Case: ALLAHABAD BANK &amp; ORS Vs. AVTAR BHUSHAN BHARTIYA

false charge, then there will be ample justification for award of full back wages. 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 victimizing the employee or workman, then the concerned Court or Tribunal 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 employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. 38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 . 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman. 32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof. 33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184 may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same. 34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150 arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand. 35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184, this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80 and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case. 36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded. 37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]25. In the light of the aforesaid facts, no great deal of research was necessary on the part of the High Court to arrive at the conclusion that the Management of the Bank was clearly at fault. Therefore, the High Court allowed the writ petition. The operative portion of the impugned order is already extracted earlier.26. It is not as though the High Court proceeded solely on the basis of the failure of the Management to supply the copy of the enquiry report. The High Court found that the charges related to a Government sponsored Scheme and that the beneficiaries were identified and were short--listed by a Government agency, namely the District Rural Development Agency. The High Court also found that no bad motive was either attributed to the employee nor proved in the departmental proceedings.27. On the basis of the aforesaid findings, the High Court could have granted all the reliefs in full, including full back--wages. But considering the fact that from the date of his dismissal namely, 31.03.1989, upto the date of his superannuation on 28.02.2013, a period of nearly 24 years had passed, the High Court thought it fit to limit the back--wages to 50%. In such circumstances, we do not think that the Management can make out any grievance, especially (i) after having violated Regulation 9; (ii) after their failure to point out to the High Court in the first round of litigation that the copy of the enquiry report was not available; and (iii) after their inability to comply with the order of the High Court passed in the first round of litigation, which was also confirmed by this Court.28. Therefore, the Special Leave Petition filed by the Bank deserves to be dismissed.29. Having dealt with the SLP filed by the Management, let us now come to the SLP filed by the Officer--employee with regard to the grant of back wages only to the extent of 50%.30. The learned counsel for the Officer--employee places heavy reliance upon the decision of this Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) & Ors. (2013) 10 SCC 324,  in support of his contention that the grant of full back wages is a normal rule in cases of wrongful termination of service.But the ratio laid down in the said decision cannot be pressed into service by the Officer--employee in this case. This is for the reason that the Officer--employee in this case was originally appointed as a Clerk way back in the year 1974. He was promoted to the post of Junior Management Grade--II in the year 1982 and as Branch Manager in the year 1987. This is why he was governed by the Allahabad Bank Officer Employees (Discipline and Appeal) Regulations, 1976. Courts should always keep in mind the different yardsticks to be applied in the cases of workman category employees and managerial category employees. In appropriate cases, the distinction between labour law and service law may also have to be kept in mind. Many times, Courts wrongly apply, in matters arising under service law, the principles laid down in matters arising under labour laws.31. As a matter of fact, the propositions elucidated in Deepali Gundu Surwase (supra), read as follows:-38. The propositions which can be culled out from the aforementioned judgments are:38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.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. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.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 victimizing the employee or workman, then the concerned Court or Tribunal 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 employers obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 .38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433  that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.32. Even if we apply the propositions enunciated by this Court in Deepali Gundu Surwase (supra), the Officer--employee may not be entitled to full back wages. This is for the reason that there is nothing on record to show whether he was gainfully employed after his dismissal from service. A careful look at the pleadings in the writ petition W.P. No.1403 of 2013 would show that he has not pleaded about his non--employment. Though in paragraphs 36 to 38 of his writ petition, the employee has pleaded about the sudden set back to his health in the year 2011 and the financial hardships he was facing, there was no assertion about his non--employment. The employee had his pleadings amended after the dismissal of his appeal during the pendency of the writ petition. Even in the amended pleadings, there was no averment relating to his non--employment. Therefore, even if we apply the ratio in Deepali Gundu Surwase (supra), the employee may not satisfy the third proposition found in para 38.3 thereof.33. The reliance placed upon the decision in Pawan Kumar Agarwala vs. General Manager-II and Appointing Authority, State Bank of India and Others (2015) 15 SCC 184  may not also be of help to the employee. It is a case where this Court applied the propositions laid down in Deepali Gundu Surwase (supra). This Court found that there was nothing to show that the employee was gainfully employed after the date of dismissal. It is needless to point out that in the first instance, there is an obligation on the part of the employee to plead that he is not gainfully employed. It is only then that the burden would shift upon the employer to make an assertion and establish the same.34. The decision in Fisheries Department, State of Uttar Pradesh vs. Charan Singh (2015) 8 SCC 150  arose out of an award of the Industrial Tribunal under the U.P. Industrial Disputes Act, 1947. Therefore, the same has no relevance to the case on hand.35. In Jayantibhai Raojibhai Patel vs. Municipal Council, Narkhed and Others (2019) 17 SCC 184,  this Court referred to the principles laid down in Hindustan Tin Works (P) Ltd. vs. Employees (1979) 2 SCC 80  and to the propositions culled out in the Deepali Gundu Surwase (supra). Though this Court held that the denial of back wages in entirety was not justified, this Court awarded only a lump-sum compensation in that case.36. Therefore, even applying the ratio laid down in various decisions, we do not think that the employee could be granted anything more than what the High Court has awarded.37. As we have pointed out at the beginning, the total period of service rendered by the Officer--employee before his dismissal from service, was about 15 years, from 1974 to 1989 and he attained the age of superannuation in February, 2013, meaning thereby that he was out of employment for 24 years. The High Court has taken this factor into consideration for limiting the back wages only to 50% and we find that the High Court has actually struck a balance. We do not wish to upset this balance. Therefore, the Special Leave Petition of the Officer--employee is also liable to be dismissed.