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2023 DIGILAW 1002 (ALL)

Chairman and Managing Director v. Vijay Agarwal

2023-04-12

RAJENDRA KUMAR IV, SUNEET KUMAR

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JUDGMENT : 1. Heard Sri Vishnu Pratap learned counsel appearing for the appellant/respondent and Sri Ajay Rajendra, learned counsel appearing for the respondent/petitioner. 2. Petitioners, herein, a bank, by the instant intra court appeal has raised challenge to the judgment and order dated 26 July 2021, passed by the learned Single Judge in Writ-A No. 43450 of 2014 (Vijay Agarwal vs. Chairman and Managing Director Central Bank of India and others) to the extent that the impugned order has directed appellant to pay arrears of salary and consequential benefits for the period of dismissal until reinstatement. 3. The respondent/petitioner was out of service pursuant to an order of dismissal dated 4 August 2006 until his reinstatement 24 August 2013. Aggrieved, by the dismissal order the respondent/petitioner filed a writ petition being Writ-A No. 17804 of 2007, which came to be allowed only on the quantum of punishment imposed on the respondent/petitioner. The writ Court was of the opinion that the punishment imposed is not commensurate to the guilt, accordingly, a lesser punishment would suffice. The operative portion of the order reads thus : "Hence, the punishment awarded against the petitioner is disproportionate to the charges against him. Hence, the order dated 4.8.2006 passed by the disciplinary authority, respondent no. 3, the order dated 19.12.2006 passed by appellate authority, respondent no. 2 and the charge sheet dated 6.6.2005 (Annexures No. 1, 2 and 3 respectively to the writ petition) are hereby quashed. The disciplinary authority will consider the matter afresh for awarding any lesser punishment apart from dismissal or removal from service and will pass an appropriate order as expeditiously as possible preferably within two months after furnishing of the certified copy of this order. Accordingly, the present petition is hereby allowed. No order as to cost." 4. It appears that the appellant-respondent filed a review petition being Review Application No. 380227 of 2011, seeking review of the writ Court order dated 20 November 2012. The writ Court disposed of the review application clarifying that the writ Court order is required to be complied after reinstating the petitioner/employee, thereafter, consider the matter afresh for awarding lesser punishment. Relevant portion of the order reads thus : "In view of fact the judgment and order which charge sheet dated 6.6.2005 annexure-3 to the writ petition was quashed. The writ Court disposed of the review application clarifying that the writ Court order is required to be complied after reinstating the petitioner/employee, thereafter, consider the matter afresh for awarding lesser punishment. Relevant portion of the order reads thus : "In view of fact the judgment and order which charge sheet dated 6.6.2005 annexure-3 to the writ petition was quashed. It is clarified that by judgment and order dated 20.11.2012 only orders passed by the disciplinary authority and appellate authority dated 4.8.2006 and 19.12.2006 are quashed. The respondents will ensure the compliance of the judgment and order dated 20.11.2012 firstly by reinstating the petitioner employee and subsequently by considering the matter afresh for awarding lesser punishment. Accordingly, the review petition is finally disposed off." 5. In other words, the writ Court clarified that the appellant/bank is required to award a lesser punishment other than dismissal/removal. The writ Court, however, did not return a finding that the disciplinary enquiry was vitiated or that the petitioner was not found guilty of the charge levelled against him. Thereafter, in compliance, respondent/petitioner came to be reinstated in service and from the stage of charge-sheet a fresh enquiry was conducted, finally the disciplinary authority imposed punishment vide order dated 11 June 2014, bringing down two lower stages of scale of pay permanently w.e.f. 31 July 2013 (order passed on the correction application filed by the appellant) to the order passed on the review petition. Aggrieved by the punishment order, respondent/petitioner again approached the writ Court, wherein, the impugned order has been passed. 6. The appellant/respondents are aggrieved that the writ Court while upholding the order of the disciplinary authority partly, allowed the writ petition, insofar, it deprived the respondent/petitioner arrears of salary for the period for which the order of dismissal was operative. The relevant portion of the impugned order reads thus : It becomes relevant to note that upon the matter being remanded all that remained for the respondents to consider was what punishment in substitution was liable to be imposed other than dismissal or removal from service. Once the order of dismissal came to be set-aside by the Court, the only punishment which could have been imposed and was in fact imposed by the respondents themselves was of the petitioner being brought down to two lower stages in the pay scale. Once the order of dismissal came to be set-aside by the Court, the only punishment which could have been imposed and was in fact imposed by the respondents themselves was of the petitioner being brought down to two lower stages in the pay scale. The Court has not been shown any power vesting in the respondents to deprive the petitioner of emoluments for the period during which the order of dismissal operated. In view of the aforesaid discussion and to that limited extent, the Court finds itself unable to sustain the decision of the respondents. The additional submission of Sri Tiwari that on the principle of "no work no pay", the petitioner must be deprived of arrears during the period when the order of dismissal operated, is noticed only to be rejected for the following reasons. The principle of "no work no pay" would apply where a workman or employee on his own chooses not to work or discharge his duties. However, it can have no application to a case where the employer by his own action has prevented the employee from discharging duties. In the present case, the petitioner stood dismissed from service. It is therefore not a case where the petitioner of his volition chose not to discharge duties. Accordingly, the writ petition is partly allowed. The impugned order insofar as it deprives the petitioner of arrears for the period from which the order of dismissal operated stands set aside. The petitioner shall be entitled for all consequential benefits. 7. In the aforenoted backdrop, it is submitted that the earlier punishment order of dismissal/removal from service was not set aside by the writ Court on merit. No finding was returned that the findings returned in the enquiry was per se perverse or is not based on the rules applicable to the respondent/petitioner. In other words the findings returned by the enquiry officer with regard to the guilt of the respondent/petitioner was upheld. The writ Court merely remanded the matter to the disciplinary authority to award a lesser punishment as in he opinion of the Court, having regard to the facts and circumstances of the case, the punishment of dismissal/removal from service awarded to the respondent/petitioner was not commensurate to the guilt. 8. This fact was duly clarified by the writ Court in the review petition filed by the appellant/respondent. 8. This fact was duly clarified by the writ Court in the review petition filed by the appellant/respondent. Thereafter, since the order of dismissal was set aside and the court had directed the appellant/bank to reinstate the respondent, thereafter, pass an order of punishment, it would certainly not mean that the order of dismissal would relate back to the date on which it was passed. The opinion of the writ Court that while setting aside the dismissal order, it would be taken that it had never existed in the eye of law, therefore, the respondent/petitioner is entitled to back-wages is not tenable. The order of punishment was only set aside on technical grounds being not commensurate to the guilt but the enquiry against the respondent/petitioner holding him guilty was upheld and the disciplinary authority was directed to pass a fresh order of punishment lesser than that of dismissal/removal. In the circumstances it cannot be said that by setting aside the dismissal order the status quo ante would stand restored with all consequential effect. It was subject to outcome of imposition of the penalty to be imposed by the disciplinary authority. The disciplinary authority was within his competence to pass separate order with regard to back wages. 9. In Pradeep S/o Raj Kumar Jain vs. Manganese Ore (India) Limited and others (2022) 3 SCC 683 , the question before the Supreme Court was as to whether the High Court directing reinstatement of the respondent/petitioner was justified in denying him the benefit of backwages. Reliance was placed on a three Judge Bench decision rendered in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (2013) 10 SCC 324 , wherein, the principles for entitlement to backwages upon wrongful termination of service was restated. The Court held that in cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. Para 38.1 reads thus : "38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule." 10. Further, the Court held that the aforesaid rule is subject to the rider that while deciding the back wages, other factors have to be taken into consideration that is the nature of misconduct, the financial condition of the employer and similar other factors. Further, the Court held that the aforesaid rule is subject to the rider that while deciding the back wages, other factors have to be taken into consideration that is the nature of misconduct, the financial condition of the employer and similar other factors. It is required for the 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 was not gainfully employed or was employed on lesser wages. Para 38.2 and 38.3 are extracted : 38.2. 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 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 other factors. 38.3. 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 was not gainfully employed or was employed on lesser wages. ... 11. Applying the principles in the facts and circumstances of this case, termination of the respondent/petitioner was not held to be wrongful by the writ Court. Rather, the writ Court was of the opinion that a lesser punishment would suffice having regard to the guilt of the respondent/petitioner. Further, respondent nowhere pleaded that he was not gainfully employed or employed on lower wages during the period of dismissal of service. Accordingly, it cannot be said that the guilt of the respondent/petitioner stood wiped off while he was punished, rather, reinstatement was directed as a consequence of imposition of a lesser punishment, the respondent/petitioner would not be entitled to back wages, nor, consequential benefits as a consequence of such reinstatement. 12. On specific query, learned counsel for the respondent/petitioner fairly submits that the respondent has not assailed the impugned writ Court order, to the extent the learned Single Judge upheld the enquiry and the guilt of the petitioner. 13. 12. On specific query, learned counsel for the respondent/petitioner fairly submits that the respondent has not assailed the impugned writ Court order, to the extent the learned Single Judge upheld the enquiry and the guilt of the petitioner. 13. In the circumstances, while imposing lesser punishment, in the opinion of the disciplinary authority the respondent is not entitled to wages for the period he has not performed his duties would be justified in view of Deepali Gundu (supra). 14. The impugned order is, accordingly, set aside to the extent it directs payment of back wages with all consequential benefits. Having regard to the fact that the respondent/petitioner was out of employment for eight long years, it would be equitable that 30% of back wages be paid to the respondent/petitioner for the period he was out of employment. The same shall be computed and released by the appellant-bank within three months from the date of filing of certified copy of this order. 15. No cost.