The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 266 of 2023 (Letters Patent Appellate Jurisdiction) 1. The Bank of India through its Chairman-cum-Managing Director, Star House, C-5, “G” Block, Bandra-Kurla Complex, Bandra (East), P.O. & P.S.-Bandra, District-Mumbai-400051; 2. The Zonal Manager, Bank of India, Hazaribag, Zonal Office, Saketpuri, Hazaribag, P.O. and P.S. Hazaribag, P.O. and P.S. Hazaribag, District Hazaribag; 3. The Deputy General Manager-cum-Disciplinary Authority, Bank of India, Hazaribag, Zonal Office, Saketpuri, P.O. and P.S. Hazaribag, District Hazaribag; ….……Respondents/Appellants Versus
Legal Reasoning
1. Arun Kumar Srivastava, son of Radhe Prasad Srivastava, resident of Shivpuri, Hazaribag, P.O. & P.S.-Hazaribag, District-Hazaribag; …………. Petitioner/Respondent 2. G.H. Sarangi-cum-Enquiry Officer, Bank of India, Hazaribag, Zonal Office, Saketpuri, Hazaribag, P.O. and P.S. Hazaribag, District Hazaribag, ……….Respondent No.4/Proforma Respondent --------------- CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NAVNEET KUMAR For the Appellants-BOI For the Respondent No. 1 : Mr. Rohit Ranjan Sinha, Advocate : Mr. Utkarsh Krishna, Advocate --------------- 18th March 2024 Per, Shree Chandrashekhar, A.C.J. The Bank of India through its Chairman-cum-Managing Director and other officers have preferred this appeal to challenge the writ Court’s order dated 14th September 2022 passed in WP(S) No. 7295 of 2016. 2. the punishment order dated 15th July 2014 by which he was awarded Before the writ Court, the respondents have laid a challenge to punishment of (i) reduction of basic pay to lower stage in the time of scale of pay by four stages upto and inclusive of his date of superannuation (ii) denial of back wages and (iii) the period between 5th February 2004 till reinstatement in service shall be treated as period not spent on duty and (iv) deprivation of any consequential benefit for the aforementioned period. 3. the respondent while serving under Briefly stated, the 2 LPA No. 266 of 2023 appellant-Bank of India was served a charge memo on 4th June 2003. In the departmental proceeding, the inquiring officer submitted a report on 16th October 2003 and the second show-cause notice was issued to him on 15th November 2003. The disciplinary authority imposed major punishment of (i) compulsory retirement under Regulations 4(h) of Bank of India Officer Employees (Discipline and Appeal) Regulations, 1976 and (ii) reduction of one increment for three years without cumulative effect by an order dated 5th February 2004. The punishment order was approved by the Appellate and the Revisional Authorities and, aggrieved approached the writ Court in WP(S) No. 562 of 2005. 4. The writ Court having regard to the gravity of the charge thereby, the respondent framed against the respondent and the law on the subject as regards quantum of punishment as held by the Hon’ble Supreme Court in “Ranjit Thakur v. Union of India & Ors.” (1987) 4 SCC 611 and “Dev Singh v. Punjab Tourism Development Corporation Ltd. and Anr.” (2003) 8 SCC 9 came to a conclusion that the punishment of compulsory retirement from service was disproportionate to the charge framed and found proved in the domestic Pursuant to the writ Court’s order, the disciplinary authority has inquiry, and remitted the matter to the Departmental Authority for passing a fresh order as regards the punishment to be imposed on the respondent. 5. passed the punishment order on 15th July 2014, which was under challenge in WP(S) No. 7295 of 2016. 6. The writ Court held that the Bank of India having reduced the punishment of compulsory retirement must be deemed to have accepted the fact that the punishment of compulsorily retirement was not proper and excessive and therefore the period during which the respondent remained out of job cannot be treated as the period not spent on duty. As regards grant of back wages, the writ Court referred to “Raghubir Singh v. General Manager, Haryana Roadways, Hissar” (2014) 10 SCC 301 and “Jayantibhai Rojibhai Patel v. Municipal Council, Narkhed & Ors. (2019) 17 SCC 184 and formed an opinion that the respondent is entitled for back wages of Rs.7,50,000/-. 7. The appellant-Bank of to challenge India seeks the aforementioned findings of the writ Court primarily on the ground that the respondent who did not perform his duty is not entitled for back wages, 3 LPA No. 266 of 2023 applying the rule of “no work no pay”. Mr. Rohit Ranjan Sinha, the learned counsel for the appellant-Bank of India submits that considering the charge found proved against the respondent which pertains to lack of integrity and devotion to duty the disciplinary authority rightly denied back wages to the respondent and held that the period between penalty of compulsory retirement and the date of reinstatement shall not be treated as period spent on duty. 8. As the writ Court did not interfere with the punishment of “reduction in basic pay to lower stage in the time of scale of pay by four stages up to and inclusive of his date of superannuation”, the challenge laid by the Bank of India is confined to the back wages and interregnum period between punishment of compulsory retirement and reinstatement in service. This is by now quite a well-settled law that an employee cannot be deprived of back wages for the period during which he was illegally prevented from performing his duty. In the present case, by virtue of the order of compulsory retirement dated 5th February 2004, the respondent could not perform his duty. He remained out of job for a period over a decade on account of punishment order dated 5th February 2004, retiring him compulsorily. In W.P(S) No. 562 of 2005, the writ Court did not approve the punishment of compulsorily retirement. The appellant-Bank of India while accepting the writ Court’s order reviewed the punishment order and passed a fresh order on 15th July 2014 reinstating the respondent in services. 9. In this state of affairs, the writ Court rightly observed that the Bank of India must be deemed to have accepted that the order of compulsorily retirement was not justified. As to the grant of compensation for back wages, we think that the writ Court’s decision to award Rs. 7,50,000/- to the respondent in lieu of full back wages is just and proper. The issue in relation to grant of full back wages was considered exhaustively in “M/s. Hindustan Tin Works Pvt. Ltd. v. The Employees of M/s Hindustan Tin Works Pvt. Ltd. & Ors.” (1979) 2 SCC 80 wherein the Hon'ble Supreme Court held as under: “9. It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken 4 LPA No. 266 of 2023 away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law's proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen's demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen. In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them. A Division Bench of the Gujarat High Court in Dhari Gram Panchayat v. Safai Kamdar Mandal and a Division Bench of the Allahabad High Court in Postal Seals Industrial Cooperative Society Ltd. v. Labour Court II, Lucknow have taken this view and we are of the opinion that the view taken therein is correct. 10. The view taken by us gets support from the decision of this Court in Workmen v. Calcutta Dock Labour Board. In this case seven workmen had been detained under the Defence of India Rules and one of the disputes was that when they were released and reported for duty, they were not taken in service and the demand was for their reinstatement. The Tribunal directed reinstatement of five out of seven workmen and this part of the award was challenged before this Court. This Court held that the workmen concerned did not have any opportunity of explaining why their services should not be terminated and, therefore, reinstatement was held to be the appropriate relief, and set aside the order of the Tribunal. It was observed that there was no justification for not awarding full back wages from the day they offered to resume work till their reinstatement. Almost an identical view was taken in Management of Panitole Tea Estate v. Workmen. 11. In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to 5 LPA No. 266 of 2023 it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (see Susannah Sharp v. Wakefield).” 10. In “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya” (2013) 10 SCC 324 the Hon’ble Supreme Court observed as under: “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 11. dismissed. For the foregoing reasons, LPA No. 266 of 2023 is (Shree Chandrashekhar, A.C.J.) (Navneet Kumar, J.) Nishant