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2010 DIGILAW 888 (PAT)

State Bank Of India v. Kamal Kishore Prasad

2010-04-22

DINESH KUMAR SINGH, NAVIN SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. The respondent was a Bank employee. He was proceeded with in a departmental proceeding and an enquiry report submitted. Some of the charges were found not proved while others partly proved. Second show cause notice of the difference of opinion with the enquiry Officer was given by the disciplinary authority. The petitioner submitted his reply, after which the appointing authority proceeded to dismiss him from service. The appeal preferred against the same has also been dismissed. The judgment under appeal holds that it was a salutary principle of natural justice that one who heard must decide. The second show cause notice for difference of opinion was given by the disciplinary authority and who heard the respondent. A final order came to be passed by the appointing authority. The appointing authority neither gave the show cause notice nor heard the respondent, which was a violation of the basic tenet of the principles of natural justice. 3. Upholding the vires of Rule 68 (3) (III) of the state Bank of India Officers Service Rules (hereinafter as the Rules), the Court read into it the principles of natural justice to be complied with by the appointing authority to save the vires of the Rules being attacked of the punishment without opportunity. 4. The objections on behalf of the appellant before the writ Court that there is no requirement of natural justice to be complied with by the appointing authority has been fully considered and expressly negated after proper consideration. The submission that no prejudice has been caused to the respondent has also been considered adequately and negated on grounds of procedural impropriety. The contention that once the respondent submitted his reply to the appointing authority he could not urge denial of opportunity has also been considered and again negated on the ground of principles of natural justice. The order further holds that "undisputedly, the appointing authority had not given either the reasons for disagreement that the finding of the Enquiry Officer or opportunity to the petitioner to satisfy him that finding recorded by the Enquiry Officer is just and proper. " This was a conclusive finding of grounds procedural impropriety in the conduct of the proceedings. 5. The order further holds that "undisputedly, the appointing authority had not given either the reasons for disagreement that the finding of the Enquiry Officer or opportunity to the petitioner to satisfy him that finding recorded by the Enquiry Officer is just and proper. " This was a conclusive finding of grounds procedural impropriety in the conduct of the proceedings. 5. It is trite law that in case of procedural impropriety in departmental proceeding the Court with setting aside the order grants opportunity to proceed afresh from the stage of the irregularity. Adequate opportunity and direction in that regard were provided for in the impugned order. The litigation could have been brought to an end by the appellant proceeding in accordance therewith. Unfortunately, ignoring the right conferred on them, precluding themselves from the proceedings further in accordance with law the appellant obtained against itself a blanket interim order of stay of the judgment under appeal. The appellant has only itself to blame for its predicament. Even if reinstatement while directing further enquiry from the stage of error was not proper, the appellant could have obtained a limited interim order to that extent only. 6. The appeal has remained pending before this court since 2003. Modifying the judgment under appeal to the extent that we preclude the appellant Bank from taking any further steps in the matter against the respondent, the appellants are now directed to forthwith proceed to implement the judgment of this Court for reinstatement notionally as his date of superannuation was 5/11/2009. 7. That brings us to the question of back wages from the date of dismissal till his superannuation during the pendency of appeal on 5/11/2009. Earlier the petitioner had remained under suspension also. 8. The earlier judicial view was that no sooner that dismissal was set aside reinstatement and back wages followed automatically. This has now undergone a paradigm shift. Back wages do not follow as a matter of course, but are dependent on a host of other factors including the status of the employee in the interregnum. It would therefore depend on the facts and circumstances of an individual case. 9. Learned counsel for the Bank opposing any directions for payment of back wages submitted that this court had stayed the operation of the judgment under appeal on 9.5.2003. It would therefore depend on the facts and circumstances of an individual case. 9. Learned counsel for the Bank opposing any directions for payment of back wages submitted that this court had stayed the operation of the judgment under appeal on 9.5.2003. Therefore, the question of payment of any back wages simply does not arise in view of the judicial nature of the order. 10. An interim order merges with the final order. We were rather inclined to grant 50% of the back wages only to the respondent. Learned counsel for the respondent however submitted that if the appellants had been given opportunity to proceed with the enquiry from the stage of irregularity, it could have been done within a month or two, when the respondents would have either been reinstated or the dismissal would have been affirmed. In the latter event the respondent would then have chosen his one separate path. On the contrary the Bank obtained a blanket stay against itself even from holding the enquiry. Nothing precluded the appellant Bank from obtaining interim order of stay for reinstatement only, with opportunity to proceed with the enquiry. 11. We find sufficient justification and force in the submission of the respondent. We have already held that the interim order dated 9.5.2003 restraining the fresh enquiry was the creation of the appellant themselves. We therefore hold that the respondent is entitled to his full salary less the subsistence allowance paid for the period of suspension. He is also held entitled to 75% of the back wages till superannuation. He is held entitled to continuity of service from the date of dismissal till superannuation for all other service entitlements and retiral dues. Let the appellants now assess his post retiral dues forthwith, so that it is made available to him along with the aforesaid arrears within a maximum period of two months from the date of receipt/production of a copy of this order before the Bank authority. 12. It is clarified that insofar as the calculation of the retiral dues is concerned, the grant of 75% back wages shall not be construed as the yardstick of eligibility for his pay scale of retiral dues and which shall have to be in accordance with the full entitlement to wage notionally. The appeal stands dismissed.