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Anil Kumar Mishra v/s State Bank of India, a Body constituted under the State Bank of India Act, Mumbai & Others

    LPA No. 299 of 2018

    Decided On, 03 February 2022

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SHREE CHANDRASHEKHAR & THE HONOURABLE MR. JUSTICE RATNAKER BHENGRA

    For the Appellant: Mahesh Tewari, Advocate. For the Respondents: Rajesh Kumar, Advocate.



Judgment Text

Chandrashekhar, J.

1. The appellant moved the writ Court with the following prayers:

“i. Issuance of appropriate Writ(s)/Order(s)/direction(s), directing the respondents to send to this Hon'ble Court entire records appertaining to the service of the petitioner;

ii. Issuance of appropriate Writ(s)/Order(s)/direction(s), quashing the letter No. HR/IR/MKP/2954, dated 21.12.2016 issued by General Manager (NW-II) Cum Appointing Authority, State Bank of India, Patna whereby and whereunder the respondent has refused to pay the salary of the petitioner for the period 20.03.3002 to 30.06.2013 (deemed superannuation) as the same has been issued against the order passed by this Hon'ble Court in W.P.(S) No. 3255/ 2003, L.P.A. No. 108/ 2008 and which has been affirmed up to the Hon'ble Supreme Court of India in S.L.P. No. 26946/2016;

iii. Issuance of further Writ(s)/Order(s)/direction(s), in the nature of mandamus, directing the respondents to immediately and forthwith pay the salary for the period from 20.03.2002 to 30.06.2013 (deemed superannuation) and entire consequential benefits to the petitioner as per law and in accordance with order dated 28.06.2016 passed in L.P.A. No. 108/2008 as the petitioner was continuously in duty.”

2. The writ petition was dismissed by an order dated 12th April 2018.

3. This case has a chequered history. The writ petitioner who at the relevant time was working as Branch Manager at Patan Branch was served with a memo dated 17th June 2000 containing Articles of Charge. The allegations against him were that: (i) he collected money from borrowers but did not deposit the same in their accounts, (ii) sanctioned loan to wives of the defaulters and collected cash from them which was never deposited, (iii) disbursed loan beyond the allocated budget without obtaining prior sanction, (iv) received less margin money in respect of PMRY loans, (v) disbursed loan of IRDP group beyond his discretionary powers, (vi) committed irregularities in sanction/ disbursement of cash credit accounts of M/s Jai Hanuman Bhandar, M/s Angad Vastralaya and M/s Shri Manoj Kumar, and (vii) sanctioned 58 IRDP loans without presanction.

4. In the departmental enquiry most of the charges were found proved against him. The charge Nos. (i), (iv) and (vi) were proved and the charge Nos. (v) and (vii) were held partly proved whereas charge Nos. (ii) and (iii) were not proved. The disciplinary authority disagreed with the findings recorded by the Enquiry Officer and issued the memo of disagreement dated 1st October 2001 and finally imposed punishment of removal from service under Rule 67(i) of the State Bank of India Officers’ Service Rules.

5. He came to the writ Court by filing WP(S) No. 3255 of 2003 which was allowed in the following terms:

“Further the departmental proceeding was initiated long back in the year 2000 and about 8 years has already elapsed. In the context of service of on employee, 8 years is a long period. If the matter is remitted for fresh order and decision on the quantum of punishment there will be further delay in disposal of the matter. Further delay in the matter would amount to denial justice to the petitioner. Moreover, as it would appear from the order of the appellate authority that the disciplinary authority had opened his mind on the quantum of punishment i.e. from lowering down the basis pay to the bottom of MMGS-II, for a period of four years coupled with the period of suspension to be treated as no on duty. That decision being of competent authority should be maintained. Accordingly, this writ petition is allowed. The impugned orders of punishment is modified by upholding the independent decision taken by the disciplinary authority whereby the petitioner was awarded penalty of lowering down his official basis pay to the bottom of MMGS-II, for a period four years and the period of suspension to be treated as not on duty. As a consequence the petitioner stands reinstated with the said punishment as earlier decided by the disciplinary authority.”

6. The State Bank of India questioned legality of the order dated 19th February 2008 passed by the writ Court, however, LPA No.108 of 2008 filed by the State Bank of India was dismissed with modification in the order dated 28th June 2016 which is in the following terms:

“33. However, the learned Single Judge committed a serious error on the question of punishment and for that reason the impugned order dated 19.02.2008 needs to be modified. The Competent Authority to pass order of punishment is the Appointing Authority who had taken a decision to impose the penalty of “reduction in the Grade of JMGSI and the period of suspension to be treated as not on duty” however, the learned Single Judge while allowing the Writ Petition modified the order of removal from service to one which was recommended by the Disciplinary Authority. In view of this error committed by the learned Single Judge, the impugned order dated 19.02.2008 passed in W.P.(S) No.3255 of 2003 is modified to the extent that the respondent shall be inflicted with penalty of “reduction in the Grade of JMGSI and the period of suspension to be treated as not on duty”.”

7. The State Bank of India took the matter in SLP (C) No. 26946 of 2016 before the Hon’ble Supreme Court. The challenge by the State Bank of India to the judgment dated 28th June 2016 passed by the Letters Patent Court was not accepted by the Hon’ble Supreme Court and Special Leave Petition was dismissed vide order dated 26th September 2016.

8. The State Bank of India therefore decided to implement the writ Court’s order as modified by the Letters Patent Court and, accordingly, letter dated 21st December 2016 was issued to the appellant which is in the following terms:

“...................... In your case, the Hon'ble Division Bench of the Jharkhand High Court has only modified your punishment to the extent reduction in the grade of JMGS-I and the period of suspension to be treated as not on duty. The Hon'ble Division Bench has exercised its discretion to award a lesser punishment [The punishment of removal from Bank's service falls in para 67(i) whereas punishment of reduction to a lower grade scale falls in para 67(g) of the SBIOSR]. The Hon'ble Division Bench has only interfered with the quantum of punishment. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, back wages does not follow as a natural consequence of such reinstatement. Moreover before the Hon'ble Single Judge, you have confined your prayer only to the extent of the quantum of penalty. The misconduct is affirmed and only the punishment is interfered with. This case falls in the category where the misconduct is proved and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment award of back wages/salary for the period when the employee has not worked may amount to awarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. Therefore, you are not entitled for the salary of the period when you were not in service i.e. from 20/03/2002 till 30/06/2013 (deemed superannuation).”

9. This order was challenged by the appellant in WP (S) No. 707 of 2017.

10. The learned writ Court dismissed the writ petition on the ground that the delinquent employee was not fully exonerated and therefore he was not entitled for back wages. The learned writ Court further held that nothing has been brought on record to show that the employee was not gainfully employed during the period he was put out of service.

11. In the order dated 12th April 2018, the learned writ Court has held as under:

“6. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that there is no illegality or infirmity in the impugned order dated 21.12.2016. The petitioner has preferred this writ petition for payment of salary of the period from 20.03.2002 to 30.06.2013. It is not a case in which the petitioner has been fully exonerated from the charges otherwise he would have been entitled for full salary of the period. Admittedly, the petitioner has been inflicted with punishment in specific and clear words, the punishment has been granted to the extent “ reduction in the grade of JMGS-I and the period of suspension to be treated as not on duty.’ The petitioner is entitled for salary, only when he is fully exonerated from the charges and has not been found guilty of any charge by the Enquiry Officer. Only because the order of punishment has been modified by this Court as granted by the Appellate Authority, it cannot be said that the petitioner is entitled for full salary of the period from 20.03.2002 till 30.06.2013. As the misconduct is affirmed and only his punishment is interfered with by this Court and admittedly, the petitioner had not rendered services and did not work in that period, the impugned order is fully justified. This case falls in the category where the misconduct is proved and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages/salary for the period when the employee has not worked, may amount to awarding the delinquent employee and as such, the petitioner is not entitled for the salary as claimed. The argument of the learned counsel for the petitioner that as the petitioner was reinstated, he was entitled for full back wages/ salary is not tenable in the eyes of law. The word reinstatement is defined and taken into consideration in case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors. reported in (2013) 10 SCC 324 reads as under:-

21. The word ‘reinstatement’ has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol. 2, 3rd Edn., the word ‘reinstate’ means to reinstall or reestablish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “ reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edn., the word “reinstate” means to reinstall; to re-establish; to place again in a former state condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black’s Law Dictionary, 6th Edn.; “reinstatement” means: “To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed.”

In the instant case, the petitioner has not been put to place from which he has been removed rather he was inflicted with punishment and as such it can be comfortably said that he was not put in the same position as was holding before the removal or termination of services. Reinstatement clearly means that employee will be put in the same position in which he would have been, but in this case, ratio does not apply, the employee has not been put to a same position and as such, he is not entitled for the back wages.”

12. Mr. Mahesh Tewari, the learned counsel for the appellant submits that the employer-State Bank of India did not permit the appellant to tender joining to any post in compliance of the order dated 19th February 2008 passed in WP(S) No. 3255 of 2003, and after the judgment in LPA No. 108 of 2008 on a post in grade of JMGS-I and while so the appellant is entitled for salary/difference in salary for the period between 20th March 2002 to 30th June 2013.

13. The contention raised on behalf of the appellant is that by virtue of the order passed in WP(S) No. 3255 of 2003 as modified by the judgment of Letters Patent Court which was affirmed by the Hon'ble Supreme Court the appellant shall be deemed to have been reinstated in service with effect from the date of dismissal.

14. There is no universal law that an employee who has been taken back in service must be paid back wages from the date of the dismissal/removal from service. The issue of back wages engaged attention of the Courts for more than 40 years; one of the most significant judgments on the issue was delivered in “Hindustan Tin Works v. Employees” (1979) 2 SCC 80. The judicial pronouncements on the issue make it more than clear that no straitjacket formula for grant of back wages can be formulated. This is, however, well settled that in a case in which the findings of misconduct of the delinquent employee are not interfered by the Court he shall not be entitled for back wages.

15. In the order dated 19th February 2008 passed in WP(S) No. 3255 of 2003, the learned writ Court made it more than clear that the order of punishment was rendered vulnerable on account of procedural irregularity and to some extent on account of violation of the rules of natural justice. We further observe that the Letters Patent Court affirmed the writ Court's order for the same reason. The paragraph No. 32 of the judgment in LPA No. 108 of 2008 reads as under:

“32. Normally, in cases of violation of rules of natural justice the matter is remitted back to the Authority to proceed in the matter after complying with the rules of natural justice however, in the present case it not required. Now, it is 16 years since chargememo dated 17.06.2000 was served upon the respondent. Moreover, in view of the findings recorded on the question of consultation with the Chief Vigilance Officer and nonsupply of the communication with the Chief Vigilance Officer, penalty order dated 20.03.2002 and appellate order dated 15.01.2003 are liable to be quashed and the impugned order of the Writ Court on this aspect does not warrant interference in the present appeal.”

16. We further find that in its letter dated 21st December 2016 the Bank gave cogent reasons for denying back wages to the appellant. The aforesaid letter issued for reinstatement of the appellant records that he had confined WP(S) No. 3255 of 2003 only to the question of quantum of punishment.

17. Insofar as the period between 19th February 2008 to 30th June 2013 is concerned, we find from the records that initially the Hon’ble Division declined to stay the order dated 19th February 2008 passed in WP(S) No. 3255 of 2003 by an order dated 16th April 2008. This order was challenged by the State Bank of India before the Hon’ble Supreme Court and operation of the aforesaid order passed by the writ Court was stayed. The order dated 27th November 2014 in LPA No. 108 of 2008 specifically mentions about the stay order granted by the Hon’ble Supreme Court in SLP(C) No. 19404 of 2008. The proceedings in LPA No. 108 of 2008 would further disclose that hearings of the appeal were postponed by the Division Bench primarily for the aforesaid reasons.

18. Mr. Mahesh Tewari, the learned counsel for the appellant, has referred to and relied upon the judgment of the Hon'ble Supreme Court in “Amarjeet Singh v. Devi Ratan” (2010) 1 SCC 417. In paragraph No.17 of the said judgment, the Hon'ble Supreme Court has observed thus:

“17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that

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the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. (Vide Shiv Shankar v. U.P. SRTC, GTC Industries Ltd. v. Union of India and Jaipur Municipal Corpn. v. C.L. Mishra.)” 19. The order passed by the learned writ Court in WP(S) No. 3255 of 2003 was kept in abeyance and as a result of which the delinquent employee cannot claim that he was illegally prevented by the employer-State Bank of India from rendering service during the aforesaid period. We further find that no finding has been returned by the Hon’ble Single Judge or Division Bench that the order of removal from service inflicted upon the appellant was patently illegal on account of which he was prevented from discharging his duties. May be, some observations of the learned Single Judge in paragraph No. 6 are not strictly in consonance with the law on the subject but for that reason any interference by this Court is not warranted. We are of the opinion that the claim raised by the appellant before the writ Court was without any substance and the learned writ Court has rightly declined to interfere in the matter. 20. Having observed so, we find no reason to interfere in the matter and, accordingly, LPA No. 299 of 2018 is dismissed.
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