Patna High Court
State Bank Of India & Ors vs Kamal Kishore Prasad & Anr on 22 April, 2010
Author: Navin Sinha
Bench: Navin Sinha, Dinesh Kumar Singh
Letters Patent Appeal No.378 OF 2003
01. STATE BANK OF INDIA THROUGH THE CHIEF GENERAL
MANAGER, STATE BANK OF INDIA, JUDGES COURT ROAD,
LOCAL HEAD OFFICE, PATNA
02. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA,
LOCAL HEAD OFFICE, JUDGES COURT ROAD, PATNA-4
03. THE GENERAL MANAGER (OPERATION, NOW D & P.B.), STATE
BANK OF INDIA, LOCAL HEAD OFFICE, JUDGES COURT
ROAD, PATNA
04. THE ASSISTANT GENERAL MANAGER, REGION-I, STATE BANK
OF INDIA, ZONAL OFFICE, FRASER ROAD, PATNA
05. THE CHAIRMAN, STATE BANK OF INDIA, CENTRAL OFFICE
NOW CORPORATE CENTRE, MUMBAI- 21
06. THE DEPUTY GENERAL MANAGER, STATE BANK OF INDIA,
ZONAL OFFICE, FRASER ROAD, PATNA-1
-----------RESPONDENTS-APPELLANTS
Versus
01. KAMAL KISHORE PRASAD, SON OF LATE NAURATMAL
SHARMA, RESIDENT OF 111, S.K. NAGAR, ROAD NO.22, P.O.-
KIDWAIPURI, P.S.-BUDHA COLONY, DISTRICT- PATNA
02. THE ENQUIRY OFFICER, STATE BANK OF INDIA, LOCAL HEAD
OFFICE, CHAMBER BHAWAN, JUDGES COURT ROAD, PATNA
-------PETITIONERS-RESPONDENTS
For the Appellants:- Mr. K.K. Sinha, Advocate
For the Respondents:- Mr. Ashwani Kumar Singh, Sr. Advocate,
Mr. Gajendra Pratap Singh, Advocate &
Mr. Pankaj Kumar Singh, Advocate
-----------
PRESENT
THE HON'BLE MR. JUSTICE NAVIN SINHA
THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH
Navin Sinha Heard learned counsel for the appellants and
& Dinesh
kumar Singh, learned counsel for the respondents.
J.J.
The respondent was a Bank employee. He was
proceeded with in a departmental proceeding and an
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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.
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.
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
3
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.
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
4
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.
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.
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.
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.
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It would therefore depend on the facts and circumstances
of an individual case.
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.
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.
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
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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.
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.
(Navin Sinha, J.)
Patna High Court, (Dinesh Kumar Singh, J.)
Dated 22nd April, 2010
N.A.F.R. P.K.