Karnataka High Court
Bank Of Maharashtra vs The Joint Secretary on 27 September, 2024
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WA No.3132/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WA NO. 3132 OF 2018
BETWEEN
BANK OF MAHARASHTRA,
A BODY CORPORATE CONSTITUTED
UNDER THE BANKING COMPANIES
(ACQUISITION AND TRANSFER
OF UNDERTAKINGS) ACT V OF 1970,
HAVING ITS ZONAL OFFICE
AT NO.15, POLICE STATION ROAD,
BASAVANAGUDI,
BENGALURU - 560 004,
NOW REP BY ITS ZONAL MANAGER,
SMT. CHITRA SIRISH DATAR.
...APPELLANT
(By SRI. B.C. SEETHA RAMA RAO, ADVOCATE )
AND
THE JOINT SECRETARY,
BANK OF MAHARASHTRA EMPLOYEES UNION,
C/O BANK OF MAHARASHTRA,
NO.343, 3RD MAIN, SFS - 407,
4TH PHASE, YELAHANKA NEW TOWN,
BENGALURU - 560 064.
...RESPONDENT
(By SRI. K.B. NARAYANASWAMY, ADVOCATE)
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WA No.3132/2018
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER
DATED 4/10/2018 MADE BY THE HON'BLE SINGLE JUDGE IN
WP 4648/2015 [L-TER] WHILE GRANTING THE PRAYERS MADE
IN THE WRIT PETITION.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 26.06.2024, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
V KAMESWAR RAO J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) This appeal has been filed by the Bank of Maharashtra challenging the order dated 04.10.2018 passed by the learned Single Judge in WP No.4648/2015, whereby the learned Single Judge has dismissed the writ petition filed by the appellant-Bank.
2. The facts to be noted for the purpose of this appeal and so contended by the learned counsel for the appellant are, the employee, for whom the respondent- Union has appeared, namely Sri. Vijay Singh Chavan (referred as 'the employee' hereinafter) was working as Daftary at Hospet Branch of the appellant-Bank, along -3- WA No.3132/2018 with Sri. M.B. Joshi (another employee of the appellant-Bank), who had advised one Sri. B.Narayana Singh, an Office Boy working for M/s Babulal Jain and Company to withdraw the amount of Rs.15,000/- on 16.10.2004, Rs.20,000/- on 17.10.2004 and Rs.35,000/- on 23.04.2004 from the Savings Bank Account No.9328 of a customer of the appellant-Bank namely Sri. Arjunappa vide the withdrawal slips, by providing specimen signatures of Sri. Arjunappa to Sri. B.Narayana Singh, who was a regular visitor to the said branch in connection with his employer's bank transaction.
3. Sri. Arjunappa had complained to the said Branch Manager stating that he has not withdrawn the said amounts from his Savings Bank Account. It was revealed that the signature appearing on the withdrawal slips are forged and not the signatures of the account holder Sri. Arjunappa. It is the case of the appellant-Bank that the enquiry also revealed that Sri. B.Narayan Singh who was coming to the Branch to deposit the amount of his employer, has caused the signature of Sri. Arjunappa and -4- WA No.3132/2018 has withdrawn the money. On interrogation, Sri. B.Narayan Singh gave a written statement dated 29.05.2004 stating that when he had come to deposit amount of his owner in the said Branch, the employee and Sri. M.B.Joshi have given the specimen signature of Sri. Arjunappa and it is as per their say, he had forged the signature of Sri. Arjunappa on the withdrawal slips and after the withdrawal of the money, the employee and Sri. M.B.Joshi had taken the money from him.
4. The aforesaid became the subject matter of a charge sheet issued to the employee, whereby his explanation was sought. The employee did not submit any reply to the charge sheet. The Disciplinary Authority, by exercising its powers, ordered for a full-fledged departmental/domestic enquiry by appointing an Enquiry Officer and by a separate order, appointed an Official of the Bank as Management Representative to present the case of the Management in the enquiry. The Enquiry Officer, who was appointed to conduct the enquiry proceedings, has submitted his report, wherein the -5- WA No.3132/2018 Enquiry Officer held the two charges levelled against the employee as proved. Pursuant to the process laid down under the rules, the Disciplinary Authority imposed the punishment of compulsory retirement with superannuation benefits i.e., pension/provident fund/gratuity as would be due under the rules.
5. The appeal filed by the employee to the Appellate Authority was rejected.
6. The employee approached the Assistant Labour Commissioner-cum-Conciliation Officer under the provisions of Industrial Disputes Act, 1947. The conciliation proceedings failed, which resulted in the appropriate Government making a reference to the Central Government Industrial Tribunal-cum-Labour Court at Bengaluru ('CGIT' for short) in the following manner:
"Whether the action of the management of Bank of Maharashtra, Bangalore Karnataka State in imposing the punishment of Compulsory Retirement from service on Shri Vijaya Singh Chavan, Ex-Daftary is justified? If not, to what relief the workman is entitled to?"-6- WA No.3132/2018
7. The CGIT, based on the pleadings, had framed the following issues:
"Point No.1: Whether the finding of the Enquiry Officer charge is proved is perverse?
Point No.2: If not, whether the punishment imposed for the proved misconduct is disproportionate?
Point No.3: What Order/Award?"
The final conclusion of the CGIT was the following: "8. As already adverted to by me above the Domestic Enquiry being held as fair and proper observing that the non-examination of Sh. Narayana Singh author of Ex M-25 alleging that CSE and MB Joshi, Clerk shown him the specimen signature of Arjunappa the Account holder and assisted him to forge his signatures on the withdrawal slips whether sufficient to accept the charge is a matter to be considered while considering the finding of the Enquiry Officer now I have to appreciate the evidence brought on record by the management as to whether same is sufficient to support the finding of the Enquiry Officer charge stands proved.
9. The evidence of none of the five witnesses examined by the management point out finger towards the CSE/I Party either directly or indirectly he having shown the specimen signature of the SB Account holder Arjunappa to Narayan Singh or receiving from his part of the withdrawan amount to the extent of -7- WA No.3132/2018 Rs.35000.00 who allegedly submitted forged vouchers and drawn amount from his account. The Enquiry Officer without testifying Narayan Singh allegedly gave a letter of confession having withdrawn money by submitting forged withdrawal slips from the account of Arjunappa being assisted by Sh. M B Joshi, Clerk and CSE/I Party through letter produced at Ex M-25 could not have placed reliance on such a letter. Even if the said Narayan singh admitted having submitted forged withdrawal slip to draw the money from the account of SB A/c Arjunappa unless as regard his allegations that he was aided by CSE/I Party by showing the specimen signature of Arjunappa testified himself by giving evidence in the enquiry such a statement that finds in his letter at Ex M-25 could not have been relied upon by the Enquiry Officer. The learned advocate appearing for the II Party who was unable to point out any circumstantial or direct evidence against the CSE/I Party he having advised B Narayan Singh to withdraw the amount from the account of Sh. Arjunappa showing him the specimen signature for the purpose of forging his signatures on the vouchers and alter receiving Rs. 35000.00 from him simply submitted that since the CSE/I Party did not give any reply to the charge sheet that itself is sufficient to held him guilty of the charges levelled against him. With due respect to the learned advocate appearing for the Il party his argument is bereft of any merits because only because the CSE/I Party failed to give his reply to the charge sheet itself is proof of the charges levelled against him there was no need for the management to proceed to hold the -8- WA No.3132/2018 Domestic Enquiry. In other words as CSE failed to give his reply to the charge sheet it can be presumed that he denied the charges as such the management decided to hold the Domestic Enquiry. Therefore, unless the management placed cogent evidence before the Enquiry Officer, the Enquiry Officer only because the CSE had not given reply to the Charge Sheet could not held charge as being proved. In my considered view in the absence of Sh. Narayan Singh testifying. himself as regards the contents of his letter at Ex M-25 involving I Party the Enquiry Officer erred in placing reliance on Ex M-25 in coming to the conclusion the charges as stands proved. In other words, in the absence of the evidence of Sh. Narayan Singh the Enquiry Officer holding the charge as stands proved is perverse and is not sustainable.
10. Since the Disciplinary Authority on the basis of such a perverse finding imposed the punishment of compulsory retirement and same came to be upheld by the Appellate Authority they are unsustainable. Accordingly, while answering the Point No. 1 in the affirmative and Point No. 2 as does not survive for consideration since the II Party failed to rebut the evidence of the I Party that he is not gainfully employed after receiving the impugned punishment he is entitle for reinstatement with full backwages, continuity of service and all other consequential benefits that he would have received in the absence of the impugned punishment of compulsory retirement. In the result, I pass the following -9- WA No.3132/2018 ORDER The reference is allowed holding that the action of the management of Bank Maharashtra, Bangalore Karnataka State imposing the punishment of in compulsory retirement from service on Shri Vijaya Singh Chavan, Ex-Daftary is not justified and that he is entitle for Reinstatement into Service with full backwages, continuity of service and all other consequential benefits that he would have received in the absence of the impugned punishment of compulsory retirement."
(emphasis supplied)
8. From the above, it is noted that the CGIT has held the punishment of compulsory retirement on the employee is not justified and he is entitled to re-instatement in service with full backwages, continuity of services with all other consequential benefits.
9. The basis for the CGIT to hold so was because the Enquiry Officer has proved the charge on the basis of Ex.M25/1 which is a letter dated 29.05.2004 written by Sri. B.Narayan Singh alleging that the employee and Sri. M.B.Joshi, the clerk shown him the specimen signature of Sri. Arjunappa, the account holder and assisted him to forge the signature on the withdrawal slips, is totally
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WA No.3132/2018misplaced as the appellant-Bank could not have placed reliance without testifying Sri. B. Narayan Singh who was the author of the said letter. The CGIT was also of the view that the appellant-Bank could not able to prove through circumstantial or direct evidence, against the employee, that he had advised Sri. B.Narayan Singh to withdraw the amount from the account of Sri. Arjunappa by showing the specimen signature for the purpose of forging his signatures on the vouchers and withdraw the money. Even the CGIT was of the view that the plea advanced by the appellant-Bank that merely because the employee has not filed the reply to the charge sheet, it cannot be presumed the charge against the employee has been proved. In substance, the finding was that as Sri. B.Narayan Singh, was not produced in the proceedings, the Enquiry Officer holding the charge stands proved is perverse and not sustainable.
10. Even the learned Single Judge, while dismissing the challenge made by the appellant-Bank has, in paragraphs No.9 and 10, stated as under:
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"9. The case of the respondent before the Labour Court is that a falsecharge sheet was filed to save the skin of the responsible officers for the alleged act of passing the forged withdrawal slips and the enquiry officer in a hurried manner without any direct or circumstantial evidence against him having shown the specimen signature of the customer, held him guilty of the charges which is perverse and even otherwise the punishment of compulsory retirement is disproportionate.
10. Ex.M-25 is the letter dated 29.5.2004 of Sri B Narayan Singh alleging that concerned employee and M B Joshi, clerk shown him the specimen signature of Arjunappa, the account holder and assisted him to forge his signatures. The Enquiry Officer without testifying Narayan Singh who allegedly gave a letter of confession having withdrawn money by submitting forged withdrawal slips from the account of Arjunappa being assisted by concerned employees, could not have placed reliance on such a latter. Even if the said Narayan Singh admitted having submitted forged withdrawal slip to draw money from the account of Arjunappa, unless the allegations that he was aided by the concerned employee by showing the specimen signature of Arjunappa, testifying him in the enquiry, such a statement in the letter cannot be relied upon by the Enquiry Officer. Simply because no reply is offered to the charge sheet, that itself is not sufficient to hold that charges against the employee are proved. The evidence of the management witnesses does not show that the employee had shown the specimen signature
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of the account holder or that the employee received the amount to the extent of Rs.35,000/-. Unless Ex.M- 25 is proved by examining its author, the enquiry officer was in error in placing reliance on the said letter and also concluding that charge stands proved."
11. In other words, the basis for the learned Single Judge to dismiss the writ petition was primarily for the same reasons which prevailed with the CGIT to answer the reference in favour of the employee.
12. The submission of Sri. B.C.Seetharama Rao, learned counsel for the appellant even before us is primarily that the learned Single Judge has failed to consider that a departmental enquiry has to be dealt differently unlike a criminal case where strict proof of guilt beyond reasonable doubt is required. In other words, on preponderance of probability, the charge as framed against the employee has been proved based on Ex.M25/1 and as such the charge being serious, the punishment of compulsory retirement imposed on the employee is justified. This he say so because, as per the deposition of MW-1 the signature on Ex.M25/1 (Letter) (though referred as Ex.M25 in the impugned order) tallies with the
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WA No.3132/2018signature on Exs.M21/2 and M22/2 (Cheques). In other words, the signature of Sri. B.Narayan Singh having tallied with the signature made by him on the other connected documents, the charges are proved. In fact, he goes on to state that the employee did not seriously challenge the confession statement of Sri. B.Narayan Singh. According to him, non-filing of the reply to the charge sheet by the employee is as good as the employee accepting the charge, which has been framed against him and as such, the employee has been rightly imposed the punishment of compulsory retirement. He states, the reliance placed on the judgments have not been considered in right perspective, resulting in the dismissal of the writ petition. In support of his submissions, learned counsel for the appellant has relied upon the following judgments of the Supreme Court:
i) M.P. State Electricity Board -Vs.- Jarina Bee (Smt.) [(2003) 6 SCC 141];
ii) Anil Kumar Gupta and Others -Vs.- State of Bihar and Others [(1996) 7 SCC 83];
iii) General Manager, Haryana Roadways -Vs.-
Rudhan Singh [(2005) 5 SCC 591];
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WA No.3132/2018
iv) Rajasthan State Road Transport Corporation, Jaipur -Vs.- Phool Chand (Dead) through LRs [(2018) 18 SCC 299];
v) U.P. State Brassware Corpn. Ltd. and Another -Vs.- Uday Narain Pandey [(2006) 1 SCC 479].
He has also relied upon the judgment of this Court in Goetze (India) Ltd., and Another -Vs.- H.R. Thimappa Gowda [ILR 2016 KAR 1057].
13. On the other hand, Sri. K.B.Narayana Swamy, learned counsel for the respondent would justify the award of the CGIT dated 07.02.2014 and also the order dated 04.10.2018 passed by the learned Single Judge. According to him, the CGIT was right in holding that without Sri. B.Narayan Singh, the author of Ex.M25/1, to enable him to prove the said document and also without giving opportunity to the employee to cross-examine Sri. B.Narayan Singh on the circumstances which made Sri. B.Narayan Singh, write the letter dated 29.05.2004 (Ex.M25/1), the charge cannot be said to have been proved. He states that the award of the CGIT is self- speaking and has been rightly accepted by the learned
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WA No.3132/2018Single Judge. In support of his submissions, he has relied upon the following judgments of the Supreme Court:
i) Union of India -Vs.- Sardar Bahadur [(1972) 4 SCC 618].
ii) Shiv Nandan Mahto -Vs.- State of Bihar and Others [(2013) 11 SCC 626] ;
iii) Deepali Gundu Surwase -Vs.- Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others [(2013) 10 SCC 324];
iv) Mackinnon Mackenzie and Co. Ltd. -Vs.-
Mackinnon Employees Union [(2015) 4 SCC 544];
v) Anoop Sharma -Vs.- Executive Engineer, Public Health Division No.1, Panipat (Haryana) [(2010) 5 SCC 497];
vi) Jasmer Singh -Vs.- State of Haryana and Another [(2015) 4 SCC 458];
vii) M/s Hindustan Tin Works Pvt. Ltd. -Vs.-
The Employees of M/s Hindustan Tin Works Pvt. Ltd. and Others [(1979) 2 SCC 80];
viii) Fisheries Department, State of Uttar Pradesh -Vs.- Charan Singh [(2015) 8 SCC 150];
ix) Union of India -Vs.- Sardar Bahadur [(1972) 4 SCC 618];
x) Hardwari Lal -Vs.- State of U.P. and Others [(1999) 8 SCC 582];
xi) Roop Singh Negi -Vs.- Punjab National Bank and Others [(2009) 2 SCC 570];
xii) R.M. Yellatti -Vs.- Asst. Executive Engineer [(2006) 1 SCC 106];
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WA No.3132/2018
xiii) M/s. Bareilly Electricity Supply Co. Ltd. -
Vs.- The Workmen and Others [1971 (2) SCC 617];
xiv) Rajinder Kumar Kindra -Vs.- Delhi Administration through Secretary (Labour) and Others [(1984) 4 SCC 635];
xv) M.L. Bose and Co. Pvt. Ltd. -Vs.- Its Employees [AIR 1961 SC 1198];
xvi) A.P.S.R.T.C. -Vs.- B. Vikram Reddy [(2003) 11 SCC 570].
Analysis:
14. Having heard the learned counsel for the parties, the short issue which arises for consideration is whether the CGIT is justified in answering the reference made by the appropriate Government in respect of imposition of punishment of compulsory retirement on the employee by holding that, the conclusion of the Enquiry Officer holding the charges as proved is a perverse finding, which conclusion has been upheld by the learned Single Judge?
15. There is no dispute nor is contested that, the Enquiry Officer has proved charges against the employee on the basis of Ex.M25/1. The relevant conclusions arrived at by the Enquiry Officer on both the charges are the following:
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"Charge No.01:
This allegation is based on the information furnished by MW-4 in his letter M-25.
It has been concluded by me at (a) above that the fraud has actually taken place, at
(b) that M-25 has correctly been marked as an exhibit, and at (d) that on application of the principle of 'preponderance of probability', the evidential value of M-25 has been accepted.
In M-25, MW-4 Shri B. Narayan Singh has clearly mentioned the name of the CSE and another person who took him to Pai Hotel and showed the specimen signature of the holder of the S. B. Account No. 9328, Sri Arjunappa, and also induced him to commit forgery with an assurance to give Rs.6,000/- for doing this. Further it is alleged in M-25 that the CSE took Rs.35,000/- from MW-4, which amount was withdrawn by MW-4 fraudulently, thus confirming the motive for the allegation made in the charge.
Thus, there is enough circumstantial evidence to substantiate the allegation made under this charge.
Charge No.02:
This allegation is based on the information furnished by MW-4 in his letter M-25.
It has been concluded by me at (a) above that the fraud has actually taken place, at
(b) that M-25 has correctly been marked as an exhibit, and at (d) that on application of the principle of 'preponderance of probability', the evidential value of M-25 has been accepted.
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WA No.3132/2018Sri Narayan Singh (MW-4) in his letter dated 29.5/2004 (M-25) has mentioned the name of CSE, who followed him after taking the payment of Rs.35,000/- and took the money from him.
Findings of the E.O.: This charge stands proved".
16. But the fact remains that Ex.M25/1 which is so-called confession statement, alleged to have been written by Sri. B.Narayan Singh and produced in the enquiry proceedings, cannot be said to have been proved as the author thereof (Sri. B.Narayan Singh) was not produced in the proceedings. A document is required to be proved by the person who has written the same. In other words, it is Sri. B.Narayan Singh who should have proved the document and also the contents thereof. Merely because the signatures of Sri. B.Narayan Singh on Ex.M25/1 matches with the signatures on the other documents must not necessarily mean the signatures on all the documents were of/by Sri. B.Narayan Singh. Assuming for a moment the document has been accepted/proved, surely the employee is within his right to cross-examine Sri. B.Narayan Singh on the contents
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WA No.3132/2018thereof as through the contents, the Enquiry Officer has implicated the employee. In that sense, his presence in the proceedings was required. Failure to produce Sri. B.Narayan Singh in the proceedings, the contents of Ex.M25/1 cannot be read against the employee herein. We agree with the conclusion reached by the CGIT in holding that the findings of the Enquiry Officer proving the charge are perverse findings. It follows, the reference was rightly answered by the CGIT in favour of the employee. If such being the conclusion of the CGIT, the learned Single Judge has rightly upheld the award.
17. Insofar as judgments relied upon by Sri. Seetharama Rao are concerned, the said judgments have no applicability to the facts of this case. One of the plea of Sri. Rao was, the CGIT could not have granted full backwages in favour of the employee. On this, Sri. Narayanswamy has relied upon the judgment of the Supreme Court in the case of Fisheries Department (supra), wherein the Supreme Court has, in paragraphs No.24 to 27, held as under:
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"24. Thus, the principle of "no work no pay" as observed by this Court in a catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tubewell Operator is erroneous in law in the first place, as held by us in view of the abovestated reasons.
25. The respondent and his family members have been suffering for more than four decades as the source of their livelihood has been arbitrarily deprived by the appellant. Thereby, the right to liberty and livelihood guaranteed under Articles 19 and 21 of the Constitution of India have been denied to the respondent by the appellant as held in Olga Tellis v. Bombay Municipal Corpn. 10, wherein this Court has held thus: (SCC pp. 571-72, para
32) "32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood.
Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far- reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to
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WA No.3132/2018livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Barsky¹¹ that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. 'Life', as observed by Field, J. in Munn v. Illinois means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.13"
(emphasis supplied)
26. Therefore, with respect to the judicial decisions of this Court referred to supra, we hold that the appellant is liable to pay 50% back wages in favour of the respondent from the date of the termination order dated 22-8-1975 till the date of the award passed by the Industrial Tribunal i.e. 24-2-1997.
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27. Insofar as the awarding of full back wages to the respondent by the High Court in its judgment and order dated 18-7-2006¹ for the period 24-2-1997 to 31-1-2005 is concerned, we retain the same. The appellant is further directed to pay full back wages to the respondent after computing the same on the basis of the revised pay scale and pay him all other monetary benefits as well. The aforesaid direction shall be complied with by the appellant within four weeks from the date of receipt of the copy of this order."
(emphasis supplied)
18. So, the reliance placed by Sri. Rao on the judgment in the case of MP Electricity Board (supra), which judgment was also considered by the Supreme Court in Fisheries Department (supra), as such the judgment of MP Electricity Board (supra) is distinguishable. Sri. Narayanswamy has also relied upon the judgment in the case of Shiv Nandan Mahto (supra) wherein the Supreme Court has, in paragraphs No.8 and 9, held as under:
"8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench
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would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service.
9. Consequently, the appeal is allowed. The order¹ passed by the Division Bench is quashed and set aside. The appellant has already been reinstated in service. The respondents are, however, directed to pay to the appellant the entire full back wages from the period he was kept out of service till reinstatement. The full back wages shall be paid to the appellant with 9% interest. Let the amount be paid to the appellant within a period of three months from the date of receipt of copy of this order."
(emphasis supplied)
19. Similarly, in Jasmer Singh (supra), the Supreme Court, on a similar issue, in paragraphs No.21 and 22, held as under:
"21. The said relief in favour of the appellant workman, particularly the full back wages is supported by the legal principles laid down by this Court in
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Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalayalı wherein the Division Bench of this Court to which one of us was a member, after considering three-Judge Bench 12 decision, has held that if the order of termination is void ab initio, the workman is entitled to full back wages.
22. The relevant paragraph of the decision is extracted hereunder: (Deepali Gundu case, SCC p. 344, para 22) "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
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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." "
(emphasis supplied)
20. Even in the case of Deepali Gundu Surwase (supra), the Supreme Court has, in paragraph No.38.5, held as under:
"38.5. The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the
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employee/workman his dues in the form of full back wages."
21. Similarly in Mackinnon Mackenzie and Co. Ltd. (supra), the Supreme Court was concerned with an issue wherein the appellant-Company has retrenched the services of the workmen. The case of the appellant- Company was, the retrenchment was granted on the closure of clearing and forwarding department/unit of the appellant-Company. The Supreme Court did not find any evidence adduced in support of its stand on the issue of the reinstatement and back wages. The contention of the appellant-Company was that the workmen could not be reinstated and/or back wages paid to them since department/unit of the appellant-Company where they were employed is no more in existence. The Supreme Court did not accept the contention on behalf of the appellant-Company, insofar as back wages were concerned, by stating in paragraph No.55, by relying upon Deepali Gundu Surwase's case (supra) (by reproducing paragraph No.22 of the said judgment), which we reproduce as under, dismissed the appeal:
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"55. This Court opined thus in Deepali Gundu Surwase [(2013) 10 SCC 324 : (2014) 2 SCC (L&S) 184] : (SCC p. 344, para 22)
"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
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WA No.3132/2018due 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." "
22. At this stage, we may also refer to the judgments as relied upon by Sri. Seetharama Rao on the issue that the respondent could not have been given the full back wages by relying upon the judgment of the Supreme Court in Rajasthan State Road Transport Corporation, Jaipur (supra). In the said judgment, the Supreme Court was concerned with facts wherein the appellant-
Corporation dismissed the employee namely Sri. Phool Chand from service after holding departmental inquiry on the ground of dereliction of duties on various occasions while he was in the employment. Sri. Phool Chand challenged the dismissal before the Labour Court.
The Labour Court vide award dated 26.02.1996, held the charge against Phool Chand as proved, but interfered with the quantum of punishment. The Labour Court converted the punishment of removal from service to that of 'stoppage/forfeiture of four annual grade increments
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without cumulative effect' and directed the reinstatement of the workman in service with full back wages for a period of 13 years. The Single Judge of the High Court dismissed the writ petition filed by the Corporation and affirmed the award passed by the Labour Court. Similarly, the Division Bench of the High Court dismissed the special appeal and upheld the order of dismissal by learned Single Judge, which gave rise to filing of appeal before the Supreme Court. Suffice to state, the judgment is clearly distinguishable in as much as the Labour Court has held the charge which has been framed against Phool Chand as proved, but, interfered with the quantum of punishment by reducing punishment of removal from service to that of stoppage/forfeiture of four annual increments without cumulative effect. Whereas, in the case in hand, though the Enquiry Officer has proved the charges against the employee, but the CGIT has found fault with the finding of the Enquiry Officer who has proved the same only on the basis of Ex.M25/1 which is a letter written by Sri. B.Narayan Singh, without producing Sri. B.Narayan Singh in the witness box. It follows, the CGIT in the case in
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hand, has found fault with the conduct of the enquiry by the Enquiry Officer/the appellant-Bank. The award has been upheld by the learned Single Judge. The distinguishing factor between the judgment relied upon by Sri. Rao and this case is that, in the case relied upon by Mr. Rao, the Labour Court despite holding that the charge has been proved, had still granted full back wages which was not agreed to by the Supreme Court. Hence, the judgment is clearly distinguishable.
23. Insofar as the judgments in the cases of MP State Electricity Board (supra), Anil Kumar Gupta (supra), General Manager, Haryana Roadways (supra) and U.P. State Brassware Corpn. Ltd. (supra) are concerned, except the judgment in the case of Anil Kumar Gupta (supra), the Supreme Court has considered the other judgments in Deepali Gundu Surwase (supra).
Hence, the aforesaid judgments are distinguishable. Additionally it may be stated here that, there is a finding of fact by the CGIT in as much as the stand taken by the respondent that he is not gainfully employed after his
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WA No.3132/2018removal, has not been denied by the appellants herein. If that be so, the conclusion drawn by the Supreme Court in paragraph No.38.5 in the case of Deepali Gundu Surwase (supra) which we have reproduced in paragraph-20, above, shall be applicable on all fours.
24. In view of the aforesaid dicta of the Supreme Court, the plea of the learned counsel for the appellant that the respondent shall not be entitled to full back wages cannot be accepted. Hence, it follows, the present appeal is without any merit and is liable to be dismissed. It is ordered accordingly. No costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(C M JOSHI) JUDGE PA