report
B 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
c 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
D 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 proceeding_s and depending on
E 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
F 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
G 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
H
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1015
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
and appreciated on the principles stated in 8. Karunakar A
(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. B
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 c
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 8. 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
0
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 E
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, F
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 G
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. H
1016 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G 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
H and was promoted as Grade-II Officer in 1971 and as Grade-
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1017
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
I Officer in 1977. Even if this provision is extended to him, he A
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 B
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 c
commented on the validity of superannuation in the year 1992
as pleaded by the Bank and left it to be agitated iQ 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
0
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 E
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 F
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: -
G
"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 H
1018 SUPREME COURT REPORTS [2014) 3 S.C.R.
A 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
B 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."
c
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
o can continue even after his retirement at the discretion of the
Managing Director and for the said limited purpose the officer
shall be deemed to be in service. In this regard it is worthwhile
to refer to the decision in UCO Bank and another v. Rajinder
Lal Capoor19, wherein the appellant-Bank was grieved by the
E 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
F 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
G 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
H 19. c200?) 6 sec 694.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1019
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
pay and/or allowance after the date of superannuation. He A
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
8
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 C.
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 D
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."
E
35. In this context, reference to the authority in Rame.sh
Chandra Sharma v. Punjab National Bank and another20
would be fruitful. In the said case the High Court had ruled that
the appellant therein could not have been dismissed from
service after his retirement. This Court referred to Regulation F
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 G
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
20. c2001) 9 sec 1s. H
1020 SUPREME COURT REPORTS (2014] 3 S.C.R.
A 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."
B 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
C 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."
D
37. Slightly more recently in State Bank of India v. Ram
Lal Bhaskar and another2 1, 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
E 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,
F 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
G 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
H 21. (2011) 10 sec 249.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1021
(DEAD) THROUGH LRS. [DIPAK MISRA. J.]
order of punishment was set aside b~ the High Court and the A
officer concerned was directed to be reinstatec;l 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
proceed_ing. Needless to emphasise, the said continuance was B
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 h'ave been passed
after finalization of the departmental proceeding on 22.11.2001. c
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 D
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 E
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 F
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 G
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 H
1022 SUPREME COURT REPORTS [2014] 3 S.C.R.
A 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
B years or upon the completion of 30 years of service, whichever
occurs first. In this regard the pronouncement in C.L. Verma v.
State of Madhya Pradesh and another22 is apt to refer. In the
said case the effect of Rule 29 of Madhya Pradesh State
Municipal Service (Executive) Rules, 1973 fell for interpretation.
c 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
0
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
E 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
F 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
G 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
H 22. 1989 Supp. (2) sec 437.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1023
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
Regulation deal with a conditional situation to cover certain A
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 B
of order of first removal, i.e., 23.4.1985 till 25.2.1992would 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 C
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 D
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 . E
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 F
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 G
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 Pau/24 and J.K. Synthetics Ltd. v. K.P. Agrawal and
23. (2005) 6 sec 36.
24. (2006) 2 sec 2a2. H
1024 SUPREME COURT REPORTS [2014] 3 S.C.R.
A anotheF 5 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 .
B 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
C 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
D 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
E 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
F 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,
G 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
H 2s. c2001) 2 sec 433.
STATE BANK OF PATIALA v. RAM NIWAS BANSAL 1025
(DEAD) THROUGH LRS. [DIPAK MISRA, J.]
deposited has not been withdrawn by the original respondent, A
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 B
and the transfer case are disposed of leaving the parties to
bear their respective costs.
D.G. Appeal disposed of.
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