IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5739 of 2011 Vijay Bahadur Sinha S/O Late Captn. Rajendra Prasad Sinha R/O Vill. Manohar Basant, P.S. Basant, Distt. Saran. …Petitioner Versus 1. The Bank of India through its Chairman-Cum- Managing Director, Head Office Mumbai. 2. Zonal Manager, Patna Zone and the Appellate Authority, Chanakya Place, Birchand Patel Path, Patna. 3. The Chief General Manager, (H.R.) and Disciplinary Authority, Bank Of India Chanakya Place, Birchand Patel Path, Patna. 4. The Branch Manager, Bank of India, Buxar Branch, Buxar. …Respondents For the petitioner :Mr. Chandrashekhar, Sr. Counsel For the respondents :Mr. Rupak Kumar ----------- 06. 15.09.2011 Petitioner is aggrieved by part of the order dated 26.05.2010 (Annexure-5), passed by the appellate authority of the Bank of India (for short „the Bank‟) whereunder he has been denied the salary and other benefits for the period between 23.06.2003 to 26.05.2010 (the date of passing of order under Annexure-5). Relevant facts, in brief, are as follows: During the year 1991, petitioner was posted as Clerk- cum-Cashier in Soan Branch of the Respondent-Bank in the district of Buxar where an FIR was lodged against the petitioner and two others on 18.02.1991 alleging therein that the petitioner and other accuseds had committed rape on the prosecutrix. On conclusion of investigation a charge-sheet was submitted which 2 gave rise to the S.T.No.8/93 of the court of 3rd Addl. District and Sessions Judge, Buxar, who by judgment and order dated 23.08.2001 (Annexure-1) held the petitioner guilty under sections 452 and 376 IPC and sentenced to undergo R.I. for ten years thereunder besides imposition of fine having default clause. The Chief Manager of the Respondent-Bank being the disciplinary authority vide order dated 23.06.2003 invoking jurisdiction conferred on him under the provisions of Banking Regulation Act, 1949 and also paragraph 19.3(b) of the Bipartite Settlement dated 19.10.1966 (as amended upto date) imposed punishment of dismissal by order dated 23.06.2003 (Annexure-2). Aggrieved by the aforesaid order dated 23.06.2003, petitioner filed an appeal. The appellate authority by order dated 11.08.2003 confirmed the order of dismissal inflicted on him by the disciplinary authority. Aggrieved by the aforesaid order, the petitioner filed writ petition before this Court vide CWJC No. 10271 of 2003. Said writ petition was disposed of whereunder petitioner was permitted to make representation in the event the appeal filed by the petitioner is allowed. The said appeal was allowed by judgment and order dated 30.04.2009 (Annexure-3), whereby the judgment and order of conviction appealed against was set aside. After his acquittal by this Court, the petitioner made a representation on 15.05.2009 praying therein his reinstatement in the service of the Respondent-Bank. Considering the delay in disposal of the said representation, he again approached this Court by filing a writ petition being CWJC No. 13517 of 2009. This Court by order 3 dated 26.10.2009 (Annexure-10 to the supplementary affidavit) disposed of the writ petition directing the Respondent-Bank to consider his representation in accordance with law as also in the light of the provision of the Bipartite Settlement arrived at between the Respondents-Bank and the employees. The Assistant General Manager (the disciplinary authority) of the Respondent- Bank, on examination of the mater, passed an order dated 26.12.2009, whereby petitioner was discharged from service with one month pay and allowances in lieu of notice, not amounting to disciplinary action. It was further directed, inter alia, that the period of his absence from the date of dismissal (23.6.2003) to the date of order would not be treated as the period spent on duty and no pay and allowances will be admissible for the said period. Aggrieved by the aforesaid order, the petitioner again approached this court in CWJC No. 4816 of 2010. Said matter was disposed of by order dated 16.4.2010 (Annexure-11 to the supplementary affidavit.), whereby petitioner was directed to file appeal and the appellate authority was directed to consider and dispose of the same taking into consideration the findings recorded by the appellate court while acquitting him of the criminal charge(s). In the light of the said order, an appeal was preferred which was considered and disposed of by order dated 26.05.2010 as contained in Annexure-5, part of which has been impugned in the present writ petition. The appellate authority granted the petitioner substantive relief when the order of discharge passed by the disciplinary authority of the Respondent-Bank was set aside and 4 the petitioner was reinstated in the Bank‟s service. The said authority after having done so, passed the following order: “….It is further directed that the period from the date of Dismissal vide Punishment Order bearing reference no.ZO/PAT/IL/05B/248 dated 23.6.2003 to the date of reporting for his duty shall not be treated as period spent on duty including for calculation of terminal benefits and no back wages or any pay and allowances will be payable to him for such period. The said period shall also not be counted for any other purpose and his basic pay shall be fixed at the stage where he was at the time of his dismissal vide Order dated 23.06.2003.” Learned counsel for the petitioner, while assailing the aforesaid portion of the order, submits that the same visits the petitioner with civil consequences since the petitioner was not only found entitled to the salary for the period he remained out of service but the same was also held so for the purpose of calculation of terminal benefits inasmuch as the said period was also not to be counted for any other purpose and his basic pay was to be fixed at the stage where he was at the time of his dismissal from service. It is contended that in absence of any rule-provision governing such discretion/jurisdiction of the appellate authority to pass order consequent upon reinstatement in service it was only just and proper that an opportunity of hearing by issuing show cause notice was issued enabling the petitioner to submit his explanation(s) and convince the authority that the petitioner was entitled to the same and/or part of the same. It is contended that the same having not been done, the said part of the impugned order stands vitiated in law. Reliance in this regard 5 has been placed on (1973) 3 SCC 149 (Shri B.D. Gupta vs. State of Haryana) and (2006) 5 SCC 446 (G.M.Tank vs. State of Gujarat & Ors.). Learned counsel for the respondents, on the other hand, contends that it is by now a settled proposition of law that even after punishment of dismissal imposed upon the employee is quashed and set aside the payment of back wages still remains discretionary. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. Reliance in this regard has been placed on the following judgments: 1. (2011) 5 SCC 142 (Chairman-Cum- Managing Director Coal India Ltd. & Ors. Vs. Ananta Saha & Ors.) 2. (1998) 2 SCC 291 (Hukmi Chand vs. Jhabua Cooperative Central Bank Ltd. & Anr.) 3. (2006) 7 SCC 180 (U.P.SRTC vs. Mitthu Singh) 4. (2009) 2 SCC 288 (M.D. Balasaheb Desai Shahakari S.K. Ltd. Vs. Kashinath Ganpati Kambale (para 17 & 18). On hearing the rival submissions made on behalf of the parties, it appears that part of the order dated 26.05.2010 (Annexure-5) has been assailed chiefly on the ground that the same, having serious pecuniary impact on the petitioner, has been passed without issuing any show cause notice to the petitioner and thereby affording him an opportunity to submit his explanation(s) thereagainst. 6 It is contended on behalf of the petitioner with reference to the ratio laid down in 1973 3 SCC { B.D.Gupta (Supra) para 14} that before the authority formed such an opinion, it was incumbent upon it to afford an opportunity to make suitable representation in this behalf since the order passed was designed to affect the employee financially. Learned counsel relying on the said judgment highlights that the very nature of the function implies the duty to act judicially. Admittedly there is no rule- provision governing the same and, as such, it was all the more necessary for the respondents to act in fair, reasonable and equitable manner. The Apex Court while dealing with the entitlement of back wages held that entire factual scenario and the principles of justice, equity and good conscience should be kept in view to determine the question of entitlement of back wages. Learned counsel has submitted that entire period during which he was kept out of service can be bifurcated into two different and distinct parts, one ranging between the date of lodgment of the FIR upto the date on which the petitioner was acquitted of the criminal charge by the learned appellate court and the second part would constitute the period which was consumed by the respondents in permitting him to join the post after his acquittal in criminal proceeding/trial. The petitioner could have also impressed upon the authority that he may not be entitled to back wages for the period he was out of service but his service for the said period could have been notionally counted towards payment of his post retiral/terminal benefits. In absence of an 7 opportunity granted by the appellate authority to submit his explanations with regard to the aggrieved portion of the order, the petitioner was denied a valuable right in the decision making process. The respondents have taken a stand that in terms of rule- provision, petitioner was dismissed from service on being convicted by a court of competent jurisdiction involving moral turpitude. In this connection, he relied on clause 12 of the Bipartite Agreement on disciplinary action and procedure therefor. The respondent-appellant authority has taken a lenient view in the case of the petitioner in upturning the order passed by the disciplinary authority and he was reinstated in service. It is next contended that it is not the case where the petitioner was placed under suspension in contemplation of departmental proceeding. It is a case where invoking rule-provision governing the case of the petitioner he was dismissed from service on being convicted of a criminal charge by a competent court involving moral turpitude. Learned counsel for the respondents also made a veiled attempt to demonstrate from the order of the appellate court passed on Cr. Appeal No.293/2001 (Annexure-3) that the petitioner gained over the prosecutrix and other witnesses. As a result, the witnesses turned hostile. It has been contended that the victim/prosecutrix in her deposition accepted that she had entered into a compromise with the appellant. Learned counsel for the respondents has argued strenuously with reference to several decisions of the Apex Court that grant of back wages is a 8 discretion independent of the order of reinstatement. It is thus the stand that the said discretion having been exercised and considering the factual background as also the rule-provision, no legal flaw can be found in the impugned portion of the order passed by the appellate authority as contained in Annexure-5 On a consideration of submissions, it appears that both the parties agree that there is no rule-provision which governs imposition of those conditions in a case where a delinquent/employee is directed to be reinstated in service. Such decision therefore, has to be taken in a fair, reasonable and equitable manner. There is no dispute that it is the discretion of the authority in the matter of grant/refusal of back wages for the period the employee/delinquent is out of service. Once such discretion is exercised based on appraisal of relevant materials on record, the Court should not normally interfere therewith unless it is shown to be wholly perverse and/or impermissible in law. However it appears that the appellate authority passed further order having serious impact/implication on the pecuniary benefits payable to the petitioner during the remaining part of his service as also the terminal benefits. For imposing those conditions while reinstating him back in service, in my view, the authority was required to comply with the rules of natural justice by affording an opportunity to the petitioner to submit his explanation to satisfy the authority that the facts/circumstances of the case do not warrant imposition of such conditions. Admittedly, the same has not been done. This Court therefore, is inclined to interfere with 9 the impugned portion of the order contained in Annexure-5 in the following manner: The petitioner shall file his representation in respect of the impugned portion of the appellate order before the respondent- appellate authority within four weeks from today. The said respondent shall consider his representation and thereafter pass a fresh order in accordance with law. The impugned portion of Annexure-5 shall not preclude the said respondent from passing a fresh order in accordance with law on consideration of the representation of the petitioner. hr ( Kishore K. Mandal )